                            This opinion will be unpublished and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                           UNPUBLISHED OPINION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.




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