State of Minnesota, Respondent, vs. Saeb Sivixay, Appellant.

State of Minnesota, Respondent, vs. Saeb Sivixay, Appellant. A04-1727, Court of Appeals Unpublished, November 29, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1727

 

State of Minnesota,

Respondent,

 

vs.

 

Saeb Sivixay,

Appellant.

 

Filed November 29, 2005

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge

 

Cottonwood County District Court

File No. K5-03-361

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

L. Douglas Storey, Cottonwood County Attorney, 1044 Third Avenue, Windom, MN 56101 (for respondent)

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Appellant argues that uncorroborated accomplice testimony was insufficient to support his conviction of a controlled-substance crime, that the district court erred in failing to instruct the jury on accomplice evidence, and that the court impermissibly ordered him to pay for public defender services.  Because the evidence was sufficient and the court did not commit prejudicial error, we affirm the conviction.  But because the court failed to determine appellant's ability to pay for defense services, we reverse and remand that issue. 

FACTS

            Police informant Kari Karschnik arranged to have appellant Saeb Sivixay come to her home in Mountain Lake on October 1, 2003, and sell to her a half ounce of methamphetamine for $700.  Before Sivixay's arrival, Karschnik notified the police of the arrangement, who then set up audio and visual surveillance equipment in Karschnik's home and gave her $720 in recorded bills to use as "buy" money.  The police then established a surveillance post a block away.

            Phothai Keobouararath drove Sivixay and his girlfriend, Mo Douangboutdy, to Mountain Lake where Sivixay telephoned Karschnik to verify that she was at home and had the money.  The police listened as Karschnik said she wanted eight "teeners," a street term for a specific quantity of methamphetamine, and asked if Sivixay intended to deliver the drugs.  She then gave directions to her house.

            When the group arrived at Karschnik's home, Sivixay told Keobouararath to give Karschnik a package rolled up in black electrician's tape and to get $710 in exchange ($700 for the drugs and $10 for gas).  Karschnik accepted the package and gave $720 for it because she did not have change.  Later, the substance in the package tested positive for methamphetamine. 

            The police stopped Keobouararath's car about two blocks from Karschnik's home and arrested the three occupants.  They recovered from Douangboutdy $720 in bills whose serial numbers matched those of the recorded "buy" money, and they obtained from Sivixay a roll of black electrician's tape, one end of which matched the tape on the package delivered to Karschnik.  Sivixay told the police that he went to Karschnik's home to sell her a ring wrapped in electrician's tape and that he gave the money to Douangboutdy because she requested it. 

            A jury found Sivixay guilty of conspiracy to commit a first-degree controlled substance crime.  Upon appointing a public defender to represent Sivixay, the district court ordered Sivixay to contribute a co-payment of $200 toward the cost of the public defender's legal services.  Sivixay appealed both his conviction and the co-payment order.

D E C I S I O N

 

1.         Sufficiency of the Evidence

 

Karschnik testified that she arranged to buy and bought methamphetamine from Sivixay.  Keobouararath testified that, at Sivixay's request, he drove Sivixay to the location of the sale, delivered the methamphetamine to Karschnik, collected the sale price, and gave the money to Sivixay.  Sivixay contends that Karschnik and Keobouararath were accomplices in a conspiracy to sell methamphetamine and that their uncorroborated testimony was insufficient to implicate him in that conspiracy and to support a verdict of guilty against him.

The parties agree that controlling law provides that a criminal conviction cannot be based solely on uncorroborated accomplice testimony:

            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 (2002).

            If a conviction is based solely on accomplice testimony and if the evidence adduced at trial does not corroborate that testimony as required by Minn. Stat. § 634.04, the evidence is insufficient to support the conviction.  Sivixay's appeal raises three questions:  (1) Were Karschnik and Keobouararath accomplices of Sivixay?  (2) If either was an accomplice, was the conviction based solely on accomplice testimony?  (3) If there was accomplice testimony, was it corroborated?

            When considering a claim of insufficiency of evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, viewed in a light most favorable to the verdict, was sufficient to allow the jury to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the prosecution's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            a.         Accomplice

            An accomplice . . . is one who co-operates, aids, or assists another in the commission of a crime, either as principal or accessory.  The general test to determine whether a witness is or is not an accomplice is, could he himself have been indicted for the offense as principal or as accessory?  If he could not, then he is not an accomplice.

 

State v. Smith, 264 Minn. 307, 313, 119 N.W.2d 838, 843 (1962) (citation omitted).

