State of Minnesota, Respondent, vs. Michelle Elizabeth Nelson, Appellant.

This opinion will be unpublished and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

CX-99-925

 

State of Minnesota,

Respondent,

 

vs.

 

Michelle Elizabeth Nelson,

Appellant.

 

Filed April 25, 2000 Affirmed Halbrooks, Judge

 

Clay County District Court

File No. K7-98-1243

 

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

 

Lisa N. Borgen, Clay County Attorney, Clay County Courthouse, PO Box 280, Moorhead, MN 56561 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Michelle Nelson appeals from her conviction of first-degree aggravated robbery, arguing that there was insufficient evidence to corroborate the testimony of her alleged accomplices.  Nelson also claims that the trial court erred in failing to give an instruction on the necessity for corroboration of accomplice testimony when this instruction had been requested before trial.  Because we conclude that there was sufficient evidence to corroborate the accomplice's testimony and the trial court's failure to instruct the jury on corroboration of accomplice testimony was not prejudicial, we affirm.

FACTS

            On June 28, 1998, appellant Michelle Nelson went to the Red River Valley Fair with two friends, Rachel Vandal and Jessica Conway.  They left the fair about 9:00 p.m. and drove around in Conway's car.  Vandal testified at trial that either Nelson or Conway mentioned that Conway owned a pellet gun and someone suggested that they use it to scare people into giving them a purse "or whatnot."  Vandal suggested that they use the gun to rob a store.  Vandal and Conway testified that the three of them eventually formulated a plan to commit a robbery. 

Vandal would be the robber, and Conway would be the get-away driver.  Nelson was to help in any way she could, including acting as a lookout.  The three of them decided they would share the proceeds of the robbery.  Vandal and Conway both testified at trial that all three women participated in the planning and agreed on the final plan. 

Vandal and Conway further testified that they drove to Conway's house to get Conway's gun and a sweatshirt.  Next, they drove to Vandal's apartment where she and Nelson changed clothes.  At approximately 1:00 a.m. on June 29, 1998, after looking at numerous convenience stores, they selected Orton's Station in Moorhead.

            Conway parked the car at the side of the store.  Vandal told Conway to go inside, so she could find out how many clerks were working and whether there were any security cameras.  Vandal testified that while Conway was in the store, Nelson and Vandal discussed whether Vandal would rob the store.  When Conway returned, they moved the car behind the store.  According to Conway, they reviewed their roles as they sat in the car behind Orton's.  They also put on the dark clothing that they had picked up at Conway's house earlier in the evening.  Vandal testified that she told the others she would go around one side of Orton's and directed Nelson to go around the other.  Vandal planned to go into the store alone because there was only one clerk, but she told Nelson to stay where she could see inside, while keeping a lookout for police.

            Vandal pulled the hood of her sweatshirt over her head and tied a bandana over her face.  She also wore a baseball cap and sunglasses.  Vandal testified that she and Nelson got out of the car at the same time.  Vandal went into the store and put the gun in the clerk's face.  The clerk handed over a little more than $300.

            Vandal testified that she took the money and ran outside.  She went around to the back of the store and saw Nelson standing by the car.  The front and rear passenger doors were open.  Vandal dived into the back seat and, according to her, Nelson slammed the door shut, jumped in the front seat, and Conway drove away.

            Vandal testified that she gave Nelson and Conway between $30-$40 each.  She also bought gas for Conway's car and a meal for everyone. 

            Shortly after the robbery, Nelson, Vandal, and Conway were apprehended.  Conway and Vandal both gave statements implicating themselves and Nelson.  Both eventually pleaded guilty and testified against Nelson.

            After she was picked up, Nelson was interviewed by a Bureau of Criminal Apprehension agent.  During the interview, Nelson admitted that before the robbery they went to Conway's house to get the gun and a sweatshirt.  She also admitted that they drove by several businesses looking for a place to rob.  When they got to Orton's, Nelson claimed she tried to talk Vandal out of the robbery while Conway was in the store.  They pulled the car behind the store and Vandal got out of the car.  Nelson also got out of the car.  Nelson, however, repeatedly told the agent that the robbery was "a spur of the moment thing."  Nelson stated she thought Vandal was just "smarting" and that they would never follow through with the robbery.  She stated she did not think Vandal would commit the robbery until, at Orton's, Vandal announced, "I'm going to do it" and walked inside.  In response to the agent's question about whether it was her job to be the lookout, Nelson stated, "Yeah, if you want to look at it that way, I guess."  She then said, "I didn't know what to do.  I mean, I didn't know if I should have stopped her, or .  * * *  But I didn't know she was going to do it." 

