This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-195

 

State of Minnesota,

Respondent,

 

vs.

 

Dustin Richard Schoolmeesters,

Appellant.

 

Filed April 12, 2005

Affirmed

Lansing, Judge

 

Ramsey County District Court

File No. K2-03-46

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

John Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Dustin Schoolmeesters guilty of first-degree possession of cocaine and fleeing a police officer.  In this appeal from the possession-of-cocaine conviction, Schoolmeesters challenges the district court’s refusal to instruct on accomplice testimony and also disputes that the record provides sufficient independent corroboration to sustain his conviction.  Because we conclude that the district court did not err in refusing to instruct on accomplice testimony, we affirm.

F A C T S

Officers on patrol in Ramsey County stopped a vehicle about 11:00 p.m. after it failed to signal a turn and then failed to come to a complete stop at a red traffic light.  The officers checked the vehicle’s registration and learned it was owned by Dustin Schoolmeesters.  The vehicle had two occupants, and an officer approached on either side of the vehicle.  As they approached, the officer going to the driver’s side observed the driver lean over and make a series of movements that suggested the driver was either taking something from under the driver’s seat or placing something under it.  At the officer’s request, the driver provided proof of insurance and a temporary driver’s license.  The officers recognized the driver as Schoolmeesters because they had been dispatched to his home the previous day on a burglary/robbery report.  While investigating at Schoolmeesters’s home, they had seen firearms.  Because of the furtive movements and the information on firearms, the officer asked Schoolmeesters to step out of the vehicle. 

Schoolmeesters refused, put his vehicle in gear, and accelerated away from the officers.  A high-speed chase ensued, during which Schoolmeesters drove at speeds in excess of eighty miles per hour.  Schoolmeesters’s vehicle went through three red lights at high speeds, and, at one of the intersections, only narrowly avoided a collision.  During the pursuit, the officers lost sight of the vehicle, and additional squads were called to assist.  One of the assisting squads located the vehicle and, with other surrounding squads, brought it to a halt.  Police took Schoolmeesters and his passenger to separate squad cars for questioning and searched the vehicle.  The search produced no weapons or contraband.

            The passenger, Jilena Risberg, was crying and appeared distraught.  She told officers that, during the flight from police, Schoolmeesters threw a “clear white package approximately three by five in size” out of the vehicle.  She described the place where the package was thrown as the yard of a white, single-story house with something in front of the house like a porch or deck and a car in the driveway. 

            After an extensive search along the vehicle’s high-speed route, police found a package in the yard of a house matching Risberg’s description.  Risberg provided police with a statement, and she was released.  A laboratory test identified the contents of the package as 194 grams of cocaine.  The state charged Schoolmeesters with fleeing an officer and first-degree possession of cocaine.

            At trial, Risberg testified that she and Schoolmeesters were in his vehicle on their way to a store to purchase food when Schoolmeesters stopped near a laundromat and picked up the package from a short Hispanic male.  She saw Schoolmeesters put the package in his pocket.  During the high-speed chase, Schoolmeesters electronically lowered the passenger-side window and threw the package out.  She testified that at this point, when she saw the package, she believed it contained drugs.  Consistent with her statement to police, she described the place where the package was thrown as a white, single-story house with a fence and cement ramp leading up to the front door.  She also testified that the officers questioned her aggressively, used profanity, and threatened to send social services to her home to pick up her child.  The testifying officers denied making any threats or using profanity.

            At the close of evidence, Schoolmeesters requested that the district court instruct the jury on accomplice testimony.  The district court concluded that Risberg could not reasonably be considered an accomplice because she could not be charged with the same crime and denied the instruction.  The jury convicted Schoolmeesters of both charges, and the district court denied his motion for a new trial.  Schoolmeesters appeals his conviction for the possession of cocaine, arguing that the district court abused its discretion in denying the accomplice-testimony instruction and that the record contains insufficient corroborating evidence to sustain the conviction.

D E C I S I O N

An instruction on accomplice testimony must be given in a criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime.  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989).  The purpose of the instruction is to ensure that a defendant is not convicted on the uncorroborated evidence of an accomplice who would have an incentive to shift the blame.  State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004).  The preliminary determination of whether a witness is an accomplice may be made by the district court as a matter of law when presented with undisputed facts that permit only one clear inference.  Id. at 314.  “[B]ut, if the evidence is disputed or susceptible to different interpretations, then the question whether the witness is an accomplice is one of fact for the jury. . . .”  Id. (quoting State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995)).

In determining whether a witness is an accomplice for the purpose of an accomplice instruction, the inquiry is whether the witness “could have been indicted and convicted for the crime with which the accused is charged.”  Flournoy, 535 N.W.2d at 359 (quoting State v. Jensen, 289 Minn. 444, 446, 184 N.W.2d 813, 815 (1971) (quotation omitted)).  The charged crime that Schoolmeesters has appealed is first-degree possession of a controlled substance.

A person is guilty of possession of a controlled substance if the person knows the nature of the substance and either physically or constructively possesses it.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  An individual may constructively possess a controlled substance alone or with others.  State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000).

The evidence presented at trial establishes that Risberg was in Schoolmeesters’s vehicle when he obtained a package from a Hispanic male who was near a laundromat.  Risberg testified that Schoolmeesters was driving her to a store to purchase food.   Risberg said that she did not clearly see the package when Schoolmeesters put it in his pocket, but she saw it when Schoolmeesters threw it out of the passenger window during the high-speed chase.  She testified that she believed the package contained drugs.  When Risberg was taken into custody at the conclusion of the high-speed chase, she told police that Schoolmeesters had thrown the package out the passenger window.

The state relies on Risberg’s cooperation as proof that she was not involved in the transaction or in the possession of the cocaine.  This reliance is arguably diminished by Risberg’s testimony that the police forced her to cooperate because they were hostile, used profanity, and threatened to take away her child if she did not cooperate.  Despite the claims of threats, which were disputed by the officers who detained her, Risberg confirmed at trial that the statement she provided to police on the night of the incident was accurate and true. 

The undisputed evidence shows, at most, that Risberg knew the nature of the substance in the package.  But no evidence demonstrates that she either physically or constructively possessed it.  When a controlled substance is in a place not under one person’s exclusive control, constructive possession requires a showing of a strong probability that the person was consciously exercising dominion and control over the controlled substance.  Florine, 303 Minn. at 105, 226 N.W.2d at 611.  Risberg was a passenger in a vehicle that Schoolmeesters owned and was driving.  Her presence during the events leading up to the arrest is insufficient to demonstrate dominion or control over the cocaine.  Although Risberg’s testimony is not entirely consistent with police testimony on her treatment during detention or on the events immediately preceding the high-speed chase, her testimony on the source and control of the cocaine is undisputed.  The record contains no evidence that Risberg exercised any control over the cocaine.  Consequently, the district court did not err in determining as a matter of law that Risberg was not an accomplice.

Our conclusion that the record supports the district court’s determination that Risberg was not an accomplice also resolves Schoolmeesters’s challenge to the sufficiency of the evidence to corroborate Risberg’s testimony.  Because the evidence fails to demonstrate that Risberg was an accomplice, corroboration of her testimony is not required.  We note, however, that Risberg’s testimony was strongly corroborated, not only by the police retrieval of a package that exactly matched her description of its character and location, but also by Schoolmeesters’s perilous and extended high-speed attempt to avoid police detention or investigation.

            Affirmed.