This opinion will be unpublished and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

A05-1311

 

 

State of Minnesota,

Respondent,

 

vs.

 

Joseph Dale Kruger,

Appellant.

 

 

Filed August 29, 2006

Affirmed

Lansing, Judge

 

 

Olmsted County District Court

File No. K9-01-2141

 

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

John Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

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

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On appeal from his conviction of five controlled-substance crimes, Joseph Kruger challenges the sufficiency of the evidence to corroborate the accomplice testimony that he conspired in the purchase, transport, and planned distribution of 201 pounds of marijuana from Arizona to Minnesota, and that he personally possessed marijuana with the intent to distribute.  Because we conclude that independent, nonaccomplice evidence corroborates the accomplice testimony, we affirm.

F A C T S

            The state charged Joseph Kruger with five controlled-substance crimes after conducting a controlled delivery of 201 pounds of marijuana discovered in a truck en route to Minnesota from Arizona.  A Nebraska state trooper stopped the truck for traffic violations, and the driver, Steven Laqua, consented to the officer’s request to search the truck.  The officer discovered the marijuana in a hidden compartment of the truck’s utility bed, and the officer arrested Laqua. 

During a police interview, Laqua stated that the truck belonged to Roger Bennett; that he had picked up the truck and the marijuana in Tucson, Arizona; and that he was driving it to Minnesota where he would turn it over to Bennett.  Laqua said that he had paid for the marijuana with cash.  He also said that the cash, which should have totaled $133,000, was welded into the hidden compartment.  But when paying for the marijuana, he discovered that roughly $17,000 was missing.  To reduce or avoid criminal charges, Laqua agreed to participate with authorities in both Nebraska and Minnesota in a controlled delivery of the marijuana.

            At the direction of the Nebraska police, Laqua telephoned Bennett while the officers monitored the call.  Laqua told him that he was delayed because of a wheel bearing.  Bennett asked about the “load” and told Laqua to deliver it to Bennett’s mobile home when he returned to Rochester, Minnesota. 

Nebraska officers transported Laqua and the truck to Omaha, where they met agents from the Minnesota Bureau of Criminal Apprehension (BCA).  Laqua told a BCA officer that he, Rusty Culver, Joseph Kruger, and Kruger’s girlfriend had gone to Arizona to purchase a large quantity of marijuana and that he was driving it to Minnesota.  He identified Kruger as the accountant for the marijuana operation.  The Nebraska officers accompanied the Minnesota BCA officers as they transported Laqua and the truck to Austin, Minnesota.  In Austin they fitted Laqua with a listening device, and Laqua drove to Bennett’s home.  The police recorded the conversation between the two men.

            During the recorded conversation, Laqua and Bennett made repeated references to Joseph Kruger by his nickname, Bobo.  After mentioning that Kruger had been “short a lot of money” and that “some bad numbers [were] mentioned,” they discussed Kruger’s gambling addiction and observed that he had “been takin[g] money for the last two or three months.”  Bennett indicated that only he and Kruger “had access to the money”; that they were paying too much for local marijuana; that, in a recent phone conversation, Kruger had expressed reluctance to deal with their Tucson source; and that Kruger had left Tucson on a plane to fly back to Minnesota.  Bennett then explained that he, Culver, and Kruger would go over the finances, but that he believed Kruger was taking money from the operation to use for gambling.

After listening to the conversation, police officers entered Bennett’s home.  They arrested both Bennett and Laqua and then conducted a search of the residence.  Police released Laqua a short time later.

            When Laqua was released, he got in touch with Kruger and asked him to drive Laqua to Culver’s home to get Laqua’s vehicle.  On the way to Culver’s home, Kruger apparently realized that Laqua had been arrested and began tearing up papers and notes and throwing them out the window of his vehicle.  When Laqua arrived at Culver’s home, police officers were conducting surveillance.  Laqua told the officers that he had seen Kruger discard the papers and helped the officers locate them on the roadway.

            Police were also conducting surveillance outside Kruger’s home.  They observed Kruger drive by his home several times without stopping, and, one of those times, the police concluded that he had noticed the surveillance.  The police obtained a search warrant for Kruger’s home and executed it while Kruger and his girlfriend were present.  During the search, they discovered marijuana cigarettes in plastic bags in a Tupperware container, an electronic scale, and a black duffel bag containing about ten ounces of marijuana.  In a search of Kruger’s person, incident to his arrest, they found a small amount of marijuana, about $3,200 in cash, and a bank receipt showing a balance of $14,000.

            Based on this evidence, the state charged Kruger with first- and second-degree conspiracy to commit controlled-substance crime, first-degree controlled-substance crime (sale), fifth-degree controlled-substance crime (possession with intent to distribute), and fifth-degree controlled-substance crime (possession).  At Kruger’s trial to the court, the state relied on the testimony of the police and BCA officers who were involved in the controlled delivery, execution of the search warrant, and surveillance of Kruger’s home.  The state also called Laqua as a witness and introduced evidence obtained as a result of search warrants.

