may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Christopher Michael Youmans,
Filed July 6, 1999
Dakota County District Court
File No. K698385
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.
Appellant Christopher Michael Youmans challenges his conviction of a first-degree controlled substance crime. Appellant contends the district court committed reversible error by failing to instruct the jury that a witness against him was subject to accomplice liability. We affirm.
Appellant contends that Linda Morrison, a witness in appellant's trial, might reasonably have been considered an accomplice, and therefore the district court erred by refusing to give an accomplice instruction with respect to Morrison. We disagree.
To determine whether a witness is an accomplice for purposes of Minn. Stat. § 634.04, the general test is whether the witness could have been indicted and convicted for the same crime as the accused. In re Welfare of D.M.K., 343 N.W.2d 863, 866 (Minn. App. 1984). If the state could prove that a particular individual played "some knowing role in the commission of the crime," then the state would be able to prove accomplice liability with respect to that individual. State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993) (quoting State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (citation omitted)). A person is criminally liable for a crime committed by another if the person "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime." Minn. Stat. § 609.05, subd. 1 (1998). However, mere presence at the scene of the crime is not enough. See State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981) (no accomplice liability where defendant "passively acquiesced in her son's plan to kill his wife"); D.M.K., 343 N.W.2d at 867-68 (presence at scene where plans for theft were made not enough to trigger need for accomplice instruction).
Here, appellant was charged and convicted of possession with intent to sell cocaine in violation of Minn. Stat. § 152.021 (1996) and Minn. Stat. § 152.01, subd. 15(a) (1996). The only evidence in the record indicating Morrison might be appellant's accomplice is Morrison's testimony that she had previously purchased drugs from appellant and that she was in the hall when an individual retrieved a paper bag from appellant's motel room and moved it to another room. We conclude that this testimony indicates only "mere presence" and the jury could not infer from this that Morrison played a knowing role in the commission of the crime.
We conclude the district court did not err in refusing to give the accomplice instruction with respect to Morrison because there was insufficient evidence to indict and convict Morrison of the same crime as appellant.