In the Matter of the Welfare of: C. W. A., Child.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0633

In the Matter of the Welfare of:
C. W. A., Child.

Filed November 13, 2017
Affirmed
Cleary, Chief Judge

Wabasha County District Court
File No. 79-JV-16-845

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Karen S. Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

Considered and decided by Cleary, Chie f Judge; Bjorkman, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this extended jurisdicti on juvenile (EJJ) delinquency appeal, appellant C.W.A.
contends that the district court: (1) a bused its discretion by admitting evidence that
witnesses feared him, suggesting bad character; and (2) committed plain error by failing to
give an accomplice-corroboration jury instruction. Because the district court did not abuse
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its discretion in admitting the fear evid ence and the absence of an accomplice-
corroboration instruction did not affect C.W.A.’s substantial rights, we affirm.
FACTS
On September 2, 2016, thr ee people burglarized the M illville Rod & Gun Shop in
Wabasha County. The shop owner estimated that $46,000 in guns and $410 in ammunition
were stolen. C.W.A. was arrested on September 16, 2016 and charged with two counts of
burglary in the first degree and one count of theft. Witness T.W. was also charged with
burglary and theft, and two additional witnesses, A.M. and R.C., were charged with crimes
associated with the burglary for aiding an of fender after the fact. Seven additional fact
witnesses testified for the state. After a five-day trial in Fe bruary 2017, the jury returned
guilty verdicts on all counts.
At trial, the state presented evidence th at a few witnesses feared C.W.A. One
witness testified that he changed his statem ents because he was a fraid. The prosecutor
asked another witness if it was “hard to testify” with C.W.A. in the room. The state elicited
from a county detective that another witness revised his prior statement because “he was
scared.” Over defense counsel’s objec tion, the testimony was allowed in each
circumstance.
D E C I S I O N
I. Fear Evidence
C.W.A. contends that the state improperly implied that he had intimidated some
witnesses and that such prejudicial insinuations deprived him of a fair trial. “Evidentiary
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rulings rest within the sound discretion of the [district] court and will not be reversed absent
a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the
[district] court abused its discretion and that appellant was thereby prejudiced.” State v.
Amos, 658 N.W.2d 201, 203 (Mi nn. 2003) (citation omitted). Where an error does not
implicate a constitutional right, the defendant bears the burden of demonstrating that a new
trial is warranted because the error substa ntially influenced the jury’s verdict. State v.
Sanders, 775 N.W.2d 883, 887 (Minn. 2009).
All relevant evidence is generally admissi ble. Minn. R. Evid. 402. Evidence is
relevant if “in some degree it advances the inquiry and thus has probative value.” State v.
Carlson, 268 N.W.2d 553, 559 (Minn. 1978). However, “even relevant evidence may be
inadmissible where its probative value is substantially outweighed by its potential to cause
unfair prejudice, to confuse the issues, or to mislead the jury.” State v. Harris, 521 N.W.2d
348, 351-52 (Minn. 1994) (citing Minn. R. Evid. 403).
“Evidence of witnesses’ fears of testif ying and of purported threats against
witnesses both tend to be relevant to genera l witness credibility or to explain a witness’s
reluctance to testify or inconsis tencies in a witness’s story.” State v. McArthur , 730
N.W.2d 44, 52 (Minn. 2007). But such evidence may not be used to improperly attack a
defendant’s character. Id. Even when such evidence is properly admitted, a district court
should “provide safeguards, including cauti onary instructions, in order to prevent the
evidence from being misused.” Id. at 51.
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Admission of fear evidence is not governed by a bright-line rule. Id. at 52. Instead,
the Minnesota Supreme Court has left “the ca se-by-case determinations to the discretion
of the district courts, trusting them to ma ke sound decisions about the admissibility of
evidence of witnesses’ fear and to fashion appropriate sa feguards in the event such
evidence is admitted.” Id.
In holding that the district court did no t abuse its discretion by admitting evidence
of witnesses’ fears of the defendant, the court in McArthur f o u n d t h a t “ t h e i s s u e s
concerning witness fears arose in the broader context of several items of evidence that
could prejudicially discredit [the defendant’s] character. In ruling on each item of proposed
evidence, the district court displayed sensitivity to the potential for unfair prejudice.” Id.