            In his testimony, Laqua admitted that he had lied to Nebraska officers about driving alone and stated that he had traveled with Kruger, Kruger’s girlfriend, Culver, and one other person.  He testified that they went to Arizona to purchase cars to bring back to Minnesota for resale.  Although he had previously told officers that he received the truck’s keys from Bennett, he testified that Kruger gave him the keys, told him where the truck was located, and suggested that Laqua drive the truck back to Minnesota.  He testified that Kruger intended to drive the truck but had flown back instead because his girlfriend developed a toothache.  Despite his earlier statements that he knew the marijuana was in the truck, Laqua testified that he did not know the truck contained marijuana and that he did not participate in picking up the marijuana.  He also testified that he did not know whether Kruger had anything to do with the marijuana purchase.

            The defense presented testimony from Bennett and from Kruger’s girlfriend.  Bennett testified that Kruger and the others drove to Arizona to purchase cars for R & R Auto, a car business that he and Culver owned.  He admitted that he and Laqua had a tentative plan to purchase marijuana but denied that Kruger was involved in the plan.  He said that the truck keys were with the truck in Arizona and also said that his statement about Kruger taking money referred to the R & R Auto business.

            The district court found Kruger guilty of all five charges and sentenced him to the presumptive guidelines sentence of eighty-one months for conspiracy to commit first-degree controlled-substance crime.  The court concluded that the remaining counts were part of the same behavioral incident and did not impose an additional sentence.  Kruger appeals his convictions.

D E C I S I O N

This appeal raises the single issue of whether the nonaccomplice evidence was sufficient to corroborate the accomplice testimony underlying Kruger’s convictions.  The state does not dispute that Laqua was an accomplice, and Kruger concedes that the evidence establishes that he is guilty of fifth-degree controlled-substance crime for possession of marijuana obtained in the search of his residence.  The other fifth-degree controlled-substance conviction of possession with intent to distribute does not rely on accomplice testimony, and, thus, any challenge to that conviction is implicitly waived.  See State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 796 n.15 (Minn. 1999) (declining to address issues that are not briefed or argued on appeal).  We therefore limit our consideration to whether the accomplice testimony that supports the remaining convictions is adequately corroborated by nonaccomplice evidence. 

Under Minnesota law, a conviction may not be sustained on uncorroborated accomplice testimony.  Minn. Stat. § 634.04 (2004).  Evidence that merely shows the commission or circumstance of the crime is insufficient to corroborate accomplice testimony.  Turnage v. State, 708 N.W.2d 535, 543 (Minn. 2006).  Rather, the corroborating evidence must “affirm the truth of the accomplice’s testimony and point to the guilt of the defendant in some substantial degree.”  State v. Harris, 405 N.W.2d 224, 228 (Minn. 1987) (quotation omitted).  But it need not corroborate every element of the crime or be independently capable of establishing a prima facie case of guilt.  State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982). 

Corroborating evidence, which may be direct or circumstantial, is viewed in a light most favorable to the verdict.  State v. Johnson, 616 N.W.2d 720, 727 (Minn. 2000).  It may consist of physical evidence connected to the crime, State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990); the testimony of witnesses at trial, State v. Norris, 428 N.W.2d 61, 67 (Minn. 1988); inconsistencies or admissions in defense testimony, State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988); and “suspicious and unexplained conduct of the accused either before or after the offense.”  State v. Mathiasen, 267 Minn. 393, 398, 127 N.W.2d 534, 538 (1964) (footnote omitted).  It may also be discerned from opportunity, motive, proximity, and “association with those involved in the crime in such a way as to suggest joint participation.”  State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).

The record contains significant circumstantial and physical evidence that connects Kruger to the controlled-substance crimes and provides corroboration of the accomplice testimony.  Kruger’s girlfriend, a defense witness, testified that she and Kruger drove with the others to Tucson.  This testimony establishes Kruger’s presence with the others at the origin of the drug transfer.  The recorded conversation between Laqua and Bennett, which took place before Bennett was aware of the investigation, included specific references to Kruger’s management and suspected diversion of funds from the marijuana operation.  In executing the search warrant for Kruger’s home, the police found a large quantity of marijuana, a considerable amount of cash, and a bank receipt for additional funds, which together total about $17,000.  This total corresponds to the amount that Laqua believed he was missing from the $133,000 that was supposed to be welded into the secret compartment in the truck.  Kruger had been only intermittently employed and had no traceable income.  The district court reasonably rejected the testimony of Kruger’s girlfriend that Kruger’s substantial expenditures and the $17,000 came from gambling proceeds. 

Taken together, the large amount of marijuana in Kruger’s home, the recorded conversation about Kruger’s diversion of funds from the marijuana operation, and the approximate amount of $17,000 at Kruger’s home shortly after Laqua discovered that amount missing from the drug-purchase money corroborate the accomplice testimony that Kruger was involved in the financial management of the marijuana operation that planned and partially executed the transfer and intended distribution of the 201 pounds of marijuana from Arizona.  

Finally, Kruger’s conduct after he apparently learned of Laqua’s arrest was suspicious and unexplained.  Police, assisted by Laqua, retrieved scraps of paper containing numbers that Kruger reportedly threw from his vehicle window.  The police, who were maintaining surveillance at Kruger’s home, saw Kruger repeatedly driving past his house without stopping or entering the residence.

The evidence, viewed in the light most favorable to the verdict, provides more than adequate evidence for the district court to conclude than the nonaccomplice testimony and the other evidence sufficiently corroborates the accomplice testimony that supported Kruger’s convictions.

Affirmed.