may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
Filed April 8, 1997
Lyon County District Court
File No. JX9650060
Bruce D. Hanley, Lisa D. Dejoras, Hanley & Dejoras, P.A., 701 Fourth Avenue South, Suite 700, Minneapolis, MN 55415 (for Appellant)
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Kathryn M. Keena, Lyon County Attorney, Richard Maes, Assistant Lyon County Attorney, 607 West Main Street, Marshall, MN 56258 (for Respondent)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Mansur, Judge.[*]
On appeal from a delinquency adjudication for first-degree criminal damage to property, R.S.P. argues that the evidence was insufficient to support the adjudication and that the district court erred in denying his motion for a continuance. We affirm.
Two steps in the deep end of lane one of the Marshall High School swimming pool were damaged when someone chipped away pieces of ceramic tile below the water line. Jennifer Kron, the diving coach for the high school swimming team, testified that before opening the pool area for practice, she always glanced around it to check things over. On January 9, 1996, she did not see any objects on the bottom of the pool or anything out of the ordinary. At the beginning of practice, she sat alongside lane one to work with the diver, A.N., while the other team members swam warm-up laps.
After about 10 minutes, Kron noticed a couple of boys swimming down to the bottom of the pool in the deep end of lanes five and six. She walked over to investigate and saw three chairs, a couple of metal rings used for marking lanes, and the backstroke flag pole on the bottom of the pool. M.T. testified that J.K. threw a couple of chairs into the pool, and A.N. and A.P.W. testified that J.K. also threw the backstroke flag pole into the pool. Kron made the boys remove the objects from the pool and then supervised them swimming punishment laps in lanes four, five, and six. Kron testified that the boys began swimming punishment laps at about 3:50 p.m. and swam them for 15 or 20 minutes.
R.S.P. testified that he and A.W. arrived at practice at about 4:00 or 4:15 p.m. and swam warm-up laps in lanes one and two. Kron testified that she glanced toward R.S.P. and A.W. every 30 to 60 seconds and at one point, she saw one of them on the side of the pool deck and the other in the water directly in front of the steps. She did not recall whether R.S.P. or A.W. was in front of the steps. Kron testified that R.S.P. and A.W. were the only people in lanes one and two between 4:00 p.m. and 4:30 p.m.
A.N., who was diving into lanes two and three, testified that he saw a wrench and a ring lying on the top step about five minutes before R.S.P. and A.W. started swimming in lanes one and two; R.S.P. and A.W. stopped at the steps every time they came by and talked to each other for about three minutes; A.N. saw R.S.P. by the steps from four to seven times during practice; A.W. was not always at the steps with R.S.P.; R.S.P.'s shortest stops were about one minute and the longest one lasted for about five minutes; overall, R.S.P.'s stops probably averaged about two or three minutes; on two occasions, while underwater, A.N. heard a "tink-tink sound" like metal on metal; on at least one of these occasions, R.S.P. was at the steps; and while doing a partner swim towards the end of practice, A.N. observed about five chunks of debris on the bottom of the pool that had not been there earlier.
A.W. testified that he was swimming between lanes one and two, and R.S.P. was swimming in lane one. About midway through practice, A.W. noticed chunks of debris on the bottom of the pool. He did not look directly at the steps and did not learn that they had been damaged until the following day. The day the steps were damaged, swimmers were dropping rings onto a chair on the bottom of the pool and that made a clinking noise. Also that day, J.K. made a metal on metal noise by hitting a chair on the bottom of the pool with a wrench. R.S.P. also testified that he saw J.K. hitting the chair with a wrench. J.K. denied hitting the chair.
J.K. testified that he saw R.S.P. chipping at the steps during practice. During the punishment laps and at the beginning of the next drill, he heard a clinking noise while R.S.P. was chipping at the steps; the clinking did not sound like metal on metal or like a ring being dropped to the bottom of the pool; also during this time period, J.K. observed debris on the bottom of the pool that had not been there earlier; J.K. looked over at the steps and saw that pieces had been chipped off; and R.S.P. and A.W. were the only people J.K. saw near the steps during practice.
A member of an adult swim group, which used the pool after the high school team completed practice, reported the damaged steps to school authorities on January 9, 1996. The next day, school officials met with swim team members and their parents. All of the team members, including R.S.P., denied damaging the steps.
