This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
St. Louis County District Court
File No. K499600882
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, Lisa Needham, Certified Student Attorney, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, Suite 501, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Lawrence Hammerling, Deputy State Public Defender, Timothy Redfield, Certified Student Attorney, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.
Appellant Theodis Wright challenges his three convictions of controlled substance crime in the third degree, arguing that the evidence was insufficient to rebut his claim of entrapment. Wright also contends that the state’s failure to provide information about a confidential informant denied him a fair trial. Because the evidence was sufficient to rebut the entrapment claim and because the state provided all available information about the informant, we affirm.
Wright was charged, tried, and convicted for selling morphine on June 18, cocaine on June 22, and heroin on June 24, 1999. The buys were set up and consummated by a confidential informant (CI) who was working with the Duluth Police Department. CI also worked for the Superior, Wisconsin Police Department. The Duluth Police Department has paid CI $5,000 for his services and the Superior, Wisconsin Police Department has paid him approximately $4,000.
Wright is an admitted drug addict who completed treatment and remained sober for about twenty years before slipping back into drug use and gambling. Wright was convicted in 1989 of possession of cocaine with intent to sell, a felony. From 1991 to 1995, Wright had four separate convictions for fifth-degree controlled substance possession.
CI first met Wright at a party in Superior, Wisconsin. CI testified he had purchased drugs from Wright’s girlfriend while working for the Superior Police Department, but that while he was setting up the last buy from her, Wright got on the phone and said that the contacts were his, not girlfriend’s, and that she would not be making any more buys. After that, CI, working with the Duluth Police Department, arranged the buys from Wright.
Wright testified that, for the first buy, CI called him claiming to be ill and asked Wright to provide morphine. Wright said he refused on several occasions but ultimately relented because of CI’s persistent phone calls and claims of illness. CI initiated contact with Wright for the subsequent buys of cocaine and heroin. Wright was arrested in September 1999 for his sales to CI.
In a discovery order, the district court ordered the state to provide information regarding CI and his wife, including information from other law enforcement agencies. The Duluth Police Department disclosed all information in its possession concerning CI and requested similar information from the Superior, Wisconsin Police Department, which declined to provide information. CI’s contracts with the Duluth Police Department, information sheets, and receipts of monies paid were all introduced at trial. There is no evidence that the state withheld any information about CI from Wright.
Where there is a challenge to the sufficiency of evidence, appellate courts carefully review the record “to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted). The court will not disturb the verdict
if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.
State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (citing State v. McCullum, 289 N.W.2d 89 (Minn. 1979)).
In Minnesota, to prove entrapment, a defendant must prove “that the actions of the police went further than those necessary to produce evidence of the defendant’s criminality.” State v. Grilli, 304 Minn. 80, 89, 230 N.W.2d 445, 452 (1975). If the state proves beyond a reasonable doubt that the defendant was predisposed to commit the charged crime, the entrapment defense fails. Id. The state can show predisposition by (a) active solicitation of the crime, (b) prior criminal convictions, (c) prior criminal activity not resulting in conviction, (d) defendant’s criminal reputation, or (e) by any other adequate means. Id.
Wright argues that the court’s instruction to the jury on entrapment proves he had established inducement thereby shifting the burden to the state to prove predisposition beyond a reasonable doubt. Wright cites no authority for this assertion. “[A] party is entitled to an instruction on his theory of the case if there is evidence to support it.” State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977). The entrapment issue was submitted to the jury, however, for determination of inducement and predisposition, with the following CRIMJIG instruction:
Defendant is not guilty of a crime when the Defendant commits an act or engages in conduct otherwise criminal if the criminal design does not originate with Defendant but is conceived in the mind of a government agent and Defendant is, by coercion, persuasion, deceitful representation or inducement, lured into committing an act which the Defendant otherwise would not have committed or had no intention of committing.
If a person is willing and ready to commit the crime, the fact that the government agent has provided what appears to be a favorable opportunity is not an excuse. The State must prove beyond a reasonable doubt that Defendant had ready willingness to commit the act.
The evidence of Wright’s prior convictions, evidence that Wright instructed CI to buy from him rather than Wright’s girlfriend, together with evidence of three sales of controlled substances for profit quickly arranged by Wright within six days provides adequate support for the jury’s conclusion that Wright was not entrapped.
The district court determined that the state had fully complied with its discovery order even though the Superior, Wisconsin Police Department failed to provide the requested information. A district court’s ruling on an alleged violation of discovery rules should not be overturned absent a clear abuse of discretion. State v. Adams, 555 N.W.2d 310, 311 (Minn. App. 1996) (citing State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979)). The Minnesota Rules of Criminal Procedure require the prosecutor to provide “material and information in the possession or control of members of the prosecution staff and of any others who have participated in the investigation or evaluation of the case * * * who either regularly report or with reference to the particular case have reported to the prosecuting attorney’s office.” Minn. R. Crim. P. 9.01, subd. 1(7). There is no evidence that CI’s work with the Superior police was in any way connected with Wright and no evidence that any information from the Duluth police was withheld. Wright had all of the information that the state had and was able to cross-examine CI concerning his contracts with and payment from police departments for his work. Wright has failed to support his contention that there was a discovery violation.
Dated: January 31, 2001