State of Minnesota, Respondent, vs. Michael Arthur Glinnon, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-03-31

 

State of Minnesota,
Respondent,
 
vs.
 
Michael Arthur Glinnon,
Appellant.

 

Filed December 9, 2003

Affirmed

Stoneburner, Judge

 

Becker County District Court

File No. K302863

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

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

 

John M. Stuart, Minnesota Public Defender, Davi E. Axelson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Stoneburner, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Michael Arthur Glinnon argues that the state failed to present accomplice-corroboration evidence sufficient to sustain his convictions of first-degree burglary, theft of more than $500, and theft of a weapon.  Appellant also alleges that the district court abused its discretion in not instructing the jury to decide whether his girlfriend's daughter was an accomplice to the charge of theft of more than $500.  Because the accomplice's testimony was sufficiently corroborated and the district court did not abuse its discretion, we affirm.

FACTS

 

            Appellant lived with his girlfriend Bobbi Haverinen in a mobile home in Park Rapids.  When Haverinen's daughter, B.H., ran away from a group home, appellant supported B.H.'s action and ordered Haverinen to pick up her daughter.  Appellant arranged for B.H. and her boyfriend, Shannon Savela, to stay at a trailer on a friend's (Wilkins) hunting land, and to use the bathroom at Wilkins's nearby house, until appellant could take B.H. and Savela to a Montana ranch appellant claimed to own.  Appellant's plan was for B.H. to remain in Montana until she reached majority.  For about three days, appellant and Haverinen picked up B.H. and Savela and took them to Wilkins's house to use the facilities.  Wilkins had given them a key for this purpose.  The group then drove to Montana in a rented van.

            Several days later, Haverinen and Savela were arrested in Montana after they tried to pawn guns that Wilkins had reported stolen.  Police then picked up appellant, who was waiting with B.H. at a nearby motel.  Appellant identified B.H. as his 18-year-old daughter and denied any knowledge of the guns.  Eventually, he admitted knowing the guns were in the van but said he had not realized that until the group got to Montana.  Despite an earlier telephone conversation with Wilkins, who told appellant that his guns and some money had been stolen, appellant told the Montana police that he thought the guns belonged to Savela's father.  Later he acknowledged that the guns belonged to Wilkins.  Appellant said that Savela must have stolen the guns.  Appellant also denied knowing anything about money taken from Wilkins, but later admitted that Wilkins had told him that his money was missing, and even later told police that Haverinen told him that she and B.H. had stolen the money from Wilkins.

            Haverinen, B.H., and Savela had a different story.  According to them, while they were at Wilkins's house to use the facilities, appellant made Haverinen and Savela remove cans of coins from Wilkins's house to Haverinen's car.  At appellant's direction, Haverinen and Savela took the coins to a bank and exchanged them for about $845 in currency.

            Haverinen claimed that she obeyed appellant out of fear.  She said that appellant had hit her and split her lip when she and Savela were unable to rent a van at appellant's direction.  Appellant rented the van for the trip to Montana.  After the van was rented, appellant and Haverinen went to Wilkins's house.  Haverinen said that appellant broke into the house because she had returned Wilkins's key to him.  Appellant ordered Haverinen to take a pistol and another gun from Wilkins's house to the van.  Appellant, according to Haverinen, brought another pistol and two rifles from Wilkins's house to the van, after which they went to the hunting property to pick up B.H. and Savela to leave immediately for Montana.  Savela said appellant told him about the guns when they reached North Dakota, and appellant ordered Haverinen and Savela to pawn the guns when they reached Montana. 

            Appellant was charged with first-degree burglary, theft of over $500, and theft of a weapon.  While Haverinen and appellant were both in jail in Becker County, prior to appellant's trial, Haverinen wrote a statement placing all of the blame on Savela and claiming that appellant was innocent.  At trial, Haverinen testified that she wrote the statement out of fear, and it was not true.  She testified that appellant had twice pulled a gun on her, threatened her children, and had told her she would spend the rest of her life in jail and never see her children again.

            Appellant testified in his own defense.  He denied any involvement in the theft of the coins or the firearms.  He admitted that he hit Haverinen and split her lip when they argued about the van rental, but denied that she feared him.  The jury found him guilty as charged.  This appeal followed.

D E C I S I O N

 

In Minnesota

[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 (2000).  It is well-settled that in reviewing the sufficiency of the corroborating evidence of an accomplice's testimony, "we review the evidence just as we would on a sufficiency challengein the light most favorable to the prosecution, and with all conflicts in the evidence resolved in favor of the verdict."  State v. Nelson, 632 N.W.2d 193, 202 (Minn. 2001).

            Accomplice testimony may be untrustworthy because of the risk that the "accomplice may testify against another in the hope of or upon a promise of immunity or clemency or to satisfy other self-serving or malicious motives."  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989).  Therefore, "[c]orroborative evidence supporting the testimony of an accomplice must be ‘weighty enough to restore confidence in the accomplice's testimony, confirming its truth and pointing to the defendant's guilt in some substantial way.'"  State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000) (quoting State v. Norris, 428 N.W.2d 61, 66-67 (Minn. 1988)). 

            "If the accused testified, the inadequacies and admissions in his testimony may be corroborative of the accomplice's testimony."  State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).  Corroborating evidence may also be "secured from the defendant's association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant's opportunity and motive to commit the crime and his proximity to the place where the crime was committed."  Id.  Further, "[t]he defendant's entire conduct may be looked to for corroborating circumstances."  Id.

            Here, the testimony of Savela and B.H., who were not accomplices to the theft of firearms, sufficiently corroborated the testimony of Haverinen.  And appellant's own lies to the Montana police corroborated Haverinen's testimony.  See State v. Miller, 396 N.W.2d 903, 905 (Minn. App. 1986) (recognizing that evidence that defendant initially lied to police corroborated accomplice's testimony).  Appellant's proximity to the location of the crimes and evidence of his dominance in the relationship with Haverinen are further corroboration of Haverinen's and Savela's testimony.  Additionally, Wilkins's testimony that appellant needed money for the trip to Montana was relevant to appellant's motive for committing the crime.  Corroboration of the accomplice's testimony was sufficient.   

            Appellant's claim that the district court abused its discretion in failing to instruct the jury to determine whether B.H. was an accomplice to the theft of the coins is without merit.  Jury instructions lie within the broad discretion of the district court.  State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995).  Whether a witness is an accomplice is a jury question only when the facts are disputed or susceptible to different interpretations.  State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995).  Where the evidence permits only one inference to be drawn as to whether a witness is an accomplice, the district court decides the question as a matter of law.  Id.  "The test for whether a witness is an accomplice for purposes of section 634.04 is whether the witness could have been indicted and convicted for the crime with which the accused is charged."  State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001).

            The only evidence linking B.H. to the theft of the coins was appellant's testimony that he saw her place "something" in Haverinen's car on the day the coins were stolen, a day when B.H. was showering at Wilkins's house.  Appellant also testified that B.H. helped count the coins and disposed of the cans that had contained the coins.  B.H.'s actions after the theft of the coins may make her an accessory after the fact, a crime separate from the theft.  But B.H. could not have been indicted or convicted for the theft based on appellant's having seen her put "something" in the car.  Therefore, B.H. was not an accomplice as a matter of law and the district court did not abuse its discretion in declining to give appellant's requested instruction. 

            Affirmed.