This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-1876

State of Minnesota,

Respondent,

 

vs.

 

Brian Robert Rossini,

Appellant.

 

Filed November 26, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Olmsted County District Court

File No. K1001118

 

 

Mike Hatch, Attorney General, John B. Galus, Thomas R. Ragatz, Assistant Attorneys General, 525 Park Street, No. 500, St. Paul, MN 55103; and

 

Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 4th Street S.E., Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414-3230 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

After being convicted of assault, appellant Brian Robert Rossini alleges that his attorney was negligent in failing to request, and that the district court erred in failing to give, a jury instruction that a person cannot be convicted on the uncorroborated testimony of an accomplice.  Because there was sufficient corroboration to convict appellant, we affirm.

FACTS

Appellant Brian Robert Rossini is the father of N.R., who was born to 17‑year-old Sabryna Koob in July 1997.  Rossini and Koob lived with the baby in a rented house and shared child-care duties.  While Koob worked during the daytime, Rossini cared for N.R.  When Rossini went to his night-shift job, Koob took care of N.R.

Koob and Rossini brought N.R. to a hospital emergency room on August 17, 1997, where an orthopedic resident determined that N.R.’s arm was broken.  Rossini admitted that he caused the injury to N.R. but explained that it happened accidentally when he grabbed N.R.’s forearm to prevent her from hitting the floor when she fell from his arms.

On September 11, 1997, Koob and Rossini brought N.R. to the hospital because she had been vomiting.  Hospital staff gave N.R. some medicine and released her.

Koob returned to the hospital with N.R. on September 15, 1997, and reported that the baby had not been eating and was acting “spacey.”  Examinations and tests revealed that N.R. had multiple skull fractures, a subdural hematoma, 11 partially healed rib fractures, and retinal and pre‑retinal hemorrhages in both eyes.

Various physicians concluded that N.R.’s broken arm and her injuries diagnosed on the September 15 visit were non‑accidental and were the result of substantial, forceful physical abuse on multiple occasions.  According to the physicians, the skull fractures had occurred within 24 to 48 hours prior to the September 15 visit.  Rossini and Koob suggested that N.R.’s head injuries were likely caused when Koob was bathing her and she slipped from Koob’s hands and hit her head on the bathtub.

The state charged Rossini and Koob with the crime of child neglect or endangerment.  Koob eventually pleaded guilty.  In an amended complaint, the state charged Rossini with assault in the first degree and assault in the third degree, alleging that he inflicted injuries on N.R. during the period of August 17 through September 15, 1997.  Rossini pleaded not guilty, and the case was tried to a jury.

Rossini testified that he and Koob were home during the day on September 14 and that Koob cared for N.R. that day.  On September 15, Koob left for work at about 11:00 a.m. and returned between 4:00 and 4:30 p.m.  Rossini stated that he took care of N.R. that day and that she was fine.  When Koob returned home, she took over the child care and Rossini went into the basement to fix a leaky pipe.  Rossini stated that while he was in the basement he heard a “thunk” coming from the bathroom and then he heard N.R. crying and screaming.  He made an assumption that Koob was bathing N.R. and that N.R. hit her head on the bathtub.

During cross‑examination, Rossini acknowledged that he sometimes became frustrated at N.S.’s crying; that he bumped N.R.’s head occasionally and was “not so perfectly gentle with her” when he put her down because he probably was frustrated with her; that Koob once told him that he was “shaking” N.R. “a little hard”; that he never ruled out the possibility that he caused N.R.’s injuries; and that he did not think Koob hurt N.R.

Koob testified that she and Rossini concocted the story that N.R. hit her head on the bathtub while Koob was bathing with her.  Koob stated that she lied about how N.R. was injured because she feared she would lose custody of the child.

Koob denied ever hurting N.R.  She suggested that roommates who lived with her and Rossini or the upstairs neighbors might have injured the baby.  She never testified that Rossini caused N.R.’s injuries on September 15, 1997.

Rossini’s attorney did not request an “accomplice” instruction, and the district court gave none.  The jury found Rossini guilty of both assault charges.

In this appeal, Rossini contends that his defense attorney’s failure to request an accomplice instruction constituted ineffective assistance of counsel and that it was plain error for the district court to fail to give the instruction even though it was not requested.

D E C I S I O N

A criminal conviction cannot be based on the uncorroborated testimony of an accomplice.  Minn. Stat. § 634.04 (1996); State v. Mathiasen, 267 Minn. 393, 397, 127 N.W.2d 534, 538 (1964).  An accomplice is someone who could have been charged with and convicted of the offense with which the accused is charged.  State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001).  To be an accomplice, a person must have played “some knowing role in the commission of the crime.”  State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995) (citation omitted).

