may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jeremy Joshua Bassett,
Filed May 6, 1997
Brown County District Court
File No. K0-95-553
Hubert H. Humphrey III, Attorney General, William P. Hefner, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for Respondent)
James R. Olson, Brown County Attorney, 519 Center Street, P.O. Box 428, New Ulm, MN 56073 (for Respondent)
John M. Stuart, State Public Defender, Lyonel F. Norris, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mansur, Judge.
In challenging his conviction for three counts of aiding and abetting arson, appellant contends the evidence was insufficient to show his participation in the crimes. We affirm.
Michelle Brand testified at trial that on four separate occasions appellant took a 20-ounce bottle, filled it with a combustible liquid, and stuck a rag in the top. Appellant then ordered Brand to light the rag and place the bottle in a nearby car. Appellant and Brand successfully set three cars on fire. Appellant claims that he had no involvement in the fires and that Brand and another friend, Jami Emmeck, were attempting to frame him.
The jury found appellant guilty as charged. The trial court stayed imposition of appellant's sentence for ten years conditioned on appellant serving one year in jail and paying the sums of $3,027.88, $1,563.59, and $3,743.88 as restitution.
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). We must assume that the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Grube, 531 N.W.2d 484, 491 (Minn. 1995).
Appellant offers two arguments against his conviction. First, he argues that the state introduced only circumstantial evidence of his involvement in these crimes. A conviction based on circumstantial evidence requires stricter scrutiny by a reviewing court. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Circumstantial evidence, however, is entitled to as much weight as any other kind of evidence. Id. A court will only uphold a conviction based on circumstantial evidence if the record shows that reasonable inferences from the circumstantial evidence "are consistent only with the defendant's guilt and inconsistent with any rational hypothesis except that of guilt." State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995). Even though the court imposes a stricter standard of appellate review of a conviction based on circumstantial evidence, the standard still recognizes that a jury is in the best position to evaluate the circumstantial evidence surrounding the crime, and its verdict is entitled to "due deference." State v. Race, 383 N.W.2d 656, 662 (Minn. 1986). On a charge of arson, circumstantial evidence alone may be sufficient to establish the guilt of the accused. State v. McCauley, 132 Minn. 225, 231, 156 N.W. 280, 282 (1916). For these reasons, if this court finds that the circumstantial evidence introduced supports a reasonable inference of appellant's guilt, we must uphold the conviction.
Second, and perhaps more importantly, appellant argues that the only other evidence supporting his conviction is corroborative evidence provided by two accomplices. Minn. Stat. § 634.04 (1996) provides that:
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.
A person is an "accomplice" for the purposes of section 634.04 if that individual is one who has been or could be convicted of the same offense as a defendant in a criminal case. State v. Jones, 347 N.W.2d 796, 800 (Minn. 1984). The reasoning behind requiring such corroboration of an accomplice's testimony is that testimony given by "one admittedly corrupt" is likely to have been submitted in hope of clemency. State v. McLaughlin, 250 Minn. 309, 320, 84 N.W.2d 664, 672 (1957).
Corroborative evidence may be circumstantial or direct. State v. Flournoy, 535 N.W.2d 354, 360 (Minn. 1995). Circumstantial evidence, which corroborates an accomplice's testimony that incriminates the defendant, is viewed in a light most favorable to the verdict. State v. Norris, 428 N.W.2d 61, 66 (Minn. 1988). Testimony of one accomplice, however, may not corroborate the testimony of another accomplice. In re D.M.K., 343 N.W.2d 863, 866 (Minn. App. 1984).
Of all the witnesses, Brand falls the most squarely within the definition of "accomplice." Not only was Brand charged with three counts of arson in the second degree in connection with these fires, but she also admitted in open court that she had, in fact, been the person who had "torched" the three vehicles. For these reasons, it is imperative that other evidence corroborate Brand's testimony implicating appellant in all three crimes.
The prosecution offered Emmeck's testimony as corroboration. Brand testified that on the morning of August 11, she called Emmeck and told her about her and appellant's involvement in the fire. Emmeck testified that, on August 17, both Brand and appellant admitted to setting the first and second cars on fire.