The court also highlighted that the fears were not the focus of the state’s case. Id.
In determining whether the district cour t erred in admitting the fear evidence,
appellate courts have considered the following: the challenged evidence viewed in context;
the focus of the state’s case; the district court’s reasoning in admitting the evidence; and
the effect the evidence ha d on witness credibility. See, e.g., State v. Hayes, 826 N.W.2d
799, 808 (Minn. 2013) (noting the focus of the state’s case and the evidence when viewed
in context); State v. Scruggs, 822 N.W.2d 631, 644-45 (Minn. 2012) (noting the probative
value of evidence introduced to anticipate challenges to witness credibility); State v. Vang,
774 N.W.2d 566, 580 (Minn. 2009) (noting the probative value of the evidence); State v.
Martin, 773 N.W.2d 89, 109 (Minn. 2009) (notin g the context of the evidence and the
overall weight of evidence against the defendant); State v. Jackson, 773 N.W.2d 111, 122
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(Minn. 2009) (noting the scope of the state’s questions); State v. Wren, 738 N.W.2d 378,
390 (Minn. 2007) (noti ng witness credibility); McArthur, 730 N.W.2d at 52 (noting the
broader context of evidence, the district court’s reasoning, and the acceptable responses to
cross-examination).
Here, the challenged statements and ques tions occurred a to tal of three times
throughout the five-day trial, and included no more than one an swer to a single question.
The state did not mention the witnesses’ fears in either its opening statement or closing
argument. Finally, the state focused its case on the testimony from all witnesses against
C.W.A. In ruling on the evidence, the district court precluded mention of specific threats
and other bad acts but allowed the state to inquire if witnesses had changed their testimony.
The district court instructed the jurors on witness believability and credibility. Even if the
district court should have provided a cautionary instruction on the fear evidence, such error
was not prejudicial. Based on the overall weight of the additional evidence offered against
C.W.A., the fear evidence did not substantially affect the jury’s verdict. The district court
did not abuse its discretion in admitting the fear evidence.
II. Jury Instruction
C.W.A. also contends that the district court’s failure to provide an accomplice-
corroboration jury instruction affected his substantial rights. “[W]here a district court fails
to give a required accomplice corroboration instruction and the defendant does not object,
an appellate court must apply the plain error analysis.” State v. Reed , 737 N.W.2d 572,
584 n.4 (Minn. 2007). There must be: (1) an error; (2) that is plain; and (3) affects
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substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing State v.
Griller, 583 N.W.2d 736, 740 (Minn. 1998)). An error is plai n if it is clear or obvious.
State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002). This prong is met if an error “contravenes
case law, a rule, or standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006). An error affects substantial rights if it had a significant effect on the jury’s verdict.
State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990). If each prong is met, a reviewing
court “must then consider whether reversal of [the defendant’s] conviction is necessary to
ensure fairness and the integrity of the judicial process.” State v. Clark, 755 N.W.2d 241,
252 (Minn. 2008).
Minnesota law precludes a criminal conviction based on the uncorroborated
testimony of an accomplice. Minn. Stat. § 634.04 (2016). This rule “reflects an inherent
distrust of testimony from accomplices, who ‘may testify against another in the hope of or
upon a promise of immunity or clemency or to satisfy other self-serving or malicious
motives.’” Clark, 755 N.W.2d at 251 (quoting State v. Shoop, 441 N.W.2d 475, 479 (Minn.
1989)). “[T]rial courts have a duty to in struct juries on accomplice testimony in any
criminal case in which it is reasonable to consider any witness against the defendant to be
an accomplice.” Strommen, 648 N.W.2d at 689. “The releva nt instruction tells the jury
that it cannot find the defendant guilty of a crime on the testimony of a person who could
be charged with that crime, unless that te stimony is corroborated by other evidence that
tends to convict the defendant of the crime.” State v. Barrientos-Quintana, 787 N.W.2d
603, 610 (Minn. 2010) (quotatio ns omitted). Even when a de fendant does not request it,
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“it is plainly erroneous for a district cour t to fail to give an accomplice-corroboration
instruction when the facts warrant it.” State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016).
