This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0606
State of Minnesota, Respondent,
vs.
Bruce Everett Boyd, Appellant.
Filed March 21, 2016 Affirmed in part, reversed in part, and remanded Hooten, Judge
Todd County District Court File No. 77-CR-14-856
Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul, Minnesota; and
Charles G. Rasmussen, Todd County Attorney, Long Prairie, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Hooten,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In a challenge to his convictions of theft of a motor vehicle and of theft, appellant
claims that, because the state failed to present evidence corroborating his accomplice’s testimony, there is insufficient evidence to support the convictions and that the district
court erred by entering convictions on all three counts, all of which arose from the same
act of theft. We affirm in part, reverse in part, and remand.
FACTS
The state charged appellant Bruce Everett Boyd with theft of property with a value
exceeding $5,000, theft of a motor vehicle with a value exceeding $5,000, and theft of a
motor vehicle in connection with the theft of an all-terrain vehicle (ATV). The jury heard
the following evidence at trial.
On August 23, 2014, K.S. was at Boyd’s house with Boyd, N.G., and a friend. At
9:15 p.m., K.S. let Boyd and N.G. use her car to drive to a liquor store to buy whiskey.
N.G. and Boyd drove K.S.’s car to the liquor store between 9:15 and 10:00 p.m. and bought
a bottle of whiskey. N.G. testified that after purchasing the whiskey, he and Boyd “drove
around, just casing areas out” for approximately three to four hours to see if they could find
things to steal. They could not find anything to steal, so they decided to go to a potato farm
where N.G. had seen an ATV a couple days earlier. N.G. testified that he and Boyd first
attempted to steal the ATV by pulling it with a jumper cable that they found in the back of
K.S.’s car, but the cable broke when they tried to pull the ATV. After pushing the ATV
from behind to a location across the street, they found a light tan rope to tow the ATV with
K.S.’s car. N.G. testified that Boyd tied one end of the rope to the front of the ATV and
the other end of the rope to the back of K.S.’s car. N.G. testified that Boyd tied the knot
of the rope because N.G. thought that Boyd “would tie a better, stronger knot.”
2 N.G. testified that he and Boyd towed the ATV from the farm, with N.G. driving
the car and Boyd sitting on the ATV. After driving approximately ten miles, they were
observed on county road 30 by Todd County Sheriff Don Asmus. Sheriff Asmus testified
that he was concerned that a car towing an occupied ATV with a rope at least 30 feet long,
allowing the ATV to swing from left to right, created a dangerous situation. Sheriff Asmus
activated his squad car’s lights and attempted to pull them over, but N.G., trying to evade
the squad car, accelerated and eventually drove into a cornfield. N.G. testified that after
stopping in the cornfield, he and Boyd ran off in different directions. Sheriff Asmus waited
for backup and then proceeded into the cornfield with another officer to search for the two
suspects. The officers could not find the suspects, so they went back to the road to wait
for additional officers. But, because of the severity of a storm that began during the course
of the pursuit, the pursuit was called off.
P.A. testified that at approximately 8:30 or 9:00 a.m. on August 24, he picked up a
hitchhiking man, who turned out to be Boyd, and that the man was “[a] little bit dirty” and
“rough around the edges a little bit.” After P.A. picked up Boyd, Todd County Sheriff’s
Deputy Lonnie Marcyes pulled over P.A.’s truck and discovered that Boyd was the
passenger.
Deputy Marcyes testified that because he had received a call that a man had been
seen walking along county road 30, he suspected, upon seeing P.A.’s truck, that P.A. had
picked up the man. Deputy Marcyes testified that upon stopping the truck, he observed
that Boyd was in wet clothing, had tears in his pant legs, and had scratches on his forehead,
arms, and wrists.
3 N.G. gave a statement to police, claiming that a person named Shawn was involved
in the theft. At trial, N.G. admitted that he lied to police. He testified that Shawn was a
“made-up person” and that he falsely told police that Shawn was the driver so that N.G.
would not get charged with fleeing a police officer. N.G. admitted at trial that he and Boyd
stole the ATV.
