This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
In the Matter of the Welfare of: A.A.D., Child.
Affirmed in part and reversed in part
Dakota County District Court
File No. J80157117
John M. Stuart, Minnesota Public Defender, Charlann E. Winking, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant A.A.D.)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Karen L. Henke, Assistant County Attorney, 1560 Highway 55, Hastings, MN 55033 (for respondent State of Minnesota)
Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
MINGE, Judge
Appellant A.A.D. appeals her delinquency adjudication on two felony counts and one misdemeanor count, arguing that there was insufficient evidence to corroborate the testimony of her accomplices, and that the adjudication of assault should be considered a lesser-included offense of the robbery. Because the evidence is sufficient to corroborate the accomplice testimony, we affirm. However, because fifth-degree assault is a lesser-included offense of simple robbery, we vacate appellant’s adjudication for aiding and abetting fifth-degree assault.
The victim, C.B., a 16-year-old female, was set up for a confrontation or an attack by another female, E.M. E.M. was the girlfriend of L.N. E.M. was angry at the victim for trying to take her boyfriend away. L.N. and E.M. had planned for the encounter between E.M. and the victim to take place at Antlers Park in Lakeville, Minnesota. M.R. (a friend of L.N.), A.A.D. (the appellant and a girlfriend of M.R.), and A.A.D.’s twin sister had participated in the planning.
On April 13, 2001, C.B., the victim, was picked up at her home by the two boys, L.N. and M.R. They drove to Antlers Park where appellant, her twin sister, and E.M. were waiting. This was the second attempt that the boys made to bring C.B. to the park. They had unsuccessfully attempted to pick up C.B. earlier in the day.
When the car arrived at Antlers Park, E.M. and appellant approached the car. E.M. opened the driver’s side door and yelled at the victim to get out. The victim exited the car. E.M. chased her, pushed her to the ground, punching and kicking her, and pulling her hair. After E.M. attacked the victim twice in this manner and walked away, the others at the scene urged E.M. to take the victim’s purse. E.M. then returned to the victim, accosted her a third time, and grabbed her purse. The victim walked to a nearby restaurant.
The two boys and the three girls, including appellant, then drove away from the park. Appellant and her sister sat in the back seat, went through the victim’s purse, and discovered C.B.’s keys. Appellant, her twin sister, and M.R. decided to use the victim’s keys to enter the victim’s home. The group then drove to C.B.’s residence, entered the house, took several items of personal property, and went to M.R.’s house where the stolen property was left.
On a subsequent date, Detective Mark Holden executed a search of M.R.’s home for the stolen property. Detective Holden testified that as he was photographing an item of property and looking in a closet, appellant tried to kick the closet door shut to obstruct him from conducting his search. Holden instructed appellant to “settle down,” and when she did not, he arrested her for obstruction of justice and took her into custody. While in custody, Detective Holden took a statement from appellant in which she admitted to being present at the park when the assault occurred. Because his recording machine malfunctioned, that statement was not available at trial.
Holden testified as to the events at the search and appellant’s admission that she had been present at the park. He did not recall the rest of her taped statement and accordingly limited his testimony. The victim testified that appellant was present in the park when she was attacked and robbed by E.M. The victim also testified that she could hear voices while the attack was in progress and that she saw all of the others drive away. The victim, however, could not identify which of the people in addition to E.M. had spoken or done things during the attacks. Otherwise, evidence of the events and of appellant’s role was based on the testimony of accomplices E.M. (the principle assailant) and L.N. (E.M.’s boyfriend).
The trial court found appellant guilty of aiding and abetting assault in the fifth degree; aiding and abetting simple robbery; and aiding and abetting burglary in the second degree. The trial court’s findings of fact do not address the sufficiency of the corroborating evidence of the accomplices’ testimony, but the court does conclude that the state proved all of the elements of the offenses beyond a reasonable doubt.
A.A.D. was adjudicated delinquent and placed on indefinite probation. A.A.D. was also ordered to pay restitution and to participate in therapy programs as directed by Dakota County Community Corrections. A.A.D. appeals the sufficiency of the evidence corroborating the accomplice testimony and argues that the adjudication of assault was improper as it is a lesser-included offense of simple robbery.
We must determine if the victim’s testimony of A.A.D.’s presence and conduct during the assault, A.A.D.’s admission to the detective that she was in the park, and A.A.D.’s conduct during the search by the detective were adequate corroborating evidence for her conviction in this case. A.A.D. argues that the accomplice testimony at her trial is insufficiently corroborated to find her guilty.
In reviewing the sufficiency of the evidence corroborating an accomplice’s testimony, we review the evidence in the light most favorable to the prosecution, and with all conflicts in the evidence resolved in favor of the verdict. State v. Norris, 428 N.W.2d 61, 66 (Minn. 1988).
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 (2000). This is because “the testimony of an accomplice is considered inherently untrustworthy.” State v. Sorg, 275 Minn. 1, 5, 144 N.W.2d 783, 786 (1966). Moreover, the testimony of one accomplice cannot be corroborated solely by that of another accomplice. In re Welfare of K.A.Z., 266 N.W.2d 167, 169 (Minn. 1978).
