This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of the Welfare of:

P. K., Child.

Filed January 26, 1999

Affirmed in part and reversed in part

Halbrooks, Judge

Cottonwood County District Court

File No. J19750132

John M. Stuart, State Public Defender, Charlann Elizabeth Winking, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (attorneys for appellant)

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

David Honan, Cottonwood County Attorney, 1692 17th Street, Windom, MN 56101; and

Kenneth J. Kohler, Nobles County Attorney, Kathleen A. Kusz, Assistant Nobles County Attorney, 912 Third Avenue South, PO Box 607, Worthington, MN 56187 (attorneys for respondent)

Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Holtan, Judge.[*]



Juvenile appellant alleges that the evidence was insufficient as a matter of law to support his delinquency adjudication for second-degree burglary, theft, and first-degree criminal damage to property. Appellant also challenges the first-degree criminal damage to property adjudication, alleging there is no evidence in the record to prove the amount of damage exceeded $500. Because Pha Sayachack, the state's witness, was not an accomplice and provided sufficient corroborative testimony on the burglary, we affirm. Due to the lack of evidence in the record that demonstrates damage that reduced the value of the property by $500, we reverse the adjudication of first-degree criminal damage to property.


On January 15, 1997, appellant P.K., Bounnheum Sengsavang, Pha Sayachack, Sanna Sayachack, and Somloy Tabongphet drove to Worthington to burglarize a pawn shop. The burglary was Sengsavang's idea. Upon their arrival in Worthington, the group ate at the home of a friend, Soumboun Kounlabout. After eating, the entire group went to a pool hall. While at the pool hall, the group got into an argument and decided to drive back to the cities, but were prevented from doing so by a snowstorm. As a consequence, they returned to Kounlabout's house to spend the night. At Sengsavang's urging, they subsequently decided to burglarize the pawn shop as originally planned.

Pha Sayachack testified that he wanted to participate in the burglary, but the others told him he would not be able to run fast enough as a result of childhood polio. Pha Sayachack also testified that he ultimately decided not to go because his wife called and told him she had a bad dream about the burglary. Pha Sayachack asked Kounlabout not to go, but Kounlabout went anyway. Tabongphet said he was too tired and went to bed.

Kounlabout, Sanna Sayachack, Sengsavang, and appellant left to commit the burglary. On the way to the pawn shop, they discussed the details of the burglary for the first time. Sengsavang told Sanna Sayachack to go with him into the shop, directed appellant to watch for cars, and told Kounlabout to park and stay in the car. Everyone did as instructed.

The next morning, Pha Sayachack met with the others at a friend's trailer where they divided up the guns stolen from the pawn shop. The guns were distributed one to Kounlabout, one to Sengsavang, and one to Sanna Sayachack. Testimony indicated that appellant was offered a gun, but did not accept it. Instead, Sanna Sayachack kept the gun intended for appellant. Pha Sayachack and Sanna Sayachack later turned in a gun to local law enforcement officials, but there was no evidence to suggest that Pha Sayachack ever received a gun.

Sanna Sayachack was found guilty of third degree burglary for his admitted participation in the burglary. Kounlabout pleaded guilty to aiding and abetting third degree burglary. Sengsavang was later arrested for an armed robbery of another pawn shop. Pha Sayachack was never charged. Pha Sayachack, Sanna Sayachack, and Kounlabout testified at appellant's trial.

Based on the evidence, the trial court found that Pha Sayachack was not an accomplice and that his testimony, therefore, provided adequate corroboration of the other evidence. Appellant was found guilty of all three charges, adjudicated delinquent, and disposition was imposed. This appeal followed.


Sufficiency of evidence

Minn. Stat. § 634.04 (1996) provides:

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 applies to juvenile cases. In re Welfare of K.A.Z., 266 N.W.2d 167, 169 (Minn. 1978). The testimony of one accomplice cannot corroborate that of another. Id.

