Daniel Roger Vielbig, et.al., Appellants, vs. USA Janitorial, Inc., Respondent.

This opinion will be unpublished and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

C7-99-1255

In the Matter of the Welfare of:  R. A. F., Child.

Filed March 7, 2000

Affirmed

Schumacher, Judge

St. Louis County District Court

File No. J699650196

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant R.A.F.)

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

Alan L. Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, MN 55802 (for respondent State of Minnesota)

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

            Appellant R.A.F. challenges a delinquency adjudication for aiding and abetting simple robbery, arguing the evidence was insufficient and the trial court erred in admitting certain statements.  We affirm.

            According to the delinquency petition, on January 23, 1999, R.A.F., while aiding and abetting others, took personal property from Vicky Lynn Toboleski.

R.A.F. was one of four teenagers who arrived at Toboleski's apartment to see her boyfriend's brother, Jason Beasly.  Toboleski testified that one of the teenagers, Dwayne, demanded money and "weed" from Beasly, stating over and over, "Do you have any money?  Do you have any weed?"  Dwayne then instructed the others to take money from Toboleski's purse.  After two young men (R.A.F. and Les) threw the purse back and forth between them, one of them took money out of her wallet and yanked the phone cord out of the phone and out of the wall jack.

            Beasly testified that Dwayne came up to him and butted shoulders, pulled up his jacket and showed him what appeared to be a small handgun in his pocket, demanding money or weed.  Then, after Dwayne told R.A.F. and Les, who were about 10-12 feet away, to grab the purse, both rummaged through the purse and both tried to tug the phone cord out of the wall.  Although Beasly was not sure who did what, he testified that both young men were involved and that both young men had contact with the telephone cord and the purse.

            The trial court found R.A.F. guilty of one count of aiding and abetting simple robbery and imposed a sentence of one year supervised probation and a 30-day residential program.  R.A.F. appeals.

1.         In reviewing a sufficiency of the evidence claim, this court must evaluate the record and the legitimate inferences from the record in the light most favorable to the adjudication to determine whether the fact-finder could have reasonably concluded that the defendant was guilty of the charged offense.  In re Welfare of S.A.M., 570 N.W.2d 162, 167  (Minn. App. 1997).  In this case, the trial court concluded that the state proved beyond a reasonable doubt that R.A.F. committed the offense of aiding and abetting the simple robbery of Toboleski. 

Under Minn. Stat. § 609.05, subd. 1 (1998), a person is criminally liable for a crime committed by another if the person intentionally aids the other in committing the crime.  "Presence, companionship and conduct before and after the offense are circumstances from which a person's participation may be inferred."  In re Welfare of D.M.K., 343 N.W.2d 863, 867 (Minn. App. 1984).  The court may hold a person who does not actively participate in the overt act constituting the primary offense criminally liable for aiding and abetting.  In re Welfare of M.D.S., 345 N.W.2d 723, 733 (Minn. 1984).  All that is necessary for a conviction of aiding in a crime is that "the accused plays at least some knowing role in the commission of the crime and takes no steps to thwart its completion."  State v. Jones, 347 N.W.2d 796, 801 (Minn. 1984) (citation and quotation omitted).

This case involves more than passive conduct by R.A.F.  The trial court found that R.A.F threw the purse back and forth with Les, and that one of them took $17 from the purse.  The trial court acknowledged that Les was likely the one who took the money from the purse and unsnapped the phone cord from the phone.  Nonetheless, the trial court explained that R.A.F.'s aid to Les was an overt act in furtherance of the crime and that R.A.F. played at least some knowing role.

R.A.F. argues that the evidence is insufficient because the witnesses contradicted each other and gave inconsistent accounts of the events.  But conflicting testimony and witness credibility are issues for the fact-finder.  State v. Obasi, 427 N.W.2d 736, 738 (Minn. App. 1988).  In any event, both Toboleski and Beasly testified that R.A.F. and Les were each involved in taking money from the purse.  Toboleski testified that both threw the purse back and forth, and Beasly testified that both struggled to pull the telephone cord from the wall jack.  The testimony about R.A.F.'s participation is sufficient to support an adjudication for aiding and abetting.  See In re Welfare of D.K.K., 410 N.W.2d 76, 77 (Minn. App. 1987) (minor's presence as lookout while other shoplifts supports aiding-and-abetting finding).

2.         Appellate courts largely defer to the trial court's evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  If the trial court has erred in admitting evidence, the reviewing court determines "whether there is a reasonable probability that the wrongfully admitted evidence significantly affected the verdict."  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

            R.A.F. argues that the trial court erroneously admitted hearsay statements over objection.  At trial, defense counsel objected to the witnesses' testimony about what Dwayne said.  Specifically, defense counsel objected to Toboleski's testimony that Dwayne stated, "Do you have any money? Do you have any weed?" and to Beasly's testimony that Dwayne stated, "Grab the purse."  The trial court overruled the objections and admitted the testimony, concluding that if the testimony was hearsay then it fell within a hearsay exception.

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted.  Minn. R. Evid. 801(3).  In this case, we do not believe that the challenged statements were hearsay because they were not offered for the truth of the matter asserted.  The value of the statements was not to prove that Dwayne wanted money, weed, or the purse, but for the effect the statements had on his victims and companions. 

Even if we considered the statements to be hearsay, we do not believe that the trial court abused his discretion in admitting the statements as a rule 803 exception.  Under Rule 803, statements of a declarant's then-existing state of mind, emotion, condition, or physical condition may not be excluded under the hearsay rule.  Minn. R. 803(3).  The trial court reasoned that the statements were of an existing state of mind (e.g., he wanted money, weed, purse) and put the others on notice of his plan or intent.  The trial court's reasoning is not a clear abuse of discretion.

Finally, if there was error it was not prejudicial.  The statements in this case did not have a significant effect on the verdict.  The verdict was based on the direct testimonial evidence that R.A.F. participated in taking money from the purse.

Affirmed.