In the Matter of the Welfare of: T.M.M., Child.

STATE OF MINNESOTA
IN COURT OF APPEALS
 C6-98-2306

In the Matter of the Welfare of:
T.M.M., Child.

Filed August 3, 1999
 Affirmed; motion to strike denied
 Peterson, Judge

Benton County District Court
File No. JX98500008

Stearns County District Court
File No. J29752209

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant T.M.M.)

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Roger S. Van Heel, Stearns County Attorney, Janis L. Hovda, Assistant County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN 56303-4773; and

Michael Jesse, Benton County Attorney, Benton County Courthouse, 615 Highway 23, P.O. Box 189, Foley, MN 56329 (for respondent)

Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.

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

 PETERSON, Judge

Appellant T.M.M., a minor, challenges the sufficiency of the evidence supporting his delinquency adjudication on charges of second-degree burglary, felony theft, and third-degree criminal damage to property. T.M.M. also moves to strike portions of respondent's appendix. We affirm the adjudication and deny the motion to strike.

 FACTS

Around noon on October 10, 1996, Allen Stellmach's house was vandalized and burglarized. Stellmach notified police that a shotgun, bow and arrows, answering machine, binoculars, cordless phone, and 150 blank checks were missing.

Later that day, at approximately 10:00 p.m., a Waite Park police officer observed two juvenile males sitting on the sidewalk near a Food & Fuel gas station. When one of the juveniles noticed the officer's patrol car, he took off running. The remaining juvenile, S.T.C., was arrested. He was carrying a box of Stellmach's checks. One of the checkbooks contained a check that was partially made out to Yellow Cab.

During a police investigation, S.T.C., C.J.T., and C.E.T. admitted to participating in the burglary of Stellmach's home. They implicated T.M.M. as an accomplice in the burglary. T.M.M. was charged with gross-misdemeanor offering a forged check, second-degree burglary, felony theft, and third-degree criminal damage to property.

At T.M.M.'s delinquency hearing, S.T.C. and C.E.T. testified that T.M.M. participated with them in the burglary of Stellmach's house. Nicholas Blommer testified that (1) on the afternoon of the burglary, a group of boys, including T.M.M. and S.T.C., came over to his house and gave him a telephone, an answering machine, and a pair of binoculars; (2) the boys did not mention committing a burglary or say where they got the property; (3) when he heard that the property might have been stolen, he called the police to come over and pick up the property; and (4) he told the Waite Park police officer who came to pick up the property that T.M.M. and S.T.C. gave it to him.

Police Investigator Dale Marschel testified that during his investigation of the burglary, T.M.M. admitted that, on the day of the burglary, he wrote a check for pizza at Little Caesar's, using one of the checks stolen from Stellmach's house. Marschel also testified that another stolen check, which was partially made out to Yellow Cab, was in S.T.C.'s possession at the time of his arrest and that the handwriting on this check matched the handwriting on the check made out to Little Caesar's.

The juvenile court adjudicated T.M.M. delinquent on the charges of second-degree burglary, felony theft, and third-degree criminal damage to property. The court found that (1) because the handwriting on the two stolen checks was similar and T.M.M. admitted writing the check to Little Ceasar's, T.M.M. wrote both of the checks; (2) Blommer was not an accomplice; and (3) Blommer's testimony put T.M.M. in possession of and in connection with the stolen property within hours of the burglary.

 D E C I S I O N

 1. Sufficiency of the Evidence

T.M.M. argues that the evidence was insufficient to prove the charges against him because the corroborating testimony demonstrated only that he possessed stolen property after the burglary, and no evidence corroborated the accomplices' testimony that he participated in the burglary.

In a delinquency proceeding, the prosecution bears the burden of proving the truth of the petition beyond a reasonable doubt, and an appellate court must view the evidence in the light most favorable to the prosecution. In re Welfare of G.L.M., 347 N.W.2d 84, 85 (Minn. App. 1984). To successfully challenge the sufficiency of the evidence supporting an adjudication of delinquency, a juvenile must prove "that the the trier of fact could not reasonably find he committed the charged acts." In re Welfare of T.M.V., 368 N.W.2d 421, 423 (Minn. App. 1985).

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 (1996). This statute applies in juvenile cases. In re Welfare of K.A.Z., 266 N.W.2d 167, 169 (Minn. 1978).

