                           This opinion will be unpublished and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
                                      A16-0017

                      In the Matter of the Welfare of: R. M. B., Child.

                                   Filed August 8, 2016
                                         Reversed
                                      Stauber, Judge

                                Mower County District Court
                                 File No. 50-JV-15-2335

Cathryn Middlebrook, Chief Appellate Public Defender, Susan J. Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant R.M.B.)

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

Kristen C. Nelsen, Mower County Attorney, Aaron M. Jones, Assistant County Attorney,
Austin, Minnesota (for respondent)

         Considered and decided by Stauber, Presiding Judge; Ross, Judge; and Johnson,

Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

         Appellant R.M.B. challenges his conviction of aiding and abetting burglary in the

second degree, arguing the evidence was insufficient on the element of intent. Because

the accomplice’s testimony that R.M.B. acted as a “lookout” was uncorroborated, and

because the circumstantial evidence supports an alternative rational hypothesis

inconsistent with guilt, we reverse.
                                         FACTS

       On the evening of October 10, 2015, appellant R.M.B. and four others—Jordan

Barclay; Emilio Rivera; Robert Cole (“Rock”); and C.J. went to C.G.’s house looking for

a party. Jordan Barclay is R.M.B.’s older brother, and Rock, then 27 years old, is a friend

of R.M.B.’s mother. F.M., a mutual friend of both R.M.B. and C.G., told R.M.B. there

was a party at C.G.’s house. C.G. was hanging out with friends in his garage behind his

house when R.M.B. and his four companions arrived and knocked on the garage door.

C.G. answered the door and told the group that there was no party but that F.M. might be

next door. The group went next door, but F.M. was not there.

       While the group was leaving, someone mentioned that no one was inside C.G.’s

house. C.J. went to the front door and knocked, but no one answered. C.G. and his

friends were still in the garage behind the house. While C.J. stood at the front door, Rock

entered the house and took a television. Rivera waited in the car.

       C.G. later claimed that he was missing a 50-inch Vizio Smart TV, an Xbox, and

numerous Xbox games and DVDs.

       All members of the group were charged with burglary, but C.J. was offered a plea

deal whereby the charge against him would be dismissed if he would testify against the

co-defendants. At trial, C.J. testified that while Rock entered the house R.M.B. stood

outside on a driveway about 15 feet from the front door and that R.M.B.’s presence there

made him think R.M.B. was acting as a lookout. C.J. also testified that R.M.B. was

“watching for people, anybody” so that the group would not get caught. He testified,




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“There was no saying that ‘you’re a lookout, . .’ and ‘we’re going to do this,’ not

premeditated or nothing. It was—we were going with the flow.”

       On cross-examination C.J. admitted that during the crime his attention was mainly

focused on Rock and what was happening inside the house, not on R.M.B. C.J.

confirmed that he believed R.M.B. was a lookout only due to his presence outside, and

that R.M.B. never said he would act as a lookout and never warned anyone about others

approaching. On re-direct, C.J. testified that R.M.B. never tried to convince the others

not to burglarize the house, but he did not need to because “[j]ust his body language in

general didn’t really look like he wanted to go do it.” If anything, C.J. said, R.M.B.’s

conduct was due to “peer pressure from the group.” When Rock left the house with the

stolen items, the group all ran to the waiting car and Rivera drove them away. They

dropped R.M.B. off at home at his request, and then they sold the television.

       B.H., whose boyfriend’s brother is the victim, C.G., testified that R.M.B.

“friended” her on Facebook after the burglary. Over Facebook Messenger R.M.B.

initially told B.H. that on the night of the burglary he saw that C.G.’s door was open and

saw “kids running with s--t” from the house. He also told B.H. that he did not steal any

of the items and that he was trying to retrieve the items to return them, but that he did not

know where they were located. B.H. asked R.M.B. to identify the thief, but R.M.B.

replied that he did not want to “snitch.” Finally, R.M.B. told B.H. that his friends sold

the television and that he did not know where the Xbox was located. Law enforcement

located the Xbox in a vehicle near R.M.B. and his brother’s home.




                                              3
         R.M.B told law enforcement in a recorded interview that he walked away from

C.G.’s house toward a nearby bridge because he saw C.J. and Rivera enter the house. He

said that after the burglary the group picked him up by the bridge. R.M.B. said that he

rode home with the group because he was worried about being cited for a curfew

violation. R.M.B. said the others sold the television to someone he did not know, that he

refused when the group asked him to hide the Xbox, and that his brother hid the Xbox in

a car near their house.