Boyd testified in his own defense. Boyd testified that Shawn was a real person and
claimed that he was with Shawn and N.G. that night. Boyd said that N.G. and Shawn
dropped him off at a potato farm so that Boyd could siphon gas from a truck. Boyd testified
that he “didn’t know . . . nothing about the four-wheeler plan until after it was all going
down.” Boyd said that as he was siphoning gas, he saw two cars pull up in front of the
potato farm, and he ran into the cornfield so that he would not get caught. Boyd stated that
he got wet from the storm and that his clothes got dirty and torn from climbing onto an
irrigator in the field. Boyd maintained that only N.G. and Shawn stole the ATV.
The jury found Boyd guilty of all three counts. The district court entered judgments
of conviction on all three counts and sentenced Boyd to 26 months in prison on the count
of theft of a motor vehicle with a value exceeding $5,000. This appeal follows.
DECISION
I.
Boyd argues that the evidence was insufficient to convict him because the state
failed to present evidence corroborating his accomplice’s testimony. Boyd acknowledges
that the evidence establishes that N.G. and another person committed the theft, but alleges
that the corroborating evidence is insufficient to prove that Boyd was the other person.
4 “This court reviews the sufficiency of evidence corroborating accomplice testimony
in the light most favorable to the state, and all conflicts presented by the evidence are
resolved in favor of the verdict.” State v. Her, 668 N.W.2d 924, 927 (Minn. App. 2003),
review denied (Minn. Dec. 16, 2003). A conviction cannot be based upon an accomplice’s
testimony “unless it is corroborated by such other evidence as tends to convict the
defendant of the commission of the offense.” Minn. Stat. § 634.04 (2014). “Corroborating
evidence is sufficient if it restores confidence in the accomplice’s testimony, confirming
its truth and pointing to the defendant’s guilt in some substantial degree.” State v. Ford,
539 N.W.2d 214, 225 (Minn. 1995) (quotation omitted). The Minnesota Supreme Court
has explained the corroboration requirement as follows:
Corroborating evidence must link or connect the defendant to the crime. It is not necessary that it establish a prima facie case of the defendant’s guilt. It must point to the defendant’s guilt in some substantial degree.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0606
State of Minnesota, Respondent,
vs.
Bruce Everett Boyd, Appellant.
Filed March 21, 2016 Affirmed in part, reversed in part, and remanded Hooten, Judge
Todd County District Court File No. 77-CR-14-856
Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul, Minnesota; and
Charles G. Rasmussen, Todd County Attorney, Long Prairie, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Hooten,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In a challenge to his convictions of theft of a motor vehicle and of theft, appellant
claims that, because the state failed to present evidence corroborating his accomplice’s testimony, there is insufficient evidence to support the convictions and that the district
court erred by entering convictions on all three counts, all of which arose from the same
act of theft. We affirm in part, reverse in part, and remand.
FACTS
The state charged appellant Bruce Everett Boyd with theft of property with a value
exceeding $5,000, theft of a motor vehicle with a value exceeding $5,000, and theft of a
motor vehicle in connection with the theft of an all-terrain vehicle (ATV). The jury heard
the following evidence at trial.
On August 23, 2014, K.S. was at Boyd’s house with Boyd, N.G., and a friend. At
9:15 p.m., K.S. let Boyd and N.G. use her car to drive to a liquor store to buy whiskey.
N.G. and Boyd drove K.S.’s car to the liquor store between 9:15 and 10:00 p.m. and bought
a bottle of whiskey. N.G. testified that after purchasing the whiskey, he and Boyd “drove
around, just casing areas out” for approximately three to four hours to see if they could find
things to steal. They could not find anything to steal, so they decided to go to a potato farm
where N.G. had seen an ATV a couple days earlier. N.G. testified that he and Boyd first
attempted to steal the ATV by pulling it with a jumper cable that they found in the back of
K.S.’s car, but the cable broke when they tried to pull the ATV. After pushing the ATV
from behind to a location across the street, they found a light tan rope to tow the ATV with
K.S.’s car. N.G. testified that Boyd tied one end of the rope to the front of the ATV and
the other end of the rope to the back of K.S.’s car. N.G. testified that Boyd tied the knot
of the rope because N.G. thought that Boyd “would tie a better, stronger knot.”
