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 February 24, 1998
Toussaint, Chief Judge
Brown County District Court
File No. JX9650676
Hubert H. Humphrey, III, Attorney General, 102 Capitol Building, St. Paul, MN 55155 (for respondent)
James R. Olson, Brown County Attorney, Eric A. Bartsch, Assistant Brown County Attorney, P.O. Box 428, New Ulm, MN 56073-0428 (for respondent)
Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and, Foley, Judge.**
Retired judge of the Minnesota Court of Appeals serving by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant B.M.C., a minor, was adjudicated delinquent of one count of theft and one count of receiving stolen property. Because the evidence was sufficient to support the adjudication, we affirm.
B.M.C. and his friend Jarrod Tauer entered the locker room in the Vogel Arena in New Ulm, Minnesota. An on-duty lifeguard also saw others go into that same locker room after B.M.C. and Tauer. No one testified they saw B.M.C. take anything from any locker. Contrary to B.M.C.'s testimony Tauer testified that B.M.C. was sitting near an open locker and later that evening B.M.C. gave him the stolen wallet.
B.M.C. further contends that (1) because he and Tauer were in the arena locker room together the trial court erred in failing to conclude that Tauer was at least an accomplice, if not the actual perpetrator, of the crimes charged thereby requiring the state to present evidence to corroborate Tauer's testimony; and (2) because the state failed to corroborate Tauer's testimony, the evidence was insufficient to prove that he committed the crimes charged.
When there is a challenge to the sufficiency of the evidence on appeal, this court must review the record and determine
whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the [fact finder] to reach the verdict which [it] did.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This standard applies to bench trials as well as to those before a jury. State v. Ibarra, 355 N.W.2d 125, 130 (Minn. 1984). Determinations of the credibility and weight to be given to the testimony are for the factfinder alone. State v. Lodermeier, 539 N.W.2d 396, 397 (Minn. 1995). B.M.C. and Tauer testified at the trial, and both denied having anything to do with the crimes charged. At the close of the evidence, the trial court judge stated:
I don't believe that everybody was telling the truth, but [BMC's] testimony was the most incredible based upon the testimony of all the other witnesses, including those witnesses who would be totally disinterested in this matter. And therefore between Mr. Tauer and [BMC], I find Mr. Tauer more credible.
Credibility determinations are within the province of the trial court judge. Id. Absent evidence to the contrary, we cannot say the determination of the trial court judge was error. Because we must view the evidence in a light most favorable to the conviction, we conclude the evidence was sufficient to sustain B.M.C.'s adjudication as delinquent.
On appeal B.M.C. contends that Tauer was an accomplice. Minn. Stat. Sec. 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.
This standard applies in juvenile cases. In re Welfare of K.A.Z., 266 N.W.2d 167, 169 (Minn. 1978). "An individual `who could have been indicted and convicted for the crime with which the accused is charged' may be charged as an accomplice." State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995); (quoting State v. Jensen, 289 Minn. 444, 184 N.W.2d 813, 815 (1971)). However,
[w]here the facts of the case are undisputed and there is only one inference to be drawn as to whether or not the witness is an accomplice, then it is a question for the court to decide, but if the evidence is disputed or susceptible to difference interpretations, then the question whether the witness is an accomplice is one of fact for the jury.
B.M.C. argues for the first time on appeal that Tauer was an accomplice. B.M.C. was represented by counsel at trial. B.M.C. did not make this argument to the trial court judge. We conclude, therefore, that a determination of whether Tauer was an accomplice in this matter is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (issues raised for the first time on appeal are considered waived).