         On November 4, 2015, the district court found R.M.B. guilty of aiding and

abetting second-degree burglary, concluding there was no reasonable doubt that R.M.B.

knew his accomplices were going to commit a crime and that R.M.B.’s acts demonstrated

his intent to aid in the commission of the crime. The district court credited C.J.’s

accomplice testimony that R.M.B. was acting as a lookout. The district court rejected

R.M.B.’s statements that he was down the street during the burglary and that he took a

ride home with the burglars because he was worried about a curfew violation. The court

found:

               [R.M.B.’s] actions following the burglary show that he
               intended to aid the commission of the crime because although
               he stated multiple times that he wanted to return the items, he
               did nothing to facilitate the return, did not contact law
               enforcement, and was not forthcoming with information
               regarding what happened, who was present, or where the items
               were when contacted by law enforcement. This conduct
               creates an inference that [R.M.B.] intended his presence to aid
               the commission of a crime, specifically burglary.

On December 16, 2015, the district court adjudicated R.M.B. delinquent and placed him

on probation. R.M.B. now appeals.


                                             4
                                     DECISION

       We agree with R.M.B.’s argument that the evidence at trial was insufficient to

prove beyond a reasonable doubt that he intentionally aided the others in committing

second-degree burglary because the accomplice testimony was not sufficiently

corroborated, and the circumstances proved at trial support a rational hypothesis

inconsistent with his guilt.

       The due process clauses of the Minnesota and United States Constitutions require

that the state prove “each element of the crimes charged beyond a reasonable doubt.”

State v. Merrill, 428 N.W.2d 361, 366 (Minn. 1988); U.S. Const. amends V, XIV; Minn.

Const., art I, § 7. To support an aiding and abetting second-degree burglary conviction,

the state was required to prove beyond a reasonable doubt that R.M.B. intentionally aided

his friends in committing second-degree burglary and made no reasonable effort to

prevent the crime. Minn. Stat. § 609.05, subds. 1, 3 (2014); 10 Minnesota Practice,

CRIMJIG 4.01 (2015). A defendant’s presence constitutes aiding if: (1) the defendant

knew his alleged accomplices were going to or were committing a crime, and (2) the

defendant intended that his presence and actions aid in the commission of the crime.

CRIMJIG 4.01.

              This court distinguishes between a knowing role in the crime
              and inaction, knowledge, and passive acquiescence. Active
              participation in the actual commission of the offense is not
              required to constitute the aiding and abetting of that crime, and
              appellant’s presence, companionship, and conduct before and
              after an offense is committed are relevant circumstances from
              which the [fact-finder] may infer criminal intent.

Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004) (quotation omitted).


                                             5
       Because the “intentionally aids” element evinces a state of mind, it is generally

proved through circumstantial evidence. State v. McAllister, 862 N.W.2d 49, 53 (Minn.

2015). If a conviction is based on circumstantial evidence, a higher level of scrutiny is

warranted. Id. The circumstances proved must be “consistent with the hypothesis that

the accused is guilty and inconsistent with any rational hypothesis except that of guilt.”

Id. Applying the circumstantial evidence standard is a two-step process. The first step is

to identify the circumstances proved. State v. Silvernail, 831 N.W.2d 594, 598–99

(Minn. 2013). In identifying the circumstances proved, we defer to the fact finder’s

acceptance of the proof of these circumstances and rejection of evidence in the record

that conflicted with the circumstances proved by the state. Id. As with direct evidence,

conflicting evidence is construed in the light most favorable to the verdict. Id. at 599.

The second step is to independently examine the reasonableness of all inferences that

might be drawn from the circumstances proved, including inferences consistent with a

hypothesis other than guilt. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010). In

this second stage, we give no deference to the fact finder’s choice between reasonable

inferences. Id. at 330.

       Because R.M.B.’s conviction rests on his knowledge and intent while being in

close proximity to the burglary, the circumstantial evidence standard is applied. Under

the first step, the following circumstances were proved at trial: (1) while R.M.B. and his

friends were walking past C.G.’s house, someone in the group pointed out that the house

was unoccupied; (2) while his friends committed the crime, R.M.B. was close enough to

the house to know who entered it and which items were taken; (3) R.M.B. received a ride


                                              6
home from his friends knowing there were stolen items in the car; (4) R.M.B. was out

past curfew; (5) R.M.B. told B.H. and law enforcement officers that he was trying to

facilitate the return of the stolen items; (6) R.M.B. was not able to persuade the others to

return the items, although he believed his brother hid the Xbox in a car near their house;

(7) R.M.B. told B.H. that he was not going to “snitch” on his friends; and (8) R.M.B. did

not aid law enforcement until arrested.

       R.M.B. argues that the district court impermissibly found that he was acting as a

lookout—and thus this circumstance was not proved at trial—because the district court

relied solely on C.J.’s uncorroborated accomplice testimony. The parties do not dispute

that C.J. meets the definition of an accomplice, and the state’s theory at trial that R.M.B.

acted as a lookout was largely based on C.J.’s testimony.