In reviewing the sufficiency of corroborating evidence of accomplices' testimony, we view the evidence in the light most favorable to the state and all conflicts in the evidence are resolved in favor of the verdict. There must be adequate corroboration from which a jury could find that the defendant committed the crime charged.

 State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).

Corroborating evidence need not establish a prima facie case of the defendant's guilt, but it "must point to the defendant's guilt in some substantial degree." Adams, 295 N.W.2d 527, 533 (Minn. 1980); see also State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (corroborating evidence is sufficient if it confirms truth of accomplice's testimony and points to defendant's guilt).

Corroborating evidence may 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.

 Adams, 295 N.W.2d at 533. Corroborating evidence may also include physical evidence associated with the crime, suspicious and unexplained conduct of the accused either before or after the offense, and inadequacies in the accused's testimony. State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990) (citing State v. Mathiasen, 267 Minn. 393, 398, 127 N.W.2d 534, 538 (1964)).

The parties do not dispute that S.T.C. and C.E.T. were accomplices. And T.M.M. does not challenge the trial court's conclusion that Blommer was not an accomplice. T.M.M. argues that the trial court erroneously concluded that Blommer's testimony corroborated that T.M.M. participated in the burglary.

Blommer testified that T.M.M. and S.T.C. were among a group of people who came to his house on the afternoon of the burglary and left a telephone, an answering machine, and binoculars with him. These items were identified as items stolen from Stellmach's house. When Blommer later learned that the items might have been stolen, he called the Waite Park police and asked them to come and get the items. Blommer testified that he told the officer who came to pick up the items that T.M.M. and S.T.C. had given them to him.

Although this evidence does not establish a prima facie case of T.M.M.'s guilt, it does demonstrate that within a few hours after the burglary, T.M.M. possessed stolen goods in the company of S.T.C., one of the juveniles who confessed to the burglary.

Furthermore, Blommer's testimony was not the only corroborating evidence offered at trial. Investigator Marschel testified that T.M.M. admitted that, on the day of the robbery, he wrote out one of Stellmach's checks to Little Caesar's Pizza for $49 dollars and some cents. This check (which was written for $49.61) was one of the checks taken during the burglary of Stellmach's house.

Taken as a whole and viewed in the light most favorable to the adjudication, this evidence points to T.M.M.'s guilt in some substantial degree and is sufficient to corroborate the testimony of S.T.C. and C.E.T. that T.M.M. participated in the burglary of Stellmach's house. The corroborating evidence does not merely show that the burglary was committed; it shows that within a short time after the burglary occurred, T.M.M. was associated with an admitted participant in the burglary and possessed items stolen during the burglary. Because this evidence suggested joint participation in the crime, the trial court could reasonably conclude that T.M.M. was guilty of committing second-degree burglary, felony theft, and third-degree criminal damage to property. See Minn. Stat. §§ 609.582, subd. 2 (1996) (second-degree burglary), 609.52, subds. 2(1), 3(1) (1996) (felony theft), 609.595, subd. 2(a) (1996) (third-degree criminal damage to property).

2. Motion to Strike

 T.M.M. moved to strike pages A14-A37 of respondent's appendix. Pages A14-A36 contain transcripts of taped statements that C.J.T. and C.E.T. gave to police investigators. T.M.M. contends that these documents are not part of the record on appeal.

The record on appeal consists of the "papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any." Minn. R. Civ. App. P. 110.01.

The tapes used to record the statements were introduced at trial. T.M.M.'s attorney stated that he did not have any objection to what was on the tapes and that he did not think that the tapes had to be played. The tapes were not played.

Minn. R. Civ. App. P. 110.02, subd. 4, provides:

The transcript should include transcription of any testimony given by audiotape, videotape, or other electronic means unless that testimony has previously been transcribed, in which case the transcript shall include the existing transcript of testimony, with appropriate annotations and verification of what portions were replayed at trial, as part of the official trial transcript.

Although the tapes were not played at trial, the court reporter apparently transcribed them and provided the transcripts along with the transcript of the delinquency hearing. Because the tapes were admitted at trial, and T.M.M. does not challenge the accuracy of the transcripts, we deny the motion to strike pages A14-A36 of respondent's appendix.

Page A37 contains photocopies of the two stolen checks made out to Little Caesar's Pizza and Yellow Cab. Because these checks were introduced into evidence as exhibits #10 and #11, we deny the motion to strike page A37 of respondent's appendix.

Affirmed; motion to strike denied.