This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1162

 

State of Minnesota,
Respondent,

vs.

Wilmar E. Hanks,
Appellant.

 

Filed September 25, 2007

Affirmed

Peterson, Judge

 

Becker County District Court

File No. K3-05-1459

 

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Joseph A. Evans, Becker County Attorney, Lincoln Professional Center, P.O. Box 476, Detroit Lakes, MN  56502-0476 (for respondent)

 

John M. Stuart, State Public Defender, Bridget K. Sabo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

            In this appeal from convictions of second-degree assault and possession of a firearm by a felon, appellant argues that his confession that he furnished the gun used in a shooting, which he made to police while he was intoxicated, was insufficient to support the convictions when there was no evidence of a conspiracy, no evidence connecting appellant to the gun, and no corroborating evidence establishing the corpus delicti of either crime.  Appellant also argues that it was plain error to fail to instruct the jury that the confession could not support the conviction without independent evidence that the offense had been committed.  We affirm.

FACTS

            Orville Bower and Jesse Warren became involved in a physical fight with Cody Eaglefeather.  Eaglefeather escaped and, as he fled, Teresa Rojas saw appellant Wilmar Hanks coming out of a nearby house.  As Rojas was leaving, she called police and then saw two bright flashes and heard two gunshots. 

            Sergeant Justin Evans of the White Earth Police Department was on routine patrol when he saw three individuals who were yelling and screaming.  Evans pulled over to investigate, and as he looked down to change the radio frequency on his police radio from the tribal frequency to the Becker County frequency, he heard a gunshot, looked up, and saw Eaglefeather pointing an assault rifle at Bower’s head.  Evans saw Eaglefeather pull the trigger and heard a second gunshot.  Evans pursued Eaglefeather on foot, but several bystanders blocked Evans’s path, and he lost sight of Eaglefeather.  Unable to find Eaglefeather, Evans returned to the crime scene, where he found one live and two expended Wolf brand, 7.62-caliber casings, an uncommon type of ammunition that is used in SKS assault rifles. 

            Using a helicopter equipped with infrared technology, police found Eaglefeather hiding in the woods about two hours later.  The rifle was never found. 

            After police found Eaglefeather, Evans returned to the crime scene, where appellant approached him and said that he wanted to make a statement.  Evans observed that appellant smelled of alcohol and was slurring his speech, but Evans did not administer a sobriety test.  Appellant told Evans that after Eaglefeather got away from Bower and Warren, appellant went to a nearby garage where he had been keeping a stolen SKS assault rifle that he had purchased.  Appellant stated that he gave the gun to Eaglefeather and Eaglefeather fired a couple of shots with it. 

            Appellant was charged with second-degree assault with a deadly weapon in violation of Minn. Stat. §§ 609.222, subd. 1, .05, subds. 1, 2 (aiding and abetting) (2004); and possession of a firearm by a convicted felon in violation of Minn. Stat. § 609.165, subd. 16 (2004).  A jury found appellant guilty as charged.  The district court sentenced appellant to an executed term of 60 months for the possession-of-a-firearm conviction and a concurrent term of 39 months for the assault conviction.  This direct appeal challenging the convictions followed.

D E C I S I O N

I.

            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

            “A confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed.”  Minn. Stat. § 634.03 (2006).  Under this statute, a confession is insufficient, by itself, to support a conviction and must be corroborated.  State v. Fader, 358 N.W.2d 42, 45 (Minn. 1984). 

The statute has a dual function.  It discourages coercively acquired confessions and makes the admission reliable.  Each element of an offense need not be independently corroborated to meet the statute’s standard.  Instead, the elements should be sufficiently substantiated by independent evidence of attending facts or circumstances from which the jury may infer the trustworthiness of the confession.  The practical relation between the confession and the government’s case, rather than the theoretical relation to the definition of the offense, is the crucial test.

 

State v. Brandt, 436 N.W.2d 468, 470-71 (Minn. App. 1989) (quotations and citations omitted).

            Appellant argues that there was insufficient evidence corroborating his confession because there was no independent evidence establishing that he was involved in assaulting Bower and no independent evidence establishing the crime of illegal possession of a firearm.

