This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-1256

State of Minnesota,
Respondent,

vs.

Zachariah Steven Gensler,
Appellant.

Filed February 15, 2000
Affirmed
Toussaint, Chief Judge

Clay County District Court
File No. K198198

Mike Hatch, Attorney General, Kelly OíNeill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103, and

Lisa N. Borgen, Clay County Attorney, Clay County Courthouse, 807 North Eleventh Street, P.O. Box 280, Moorhead, MN 56560 (for respondent)

Zachariah Steven Gensler, Clay County Jail, P.O. Box 280, Moorhead, MN 56560 (pro se appellant)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue SE #600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge[*].

U N P U B L I S H E D   O P I N I O N

Toussaint, Chief Judge

Appellant Zachariah Gensler appeals from his conviction of third-degree controlled substance offense. Because there was sufficient evidence in the record to support the juryís verdict and because the trial court did not abuse its discretion in evidentiary rulings or err in failing to ask a juror about possible bias, we affirm.

D E C I S I O N

In considering a claim of insufficient evidence, we review the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume the jury believed the stateís witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the jury could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

As the only witness for the defense, Gensler claimed he simply ignored Tessa Weberg and David McDevitt when they spoke to him during the drug deal. The audiotape of the drug deal indicates Weberg spoke to both McDevitt and Gensler, dealing primarily with McDevitt. The prosecution witnesses testified that the substance Weberg purchased was cocaine, Gensler was the source of the cocaine, and McDevitt was acting as a middleman in the drug sale between Gensler and Weberg.

The verdict shows that the jury did not believe Genslerís testimony and did believe the portions of Weberg and McDevittís testimony necessary to convict Gensler. See State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990) (holding credibility determinations exclusive function of jury); Moore, 438 N.W.2d at 108 (assuming jury believed testimony necessary to support guilty verdict); State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977) (recognizing jury can choose to believe part or all of witnessís testimony); see also State v. Triplett, 435 N.W.2d 38, 44-45 (Minn. 1989) (finding jury could believe witnessís testimony despite evidence she lied to police, used drugs and forged checks). Viewed in the light most favorable to the conviction, the evidence in the record is sufficient to support the juryís verdict.

Genslerís second claim is that the trial court erred in refusing to allow Bill McDevitt to testify. We will not overturn the trial courtís evidentiary rulings absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). The record indicates Bill McDevitt was not on Genslerís witness list and was not sequestered like the other witnesses. Furthermore, Bill McDevittís testimony constituted improper impeachment. See Minn. R. Evid. 608(b) (prohibiting introduction of extrinsic evidence to attack or support witness credibility); State v. Ferguson, 581 N.W.2d 824, 834 (Minn. 1998) (providing cross-examiner asking about collateral matters is bound by witnessís answers). Therefore, the trial court did not abuse its discretion by excluding Bill McDevittís testimony.

Third, Gensler claims the trial court erred by failing to ask a juror if he had a prior employment relationship with the county sheriff. The record shows: (1) Gensler claimed he overheard the county sheriff say he used to work with one of the jurors; (2) the juror in question was not directly asked on voir dire whether he had ever worked for the county sheriff; (3) no evidence was presented that the juror ever worked for the county sheriff; (4) the trial court asked the jury panel if anyone knew a certain officer or the county jail administrator, and the juror did not indicate he knew them; (5) the panel was asked if anyone had relatives or close friends who work in law enforcement, and the juror did not reveal any associations of that type; (6) no evidence indicates the jurorís statements during voir dire were untrue; (7) the county sheriff did not testify in this case; and (8) there is no evidence the juror was bias.

Gensler claims the trial court should have granted him a Schwartz hearing to investigate the alleged jury misconduct. See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960) (establishing procedure for hearing to investigate jury misconduct). However, at trial Gensler never requested a Schwartz hearing and agreed to an in camera interview procedure. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding failure to raise below waives issue on appeal). Moreover, the evidence presented by Gensler was not sufficient, even standing alone and unchallenged, to warrant a conclusion of jury misconduct. See State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979) (holding defendant needs to establish prima facie case of jury misconduct to qualify for Schwartz hearing); see also State v. Church, 577 N.W.2d 715, 721 (Minn. 1998) (holding this court will not overrule trial courtís denial of Schwartz hearing absent abuse of discretion); State v. Wilson, 535 N.W.2d 597, 607 (Minn. 1995) (requiring clear question that would have elicited the information allegedly withheld during voir dire). The trial court was aware of Genslerís allegations against the juror and was satisfied after voir dire and a brief in camera hearing that the juror did not act improperly, could be impartial, and should remain on the jury. See State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990) (recognizing trial court is in best position to determine whether jurors can be impartial). Under these circumstances, the trial court did not err in failing to grant a Schwartz hearing and allowing the juror to remain on the jury.

Genslerís pro se brief challenges several evidentiary and procedural decisions that were within the trial courtís discretion. See Kelly, 435 N.W.2d at 813 (holding party must show clear abuse of discretion before this court will overturn trial courtís evidentiary rulings); State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987) (providing conviction will not be reversed for denial of continuance motion unless denial is clear abuse of discretion). Gensler fails to identify any facts showing the trial court clearly abused its discretion. Because the evidence was sufficient to support the conviction and the trial court acted within its discretion, we affirm the conviction.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.