            Nelson also stated she saw Vandal pull a gun on the clerk in the store and when she saw Vandal leave the store, she ran back to the car and opened her door and Vandal's door.  Nelson conceded that in the days after the robbery, they looked for another place to rob and talked to someone about getting another gun so that two people could go into the store on the next robbery.  Nelson also stated she agreed to another robbery, but that she "knew we weren't going to do it."

            At trial, Nelson reiterated that she thought Vandal's plan to rob a store was a joke.  She also denied the allegations made by Vandal and Conway that she had gone into Conway's home to get the gun and into Vandal's home to change her clothes. 

            Nelson also testified that when they got to Orton's, she tried to dissuade Vandal from carrying out her plan and that Vandal went into Orton's without saying anything to her about being a backup or lookout.  According to Nelson, she only got out of the car because she was uneasy.  She walked around to the front of the store and looked in the front window, where she saw Vandal holding a gun in the clerk's face.  Nelson ran back to the car and jumped in the front seat just as Vandal arrived and jumped in the back.  Nelson denied that she held the door for Vandal. 

            Nelson testified that Vandal gave her $30 without any explanation.  She also admitted that after the robbery they talked about doing another robbery and getting another gun and that they drove by some businesses. 

            At the conclusion of the evidence, the district court instructed the jury on the elements of accomplice liability and first-degree aggravated robbery.  It did not, however, instruct the jury on accomplice testimony.  The jury returned a verdict of guilty, and Nelson was later sentenced.  This appeal followed.

D E C I S I O N

1.            Corroboration of Accomplice Testimony

            We review claims of insufficiency of the evidence in the "light most favorable to the verdict" and consider whether the jury acted with "due regard for the presumption of innocence and the need to overcome it by proof beyond a reasonable doubt."  State v. McKenzie, 532 N.W.2d 210, 223 (Minn. 1995) (citations omitted).  In cases

where much of the evidence is circumstantial, our general standard of review is supplemented by the rule that a conviction based on such evidence will be upheld if a detailed review of the evidence and the reasonable inferences from such evidence are consistent only with the defendant's guilt and inconsistent with any rationale hypothesis except that of guilt.

 

Id. (citing State v. Scharmer, 501 N.W.2d 620, 622 (Minn. 1993)).

In the instant case, Nelson argues the evidence corroborating the accomplice testimony of Vandal and Conway was vague and uncertain and equally consistent with Nelson's innocence.  Under Minn. Stat. § 634.04 (1998), accomplice testimony must be corroborated by independent evidence and cannot be corroborated by that of another accomplice.  State v. Armstrong, 257 Minn. 295, 308, 101 N.W.2d 398, 407 (1960).  That statute 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.

Corroborating evidence must link or connect the defendant to the crime.  State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988).  It is not necessary that it establish a prima facie case of the defendant's guilt.  Id. (citation omitted).  It is "sufficient to convict if it confirms the truth of the accomplice's testimony and points to the defendant's guilt in some substantial degree."  McKenzie, 532 N.W.2d at 223 (citation omitted).

If the defendant testifies, the inadequacies and admissions in his or her testimony may be corroborative of the accomplice's testimony.  Scruggs, 421 N.W.2d at 713 (quoting State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980) (citation omitted)).  Corroborating evidence may also be obtained from the defendant's association with those involved in the crime, as well as from the defendant's opportunity and motive to commit the crime and his or her proximity to the place where the crime was committed.  Id.  We review circumstantial evidence corroborating an accomplice's testimony in the light most favorable to the verdict.  State v. Norris, 428 N.W.2d 61, 66 (Minn. 1988).

            A review of the evidence in the record does not support Nelson's argument that the accomplices' testimony was insufficiently corroborated.  Nelson's admissions in her statement to the BCA agent, her trial testimony, her association with Vandal and Conway, and her proximity to the crime are sufficient to corroborate the accomplices' testimony of Vandal and Conway.  See, e.g., State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (quoting Scruggs, 421 N.W.2d at 713 (citation omitted)) ("corroborating evidence may be secured from the defendant's association with those involved in the crime * * *, from the defendant's opportunity and motive to commit the crime, and his proximity to the place where the crime was committed"); State v. Stave, 280 Minn. 269, 270-71, 158 N.W.2d 848, 850 (1968) (holding presence of defendant in vicinity of burglary in company with accomplices and under suspicious circumstances constitutes sufficient corroboration of accomplice's testimony to justify defendant's conviction).