            In In re Welfare of M.D.S., the supreme court concluded that sufficient evidence corroborated a confession in an aiding-and-abetting case.  The court explained:

[N]ot all or any of the elements had to be individually corroborated but could be sufficiently substantiated by independent evidence of attending facts or circumstances from which the jury may infer the trustworthiness of the confession.

 

            Application of these rules to the case at issue reveals that the State did produce enough evidence to identify defendant and to bolster and substantiate her own admissions.  Adam Andazola’s testimony that defendant brought the newspaper clipping to his apartment the next day and discussed hiding the weapon and leaving town, while certainly not evidence in its own right of aiding and advising, is powerful support for the reliability of defendant’s own statements.  In testimony, a neighbor of the victim described a car just like the one defendant described.  Testimony by the victim’s son and her husband that neither Croft nor Back had ever been to their home but defendant had been there often supports defendant’s admission in the second statement that she gave Croft the address.  In addition her direction to Croft to shoot at the windows is directly supported by evidence of glass fragments having been found in the victim’s back.  Her admission that she directed Croft to the Earle Brown School is buttressed by evidence of property damage at the school, further lending credibility to all of her statements.  Evidence that the bullets fired into the victim’s home were from a .44-caliber rifle and that a .44-caliber rifle was found at Back’s parents’ home comports with defendant’s description of the weapon.

 

M.D.S., 345 N.W.2d 723, 735-36 (Minn. 1984) (quotation and citations omitted).

            We conclude that under M.D.S., there was sufficient evidence corroborating appellant’s confession that he gave an SKS assault rifle to Eaglefeather and Eaglefeather fired a couple of shots with it.  Evans testified that after hearing a gunshot, he saw Eaglefeather standing with an assault rifle pointed at Bower’s head.  Evans saw Eaglefeather pull the trigger and heard a second gunshot.  The SKS rifle that appellant described in his statement matched the ammunition found at the crime scene and the weapon that Evans saw Eaglefeather holding.   

II.

            Appellant argues that the district court erred in failing to instruct the jury that it could only rely on appellant’s confession to convict him if it found that the state presented sufficient evidence that the charged crimes had been committed.  Appellant did not request such an instruction nor object to the instructions that were given.

Generally speaking, an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial.  In the absence of an objection, the appellate court may review jury instructions if the instructions contain plain error affecting substantial rights or an error of fundamental law.  Under this test, the challenging party must show:  1) error, 2) that is plain, and 3) that affects substantial rights.  If all three prongs are satisfied, the court determines whether the error must be addressed to ensure the fairness and integrity of the judicial proceedings.

 

State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002) (citations omitted).  “Trial courts are permitted considerable freedom when determining how to instruct the jury as long as the jury instruction is not confusing or misleading on fundamental points of the law.”  State v. Gutierrez, 667 N.W.2d 426, 434 (Minn. 2003).

            There is no published authority by this court or the supreme court addressing whether the court is required to instruct the jury that a defendant’s confession must be corroborated.  Appellant argues that the rule for accomplice testimony should be followed in this case.  Even in the absence of a request, the court is required to instruct 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.  State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002); State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989).  The reason that an instruction is required on the corroboration requirement for accomplice testimony is that accomplice testimony is inherently untrustworthy.  State v. LaJambe, 300 Minn. 539, 541, 219 N.W.2d 917, 919 (1974).  This concern does not apply to a confession.  Cf. 1 Charles T. McCormick, McCormick on Evidence § 145, at 594 (John W. Strong, et al. eds., 5th ed. 1999) (recommending against giving an instruction on the corroboration requirement for a confession).

            The precise question in this case is whether the district court’s failure to sua sponte provide a cautionary instruction constituted plain error.  See State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001) (stating rule in context of unobjected-to testimony).  Absent authority requiring such an instruction, the district court’s failure to sua sponte give the instruction was not plain error.  See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (“Usually [plain error] is shown if the error contravenes case law, a rule, or a standard of conduct.”); State v. Jackson, 714 N.W.2d 681, 690 (Minn. 2006) (stating error is “plain” if it is clear or obvious at the time of appeal).

            Because there was sufficient evidence corroborating appellant’s confession and because any error in not instructing the jury on the corroboration requirement was not plain error, we affirm appellant’s convictions.

            Affirmed.