“A person is criminally liable for a cr ime committed by another if the person
intentionally aids, advises, hi res, counsels, or conspires w ith or otherwise procures the
other to commit the crime.” Minn. Stat. § 609.05, subd. 1 (2016). The first two prongs of
the plain error analysis are satisfied as to T.W. T.W. was charged with the same crime as
C.W.A. and the state conceded that he was an accomplice. The district court was required
to provide the accomplice-corroboration instruction even when C.W.A. did not ask for it.
This error was plain because it contravened Minnesota law.
However, the district court did not err as to the remaining witnesses. In imposing
accomplice liability, Minnesota law distinguishes “between playing a knowing role in the
crime and having [a] mere presence at th e scene, inaction, knowledge and passive
acquiescence.” State v. Jackson, 746 N.W.2d 894, 898 (Minn. 2008) (alteration in original)
(quotation omitted). “In cases where it is uncle ar whether a witness is an accomplice or
not, it generally becomes a question of fact for the jury to decide.” Barrientos-Quintana,
787 N.W.2d at 610-11 (quotations omitted). “But when ‘the facts of the case are
undisputed and there is only one inference to be drawn as to whether or not the witness is
an accomplice, then it is a question for the court to decide.’” Jackson, 746 N.W.2d at 898
(quoting State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 19 95)). When two people have
been charged with different crimes relate d to the same incident, the two are not
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accomplices. State v. Swyningan, 304 Minn. 552, 555, 229 N.W.2d 29, 32 (1975). “Thus,
. . . an accessory after the fact is not an accomplice of the principal.” Id.
Witness K.L. was not an accomplice. While she was present when C.W.A. and his
co-conspirators planned the burglary, no evid ence presented suggests that she actively
participated in that conversation. He r passive acquiescence did not make her an
accomplice. Similarly, the tw o witnesses charged with aidi ng an offender after the fact
were not accomplices to the principal crime. No evidence presented suggests that they
played a knowing role in the commission of the burglary and theft beyond receiving stolen
guns after the fact. The remaining trial witnesses were also not accomplices. No evidence
presented suggests any other witnesses played any knowing role in the burglary or theft
beyond hearing of it afterwards. The district court did not err in failing to provide the
accomplice-corroboration instruction as to the remaining witnesses.
The third prong of the plain error analysis is whether a district court’s error affected
a defendant’s substantial rights. Strommen, 648 N.W.2d at 686. This prong has four
factors: “whether the testimony of the accomplice was corroborated by significant
evidence, whether the accomp lice testified in exchange for leniency, whether the
prosecution emphasized the accomplice’s testimony in closing argument, and whether the
court gave the jury general witn ess credibility instructions.” Horst, 880 N.W.2d at 38
(quoting Jackson, 746 N.W.2d at 899).
“The first factor is whether, and to what extent, other evidence corroborated an
accomplice’s testimony.” Horst, 880 N.W.2d at 38. “The precise quantum of
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corroborative evidence needed necessarily depends on the circumstances of each case, but
corroborative evidence does not need to be sufficient to establish a prima facie case of the
defendant’s guilt or sustain a conviction.” Clark, 755 N.W.2d at 253-54 (quotation
omitted). Rather, the evidence need only “affirm the tr uth of the accomplice’s testimony
and point to the guilt of the defendant in some substantial degree.” Barrientos-Quintana,
787 N.W.2d at 612-13 (quo tation omitted). “Circumstan tial evidence indicating the
defendant’s participation in the crime is sufficient to corrobora te the accomplice’s
testimony.” State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995) (citing State v. Jones, 347
N.W.2d 796, 800 (Minn. 1984)).
“In determining whether an accompli ce’s testimony is corroborated, ‘[t]he
defendant’s entire conduct may be looked to for corroborating circumstances.’” Clark, 755
N.W.2d at 254 (quoting State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988)).
Relevant facts that may be used to corroborate an accomplice’s
testimony and link the defendant to the crime include:
“participation in the prepara tion for the criminal act;
opportunity and motive; proximity of the defendant to the place
where the crime was committed under unusual circumstances;
association with persons involved in the crime in such a way
as to suggest joint participation; possession of an instrument or
instruments probably used to commit the offense; and
unexplained affluence or possessi on of the fruits of criminal
conduct.”

Clark, 755 N.W.2d at 254 (quoting State v. Sorg, 275 Minn. 1, 5, 144 N.W.2d 783, 786
(1966)). The weight of other witnesses’ collective testimony can be sufficient to
corroborate an accomplice’s testimony. See Reed, 737 N.W.2d at 585.