            Sivixay urges that both Karschnik and Keobouararath were accomplices.  The state does not dispute that Keobouararath was an accomplice but does contend that Karschnik was not.  Karschnik was at all times acting as a police informant and operative in a controlled narcotics sale and purchase.  As a situational agent of the police operating under police authority and supervision and with police approval, Karschnik could not have been charged criminally in the narcotics transaction.  Thus, she fails to satisfy the definition of "accomplice," and her testimony need not be corroborated.

            Sivixay argues that the law should not insulate a police informant from characterization as an accomplice, but he cites no authority for this proposition.  Thus, he urges a new rule of law which is not within the province of this court to create.  See State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998) (stating that this court is "not in position to overturn established supreme court precedent").

            b.         Corroboration

            Although the direct and circumstantial evidence presented through Karschnik's testimony was sufficient to support a verdict of guilty against Sivixay, we note that the testimony of Keobouararath was corroborated and also substantially incriminated Sivixay.

            Corroborating evidence must be such as to link the accused to the crime.  Minn. Stat. § 634.04; State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990).  And corroborating evidence is sufficient if it is "weighty enough to restore confidence in the truth of the accomplice's testimony."  State v. Guy, 259 Minn. 67, 72, 105 N.W.2d 892, 896 (1960).  Corroborated testimony is that which is supported or verified by circumstances or other testimony, by something external to and not a part of the testimony under scrutiny.

            Karschnik corroborated Keobouararath's testimony.  She knew Sivixay prior to October 1, 2003, and had had a "relationship" with him about six years earlier.  She was certain that it was he with whom she spoke about buying methamphetamine.  In the second telephone conversation with Sivixay on the day of the sale, he said he would have someone else with him.  A short time later, Keobouararath arrived at Karschnik's home with the package of methamphetamine.

            Other circumstances described at trial also corroborated Keobouararath's testimony.  One of the police officers involved in the surveillance heard parts of Karschnik's second conversation with Sivixay.  The package wrapped in electrician's tape that Keobouararath said Sivixay asked him to deliver was found in Karschnik's possession.  The police found that Sivixay had a roll of electrician's tape that matched the tape on the package.  The recorded bills were in Sivixay's girlfriend's possession.  These circumstances, together with Karschnik's testimony, provide ample evidence upon which a jury reasonably could find Sivixay guilty beyond a reasonable doubt of the crime charged.

2.         Jury Instruction

            "An accomplice instruction ‘must be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime.'"  State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004) (citation omitted).  Even though Sivixay did not request an accomplice instruction and did not object to the jury charge which did not contain the instruction, the district court is required to instruct the jury on accomplice testimony in appropriate cases whether or not the defendant requests the instruction.  Id. 

            The state concedes that it was error for the court to fail to give the accomplice instruction and that the error was plain.  But the state contends that the error did not affect Sivixay's substantial rights.

            Error to which no objection is made at trial is deemed waived unless it is plain error that affects the accused's substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Substantial rights are affected by plain error "if the error was prejudicial and affected the outcome of the case."  Id. at 741.  Sivixay bears the burden of showing that the court's failure to give the accomplice instruction satisfied the test of prejudice explained in Griller.  Id.  He has failed to carry that burden.

            As discussed above, Sivixay is mistaken that Karschnik was an accomplice.  Thus, no accomplice instruction was required as to her.  And disregarding Keobouararath's testimony entirely, Karschnik's testimony, and the direct evidence it provided, and the circumstantial physical evidence presented were in themselves more than sufficient to support Sivixay's conviction.

3.         Public Defender Fee

Sivixay argues that the district court improperly required him to make a $200 co-payment for public defender services under Minn. Stat. § 611.17, subd. 1(c) (Supp. 2003), because, before Sivixay's sentencing, the supreme court held the mandatory co-payment provision of that statute unconstitutional.  State v. Tennin, 674 N.W.2d 403, 410 (Minn. 2004).

The state contends that Sivixay waived the co-payment issue by failing to object at sentencing, which occurred after the Tennin decision.  Generally, this court will consider only issues raised in the district court.  State v. Cunningham, 663 N.W.2d 7, 10 (Minn. App. 2003).  But we have the discretion to address any issue as justice may require.  Minn. R. Civ. App. P. 103.04.

The rules of criminal procedure provide that the district court "may require a defendant, to the extent able," to pay for the services of his public defender.  Minn. R. Crim. P. 5.02, subd. 5.  Tennin invalidated the mandatory nature of Minn. Stat. § 611.17, subd. 1(c), because it provided no protection for the indigent or for defendants for whom a co-payment would be an undue hardship but did not invalidate rule 5.02, subd. 5, which allows the imposition of a co-payment only to the extent of a defendant's ability to pay.  Because the district court did not consider Sivixay's ability to pay for public defender services, we reverse the co-payment order and remand for a determination of Sivixay's ability to pay.

            Affirmed in part, reversed in part, and remanded.