2 N.G. testified that he and Boyd towed the ATV from the farm, with N.G. driving
the car and Boyd sitting on the ATV. After driving approximately ten miles, they were
observed on county road 30 by Todd County Sheriff Don Asmus. Sheriff Asmus testified
that he was concerned that a car towing an occupied ATV with a rope at least 30 feet long,
allowing the ATV to swing from left to right, created a dangerous situation. Sheriff Asmus
activated his squad car’s lights and attempted to pull them over, but N.G., trying to evade
the squad car, accelerated and eventually drove into a cornfield. N.G. testified that after
stopping in the cornfield, he and Boyd ran off in different directions. Sheriff Asmus waited
for backup and then proceeded into the cornfield with another officer to search for the two
suspects. The officers could not find the suspects, so they went back to the road to wait
for additional officers. But, because of the severity of a storm that began during the course
of the pursuit, the pursuit was called off.
P.A. testified that at approximately 8:30 or 9:00 a.m. on August 24, he picked up a
hitchhiking man, who turned out to be Boyd, and that the man was “[a] little bit dirty” and
“rough around the edges a little bit.” After P.A. picked up Boyd, Todd County Sheriff’s
Deputy Lonnie Marcyes pulled over P.A.’s truck and discovered that Boyd was the
passenger.
Deputy Marcyes testified that because he had received a call that a man had been
seen walking along county road 30, he suspected, upon seeing P.A.’s truck, that P.A. had
picked up the man. Deputy Marcyes testified that upon stopping the truck, he observed
that Boyd was in wet clothing, had tears in his pant legs, and had scratches on his forehead,
arms, and wrists.
3 N.G. gave a statement to police, claiming that a person named Shawn was involved
in the theft. At trial, N.G. admitted that he lied to police. He testified that Shawn was a
“made-up person” and that he falsely told police that Shawn was the driver so that N.G.
would not get charged with fleeing a police officer. N.G. admitted at trial that he and Boyd
stole the ATV.
Boyd testified in his own defense. Boyd testified that Shawn was a real person and
claimed that he was with Shawn and N.G. that night. Boyd said that N.G. and Shawn
dropped him off at a potato farm so that Boyd could siphon gas from a truck. Boyd testified
that he “didn’t know . . . nothing about the four-wheeler plan until after it was all going
down.” Boyd said that as he was siphoning gas, he saw two cars pull up in front of the
potato farm, and he ran into the cornfield so that he would not get caught. Boyd stated that
he got wet from the storm and that his clothes got dirty and torn from climbing onto an
irrigator in the field. Boyd maintained that only N.G. and Shawn stole the ATV.
The jury found Boyd guilty of all three counts. The district court entered judgments
of conviction on all three counts and sentenced Boyd to 26 months in prison on the count
of theft of a motor vehicle with a value exceeding $5,000. This appeal follows.
DECISION
I.
Boyd argues that the evidence was insufficient to convict him because the state
failed to present evidence corroborating his accomplice’s testimony. Boyd acknowledges
that the evidence establishes that N.G. and another person committed the theft, but alleges
that the corroborating evidence is insufficient to prove that Boyd was the other person.
4 “This court reviews the sufficiency of evidence corroborating accomplice testimony
in the light most favorable to the state, and all conflicts presented by the evidence are
resolved in favor of the verdict.” State v. Her, 668 N.W.2d 924, 927 (Minn. App. 2003),
review denied (Minn. Dec. 16, 2003). A conviction cannot be based upon an accomplice’s
testimony “unless it is corroborated by such other evidence as tends to convict the
defendant of the commission of the offense.” Minn. Stat. § 634.04 (2014). “Corroborating
evidence is sufficient if it restores confidence in the accomplice’s testimony, confirming
its truth and pointing to the defendant’s guilt in some substantial degree.” State v. Ford,
539 N.W.2d 214, 225 (Minn. 1995) (quotation omitted). The Minnesota Supreme Court
has explained the corroboration requirement as follows:
Corroborating evidence must link or connect the defendant to the crime. It is not necessary that it establish a prima facie case of the defendant’s guilt. It must point to the defendant’s guilt in some substantial degree. The quantum of corroborative evidence needed necessarily depends on the circumstances of each case. Corroborating evidence may be circumstantial or direct.