The evidence corroborating an accomplice’s testimony must “link or connect the defendant to the crime.” State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980). “It is not necessary that it establish a prima facie case of the defendant’s guilt,” but it must, independent of the accomplice’s testimony, confirm the truth of the accomplice’s testimony and point to the defendant’s guilt in some substantial degree. Id.; State v. Houle, 257 N.W.2d 320, 324 (Minn. 1977).
Corroborating evidence may be direct or circumstantial, and it need not corroborate the accomplice’s testimony on every point. State v. England, 409 N.W.2d 262, 264 (Minn. App. 1987) (citing Houle, 257 N.W.2d at 324).
The defendant’s entire conduct may be looked to for corroborating circumstances. If his [or her] connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient.
Adams, 295 N.W.2d at 533.
Sources of circumstantial evidence used to corroborate an accomplice’s testimony include
scientific analysis of physical objects connected with the alleged crime; reported admissions by the accused; and suspicious and unexplained conduct of the accused either before or after the offense. * * * Relevant facts provable by evidence secured from such sources include participation in the preparation for the criminal act; opportunity and motive; proximity of the defendant to the place where the crime was committed under unusual circumstances; association with persons involved in the crime in such a way as to suggest joint participation; * * * and * * * possession of the fruits of criminal conduct.
State v. Mathiasen, 267 Minn. 393, 393, 127 N.W.2d 534, 535 (1964).
Here, because L.N. and E.M. are both accomplices, their testimony cannot be solely corroborated by each other. Either physical evidence or other testimony must corroborate L.N. and E.M.’s testimony.
A person may be held liable for another’s crime “if the person intentionally aids, advises, hires, counsels or conspires with * * * the other to commit the crime.” Minn. Stat. § 609.05, subd. 1 (2000). “[A] person’s presence, companionship, and conduct before and after an offense are * * * circumstances from which a person’s criminal intent may be inferred.” State v. Ostrem 535 N.W.2d 916, 924 (Minn. 1995). A defendant is criminally liable for aiding and abetting if he or she played a knowing role in the crime and took “no steps to thwart its completion.” Id. at 924. But mere presence at the crime scene “does not alone prove that a person aided or abetted, because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability.” Id. (citing State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993)).
Here, the victim’s testimony and A.A.D.’s admission to Detective Holden clearly place A.A.D. at the scene of the crimes in the park. The victim also testified that none of the observers took any steps to stop the assault. She also testified that the observers were shouting to E.M., corroborating L.N.’s testimony that the group encouraged E.M. in her assault of the victim. Even the presence of A.A.D. with the others at M.R.’s home when the search was conducted, and her conduct during the search, show that she was a part of the group that planned the confrontation. When viewed in the light most favorable to the verdict, the victim’s testimony, A.A.D.’s admitted presence at the crime scene, and her conduct at the scene, sufficiently corroborate the accomplices’ testimony to find A.A.D. guilty of aiding and abetting assault in the fifth-degree.
A.A.D.’s conviction of aiding and abetting simple robbery relates to the taking of the victim’s purse. The state argues that A.A.D.’s association with the accomplices at the time of the incident and following the incident is sufficient corroboration, citing State v. Adams, 295 N.W.2d 527 (Minn. 1980). We agree. In Adams, the supreme court stated that
[c]orroborating evidence may be secured from the defendant’s association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed.
Id. at 533. Here, the victim testified that A.A.D. was present when E.M. took her purse. A.A.D. also admitted her presence at the crime scene to the detective. The detective found A.A.D. at M.R.’s residence when he conducted his search and she interfered with the search. The victim also testified that she heard shouting in the background as the assault took place and before E.M. took her purse, corroborating both E.M. and L.N.’s testimony that A.A.D. was at the park when her purse was taken. Also the victim testified that all those at the park drove away in the car. This includes A.A.D. and shows her continued participation in the group. This combined testimony confirms the truth of the accomplice testimony and points to A.A.D.’s guilt in aiding and abetting fifth-degree assault to a substantial degree. See In re K.A.Z., 266 N.W.2d at 169 (stating that the corroborating testimony must restore confidence in “the naturally suspect testimony of an accomplice” and point to the defendant’s guilt to a substantial degree).
Aiding and Abetting Second-Degree Burglary
A.A.D.’s actions both before and after the burglary are sufficient to corroborate E.M. and L.N.’s testimony and other evidence. The state argues that because of the short time period between the assault/robbery and the burglary, there was little time for A.A.D. to have separated from the accomplices. A.A.D. appears to concede this point in her brief, stating that the state established that A.A.D. was present with them around the time of the burglary. The state points to A.A.D.’s opportunity to participate in the burglary because the victim saw her leave in the same vehicle as her purse, which contained her house keys. The state also points out that A.A.D. was present when the search warrant was executed and the stolen items were found in M.R.’s home. The officer testified that A.A.D. kicked the closet door shut while he was attempting to photograph evidence inside the closet. This obstruction of the search is suspicious activity and suggests that she was aware of the location of the stolen items and complicity in the burglary.
