STATE OF MINNESOTA

IN COURT OF APPEALS

A05-687

State of Minnesota,

Respondent,

vs.

Yia Vue,

Appellant.

Filed September 19, 2006

Reversed

Worke, Judge

Ramsey County District Court

File No. K6-04-2389

John Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414-3230 (for appellant)

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

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

Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

WORKE, Judge

On appeal from convictions of drive-by shooting and crime committed for the benefit of a gang, appellant argues that the accomplice testimony of those present in the vehicle from which shots were fired was insufficiently corroborated to support the conviction. Because no evidence was introduced at trial to corroborate the accomplices’ testimony that appellant was present at the time of the offense, we reverse.

FACTS

While driving early one morning, C.Y. became aware of another vehicle as it drove up alongside his vehicle. C.Y. recognized the driver, whom he identified as Tou Pheng Yang. The vehicle moved extremely close to C.Y.’s vehicle, and, feeling intimidated, C.Y. drove faster. The other vehicle caught up, and C.Y. was able to see four individuals in the vehicle. C.Y. heard a gunshot; simultaneously, the driver’s side window of his vehicle shattered. C.Y. realized that he had been shot. Doctors removed a .22 caliber bullet that had pierced C.Y.’s scalp, but had not penetrated his skull.

Two months later, C.Y. told a high-school friend, Pao Ge Vang, about the shooting. Vang admitted that he was involved in the shooting of C.Y. Vang explained that he and his friends in the vehicle had mistaken C.Y. for a member of a rival gang. C.Y. reported Vang’s admission to the police.

After his arrest, Vang identified the vehicle’s other occupants; Tou Pheng Yang as the driver, Tai Yang as the shooter, and appellant Yia Vue as a passenger. Vang also admitted to being a former gang member. Officers executed a search warrant for Vang’s house and seized writings and clothing indicative of Vang’s gang involvement. Following Tai Yang’s arrest, officers executed a search warrant for his house and seized similar items consistent with his gang involvement. Vang pleaded guilty to drive-by shooting and crime committed for the benefit of a gang, and Yang, a juvenile, also admitted to the shooting.

Appellant was charged with drive-by shooting, in violation of Minn. Stat. § 609.66, subd. 1e(b) (2002), and crime committed for the benefit of a gang, in violation of Minn. Stat. § 609.229, subd. 2 (2002). A jury found appellant guilty on both counts. On appeal, appellant argued that the district court erred by not giving a jury instruction regarding accomplice testimony and that the non-accomplice evidence was insufficient to support a conviction. We reversed and remanded for a new trial. Appellant filed a petition for review to the Minnesota Supreme Court of his claim of insufficient evidence. The supreme court granted the petition and remanded to this court for consideration of this claim.

D E C I S I O N

In considering a claim of insufficient evidence, our review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

Appellant argues that there was insufficient evidence to corroborate the accomplices’ testimony. Accomplice testimony must be corroborated by other evidence tending to convict the defendant of the charged offense. Minn. Stat. § 634.04 (2002). “Corroborating evidence, which may be direct or circumstantial, is viewed in a light most favorable to the verdict and, while it need not establish a prima facie case of the defendant’s guilt, it must point to defendant’s guilt in some substantial way.” State v. Johnson, 616 N.W.2d 720, 727 (Minn. 2000). “Corroborating evidence 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. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (quoting State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988)). “Evidence that merely shows the commission of the crime or the circumstances thereof is not sufficient to corroborate accomplice testimony.” Johnson, 616 N.W.2d at 727.

Pao Ge Vang and Tai Yang testified that appellant was in the vehicle at the time of the shooting. Vang and Yang have been convicted of the same offenses with which appellant was charged, making them accomplices. See State v. Landro, 504 N.W.2d 741, 745 (Minn. 1993) (“The test for determining whether someone is an accomplice is whether that person could have been indicted and convicted for the crime for which the accused is charged.”) In order to sustain the conviction, the corroborating evidence must point to appellant’s guilt in some substantial way.

The remainder of the evidence presented at trial does not support appellant’s conviction because it fails to corroborate the accomplices’ testimony. No physical evidence was presented that linked appellant to the shooting. C.Y. could identify only the driver. The testimony of C.Y.’s treating physician, a firearms examiner from the Bureau of Criminal Apprehension, and the officer who responded to C.Y.’s 911 call, although consistent with C.Y.’s description of the incident and his injury, did not link appellant to the offense. The testimony of a police officer from the Saint Paul Police Department Asian Crime Intelligence Unit that gang writings were seized during a search of appellant’s residence corroborated evidence of appellant’s gang involvement, but did not corroborate the accomplices’ testimony that appellant was in the vehicle at the time of the shooting. And although physical evidence from the searches of the homes of Vang and Tai Yang was introduced at trial, no physical evidence of the search of appellant’s residence was introduced. Finally, the record does not contain a pre-trial statement by appellant, and he did not testify at trial.

Because no evidence introduced at appellant’s trial corroborated the accomplices’ testimony that appellant was in the vehicle at the time of the shooting, the evidence was insufficient to support his conviction.

Reversed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art VI, § 10.