If the accused testified, the inadequacies and admissions in his testimony may be corroborative of the accomplice’s testimony. Corroborating evidence may be secured from the 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. The defendant’s entire conduct may be looked to for corroborating circumstances. If his connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient.
State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980) (citations omitted).
5 Here, there may be no direct evidence that corroborated N.G.’s testimony, but there
is circumstantial evidence that did so. N.G.’s testimony that he and Boyd stole the ATV
was corroborated by Boyd’s admission that he was with N.G. that night and by Sheriff
Asmus’s testimony that he saw only two, not three, people towing the ATV. The fact that
P.A. picked up Boyd along the same road where Sheriff Asmus saw two people towing the
ATV also corroborated N.G.’s testimony because it is further evidence that Boyd was in
the same vicinity on the morning after the theft. Deputy Marcyes’ testimony that Boyd’s
clothing was wet and torn, and that he had scratches on his forehead, arms, and wrists,
further corroborated N.G.’s testimony that he and Boyd fled into the cornfield during a
storm after being pulled over.
Boyd himself corroborated N.G.’s testimony by the inconsistencies and admissions
in his testimony. Boyd admitted that he was at the potato farm and that he fled into the
cornfield. Although Boyd denied that he was involved in stealing the ATV, the jury
evidently did not believe his story that he was at the potato farm solely to siphon gas from
a truck. The jury apparently found N.G.’s testimony more credible, and we defer to the
jury’s judgment of credibility. See State v. Pippitt, 645 N.W.2d 87, 94 (Minn. 2002)
(“[W]eighing the credibility of witnesses is a function exclusively for the jury.”). Boyd’s
admission that he “didn’t know . . . nothing about the four-wheeler plan until after it was
all going down” established that, at least at some point, he was aware of the plan to steal
the ATV. Boyd’s own testimony therefore corroborated N.G.’s testimony by establishing
his association with N.G. and his proximity to the place where the crime was committed.
6 Under these circumstances, where the jury could fairly infer Boyd’s connection to the
crime, the corroboration was sufficient.
II.
Boyd argues, and the state concedes, that the district court erred by entering
judgments of conviction on all three counts. “Upon prosecution for a crime, the actor may
be convicted of either the crime charged or an included offense, but not both.” Minn. Stat.
§ 609.04, subd. 1 (2014). Whether an offense constitutes an included offense is a legal
question, which we review de novo. See State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
“[S]ection 609.04 bars multiple convictions under different sections of a criminal statute
for acts committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758,
760 (Minn. 1985). A jury’s verdict of guilty is not, by itself, a conviction. Spann v. State,
740 N.W.2d 570, 573 (Minn. 2007). “A conviction is defined as either a plea of guilty or
a verdict or finding of guilty that is ‘accepted and recorded by the court.’” Id. (quoting
Minn. Stat. § 609.02, subd. 5 (2006)). When a defendant is convicted of multiple charges
for the same act, the district court must adjudicate formally and impose a sentence on one
count only. State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). The other convictions
should not be formally adjudicated. Id. “If the adjudicated conviction is later vacated for
a reason not relevant to the remaining unadjudicated conviction(s), one of the remaining
unadjudicated convictions can then be formally adjudicated and sentence imposed, with
credit, of course, given for time already served on the vacated sentence.” Id.
Here, the jury found Boyd guilty of three counts of theft for stealing the ATV. At
sentencing, the district court stated, “I will accept and record the verdict of the jury on all
7 three counts. I will enter judgment of conviction on all three counts.” The three counts
against Boyd were each charged under different subdivisions of the same criminal statute,
Minn. Stat. § 609.52 (2014). Because these three charges arose from the same act, the
district court erred by entering convictions on all three counts. The district court should
have convicted Boyd only of the charge upon which he was sentenced, theft of a motor
vehicle with a value exceeding $5,000. We reverse and remand for the district court to
vacate Boyd’s other convictions of theft.
Affirmed in part, reversed in part, and remanded.