This opinion will be unpublished and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

A03-904

 

 

State of Minnesota,

Respondent,

 

vs.

 

Kyle Gabriel Posusta,

Appellant.

 

 

Filed August 16, 2005

Affirmed
Klaphake, Judge

 

McLeod County District Court

File No. K3-01-1503

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Michael K. Junge, McLeod County Attorney, Mark A. Metz, Assistant County Attorney, 830 East 11th Street, Suite 112, Glencoe, MN  55336 (for respondent)

 

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

 

            Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Kyle Gabriel Posusta was with charged and convicted of second-degree controlled substance crime in violation of Minn. Stat. § 152.022, subd. 2(1) (2000).[1]  Appellant argues that the district court erred in determining that the stop of his vehicle and the scope of that stop were lawful.  Because the officer had a particularized, objective basis for suspecting appellant of criminal activity, we agree with the district court that the officer’s investigative stop and seizure were valid.  Appellant also contends that by failing to argue that the stop and the scope of the stop were invalid, defense counsel’s representation was ineffective.  Because we conclude that the stop and the scope were valid, the district court did not err in determining that appellant received effective assistance of counsel.  Appellant also argues that the district court erred in determining that there was sufficient evidence to corroborate the accomplice testimony and by refusing to modify appellant’s sentence.  Because the district court did not err in its decisions, we affirm. 

D E C I S I O N

            1.         Stop

A stop is lawful under the Fourth Amendment if an officer can articulate a “particularized and objective basis for suspecting the particular person[ ] stopped of criminal activity.”  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985) (quotation omitted).  “Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.”  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Here, Officer Johnson testified that he followed appellant for more than a mile and observed appellant’s van repeatedly cross the centerline dividing appellant’s lane of traffic from oncoming traffic.  The officer also noted that appellant was moving around in the driver’s seat in an unsafe and suspicious manner and that the rear seat passenger, M.G., was moving around, arching her back, and appearing to hide something.  The officer testified that in his experience, the driver’s movements, coupled with M.G.’s movements, signified either the hiding of an illegal substance or putting on a seatbelt. 

In order to determine whether a stop is justified, we consider the totality of the circumstances and any inferences or deductions that a trained law enforcement officer might be permitted to make under those circumstances.  State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001).  The fact that a different inference could be drawn from the same circumstances does not negate the officer’s conclusions.  Shull v. Comm’r of Pub. Safety, 398 N.W.2d 11, 14 (Minn. App. 1986). 

Officer Johnson’s observations of the vehicle weaving over the centerline and the suspicious movements in the vehicle provide a reasonable and objective basis for an investigatory stop.  State v. Wagner, 637 N.W.2d 330, 335 (Minn. App. 2001); see State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (finding that observing a motor vehicle weaving within its own lane in an erratic manner can justify an officer stopping a driver).  The district court did not err in concluding that appellant’s driving and the suspicious movements of the occupants of the vehicle gave the officer a basis to stop the vehicle.

            2.         Scope

            Police are allowed to stop and temporarily detain or seize an individual to investigate if they have a reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).  For all Terry stops, the court must determine the reasonableness of police action by balancing the individual’s Fourth Amendment interests against the importance of the governmental interests at stake.  Id. at 20-21, 88 S. Ct. at 1879-80.  The governmental interests include not only the interest in investigating possible criminal activity, but also the need for law enforcement officers to protect themselves.  Id. at 22-24, 88 S. Ct. at 1880-81.

            Both the United States and the Minnesota Constitutions require that the scope and duration of a stop be limited to its original purpose.  Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002).  Law enforcement officers may only expand a stop beyond its initial scope if they possess, or legally obtain during the initial stop, reasonable, articulable suspicion of additional criminal activity.  Wiegand, 645 N.W.2d at 135.  Any intrusion “not closely related to the initial justification for the search or seizure is invalid . . . unless there is independent probable cause or reasonableness to justify that particular intrusion.”  State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004).. 

            Officer Johnson explained the movements that he saw the passenger make and asked M.G. what she was doing.  After she replied nothing, he asked her again, and she repeated that she was not doing anything.  Officer Johnson then walked away from M.G. and spoke to appellant and the front seat passenger.  When Officer Johnson returned to M.G., he asked her which one of the two men handed her something to hide.  She responded that appellant gave her something and asked her to “crotch it.”

            The district court held that under the totality of the circumstances, appellant’s and M.G.’s movements prior to and during the stop, “together with [appellant’s] extreme nervousness, provided Officer Johnson with a reasonable articulable suspicion and allowed further inquiry.”  The officer witnessed the suspicious movement consistent with someone trying to hide something.  His questions to M.G. were related to his own observations.  The district court did not err in finding Officer Johnson permissibly expanded the scope of the stop.

