State v. Hole

400 N.W.2d 430, 1987 Minn. App. LEXIS 4045
CourtCourt of Appeals of Minnesota
DecidedFebruary 10, 1987
DocketNo. C0-86-1517
StatusPublished
Cited by1 cases

This text of 400 N.W.2d 430 (State v. Hole) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hole, 400 N.W.2d 430, 1987 Minn. App. LEXIS 4045 (Mich. Ct. App. 1987).

Opinion

OPINION

RANDALL, Judge.

Jeffrey Hole appeals from his conviction for felony theft and from an order denying his motion for a new trial. He contends the evidence was insufficient to support the verdict, that he was denied effective assistance of counsel, and he was entitled to a new trial based on newly discovered evidence.

We affirm.

FACTS

On the morning of December 21, 1985, Hubert Gonsorowski, owner of Hubert’s Sports Service in Thief River Falls, discovered that a 1981 Arctic Cat Panther snowmobile worth approximately $1300 was missing from his business. Polk County Deputy Sheriff Don Hamre found the chassis of the snowmobile in a tamarack swamp north of Erskine, Minnesota, on December 24, 1985. The motor, skis, fuel tank, seat, and other parts had been removed. On January 7, 1986, Hamre found the stolen parts in a garage owned by appellant’s brother, Dan Hole. Appellant was charged with felony theft, Minn.Stat. § 609.52, subds. 2(1) and 3(2) (1984).

The case was tried to a jury. The State’s main witness was 17 year old S.H.1 S.H. lives in Erskine, and attends the Area Vocational Technical Institute (AVTI) in Thief River Falls, and has known appellant for two years. S.H. testified that on December 20,1985, S.H. and Terril Wallace2 were riding with appellant in his truck when they saw the Arctic Cat snowmobile outside Hubert’s Sports Service. S.H. testified that he and appellant knew Wallace intended to take the snowmobile. Appellant dropped Wallace off at Hubert’s and Wallace drove the snowmobile to his Thief River Falls apartment. Both S.H. and appellant rode the snowmobile that night. While appellant was driving it, he got into an accident and cut his head. S.H. took him to the hospital for stitches.

The next day, S.H. and appellant returned to the place they left the snowmobile the night before. They loaded it into appellant’s truck, took it to Dan Hole’s garage in Erskine, and stripped it, removing the engine, the handle bars, the seat, and some other parts. They left the parts in Dan Hole’s garage, and dumped the chassis in a swamp.

Appellant told S.H. his brother wanted to buy the parts. When Dan Hole later asked S.H. if the parts were “hot,” S.H. said he didn’t know. Dan Hole said, “they got to be hot.”

Dan Hole testified he gave Hamre permission to look in his garage for the parts. Dan Hole testified he had no idea how the parts got in his garage. He testified appellant told him he purchased the parts from “some guy” for $40. Dan Hole installed the stolen motor in his snowmobile. He did not pay his brother for the parts.

Appellant lives in Erskine and attends the AVTI in Thief River Falls. His version was that Wallace borrowed his truck around 8:00 p.m. on December 20, and told appellant he was going to Green Bush, Minnesota, to get a snowmobile. Appellant testified that Wallace and S.H. left him at Wallace’s apartment around 8:00 p.m. and returned with the snowmobile at 11:00 p.m. According to appellant, Wallace said the snowmobile was his. He testified that the [433]*433three rode the snowmobile that night until appellant had an accident and took S.H. to the hospital. Wallace, S.H., and appellant spent that night at Wallace’s apartment. Appellant said he and S.H. went to Erskine the next day, but did not take the snowmobile with them.

Appellant denied any involvement in the theft, and claimed he bought the parts from Wallace on December 27 for $40. He said he took the parts to Erskine that same day and gave them to his brother, who put the motor in his snowmobile.

When the police questioned appellant after they found the stolen parts in his brother’s garage, he denied any knowledge of the snowmobile, and claimed he bought the parts from Wallace.

The jury found appellant guilty of felony theft and found, by special verdict, that the value of the snowmobile was more than $250. The trial court sentenced appellant to imprisonment for a presumptive term of twenty-two months.

On June 13, 1986, appellant filed a motion for a new trial based on newly discovered evidence. Appellant claimed he had discovered three witnesses who would testify that, prior to trial, S.H. told them Jeffrey Hole was not involved in the taking or driving of Gonsorowski’s snowmobile. The motion was also supported by five affidavits.

The State filed a responsive affidavit from S.H. S.H. admitted he made the exculpatory statements, but went on to state that the exculpatory statements were untrue and motivated by his fear of reprisal by appellant. The trial court denied appellant’s motion for a new trial on August 14, 1986.

ISSUES

1. Was the evidence sufficient to convict appellant of felony theft?

2. Was appellant denied effective assistance of counsel?

3. Was appellant entitled to cross-examine a trial witness at the hearing on his motion for a new trial?

4.Did the trial court err by denying appellant’s motion for a new trial based on newly discovered evidence?

I.

Accomplice Testimony

Appellant contends the evidence was insufficient to corroborate the accomplice testimony of S.H. He claims the State proved only the circumstances surrounding the theft, and did not adequately establish his involvement in the crime.

Appellant may not be convicted on S.H.’s accomplice testimony unless that testimony:

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 (1984). The corroborating evidence need not establish a prima facie case, and “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. Jones, 347 N.W.2d 796, 800 (Minn.1984) (quoting State v. Houle, 257 N.W.2d 320, 324 (Minn.1977)).

An accused’s own testimony may provide the requisite corroboration:

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 * * *.

State v. Adams, 295 N.W.2d 527, 533 (Minn.1980) (citing State v. Mathiasen, 267 Minn. 393, 127 N.W.2d 534 (1964)).

On appeal, we will not retry facts, and we are required to view the evidence in the light most favorable to the State, assume the jury believed the State’s witnesses, and disbelieved contradictory evidence. [434]*434State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978).

We find the testimony of Deputy Sheriff Hamre and Dan Hole, under

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Bluebook (online)
400 N.W.2d 430, 1987 Minn. App. LEXIS 4045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hole-minnctapp-1987.