But appellant argues that Emmeck is also an accomplice and therefore cannot corroborate Brand's testimony. If the state is able to prove that an individual had a knowing role in the commission of the crime, but did nothing to stop the act, then the state has proven accomplice culpability. Flournoy, 535 N.W.2d at 359. The evidence does not support appellant's claim. Both Emmeck and her mother testified that Emmeck was in Akeley, Minnesota, during the first fire. Furthermore, Brand did not call Emmeck to inform her about the fire until after it had occurred. Emmeck had no prior knowledge of the commission of this crime and therefore could not possibly have been an accomplice in the first fire.
Emmeck testified that on the evening of the second fire, she spent some time with Brand and appellant, but then went home before the fire occurred. Emmeck may fall within the definition of accomplice with regard to the second fire, however, because the record does not contain any corroborating evidence to support Emmeck's absence from the second fire and another witness, Mark Koep, originally testified that Emmeck was involved in the fire.
Emmeck testified that she was asleep in appellant's vehicle when the third fire occurred. As a result, she did not see the fire start, and when she awakened, appellant admitted that he had participated in the fire. Although the state can prove accomplice liability by showing a knowing role in the commission of the crime with which the defendant is charged, "inaction, mere knowledge, or passive acquiescence do not satisfy the requirements for accomplice liability." State v. Arrendondo, 531 N.W.2d 841, 845 (Minn. 1995). Simply because appellant alleges that Emmeck must have known that appellant and Brand intended to start the second and third car fires does not mean that Emmeck meets the requirements for aiding and abetting arson in the second degree according to Minn. Stat. §§ 609.562 and 609.05 (1996).
Even if Emmeck is, by definition, an accomplice to the second and third fires, Koep testified that appellant confessed that he had been involved in setting all three fires. Appellant argues that Koep had no personal knowledge of any of the fires because he was not living in New Ulm at that time and therefore could not corroborate Brand's or Emmeck's testimony. "[T]he testimony of an accomplice is corroborated by the confession of the accused." State v. Huebsch, 146 Minn. 34, 35, 177 N.W. 779, 779 (1920). It was not necessary for Koep, himself, to have seen appellant help start the car fires because appellant admitted doing so. Appellant further argues that Koep's testimony is not credible because he was Brand's boyfriend. When reviewing a criminal conviction, however, the appellate court may not evaluate the credibility of a witness who testified at trial; that task belongs solely to the jury. Dale v. State, 535 N.W.2d 619, 622 n.2 (Minn. 1995). We must assume that the jury found Koep's testimony credible and sufficient to corroborate Brand's testimony.
Finally, Amanda Reed testified that on the afternoon of August 11, Brand told her that she and appellant had been at the scene of the fire that occurred earlier that morning. Reed further testified that the three drove to the scene of the fire and subsequently to the impound lot to view the burned vehicle. Corroborative evidence need not establish a prima facie case of the defendant's guilt. State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980). Corroborative evidence is sufficient if it tends in some reasonable degree to confirm the truth of the testimony of an accomplice. State v. Martin, 261 N.W.2d 341, 345 (Minn. 1977). In State v. Harris, 405 N.W.2d 224, 228-29 (Minn. 1987), the court found that the testimony of an eyewitness was proper corroborative evidence of accomplice testimony, even though it was insufficient to prove identity beyond a reasonable doubt, because he was "kind of sure" the defendant was the person with the gun at the time of the shooting. Similarly, although Reed's testimony was not direct evidence of appellant's involvement in the early morning fire, it confirmed the truth of Brand's testimony.
Appellant asserts several defenses to support his contention that he did not take part in nor was present at any of the fires. Appellant presented these defenses at trial for jury consideration. It is not within the province of a reviewing court to assess the credibility of a witness's testimony at trial. Dale, 535 N.W.2d at 622 n.2. Determination of a witness's credibility is a task that belongs solely to the jury, and their verdict is entitled to due deference. Webb, 440 N.W.2d at 430. The foregoing evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach their verdict of guilty.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.