In the Matter of the Welfare of: D.A.G., Child.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-1703

 

In the Matter of the Welfare of:

D.A.G., Child.

 

Filed June 13, 2000

Affirmed

Randall, Judge

 

Stearns County District Court

File No. J9-98-52332

 

 

John M. Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, 2829 University Avenue Southeast, Suit 600, Minneapolis, MN  55414 (for appellant D.A.G.)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 48, 705 Courthouse Square, St. Cloud, MN  56303 (for respondent State of Minnesota)

 

            Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges his juvenile delinquency adjudication for receiving stolen property.  He asserts that the evidence was insufficient to support his adjudication because an accomplice's testimony was not sufficiently corroborated by other evidence.  We affirm.

FACTS

                At approximately 4:00 a.m. on April 29, 1998, police officers received a complaint about go-carts being driven in a field.  One of the officers, Officer Bradley Thelen, observed two people get off go-carts in a business's parking lot and begin running as he followed them in his squad car.  Officer Thelen eventually caught appellant D.A.G., who was attempting to hide under a vehicle.  Officer Thelen handcuffed D.A.G. and placed him in the squad car.  According to Officer Thelen, at some point either before or after he put D.A.G. in the squad car, D.A.G. indicated that although the smaller of the go-carts was stolen, he was driving the larger go-cart, which he owned.  Officers learned three months later that the larger go-cart had been stolen from C.T. Farm and Country Store in St. Cloud sometime between 9:00 p.m. on April 28, 1998, and 7:00 a.m. on April 29, 1998.

                The county attorney filed a delinquency petition charging D.A.G. with receiving stolen property valued between $500 and $2,500.  D.A.G. challenged the police stop and moved to suppress the statement he gave to Officer Gary Norman after his arrest, alleging he was not given a Miranda warning before Officer Norman questioned him.  The district court determined that the stop was valid but suppressed "any statements made by [D.A.G.]."  The state then brought a motion in limine requesting the district court rule that statements D.A.G. made in a telephone conversation to a police officer three months after D.A.G.'s arrest were admissible evidence.  The district court determined that the conversation was "fruit of the poisonous tree" and suppressed that conversation.[1]

            After a bench trial, the district court concluded that D.A.G. was guilty of the charged offense and adjudicated D.A.G. delinquent.   

D E C I S I O N

            An appellate court reviews a sufficiency of the evidence challenge by viewing the evidence in the light most favorable to the verdict and assumes the fact-finder disbelieved any testimony in conflict with the verdict.  State v. Thomas, 590 N.W.2d 755, 757 (Minn. 1999); see also In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997) (applying same standard in reviewing juvenile delinquency adjudication).  Further, the reviewing court considers the sufficiency of circumstantial evidence corroborating an accomplice's testimony in the light most favorable to the verdict.  State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995).  The reviewing court will uphold the verdict if, giving due regard to the presumption of innocence and the state's burden of proof beyond a reasonable doubt, the fact-finder could reasonably have found the defendant guilty.  Thomas, 590 N.W.2d at 757-58.  

            D.A.G. first asserts that the only evidence establishing that he knew the go-cart was stolen was the testimony of Michael Fandel, the other individual arrested in the incident.  D.A.G.  asserts that because Fandel was an accomplice, Fandel's testimony alone is not sufficient to support the finding of guilt.

            Accomplice testimony cannot support a conviction absent corroborating evidence that "tends to convict the defendant of the commission of the offense."  Minn. Stat. § 634.04 (1998); see also In re Welfare of K.A.Z., 266 N.W.2d 167, 169 (Minn. 1978) (recognizing statute applies in juvenile cases).  "[C]orroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."  Minn. Stat. § 634.04.  However, if a defendant's connection to the crime may be fairly inferred from looking at his entire conduct, there is sufficient corroboration.  State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).  Corroborating evidence need only link the defendant to the crime; it need not establish a prima facie case of the defendant's guilt.  Id. 

            Fandel testified that he drove D.A.G. to C.T. Farm and Country Store (Farm and Country) on the evening of April 28, 1998.  According to Fandel, he waited in the car while D.A.G. obtained a go-cart from the store.  D.A.G. then drove the go-cart to an apartment building where Fandel was storing another go-cart, and Fandel followed in the car.  Fandel testified that after they obtained the second go-cart from the apartment building's garage, he and D.A.G. went riding.  According to Fandel, he drove the smaller go-cart that was stored in the garage,[2] and D.A.G. drove the larger go-cart, which they had stolen that evening from Farm and Country. 

            Sean Brown, a friend of Fandel, testified that he permitted Fandel to store go-carts in his garage stall.  According to Brown, Fandel had stored two go-carts there in the past.  On the date of this incident, there was only one go-cart stored in the garage.  He testified that the go-cart stolen from Farm and Country had never been in his garage.  Brown further testified that at approximately 10:00 p.m. on the evening of April 28, Fandel and D.A.G. came to his apartment.  Brown testified that when he refused to drive them somewhere, Fandel and D.A.G. began riding go-carts. 