       Under Minnesota law, “[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.” Minn. Stat. § 634.04 (2014). The statute

recognizes that accomplice testimony is inherently suspect, State v. Jackson, 746 N.W.2d

894, 898 (Minn. 2008), because of concern that an accomplice will offer self-serving,

dishonest testimony, State v. Clark, 755 N.W.2d 241, 253 (Minn. 2008). When the

sufficiency of corroborating evidence is challenged, this court views such evidence in the

light most favorable to the verdict and resolves any inconsistencies in favor of the state.

State v. Pippitt, 645 N.W.2d 87, 93 (Minn. 2002).

       Furthermore, corroborative evidence may be circumstantial in nature and may

relate to the conduct of the accused. State v. Star, 248 Minn. 571, 576, 81 N.W.2d 94, 98


                                              7
(1957). “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.” Id. Corroborative evidence may include,

(1) the proximity of the defendant to the place where the crime was committed, (2) an

association with persons involved in the crime in such a way as to suggest joint

participation, or (3) a subsequent false denial by the accused that he was present or had

been in association with a participant in the crime. State v. Sorg, 275 Minn. 1, 5, 144

N.W.2d 783, 786 (1966); Star, 248 Minn. at 576, 81 N.W.2d at 98. In the end, the

corroborative evidence must be “weighty enough to restore confidence in the

accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some

substantial way.” Pippitt, 645 N.W.2d at 93.

       Here, C.J.’s testimony about R.M.B.’s connection to the burglary was weak and

inconsistent. C.J. testified that R.M.B. never agreed to be a lookout, that only R.M.B.’s

presence outside the house made C.J. believe that R.M.B. was a lookout, and that

R.M.B.’s body language indicated he did not want to participate in the crime. C.J. also

admitted that he was inattentive to what R.M.B. was doing because he was watching

Rock’s actions inside the house. But C.J. also testified that he believed R.M.B. was

“watching for people, anybody” so that the group would not get caught, and that

R.M.B.’s conduct was attributable to “peer pressure,” which suggests guilt.

       This circumstantial corroborative evidence is insufficient to point to R.M.B.’s

guilt in a substantial way. The state argues C.J.’s testimony that R.M.B. was a lookout

was corroborated by several common facts in the testimony of C.J. and C.G., as well as


                                             8
R.M.B.’s statement to law enforcement. Regarding R.M.B.’s proximity to the scene,

C.G. testified that R.M.B. was present at the garage and that a burglary occurred soon

after. But the required corroboration must tend to convict the accused and not merely

show the commission of the crime or the circumstances thereof. Star, 248 Minn. at 575–

76, 81 N.W.2d at 98. Because C.G.’s testimony shows only a crime was committed and

that R.M.B. was present beforehand, it is not sufficient corroborating evidence.

       Further, this court held in State v. Wallert that when the corroborating evidence is

as consistent with the defendant’s innocence as with his guilt, the evidence is insufficient

to serve as corroborative accomplice testimony. 402 N.W.2d 570, 572 (Minn. App.

1987). While the circumstances show that R.M.B. was close enough to the house to

determine who entered it, R.M.B. also told law enforcement that because he witnessed

his friends enter the home, he walked away from the scene toward a nearby bridge, where

he was picked up. R.M.B.’s statement that he was at the bridge was never credibly

contradicted at trial. Therefore, as for R.M.B.’s proximity to the scene, the corroborating

evidence is as consistent with R.M.B.’s innocence as with his guilt. Concerning

R.M.B.’s association with his friends after the burglary, the fact that R.M.B. rode home

with his friends is consistent with guilt, but it also may be consistent with R.M.B.’s

innocence because it is reasonable to infer that R.M.B. needed a ride home due to curfew

concerns. Furthermore, R.M.B.’s statements to law enforcement and to B.H. that he was

trying to facilitate the return of the stolen items do not necessarily implicate R.M.B. in

the burglary, and these statements are plausible to bolster R.M.B.’s contention that he

was uninvolved and did not want to get in trouble for something he did not do. Finally,


                                              9
R.M.B.’s initial false denials to B.H. about being present at the scene and his initial

statement that failed to mention Rock’s involvement may be suggestive of his guilt. But

these statements could also have been motivated by peer pressure and the desire to keep

his friends out of trouble, especially 27-year-old Rock.

       In examining the inferences that might be drawn from the circumstances proved,

one rational hypothesis is that R.M.B. intended to help his friends commit the burglary.

However, another rational hypothesis is that R.M.B. remained near the house or walked

to the bridge and took a ride home with the burglars because he did not want to walk

home, and that his false statements were a response to peer pressure from his older

friends. Because this second rational hypothesis shows only that R.M.B. was present and

passively acquiesced to the crime, it is inconsistent with guilt.

       In sum, the evidence at trial was insufficient to prove beyond a reasonable doubt

that R.M.B. intentionally aided the burglary because C.J.’s testimony that R.M.B. was

acting as a lookout was insufficiently corroborated, and the circumstantial evidence

reveals an alternative rational hypothesis inconsistent with R.M.B.’s guilt.

       Reversed.




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