            In her statement, Nelson admitted to being with Vandal and Conway while the robbery was being planned, the gun and sweatshirt were acquired, and the potential robbery sites were reviewed.  She also admitted she stood outside of the store and watched while Vandal committed the robbery, that she ran back to the car and opened the car door for Vandal, and that she received $30 from the proceeds of the robbery.  Additionally, she admitted discussing future robberies and being present when Vandal and Conway attempted to locate a second gun for the upcoming robberies.  Each of these admissions corresponds to the testimony of Vandal and Conway that Nelson participated in planning the robbery, locating a business to rob, and acting as a lookout during the robbery.

            Moreover, although Nelson claimed she thought planning the robbery was a joke and she did not know Vandal would actually carry out the crime, the jury was free to evaluate her credibility and draw its own conclusions on the basis of her actions and the testimony of the other witnesses.  See Scruggs, 421 N.W.2d at 714 (stating jury could reasonably disbelieve defendant's testimony in light of testimony of other witnesses); cf. McKenzie, 532 N.W.2d at 223 (indicating the jury was entitled to believe the testimony of the accomplice and other witnesses and "disbelieve any contradictory evidence").  Accordingly, we conclude there is sufficient evidence to corroborate the testimony of Vandal and Conway.

2.            Failure to Provide Instruction

            Before trial, Nelson's attorney made a written request for the court to include CRIMJIG 3.18 in its instructions to the jury.  See 10 Minnesota Practice, CRIMJIG 3.18 (1999).  The essence of the instruction is that a defendant cannot be convicted on accomplice testimony unless that testimony is sufficiently corroborated. 

At the close of the evidence, the court instructed the jury on the elements of first-degree aggravated robbery and accomplice liability, but inadvertantly omitted the requested jury instruction.  Defense counsel apparently did not notice the omission and did not object.  The state contends defense counsel's failure to object constitutes a waiver of this issue and this court should not, therefore, address it. 

The state is correct that a defendant's failure to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  Nevertheless, appellate courts have discretion to consider the issue if the instructions contain plain error affecting substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Under the three-prong test for plain error, an appellate court must determine (1) there was error; (2) it was plain; and (3) the error affected substantial rights.  Id. (citing Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 1549 (1997)). 

If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings. 

 

Id. (citing Johnson, 520 U.S. at 461, 117 S. Ct. at 1550).

            Minn. Stat. § 634.04 requires the court to instruct the jury that a conviction may not be had upon the uncorroborated testimony of an accomplice.  In order to give effect to this statute, Minnesota courts require that an instruction similar to CRIMJIG 3.18 be given in any criminal case in which any witness against the defendant "might reasonably be considered an accomplice" to the defendant's crime.  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989).

            In this case, the state concedes that Conway and Vandal were accomplices and that pursuant to Shoop, the trial court's failure to instruct the jury on accomplice testimony was plain error.  The state, however, argues that the error did not affect Nelson's "substantial rights" because the record contains abundant evidence of corroboration. 

            The substantial-rights prong is satisfied if the error was prejudicial and affected the outcome of the case.  Griller, 583 N.W.2d at 741.  The defendant bears the "heavy" burden of persuasion on this prong.  Id.  Plain error is prejudicial if there is a reasonable likelihood that it substantially affected the verdict.  Id. (citing State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990)).

After analyzing the record in this case and considering all of the relevant factors, we conclude the court's failure to instruct the jury on accomplice corroboration did not significantly impact the verdict.  As previously discussed, Nelson's association with Vandal and Conway, her presence at the scene of the crime, and her admission to the BCA agent that she acted as a lookout and received some of the stolen money all corroborate Vandal and Conway's trial testimony.  In light of these admissions, her contention that she thought the robbery was only a joke is simply not plausible.  See Griller, 583 N.W.2d at 742 (holding that because the defendant's story was "wholly unbelievable," it was unlikely any erroneous instruction significantly affected the verdict").

            Finally, the jury's note to the court during deliberations in which it asked if Vandal and Conway had been able to communicate with each other before trial, indicates a concern with witness credibility and, in our estimation, is not an issue that would have been resolved by giving an instruction on corroboration of accomplice testimony.  The jury was properly instructed on judging witness credibility and found Conway and Vandal's version of events more credible than Nelson's in light of the circumstances.  Thus, we conclude the failure to instruct the jury according to CRIMJIG 3.18 was not an error affecting Nelson's substantial rights.

            Affirmed.

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