This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Brian F. Stebe,



Filed December 12, 2000


Kalitowski, Judge


Beltrami County District Court

File No. K699272


Mike Hatch, Attorney General, John Docherty, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Timothy R. Faver, Beltrami County Attorney, 207 Fourth Street, P.O. Box 1653, Bemidji, MN 56601 (for respondent)


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


            Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Brian F. Stebe challenges his conviction and sentence for conspiracy to commit first-degree murder and fifth-degree controlled substance offense arguing (1) the district court improperly joined the two charges; (2) his arrest in his home was illegal; (3) the district court abused its discretion in admitting a videotape of an officer firing weapons seized from a residence associated with a co-conspirator; and (4) the district court abused its discretion in declining to depart downward from the presumptive 240-month sentence.  Appellant also raises additional issues in his pro se supplemental brief.  We affirm.



            Appellant argues that Minn. R. Crim. P. 17.03 requires severance because the offenses were not related.  See id., subd. 3(1)(a) (stating that trial court shall sever offenses if offenses or charges not related).  Joinder of offenses requires the offenses to be part of a single behavioral incident.  State v. Profit, 591 N.W.2d 451, 460 (Minn. 1999).  The determination of whether offenses arise from a single behavioral incident is dependent upon the particular facts and circumstances of each case.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).  The focus is on the time and place of the crimes, with the additional consideration of “whether the actor was motivated by a single criminal objective.”  State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996) (citations omitted).

The facts of the present case show that the offenses occurred at the same time.  The telephone calls occurred from February 22-24, 1999.  The methamphetamine was found on appellant subsequent to his arrest on February 24, 1999.  Additionally, appellant admitted he was “high” on methamphetamine for the nine days prior to his arrest.  In fact, he raised an intoxication defense at trial. 

The state argues that joinder was proper because the “criminal objective that underlies both the methamphetamine possession charge and the conspiracy charge is obtaining, buying, selling, and using methamphetamine.”  We agree.  Drugs motivated the initial assault and drugs continued to motivate the retaliation. 

Moreover, even if joinder was improper, the district court’s ruling on severing claims will not be reversed unless “prejudicially erroneous.”  Profit, 591 N.W.2d at 460 (citation omitted).  In Profit, the supreme court held that a Spreigl analysis for admitting other crimes’ evidence is the proper framework for evaluating whether a district court’s failure to sever is so prejudicial that reversal is required.  Id. at 460-61.  Spreigl evidence may be admitted if

(1) there is clear and convincing evidence that defendant participated in the [Spreigl] offense;  (2) the evidence is relevant and material to the state’s case, and (3) the probative value of the evidence is not outweighed by its potential for unfair prejudice.


State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000) (citation omitted).

            The jury found appellant guilty of conspiracy to commit first-degree murder and possession of a controlled substance.  In light of these jury verdicts, which require proof beyond a reasonable doubt, the offenses were proven by clear and convincing evidence.

Second, appellant argued at his trial that because he was “high” on methamphetamine during the commission of the conspiracy, he was not able to form the proper intent necessary for a conviction.  Therefore, by appellant’s own argument the possession offense is relevant to the conspiracy offense.  In addition, the state argued that in participating in the conspiracy retaliation, appellant was protecting his source of methamphetamine, thus providing a motive.  We agree.

The third factor in the Spreigl analysis is whether the admitted evidence was unfairly prejudicial.  We conclude that it was not.  First, as noted above, evidence of the drug possession could be admitted to show motive with respect to the conspiracy charge.  Second, appellant admitted numerous times and never challenged the fact that he was in possession of methamphetamine.  For these reasons, the probative value of the other crimes’ evidence outweighed the potential for unfair prejudice.  Therefore, even if the district court erred in joining the charges, under Profit, the error was not “prejudicially erroneous.” 


            Appellant contends his arrest at home was illegal.  In a posttrial motion for a new trial, appellant argued that his statements to the officers should have been suppressed as the fruits of an “illegal arrest.”  We conclude the district court did not abuse its discretion when it ruled this issue was waived because appellant did not raise it at the omnibus hearing.  Minn. R. Crim. P. 10.01 & 10.03; see State v. Grilli, 304 Minn. 80, 95-96, 230 N.W.2d 445, 455-56 (1975) (outlining the purpose of an omnibus hearing). 


            Appellant argues that a videotape shown at trial of an officer demonstrating the firing power of three weapons seized at a residence associated with a co-conspirator was irrelevant and inflammatory, causing prejudice.  Rulings involving the relevancy of evidence are generally left to the district court’s sound discretion.  State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995).  “The party claiming error has the burden of showing both the error and the resulting prejudice.”  Id. (citation omitted).  Appellant has not satisfied his burden.  The conspiracy charge alleged the conspirators were collecting weapons in connection with the planned retaliation.  Thus, the weapons were relevant.  Moreover, the four-minute videotape was not inflammatory but was merely explanatory.  We conclude the district court did not abuse its discretion by admitting the videotape into evidence.


            Appellant contends the district court abused its discretion when it failed to consider mitigating circumstances and depart downward from the presumptive sentence.  A district court’s decision to depart from the sentencing guidelines will not be reversed absent an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  The sentences provided in the sentencing guidelines are presumed appropriate for every case, and only in the “rare case” will an imposition of the presumptive sentence be reversed.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); Minn. Sent. Guidelines II.D. Appellant argued that his involvement in the conspiracy was minimal, he cooperated with police after his arrest, he expressed remorse for what he had done, and he took substantial steps to rehabilitate himself.  Even assuming all this is true, we cannot say this is the rare case where the district court abused its discretion by imposing the presumptive sentence.


            Finally, appellant submitted a pro se brief in which he challenged the veracity of evidence against him, the fairness of the trial, the fairness of the court’s rulings on evidence and the four previous issues.  We have carefully reviewed appellant’s claims and find them to be without merit. 

            In addition, appellant’s pro se brief contains a number of assertions alleging ineffective assistance of counsel.  But because the record is not adequately developed, we conclude that this direct appeal is not the most appropriate way to raise this claim.  State v. Cermak, 350 N.W.2d 328, 332 n.5 (Minn. 1984); see also Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991) (holding that “[o]n direct appeal, the record may not be adequately developed to permit proper review” of the claim).


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