may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
File No. J39650269
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Joel R. Welder, Faribault County Attorney, 1120 Giant Drive, P.O. Box 5, Blue Earth, MN 56013 (for respondent)
John M. Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Willis, Judge, and Holtan, Judge**
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10..
A juvenile challenges the sufficiency of the evidence supporting her delinquency adjudication on three counts of aiding, abetting, or conspiring with another to offer a forged check under Minn. Stat. § 609.05, subd. 1 (1996), § 609.631, subd. 3 (1996) and one count of third degree burglary under Minn. Stat. § 609.582, subd. 3 (1996). The evidence is sufficient on each of the four counts, and we affirm.
Following a police investigation, J.J.S. was charged with burglary, three counts of aiding and abetting check forgery, and three counts of aiding and abetting offering a forged check. At trial, the state presented evidence that J.J.S. possessed the checks, admitted to taking them from Anderson's Repair Shop, and offered them for payment. The evidence consisted primarily of testimony by three accomplices to the check forgeries.
The district court found that the state had proved the petition on four of the seven charges. J.J.S. appeals her delinquency adjudication, arguing that the evidence is insufficient to support the district court's findings that she committed (1) three counts of aiding and abetting offering a forged check, and (2) third degree burglary.
The state presented testimony from three of J.J.S.'s accomplices to the check forgeries, as well as testimony from the three Food and Fuel employees who accepted the checks, and Brian Anderson. Two of the three accomplices testified that J.J.S. possessed checks from the Frost Farmers Fire Company and admitted to stealing them from Anderson's Repair Shop. All three accomplices testified that an accomplice other than J.J.S. wrote the checks, but J.J.S. cashed them.
Under Minnesota law, a conviction cannot be based on 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." Minn. Stat. § 634.04 (1996). Although the corroborating evidence need not establish a prima facie case of the defendant's guilt, it must link or connect the defendant to the crime. State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980). The amount of corroborative evidence that is necessary depends on the facts and circumstances of each case, but whether circumstantial or direct, it must "point to the defendant's guilt in some substantial degree." Id. The testimony of one accomplice cannot corroborate that of another. In re Welfare of K.A.Z., 266 N.W.2d 167, 169 (Minn. 1978) (applying rule to juvenile adjudication).
J.J.S. challenges the state's corroborating evidence because only two of the three Food and Fuel employees who accepted the checks were able to identify her and neither identification was 100 percent certain. But "identification testimony need not be positive and certain; it is enough for a witness to testify that it is his opinion, belief, impression or judgment that the defendant is the person he saw commit the crime." State v. Harris, 405 N.W.2d 224, 228 (Minn. 1987) (citing State v. Senske, 291 Minn. 228, 230, 190 N.W.2d 658, 660 (1971) (citation omitted)).
Food and Fuel employee Robert Boettcher stated that he accepted check no. 775 from a young woman who explained that she received the check as payment from the Frost Fire Department. He said he got a good look at the person who cashed the check and identified J.J.S. as that person. Food and Fuel employee Lyle Bailey identified his initials on check no. 773 and identified J.J.S. as the person who cashed it. Bailey also testified that she claimed to have received the check as payment from a fire department. Although Food and Fuel employee Paula Kelly was not able to identify J.J.S, she did identify her initials on check no. 774. Moreover, one of the accomplices, C.D.L., linked Kelly to the third check when she testified that a "middle-aged lady" cashed one of the checks for J.J.S.
Taken as a whole and viewed in the light most favorable to the adjudication, the state's corroborative evidence points to J.J.S's guilt in a substantial degree and provides sufficient support of her accomplices' testimony.
J.J.S. argues that the state failed to provide any credible evidence of her participation in the burglary. She claims that the only evidence of her involvement was accomplice Daniel Woitas's claim that she admitted the crime. She challenges his credibility because he testified subject to a plea agreement and because of his accomplice status. As a reviewing court, we are not permitted to reweigh credibility, but must determine whether the evidence, if believed, is sufficient. See State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996) (discussing standard of review).
The record indicates that three of the state's witnesses--Woitas, C.D.L., and LeAnn Stevermer--testified that J.J.S. confessed to stealing the checks from Anderson's Repair Shop. J.J.S.'s challenge to Woitas's testimony is essentially a credibility issue. Woitas was an accomplice to the forgery, but there is no evidence that he was involved in the burglary or that his plea agreements had anything to do with the burglary. Even if Woitas were an accomplice to the burglary, J.J.S. also confessed to C.D.L. and Stevermer. Stevermer, a friend of J.J.S., provided particularly damaging testimony tying J.J.S. to the burglary. Stevermer stated that, before the burglary, J.J.S. told her there was money at Anderson's Repair Shop. She admitted to telling an investigator that J.J.S. told her she was going to break into the shop (although she recanted on this point during her examination, explaining that she lied to the investigator because she was "mad" at J.J.S.) Stevermer also stated that J.J.S. showed her the stolen checks and identified them as being from the Anderson Repair Shop. Although Stevermer recanted parts of her testimony, it is for the trier of fact to determine whether the original statement or the recantation is more credible. See Engebretson v. Commissioner of Public Safety, 395 N.W.2d 98, 99-100 (Minn. App. 1986) (discussing trial court's observation and assessment of recanting witnesses); see also In re Welfare of R.B., 369 N.W.2d 353, 358 (Minn. App. 1985). Stevermer was not involved in any of the offenses, and her testimony provides sufficient independent evidence pointing substantially to J.J.S.'s guilt.
J.J.S. further argues that because the burglary evidence is primarily circumstantial, her adjudication on that charge is subject to a higher degree of scrutiny. See Bias, 419 N.W.2d at 484. We agree that a conviction based on circumstantial evidence may stand "only where the circumstances form a `complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.'" Id. (quoting State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980)). The admissions, however, are not circumstantial evidence, but more in the nature of direct evidence. See State v. Battin, 474 N.W.2d 427, 430 (Minn. App. 1991), review denied (Minn. Oct. 23, 1991). Even if the evidence were all circumstantial, it demonstrates a complete chain. Brian Anderson had sole control over the Frost Farmers Fire Company checking account. Shortly after he reported the burglary at his repair shop, he discovered that the Frost Farmers Fire Company checkbook containing three blank checks was missing. J.J.S.'s accomplices and several independent witnesses testified that J.J.S. possessed these checks, admitted to stealing them, and attempted to cash them.
Taken as a whole, the circumstantial evidence suggests no rational theory inconsistent with guilt and is buttressed by the testimony on J.J.S.'s admissions; the evidence is sufficient to support the district court's finding that J.J.S. committed burglary at Anderson's Repair Shop.