            3.         Ineffective Assistance of Counsel

            The question of whether a defendant received ineffective assistance of counsel is one of constitutional law, which is reviewed de novo.  State v. Blom, 682 N.W.2d 578, 623-24 (Minn. 2004).  To obtain relief on the grounds of ineffective assistance of counsel,

[t]he defendant must affirmatively prove that his counsel’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 of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  The reviewing court assesses counsel’s competence using an objective standard of reasonableness.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).  There is a strong presumption that counsel’s performance was reasonable.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

Appellant argues that his trial counsel was ineffective because she did not challenge the stop and scope of the subsequent detention.  Because the officer had a reasonable, articulable reason for the stop and the scope of the detention, counsel’s failure to argue that the stop and scope were not lawful did not fall below an objective standard of reasonable representation, and there is not a reasonable probability that but for the failure to make this argument, the result of the prosecution would have been different.

            4.         Corroboration of Accomplice Testimony

            Appellant argues that his conviction should be reversed because the only evidence linking him to the controlled substance offense was the testimony of M.G., an accomplice, and the state failed to sufficiently corroborate such testimony. 

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); see also State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (stating that “a criminal conviction may not be based upon the testimony of an accomplice unless it is corroborated by other evidence that tends to convict the defendant of the offense”). 

            This court reviews the sufficiency of evidence corroborating accomplice testimony in the light most favorable to the state, and all conflicts presented by the evidence are resolved in favor of the verdict.  State v. Pippitt, 645 N.W.2d 87, 93 (Minn. 2002); State v. Nelson, 632 N.W.2d 193, 202 (Minn. 2001).  Corroboration of accomplice testimony is sufficient if it restores confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial degree.  State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988).  “The quantum of corroborative evidence needed necessarily depends on the circumstances of each case.”  State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).

            Corroborating evidence may be found from a defendant’s association with others involved in the crime “in such a way as to suggest joint participation,” from the defendant’s motive and opportunity to commit the crime, and from his proximity to the place where the crime was committed.  Id.  Admissions and inadequacies in a defendant’s testimony may corroborate an accomplice’s testimony.  Scruggs, 421 N.W.2d at 714; State v. Wallert, 402 N.W.2d 570, 572 (Minn. App. 1987), review denied (Minn. May 18, 1987).  Accomplice testimony need not be corroborated regarding each individual element of the crime.  State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982).

            The district court concluded that the state presented sufficient evidence to corroborate M.G.’s testimony by:  (1) Officer Johnson’s observations of the sequence of events; (2) the items found on appellant and in the van; (3) appellant’s admission that he was a heavy user of methamphetamines; (4) the amount of methamphetamine found on M.G.; and (5) appellant’s limited association with M.G.  We agree.

            While following the van, Officer Johnson observed suspicious behavior.  The officer testified that he saw appellant turn his entire body around and look towards the back of the vehicle and immediately after appellant’s movements, M.G. began to arch her back and move around in what the officer considered to be consistent with an attempt to conceal contraband.  This activity and sequence of events corroborated M.G.’s testimony that appellant handed her the baggie and told her to “crotch it.” 

            After a search, the officers found $400 cash on appellant.  Appellant admitted to using methamphetamines and commented that he used at least eight grams a day.  This admission is also significant because eight grams of methamphetamine was recovered from M.G. 

            To the extent that there was contradictory testimony about the possibility that the methamphetamine belonged to M.G. or the other passenger in the car, we must assume on review that the jury believed the state’s witnesses.  See State v. Pippitt, 645 N.W.2d 87, 94 (Minn. 2002) (holding that a reviewing court assumes that the “jury believed the state’s witnesses and disbelieved any evidence to the contrary”). 

            The evidence overwhelmingly supports appellant’s involvement and, when viewed in the light most favorable to the verdict, is sufficient to corroborate M.G.’s accomplice testimony.

            5.         Sentencing

            Appellant argues that the district court denied his request for a downward departure based on its mistaken belief that there must be compelling circumstances in addition to amenability to probation and acceptance into a treatment program to justify a downward eparture for drug offenses.

            District courts apply presumptive sentences “with a high degree of regularity.”  Minn. Sent. Guidelines cmt. II.D.03.  But the district court “may” depart from a presumptive sentence if it finds substantial and compelling reasons to do so.  Minn. Sent. Guidelines II.D.  While the district court “may” depart, it exercises its broad discretion whether or not to depart, and appellate courts will generally not interfere.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  “It would be a rare case which would warrant reversal of the refusal to depart.”  Id. 

            “The threshold question is whether the case involves compelling circumstances for departure.”  State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).  In Curtiss, this court reversed the trial court because it did not exercise its discretion to consider the reasons for or against a departure.  Id. at 264.  That is not the case here.  During sentencing the district court stated that “the record has to show a reason to depart.  I saw nothing in the record why there should be a departure.”  While noting that the presumptive sentence seemed unreasonable, the sentencing court discussed the reasons for and against departure.  Thus, the court properly exercised its broad discretion in deciding not to depart.

            Affirmed.