A delinquency petition was filed, alleging that R.S.P. committed first-degree criminal damage to property. An adjudicatory hearing on the petition was scheduled for May 15, 1996. R.S.P.'s attorney withdrew before the hearing date, and the hearing was continued until May 24, 1996. R.S.P. then retained his present counsel and filed a motion for a continuance until June 24, 1996. The district court denied the motion for a continuance.
D E C I S I O N
When the sufficiency of the evidence is challenged, this court must review
the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court will affirm a conviction based on circumstantial evidence
when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt.
State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
[A] jury normally is in the best position to evaluate circumstantial evidence, and * * * their verdict is entitled to due deference.
Webb, 440 N.W.2d at 430. This court applies the same standard when reviewing a case tried to the court as when reviewing a jury verdict. State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).
A person who "intentionally causes damage to physical property of another without the latter's consent" is guilty of first-degree criminal damage to property if "the damage reduces the value of the property by more than $500 measured by the cost of repair and replacement." Minn. Stat. § 609.595, subd. 1(3) (1994).
R.S.P. argues that the evidence was insufficient to show he damaged the steps because J.K.'s testimony lacked credibility. At trial, J.K. testified that he saw R.S.P. chipping at the steps during practice but did not notice whether R.S.P. had anything in his hand. After J.K.'s memory was refreshed with his earlier statement to police, he recalled that he saw R.S.P. hitting the steps with a lane tightening wrench or possibly a ring. At trial, J.K. testified that he heard a clinking noise intermittently during the punishment laps and at the beginning of the next drill. In his statement to police, J.K. said he first heard the clinking noise while he was swimming in lanes one and two, which was after the punishment laps were completed.
At trial, on direct examination, J.K. was certain he had only thrown two chairs into the pool. On cross-examination, he admitted he might have thrown three chairs into the pool. A defense investigator testified that J.K. admitted throwing only one chair into the pool. At trial, J.K stated he did not remember whether he threw the backstroke flag pole into the pool. In an earlier statement to an investigator, J.K. had denied throwing the backstroke flag pole into the pool.
J.K.'s testimony was impeached by inconsistencies between his trial testimony and earlier statements and by inconsistencies in his trial testimony. His testimony was also inconsistent with the testimony of A.N., A.P.W., A.W., and R.S.P. But these inconsistencies do not prove that J.K.'s testimony was false. See State v. Hanson, 286 Minn. 317, 334-35, 176 N.W.2d 607, 618 (1970) (inconsistencies in one witness's testimony and between multiple witnesses' testimony are typical and do not prove testimony was false). It was the district court's role to assess the weight and credibility of J.K.'s testimony. See State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993) (it is factfinder's role to determine weight and credibility of witnesses' testimony).
R.S.P. also argues that J.K.'s testimony was insufficient to support R.S.P.'s conviction because J.K.'s testimony was uncorroborated accomplice testimony. A conviction can rest on the uncorroborated testimony of even a single credible witness. State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969). But
[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Minn. Stat. § 634.04 (1994).
Corroborating evidence is sufficient to convict if it confirms the truth of the accomplice's testimony and points to the defendant's guilt in some substantial degree. Circumstantial evidence indicating the defendant's participation in the crime is sufficient to corroborate the accomplice's testimony.
State v. McKenzie, 532 N.W.2d 210, 223 (Minn. 1995) (citation omited), cert. denied, 116 S. Ct. 327 (1995).
An accomplice is "[a]n individual _who could have been indicted and convicted for the crime with which the accused is charged._" State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995) (quoting State v. Jensen, 289 Minn. 444, 446, 184 N.W.2d 813, 815 (1971)), cert. denied, 116 S. Ct. 972 (1996). R.S.P. contends that except for J.K.'s testimony, the evidence indicated that J.K. was the person who damaged the steps. We disagree. Although evidence showed that J.K. participated in other misbehavior during swimming practice, the evidence does not indicate that he damaged the steps.
R.S.P. claims that his testimony that he noticed the debris under the steps and damage to the steps during his third or fourth warm-up lap, and A.W.'s testimony that he noticed chunks of debris on the bottom of the pool midway through practice support an inference that the steps were damaged before the punishment laps started. J.K. admitted swimming near the steps sometime before the punishment laps started. But R.S.P. concedes that he and A.W. did not arrive at practice until after the punishment laps started. Absent evidence connecting J.K. to the damage caused to the steps, we cannot conclude he was an accomplice.
