A05-1691

State of Minnesota,

Respondent,

vs.

Rodney Franklin,

Appellant.

Filed December 26, 2006

Affirmed; motion granted

Worke, Judge

Hennepin County District Court

File No. 04072995

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

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Worke, Presiding Judge; Klaphake, Judge, and Ross, Judge.

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

WORKE, Judge

On appeal from a conviction for first-degree assault, appellant argues that (1) the district court committed plain error in failing to give an instruction on the need for corroboration of accomplice testimony; (2) the district court had a duty to give the accomplice instruction because the only evidence that he was the occupant of the van came from potential accomplices; and (3) the non-accomplice testimony was insufficient to support the conviction. Appellant also raises several issues in his pro se supplemental brief that we conclude are meritless. We affirm.

D E C I S I O N

Accomplice Jury Instruction

Appellant Rodney Franklin argues that the district court committed reversible error by failing to give the accomplice-testimony instruction, even though he did not request the instruction. Generally, “an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial.” State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). However, even in the absence of an objection to the instructions, the reviewing court “could reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence.” State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980). We use a three-prong plain-error test to determine whether we should review an unobjected-to error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under the test, “there must be (1) error, (2) that is plain, and (3) the error must affect substantial rights.” Id. Appellant did not object to the jury instructions at the time of trial; therefore, we must review this unobjected-to error using the plain-error test.

An accomplice is one who could be indicted and convicted for the same crime as the defendant. State v. Lee, 683 N.W.2d 309, 314 (Minn. 2004). If the facts of the case are undisputed and only one inference can be drawn as to whether the witness is an accomplice, the district court should make that determination; however, “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.” State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995). The state argues that neither witness was charged with first-degree assault and could not have been charged with that offense.

The accomplice-testimony jury instruction must be given in a criminal trial when a witness testifying against the defendant might reasonably be considered an accomplice to the crime. State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989). Under these circumstances, the duty to give the instruction exists regardless of whether the defense requests it. State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002); Shoop, 441 N.W.2d at 479. The instruction cautions the jury that it cannot convict the defendant based on accomplice testimony unless the testimony is corroborated by other evidence that tends to establish that the defendant committed the charged offense. Minn. Stat. § 634.04 (2004); 10 Minnesota Practice, CRIMJIG 3.18 (1999).

The evidence shows that appellant was seated in the front-passenger seat of a vehicle fleeing police, and that he fired a 9mm weapon out the window at a pursuing officer. Dena Harris testified that she was driving the van and that appellant was shooting out the window from the front-passenger seat. The pursuing officer testified and the squad-car videotape shows that the shots came from the passenger side of the van. Further, Michael McClom testified that appellant was seated in the front-passenger seat and fired one warning shot into the air before rapidly firing numerous rounds at the pursuing officer. This succession of gun shots is corroborated by the videotape. While appellant did not dispute any of this evidence, it is possible that Harris or McClom could potentially be liable as an accomplice, which would have been an issue for the jury; therefore, the district court erred in not giving the accomplice testimony jury instruction. Based on the evidence, however, the district court’s failure to give the accomplice-jury instruction did not have a substantial effect on the outcome of this case. The district court’s error in failing to give the accomplice-jury instruction is harmless, and, under Minn. R. Crim. P. 13.01, we disregard that error.

Appellant also argues that the only evidence linking him to the crime is the testimony of McClom and Harris, and that the non-accomplice testimony was not sufficient to sustain the conviction. The corroboration requirement addresses the questionable credibility of testimony of an individual who may be inclined to shift the responsibility for criminal conduct to another in order to benefit personally. State v. Azzone, 271 Minn. 166, 170, 135 N.W.2d 488, 493 (1965). Corroborative evidence that “merely shows the commission of the offense or the circumstances thereof” is insufficient to credit accomplice testimony. Minn. Stat. § 634.04. Rather, corroborative evidence is sufficient to support a conviction based on accomplice testimony when it confirms the veracity of the accomplice’s testimony and indicates the defendant’s guilt in a substantial way. State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000). Independent proof of each element of the crime is not required. State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982). There was significant other evidence supporting the fact that appellant was seated in the front-passenger seat, and that he fired a 9mm weapon at the pursuing officer. The evidence is sufficient to sustain appellant’s conviction.

Pro Se Supplemental Brief Issues

First, appellant argues that his constitutional right to equal protection was violated because “his petit jury was selected from racially non-neutral selection procedures.” Appellant did not challenge the jury panel at any time in district court. This court will generally not consider matters not argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Appellant has also included documents in his appendix that were not part of the district court file and the state has moved to strike. Documents not filed with the district court may not be considered on appeal. Minn. R. Crim. P. 28.02, subd. 8. Any documents contained in appellant’s appendix that were not part of the district court file are stricken. Further, because appellant did not raise this issue below he has waived his right to have it heard on appeal.

Second, appellant argues that the complaint failed to state the essential element of intent. Again, this issue was not raised in the district court. “Ordinarily a defendant is deemed to have forfeited an issue as to the adequacy of a complaint unless the defendant either properly raised the issue in the [district] court or can show good cause for not having done so.” State v. Lehman, 295 N.W.2d 264, 265 (Minn. 1980). “[T]his court always has authority to reverse a conviction if it believes that the charge was so vague on the matter of time as to make it impossible for the defendant to defend himself.” State v. Waukazo, 269 N.W.2d 373, 375 (Minn. 1978). Appellant has failed to make such a showing here.

Finally, appellant argues that the use of a firearm under Minn. Stat. § 609.11, subd. 5 (2004) (sentencing statute providing for mandatory minimum sentence if a firearm is used during the commission of a crime), should have been submitted to the jury as a separate offense. This court need not address this issue because appellant was sentenced solely on the first-degree assault conviction. The presumptive sentence for the first-degree assault conviction was 122 months in prison. The mandatory minimum sentence under Minn. Stat. § 609.11, subd. 5, is stated as not less than three years for a first firearm offense and not less than five years for subsequent offenses. The presumptive sentence for the first-degree assault conviction was substantially greater than the mandatory minimum under Minn. Stat. § 609.11, subd. 5.

Affirmed; motion granted.