Opinion
No. C5-98-1535.
Filed April 27, 1999.
Appeal from the District Court, Swift County, File No. J69850046.
John M. Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, (for appellant).
Mike Hatch, Attorney General, and David L. Mennis, Swift County Attorney, Daryl A. Maclean, Assistant Swift County Attorney, (for respondent)
Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant K.L.A. was adjudicated delinquent on one count of third-degree burglary. Appellant challenges the adjudication, arguing the evidence was insufficient to corroborate an accomplice's testimony. We reverse.
FACTS
Appellant was charged with two burglaries of the Benson Dairy Queen and one burglary of the Benson municipal swimming pool. At appellant's trial, D.E., a participant in the second Dairy Queen burglary, testified that appellant took an active part in that offense. According to D.E., appellant acted as a lookout and retrieved snacks and food from the parties who entered the store. A second participant, R.C., testified that appellant was also present for the first Dairy Queen burglary.
M.D. was not involved in any of the crimes. He testified about a conversation he overheard between R.C. and appellant at school in the fall following the burglaries. The pertinent portion of his testimony was as follows:
Q. What was [appellant] talking about?
A. About the burglary at Dairy Queen. I'm not sure if it was [appellant] or [R.C.] though that was talking.
Q. Were they both talking?
A. I do believe so, but I can't remember who said — what said — who — who was talking.
Q. Okay. What were they talking about?
A. That they wouldn't get convicted of it, they wouldn't get caught.
Q. Wouldn't get caught why?
A. I'm not sure. I didn't hear that point. Why wouldn't they get caught — is that what you asked?
Q. Yes.
A. You guys didn't know about it or you guys didn't know who was all involved.
Q. You guys didn't know —
A. Or the police.
Q. And these burglaries were to what buildings?
A. Dairy Queen.
Q. Did you talk to them?
A. Yeah, I asked them a question.
Q. And what happened next?
A. They didn't really say anything. They said — they just — like we all walked to the pep fest after that.
The court found appellant guilty of count III, aiding and abetting the second Dairy Queen burglary in violation of Minn. Stat. §§ 609.05, 609.582, subd. 3 (1996). The court dismissed counts I and II, finding those charges had not been proven. The trial court subsequently adjudicated appellant delinquent and ordered a juvenile disposition. Appellant challenges the delinquency adjudication, arguing the evidence was insufficient to support the adjudication as a matter of law because the accomplice testimony was not corroborated.
The juvenile disposition was stayed pending the outcome of this appeal.
DECISION
In reviewing an insufficiency of the evidence claim, this court evaluates the record in the light most favorable to the state and assumes the factfinder believed the state's witnesses and disbelieved any contrary evidence. In re Welfare of S.A.M. , 570 N.W.2d 162, 167 (Minn.App. 1997). This court will uphold the adjudication if the trial court, giving due regard to the presumption of innocence and the state's burden of proving appellant's guilt beyond a reasonable doubt, could have reasonably found appellant guilty. State v. Johnson , 568 N.W.2d 426, 435 (Minn. 1997).
Minn. Stat. § 634.04 (1996) provides:
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 applies to juvenile cases. In re Welfare of K.A.Z. , 266 N.W.2d 167, 169 (Minn. 1978). The testimony of one accomplice cannot corroborate that of another. Id. The corroboration that is required must restore confidence in the inherently suspect accomplice testimony, "confirming its truth and pointing to the defendant's guilt in some substantial degree." Id. When evidence is as consistent with the defendant's innocence as with his guilt, the evidence is insufficient to corroborate the testimony of the accomplice. State v. Wallert , 402 N.W.2d 570, 572 (Minn.App. 1987), review denied (Minn. May 18, 1987).
The state contends that in addition to M.D.'s testimony, there was further corroboration from the Dairy Queen owner regarding items taken and damage to the front windows. But "corroboration is not sufficient if it merely shows the commission of the offense." Minn. Stat. § 634.04; see also Wallert , 402 N.W.2d at 573 (holding circumstantial evidence corroborating accomplice testimony must clearly implicate the defendant in the crime). The Dairy Queen owner's testimony is therefore insufficient to corroborate the accomplice testimony.
In order to determine whether the accomplice testimony was sufficiently corroborated, the proper focus is on the testimony of M.D. M.D. testified that he overheard a conversation between R.C. and appellant. He stated the conversation was about the Dairy Queen burglary (singular), but he did not explain the basis for that knowledge. He could not recall who was talking. He said he heard R.C. or appellant state "they wouldn't get convicted of it, they wouldn't get caught." He did not explain whether "they" referred to R.C. and appellant or some others. Finally, he did not testify that the conversation was about the burglary for which appellant was convicted.
The state relies on In re Welfare of D.M.K. , 343 N.W.2d 863 (Minn.App. 1984), arguing it is factually similar to the instant case. But in D.M.K. , the corroborating testimony came from a person who was involved with the offenders before and after the commission of the crime. Id. at 867. The witness was sufficiently involved in the activities surrounding the crime such that the primary issue on appeal was whether he was also an accomplice. Id. There is significantly less corroboration in the present case.
Other cases relied on by the state also involved more corroboration. See State v. Scruggs , 421 N.W.2d 707, 713-14 (Minn. 1988) (involving corroborative testimony from three persons directly involved with the defendant before and after the crime); State v. Landro , 504 N.W.2d 741, 746 (Minn. 1993) (corroborative testimony included testimony from nonaccomplice that "appellant shot" the victim).
In the present case, we have a witness, M.D., who overheard part of a conversation and could not even recall who was talking. He did not testify as to how he knew appellant and R.C. were talking about a Dairy Queen burglary. He referred to the burglary as singular, but did not testify as to whether the conversation focused on the first or second Dairy Queen burglary. M.D.'s testimony simply did not point to appellant's guilt in any substantial way. See K.A.Z. , 266 N.W.2d at 169. The testimony was as consistent with appellant's innocence of the second burglary as it was with his guilt; therefore, it was insufficient to corroborate the accomplice testimony. See Wallert , 402 N.W.2d at 572.