The central test for determining whether a witness is an accomplice for purposes of Minn. Stat. § 634.04 is whether the witness could have been charged and convicted of the same crime as the accused. In re Welfare of D.M.K., 343 N.W.2d 863, 866 (Minn. App. 1984). Minn. Stat. § 609.05, subd. 1 (1996) states that a person is criminally liable for a crime committed by another if he "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime." Under Minn. Stat. § 609.05 (1996), defendant must play at least some knowing role, as by presence, companionship, or conduct, before or after the offense for a conviction of aiding and abetting. State v. Souvannarath, 545 N.W.2d 30, 34 (Minn. 1996), cert. denied, 117 S. Ct. 197 (1996).

Appellant argues that despite the fact that Pha Sayachack was never charged with a crime, he could have been charged as an accomplice and, therefore, his testimony did not provide sufficient corroboration to support the trial court's finding. Whether a person is an accomplice is a question of fact. State v. Smith, 264 Minn. 307, 314, 119 N.W.2d 838, 844 (1962). The trial court found that Pha Sayachack was not an accomplice. Due deference must be given to the trial court's determinations of fact. State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994).

The evidence shows that no detailed discussion of the burglary took place with Pha Sayachack present. The plan was discussed and formalized in the car on the way to the pawn shop by the individuals who actually committed the burglary. No evidence was presented to demonstrate that Pha Sayachack in any way encouraged the others to commit the burglary. On the contrary, evidence was presented that indicated that he unsuccessfully tried to talk at least one group member out of the plan. Furthermore, although Pha Sayachack was present when the others distributed the guns, the evidence was inconclusive as to whether or not he received a gun.

Pha Sayachack's involvement was similar to that of T.K. in D.M.K. D.M.K. was adjudicated delinquent of felony theft of a three-wheeler. D.M.K., 343 N.W.2d at 865. D.M.K. argued that even though T.K. was not present during the actual theft, T.K. could have been charged as an accomplice. Id. at 867. T.K. was asked to participate in the theft and an accomplice testified that T.K. even wanted to be involved. Id. at 867. There was no evidence that T.K. was a principal in engaging D.M.K. to steal the three-wheeler or that T.K. took any active role in the discussion of the theft. Id. The record only demonstrated that T.K. was present when the discussion about the crime took place. Id.

T.K. remained at home while the others stole the three-wheeler. Id. After the theft, the others brought the bike back to T.K.'s house, where T.K. helped hide it in his garage. Id. Like T.K., Pha Sayachack was not present during the actual theft, but was present afterward. The court in D.M.K. found:

T.K.'s conduct is not sufficient to elevate him to the level of an accomplice. He was not present when the crime was committed, he did not actively instigate or encourage the crime, * * * and he did not share in the fruits of the crime.

Id. at 867-68. Because the trial court did not err in finding that, like T.K., Pha Sayachack's involvement was not sufficient to make him an accomplice in the burglary, we conclude there was sufficient corroborative testimony to support the testimony of the co-conspirators.

First-degree criminal damage to property

Minn. Stat. § 609.595, subd. 1(3) (1996) requires that "the damage reduces the value of the property by more than $500 measured by the cost of repair and replacement." A review of the record shows that, despite the fact that the trial court made express findings as to the value of the stolen guns, there is no evidence in the record to establish the value of the guns or estimated damage to the pawn shop.

In reversing a judgment of conviction, the appellate court "shall either direct a new trial, or that the defendant be discharged or that the conviction be reduced to a lesser included offense or to an offense of lesser degree." Minn. R. Crim. P. § 28.02, subd. 12.

Where the state's proof is lacking only as to an element distinguishing the offense from a lesser included offense, this court has reduced the conviction to the lesser included offense and remanded for resentencing. State v. Bergstrom, 413 N.W.2d 206, 212 (Minn. App. 1987).

In this case, due to the lack of evidence in the record that damage reduced the value of the property by more than $500, we reverse the first-degree criminal damage to property conviction. We do not reduce the conviction to a lesser included offense because there is no evidence in the record of a damage amount. See Minn. Stat. § 609.595 (1996).

Affirmed in part and reversed in part.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.