Even if J.K. were an accomplice, A.N.'s testimony corroborated J.K.'s testimony. A.N. testified that he saw a wrench and a ring lying on the top step about five minutes before R.S.P. and A.W. started swimming in lanes one and two; R.S.P. and A.W. stopped at the steps every time they came by and talked to each other for about three minutes; A.N. saw R.S.P. by the steps from four to seven times during practice, sometimes by himself; R.S.P.'s stops lasted an average of about two or three minutes with the longest one lasting about five minutes; on at least one occasion when A.N. heard a "tink-tink sound" like metal on metal while underwater, R.S.P. was at the steps; and while doing a partner swim towards the end of practice, A.N. observed about five chunks of debris on the bottom of the pool that had not been there earlier. This evidence confirmed the truth of J.K.'s testimony and indicated R.S.P.'s guilt to a substantial degree. See State v. Souvannarath, 545 N.W.2d 30, 34 (Minn. 1996) (evidence corroborating accomplice testimony need not establish a prima facie case of defendant's guilt, but is sufficient if it restores confidence in accomplice's testimony, confirming its veracity and pointing to defendant's guilt in some substantial degree), cert. denied, 117 S. Ct. 197 (1996); see also In re Welfare of K.A.Z., 266 N.W.2d 167, 170 (Minn. 1978) (evidence that defendant was one of only four students truant from class but in the school building when fires were set was sufficient to corroborate accomplice testimony). Assuming, as we must, that the district court believed the evidence presented by the state and disbelieved the evidence presented by R.S.P., the only reasonable inference from the evidence is that R.S.P. intentionally caused the damage to the steps. See Huss, 506 N.W.2d at 292 (court reviewing sufficiency of evidence claim must assume factfinder believed state's witnesses and disbelieved contrary evidence.)
R.S.P. next argues that the state presented insufficient evidence to show that he reduced the value of the property by more than $500 as measured by the cost of repair. Olympic Pool, a pool repair company located in Shakopee, charged the school district $683.90 to repair the steps. R.S.P. contends that Olympic's bill inaccurately indicated the amount of damage because it included six hours of travel time billed at $54 per hour, which equals $324. R.S.P. contends that the school district should have hired a local pool company to perform the repair. But the evidence did not show that a local pool company was able to perform the repair. Given the evidence that the district paid $683.90 to have the steps repaired and absent evidence that another company could have repaired the steps for less than $500, the evidence was sufficient to show that R.S.P. caused more than $500 damage to the pool as measured by the cost of repair.
Moreover, a school official testified that the repair was only partially completed and that Olympic Pool estimated it would cost an additional $683.90 to complete the repair, which again would include six hours of travel time. According to the school official's testimony, even if the 12 hours billed for travel time were subtracted from the estimated total cost of repairing the steps, the repair cost would exceed $500. The evidence was sufficient to support R.S.P.'s delinquency adjudication for first-degree criminal damage to property.
The district court has discretion to decide a defendant's request for a continuance. In re Welfare of T.D.F., 258 N.W.2d 774, 775 (Minn. 1977). Even if the district court abused its discretion in denying a continuance, a conviction will not be reversed unless the defendant shows he was prejudiced by the denial. Id. A defendant may establish prejudice by showing his counsel had insufficient time to prepare a defense. Id.
The adjudicatory hearing on the delinquency petition was held on May 24 and May 28, 1996. R.S.P.'s counsel submitted an affidavit in support of the motion for a continuance stating that on May 17, 1996, she informed the county attorney that her firm had been contacted by R.S.P.'s family and would be requesting a continuance if retained to represent R.S.P.; that on May 20, 1996, her firm was retained to represent R.S.P.; and that less than four days was insufficient time to adequately prepare for a felony trial.
Although R.S.P. alleges that his first attorney did not interview any of the swim team members, his present counsel did not indicate that there was insufficient time to interview witnesses or otherwise specify what she would be unable to do to adequately prepare for trial. Counsel's affidavit was insufficient to establish prejudice. Cf. State ex rel. Butler v. Swenson, 243 Minn. 24, 25, 27-28, 66 N.W.2d 1, 1, 3-4 (1954) (eight days was adequate time to prepare for criminal sexual conduct trial). The district court did not abuse its discretion in denying R.S.P.'s motion for a continuance.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.