            Although there is little evidence supporting Fandel's version of the go-cart theft, D.A.G. was not charged with stealing the go-cart.  Instead, he was charged with receiving stolen property, which requires that one who possesses stolen property knows or has reason to know that the property was stolen.  See Minn. Stat. § 609.53 (1998) (prohibiting possession of stolen property with knowledge or reason to have knowledge that property was stolen).  D.A.G. was caught riding a go-cart on the night that it was stolen.  This evidence supports the district court's conclusion that defendant had knowledge that the go-cart was stolen.  State v. True, 378 N.W.2d 45, 48 (Minn. App. 1985) (recognizing unexplained possession of recently stolen property will support a conclusion that the defendant knew the property was stolen).  Further, this evidence, in conjunction with Brown's testimony that he saw Fandel and D.A.G. together approximately an hour after the go-cart could have been stolen[3] and Brown's testimony that Fandel and D.A.G. went go-carting after he spoke to them, is corroborative of Fandel's testimony.  See Adams, 295 N.W.2d at 533 (stating corroborating evidence may be established by considering "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"  (citation omitted)).   

            D.A.G. next asserts that the evidence is insufficient because the only admissible evidence that appellant possessed the go-cart stolen from Farm and Country is Fandel's testimony. 

            At trial, Officer Thelen testified that although he did not see which go-cart D.A.G. was riding, D.A.G. indicated to him that he (D.A.G.) was riding the larger one (i.e., the one stolen from Farm and Country).  Later in his testimony Officer Thelen repeated his statement that D.A.G. indicated to him that he was riding the larger go-cart.  Defense counsel did not object either time.  After the state rested its case, defense counsel moved to dismiss the charges, asserting that the state had not proved its case.  During this discussion, the district court noted Officer Thelen's testimony that D.A.G. had indicated that he was riding the bigger go-cart.  At that point, defense counsel stated that all of D.A.G.'s statements to police officers had been suppressed.  The district court rejected this assertion, and stated:

            I don't even think it was an interrogation.  I don't even know if there was a volunteered statement.  There was no objection.  It stands.  It's part of the record.  The motion is denied.

 

            On appeal, D.A.G. does not challenge the district court's trial ruling that Officer Thelen's testimony about D.A.G.'s statements was admissible.  Although the intended breadth of the pretrial suppression orders is not entirely clear from the district court's wording in the suppression orders, after considering the context of its rulings, we conclude that the district court orders did not address the admissibility of statements D.A.G. made to Officer Thelen during the arrest. 

            At the first suppression hearing, the discussion regarding D.A.G.'s statements to police centered on D.A.G.'s statements to Officer Nordmann at the police station.  The court made no mention of the statements made to Officer Thelen during the arrest.  In reference to the arrest by Officer Thelen, the court stated:

I don't have a problem with [D.A.G.] being taken into custody for delivery to a parent or for citing on [a noise violation or attempting to flee].  But then I think after that is where the problem results.

 

The court then proceeded to discuss the statement given to Officer Nordmann.  In discussing the statement given to Officer Nordmann, the district court stated that it was "going to suppress any statements made by [D.A.G.]."  At the second suppression hearing, the discussion involved a telephone conversation between D.A.G. and another officer, and the district court ruled that the conversation was inadmissible because it was "fruit of the poisonous tree."

                We consider Officer Thelen's testimony because (a) the district court's suppression orders did not address this issue; (b) defense counsel did not object when Officer Thelen testified that D.A.G. indicated he was riding the larger go-cart; and (c) the district court determined at trial that the statement was admissible.  Officer Thelen's testimony is corroborative of Fandel's testimony that D.A.G. was riding the go-cart stolen from Farm and Country. 

            D.A.G. also notes that the district court did not state in its oral findings that it was relying on Officer's Thelen's statements.  Although this is true, there is no indication that the district court rejected Officer Thelen's statements.  Instead, the district court merely observed that D.A.G. was in possession of the go-cart stolen from Farm and Country regardless of who was riding the go-cart.  The district court stated that D.A.G. was in either constructive or actual possession of the go-cart, depending on who was riding the go-cart.  D.A.G. does not challenge this finding but is seemingly contending that constructive possession does not equate to possession.  This is an inaccurate interpretation of the law.  See State v. Peterson, 375 N.W.2d 93, 95 (Minn. App. 1985) (recognizing to prove possession of stolen property, state must "show either actual or constructive possession").  Further, although D.A.G. asserts that the district court did not conclusively find that he was in possession of the go-cart, the district court specifically determined that D.A.G. "was in possession of [the go-cart] in the early morning hours of April 29, 1998."

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The district court mistakenly ruled that the defendant's motion to suppress the telephone conference was granted, rather than denying the state's motion.  Neither party disputes that the ruling effectively denied the state's motion.

[2]  This go-cart had previously been stolen from a different location.  Before his testimony in D.A.G.'s case, Fandel was convicted of receiving stolen property for possessing the smaller go-cart.  

[3] The manager of Farm and Country testified that the go-cart was stolen between 9:00 p.m. on April 28 and 7:00 a.m. on April 29.  Brown testified that he saw Fandel and D.A.G. at his apartment at approximately 10:00 p.m. on April 28.