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At trial, T.W. testified that C.W.A. comm itted the crimes, that he was present and
helped C.W.A. plan the burglary, and that C.W.A. discussed doing a “big dirty.” K.L.
testified that she was present while C.W.A. and his co-conspirators planned the burglary,
that C.W.A. confessed afterward, that she knew of C.W.A.’s plans to sell the guns, and that
she saw the guns at C.W.A.’s residence after the fact.
The other witnesses and evidence presen ted corroborated T.W.’s and K.L.’s
testimony in nine ways: (1) C. W.A. told three witnesses afte r the fact that he committed
the burglary; (2) C.W.A. told one witness that the gun shop would be easy to rob and
discussed doing a “big dirty” with three witn esses; (3) C.W.A. gave stolen guns to two
witnesses; (4) four witnesses were present on the trips to bury and retrieve the guns; (5) four
witnesses saw stolen guns in C.W.A.’s ba sement in bags later recovered by law
enforcement; (6) two witnesses heard about or we re told that C.W.A. intended to sell the
stolen guns; (7) law enforcem ent witnesses testified to th e collection of DNA evidence
from one of the guns matching C.W.A.’s DNA; (8) the dusty ductwork in C.W.A.’s
basement suggesting something had been move d; and (9) the bag of guns recovered that
other witnesses saw in C.W.A.’s basement.
The weight of this collective evidence co rroborates T.W.’s a nd K.L.’s testimony
regarding C.W.A.’s role in the crime. K.L.’s testimony that she observed C.W.A. and his
co-conspirators planning the crime was no t independently corroborated by any non-
accomplice, but the collective weight of the other evidence corroborated her testimony.
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The second factor “is whether the witnesses testified in exchange for leniency.”
Horst, 880 N.W.2d at 38. Courts have found that this factor is not satisfied when a witness
is compelled to testify under a grant of use immunity, State v. Lee, 683 N.W.2d 309, 316
(Minn. 2004), or when a witne ss testifies to his agreement w ith the state and thus fully
informs the jury of his role at trial, Horst, 880 N.W.2d at 38-39.
Evidence on this factor was only presented as to T.W. Even as to T.W., however,
this factor is not satisfied because he did not testify in exchange for leniency. Here, T.W.
testified pursuant to his grant of use immunity and, when questioned, he appeared confused
regarding the concept of use immunity. T.W. testified that he received no guarantees and
no promises and believed that anything he said could be used against him.
The third factor “is whether the State emphasized the testimony of the accomplices
in its closing argument.” Horst, 880 N.W.2d at 39. Here the state discussed each witness’s
testimony and the evidence it pr oved, but did not emphasize T.W.’s testimony over the
other witnesses, nor did the state encourage th e jury to rely solely on T.W.’s testimony.
Even if K.L.’s role was a jury question, th e state did not emphasize her testimony either.
Rather, the state emphasized another witness’ s testimony in highlig hting evidence that
corroborated T.W.’s account of the crime. This factor is not satisfied because the state did
not emphasize testimony of any alleged accomplice in its closing argument.
The final factor is whether the district court “gave the jury general witness
credibility instructions.” Jackson, 746 N.W.2d at 899. The jury should be “‘alerted . . . to
the potential for conflicting motivations behind certain testimony.’” Horst, 880 N.W.2d at
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39 (quoting Lee, 683 N.W.2d at 317). Here, the distri ct court instructed the jury on the
weight and believability of witnesses. The jurors were instructed that they could consider
“the witness[es’] interest or lack of interest in the outcome of the case; relationship to the
parties; . . . reasonableness or unreasonablene ss of their testimony in the light of all the
other evidence in the case; and any other factors that bear on believability and weight.”
C.W.A. has not established that the dist rict court’s plain error affected his
substantial rights. While the district c ourt failed to provide the required accomplice-
corroboration instruction as to T.W. and possibly as to K.L ., that error did not affect
C.W.A.’s substantial rights. C.W.A. is not entitled to relief because the substantial-rights
prong is dispositive.
Because the district court did not abuse its discretion in admitting the fear evidence
and because the lack of an ac complice-corroboration instruction did not affect C.W.A.’s
substantial rights, we affirm his conviction.
Affirmed.