The evidence as a whole, when viewed in the light most favorable to the verdict, affirms the truth of L.N. and E.M.’s testimony and points to A.A.D.’s guilt. Therefore, we conclude that the evidence was sufficient for the district court to adjudicate A.A.D. delinquent.
Lesser Included Offense
A.A.D. argues that because fifth-degree assault is a lesser-included offense of simple robbery, she cannot be adjudicated for both offenses and that her assault adjudication must be vacated. See Minn. Stat. § 609.04, subd. 1 (2000) (stating defendant may be convicted for crime charged or included offense, but not both). “Minn. Stat. § 609.04 * * * prevents multiple convictions based on the same conduct committed against the same victim.” State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000). The “statute applies in juvenile proceedings.” In re K.A.Z., 266 N.W.2d at 170. In State v. Stanifer, 382 N.W.2d 213, 220 (Minn. App. 1986), this court held that fifth-degree assault is a lesser-included offense of simple robbery and vacated the defendant’s fifth-degree assault conviction. The state did not address this issue in its responsive brief.
We agree with appellant. The assault and robbery occurred in the same time frame, at the same location, and involved the same people. Although E.M. attacked the victim three times, and the robbery occurred the third time, the robbery was part of a larger and continuing series of events. Accordingly, we vacate A.A.D.’s adjudication of delinquency for aiding and abetting fifth-degree assault.
Affirmed in part and reversed in part.
PETERSON, Judge (dissenting)
I respectfully dissent because the incriminating facts the majority relies upon are based on the uncorroborated testimony of accomplices L.N. and E.M.
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 (2000) (emphasis added).
Because the testimony of one accomplice cannot be corroborated solely by that of another accomplice, In re Welfare of K.A.Z., 266 N.W.2d 167, 169 (Minn. 1978), either physical evidence or testimony of the victim and the arresting officer must corroborate L.N. and E.M.’s testimony.
The only evidence of A.A.D’s participation in the robbery and assault, other than accomplice testimony, is the testimony of the victim and the arresting officer, which only places A.A.D. at the scene of the crime and shows the commission and the circumstances of the offenses. The state must show that A.A.D. encouraged E.M. “to take a course of action which [she] might not otherwise have taken.” State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). There is no corroborating evidence that A.A.D. did so.
Mere presence at the crime scene does not prove that a person aided or abetted, “because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability.” State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (citing State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993)). Aiding and abetting a crime implies a “high level of activity on the part of an aider and abettor in the form of conduct that encourages another to act.” Ulvinen, 313 N.W.2d at 428 (holding that mother’s conduct did not constitute the criminal intent required for aiding and abetting homicide where she prevented her son’s children from witnessing their father dismembering their mother’s body in the bathroom). See State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991) (stating that to be convicted of aiding and abetting, “some active participation” or affirmative action is required; “passive approval” does not constitute criminal activity).
The victim testified that only E.M. assaulted her and took her purse. Although the victim testified that she heard some shouting in the background, she could not identify who shouted or what was said. Furthermore, neither L.N. nor E.M. could identify whether it was A.A.D. or her twin sister who encouraged E.M. to take the victim’s purse because A.A.D. and her sister “look the same and talk the same.” There simply is no corroborating evidence that A.A.D. did anything more than observe the assault and robbery.
There is also no evidence to corroborate the testimony of E.M. and L.N. that A.A.D. participated in the burglary of the victim’s home. Because the victim had no personal knowledge about the burglary, her testimony cannot corroborate the accomplices’ testimony. Consequently, the only evidence that A.A.D. participated in the burglary is the testimony of accomplices who stated that A.A.D. entered the victim’s house.
The majority cites as corroborating evidence the victim’s testimony that she saw A.A.D. leave in the same vehicle as her purse, which contained her house keys. But evidence that A.A.D. had an opportunity to participate in the burglary is not sufficient. There must be corroborating evidence that in some substantial degree confirms the truth of the accomplice’s testimony and points to the guilt of the defendant. State v. Houle, 257 N.W.2d 320, 324 (Minn. 1977). The victim’s testimony does not corroborate the accomplice testimony that they remained in the car while A.A.D. and the others entered the victim’s home.
And A.A.D.’s presence in M.R.’s home when the search warrant was executed several days after the burglary is not sufficient to implicate A.A.D. in the theft of the items recovered from M.R.’s home. The detective’s testimony that A.A.D. closed a closet door while the detective was trying to photograph items inside the closet suggests that A.A.D. was aware of the burglary. But it does not corroborate testimony that she participated in the burglary. See State v. Wallert, 402 N.W.2d 570, 572 (Minn. App. 1987), review denied (Minn. May 18, 1987) (stating that defendant’s positioning of herself in the doorway so that an accomplice’s mother could not see inside did not suggest complicity in the commission of a crime).
Even when viewed in the light most favorable to the verdict, the corroborating evidence does not affirm the truth of L.N. and E.M.’s testimony nor point to the guilt of A.A.D. in a substantial degree. Therefore, I would reverse the delinquency adjudications.
[1] Fifth-degree assault is a misdemeanor committed by a person who “intentionally inflicts or attempts to inflict bodily harm upon another.” Minn. Stat. § 609.224, subd. 1(2) (2000).