Rossini argues that Koob was an accomplice, and, therefore, he was entitled to a jury instruction stating the accomplice rule.  He contends that his attorney’s assistance was ineffective because the attorney did not request the instruction and that the district court committed plain error by failing to give the instruction sua sponte.

To establish ineffective assistance of counsel, Rossini must show that his attorney’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors,” the result would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).

The “but for” prong of this rule means that, had the jury been instructed that it could not find Rossini guilty on Koob’s testimony alone, but rather there had to be independent evidence, aside from that testimony, that Rossini committed the crimes charged, there is a reasonable probability that the jury would have acquitted Rossini.

Implicit in Rossini’s argument that the “but for” test is satisfied is the proposition that he likely was convicted on Koob’s testimony and that there is no sufficient independent evidence that could support his conviction.

Rossini urges that, despite his attorney’s failure to request an accomplice instruction, the district court committed plain error by failing to give such an instruction.  To establish plain error, Rossini must show that the court’s failure to give an accomplice instruction was error, that was plain, and affected Rossini’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Rossini argues that, although the evidence was sufficient to show that N.R. was abused, the identity of the perpetrator was solely dependent on Koob’s testimony.  Stated differently, there was no independent evidence that reasonably pointed to Rossini as the perpetrator of the assaults.

The state charged Rossini with multiple acts of abuse during the period of August 17 through September 15, 1997.  One of the charges was assault in the third degree, which charge requires proof that the alleged offender inflicted substantial bodily harm.  Minn. Stat. § 609.223, subd. 1 (1996).  Substantial bodily harm includes bodily injury that causes “a fracture of any bodily member.”  Minn. Stat. § 609.02, subd. 7a (1996).

Rossini admitted that, on August 17, 1997, he broke N.R.’s arm.  He contends that he broke her arm accidentally.  The credibility of that defense was a matter for the jury to decide.

There was no evidence that implicated Koob in the fracture of N.R.’s arm.  Koob was not present when the injury occurred and had done nothing prior to the injury to aid or abet Rossini.  Thus, there was no evidence on which to base an accomplice instruction regarding the August 17 incident.  Rossini was convicted as to this incident on his own admission and the medical evidence that ruled out an accidental fracture.

The first‑degree assault charge was premised, at least in substantial part, on the head trauma that occurred within 24 to 48 hours prior to the presentation of N.R. at the hospital on September 15.  Within that period, both Rossini and Koob had access to N.R. at various times.  And Koob initially said that she hit N.R.’s head on the bathtub.  Arguably, Koob could have been found to have been an accomplice as to N.S.’s recent skull fractures.  The district court could have given an accomplice instruction.

But because there existed independent evidence that Rossini inflicted the skull fractures, his conviction did not likely rest on Koob’s testimony alone.  Thus, Rossini cannot satisfy the “but for” test that is required to show ineffective assistance of counsel, and he cannot show that the court’s failure to give an accomplice instruction affected his substantial rights.

Koob did not identify Rossini as the perpetrator.  Rather, she initially said that she had caused the injuries, but then retracted her story when medical evidence showed its implausibility.  Koob also suggested that roommates who lived with the couple or the upstairs neighbors might have injured N.R.  There was evidence making it unlikely that the roommates or the neighbors injured N.R.  In an oblique way, Koob’s testimony implicated Rossini because she denied the abuse and no one else except Rossini had sufficient access to N.R. to have the opportunity to inflict the injuries.

Independent, corroborating evidence may be either circumstantial or direct and is viewed in the light most favorable to the verdict.  State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995).  “Corroborating evidence need not establish a prima facie case of the defendant’s guilt.”  State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000) (citation omitted).

Corroborating evidence may consist of the accused’s opportunity to commit the crime; his entire course of conduct; his motive; his own admissions; inadequacies in his testimony; and expert evidence tending to identify a perpetrator.  Id.

Aside from Koob’s testimony, the jury heard evidence that Rossini had access to N.R. during the 24- to 48-hour period in which N.S.’s skull fractures occurred.  For at least five hours on September 15, Rossini was the only person who was with N.R. because Koob was at work.  The jury heard Rossini admit that he sometimes became frustrated with the baby’s crying, that he occasionally bumped the baby’s head, that Koob admonished him one time for “shaking” N.R., and that at least once he set N.R. down on the bed too roughly.  The jury heard Rossini admit that he broke N.R.’s arm, and the jury heard the medical expert opinion that it is improbable that the fracture occurred accidentally.

Thus, there was ample corroborating evidence showing that Rossini had the opportunity to injure N.R.; a motive  that is, to stop her from crying and to release frustration; admissions of inappropriate physical handling of the baby; a course of conduct of rough treatment of N.R.; and expert medical evidence showing the implausibility of accident.

We hold that, on this evidence, the jury could have convicted Rossini without regard to Koob’s testimony.

Affirmed.