This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-995

 

State of Minnesota,

Respondent,

 

vs.

 

Tarah Asbur Frieson,

Appellant.

 

March 6, 2001

Affirmed

G. Barry Anderson, Judge

 

Hennepin County District Court

File No. 99115056

 

Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

Lawrence Hammerling, Deputy State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by G. Barry Anderson, Presiding Judge, Halbrooks, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant, convicted of fifth-degree possession of a controlled substance and third-degree intent to sell a controlled substance, argues that the state failed to prove, beyond a reasonable doubt, that he intended to sell controlled substances found in his possession.  Because the evidence was sufficient for the jury to decide beyond a reasonable doubt that appellant was guilty of third-degree sale of a controlled substance, we affirm.

FACTS

 

            Around 8:30 a.m. on November 17, 1999, Minneapolis Police Officer Kelly O’Rourke and his partner, Officer John Staufenberg, observed appellant Tarah Asbur Frieson park and leave his vehicle and then drop an empty cigarette carton in front of their squad car near the intersection of Elliot and Franklin Avenues.  O’Rourke and Staufenberg left their vehicle and told appellant that he was under arrest for littering.  O’Rourke testified that after observing appellant discard the cigarette carton but before arresting him, he saw appellant reach into his pocket, throw a small paper packet to the ground, and push the packet aside with his foot.  The officers approached appellant, and, after a brief scuffle, arrested him.  Officer Staufenberg recovered the paper packet, which contained five individually wrapped rocks later determined to be crack cocaine with a total weight of 0.8 grams. 

An officer qualified as a narcotics crime expert testified that the neighborhood where police arrested appellant is known for the sale of small, individually wrapped, rocks of crack cocaine.  The expert also explained that a person selling crack cocaine makes more money breaking the rocks into smaller pieces valued at $20 each.  

Appellant, however, testified that he did not possess crack cocaine at the time of his arrest and did not personally use crack cocaine.  The defense called a chemical health counselor who testified that one person could use the amount of crack cocaine recovered by police in a single day.  Appellant, who did not live or work near Elliot and Franklin Avenues, explained he was in that neighborhood to purchase a $20 phone card for use with his cellular phone.  During cross-examination, appellant admitted that his cell phone was not on his person or in his vehicle at the time of arrest.

Appellant testified that when arrested, the officers immediately began to strike him, leaving visible marks on his body and using racial slurs while demanding to know where he kept “the dope.”  But a nurse who examined appellant after his arrest testified that she found no visible marks on appellant’s body. 

The jury also learned of appellant’s two prior felony convictions for armed robbery and attempted armed robbery. 

The jury found appellant guilty of both third degree intent to sell a controlled substance in violation of Minn. Stat. § 152.023, subds. 1(1) and 3(a) (1998), and fifth-degree possession of a controlled substance in violation of Minn. Stat § 152.025, subds. 2(1) and 3(a) (1998).  Appellant challenges the sale conviction on appeal but does not contest his conviction for possession of the crack cocaine. 

D E C I S I O N

 

Appellant argues that the evidence was insufficient to support his conviction for third-degree sale of crack cocaine because the state failed to prove, beyond a reasonable doubt, that he intended to sell the drugs.

When the sufficiency of the evidence is challenged, our review is limited to analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the factfinder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We 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).  We will not disturb the verdict if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            Because the police did not see appellant sell the crack cocaine, the state was required to prove, using circumstantial evidence, that appellant possessed the drugs with the intent to sell them.  Minn. Stat. § 152.023, subds. 1(1) and 3(2) (1998).  Intent is an inference drawn by the jury from the totality of the circumstances. State v. Raymond, 440 N.W.2d 425, 426 (Minn. 1989).

A conviction based on circumstantial evidence must be more carefully scrutinized by this court.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  The evidence must “do more than give rise to suspicion of guilt; it must point unerringly to the accused’s guilt.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citation omitted).  But to succeed in a challenge to a verdict based on circumstantial evidence, a convicted person must point to evidence in the record that is consistent with a rational theory other than guilt.  State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).

            The intent to sell or distribute a controlled substance is usually proved circumstantially.  State v. Lozar, 458 N.W.2d 434, 441 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  Evidence tending to show such intent usually includes evidence as to the large quantity of drugs or other evidence as to the manner of packaging.  Id.  The circumstantial evidence supporting appellant’s conviction, although not overwhelming, is sufficient to show that appellant intended to sell the crack cocaine.  A police officer testified that appellant threw the individually wrapped rocks of crack cocaine to the ground when the police approached him.  The jury heard that a seller has a financial incentive to sell individually-packaged smaller rocks of crack cocaine.  The area where appellant was stopped was known for the sale of small, individually-wrapped pieces of crack cocaine.  Appellant had multiple pieces of crack cocaine in his possession, and had just emerged from his car when police stopped him and therefore could not have bought the crack cocaine at that location.  Appellant did not possess a crack pipe on his person or in his car.

In addition, appellant’s theory of innocence was unreasonable.  Appellant explained to the jury that he was in the neighborhood of high drug activity, a neighborhood that he did not work or live in, to buy a phone card for use with his cellular phone.  But his phone was not on his person or his vehicle.

Although this court imposes a stricter standard of appellate review of a conviction based on circumstantial evidence, the standard still recognizes that a jury is in the best position to evaluate the circumstantial evidence surrounding the crime, and its verdict is entitled to “due deference.”  State v. Race, 383 N.W.2d 656, 662 (Minn. 1986).  The factfinder determines the weight and credibility of the witnesses’ testimony.  Moore, 438 N.W.2d at 108.  Here, it appears that the conviction depended entirely on whom the jury believed.  The jury considered the state’s witnesses, who told of the individual packaging of the small pieces of crack cocaine in the high-drug-traffic neighborhood.  The jury heard appellant state that he received substantial visible injuries when the officers beat him, but later learned that a nurse who examined appellant after his arrest found no visible injuries.  Appellant told the jury that he did not possess crack cocaine at the time of the arrest, did not use crack cocaine, and came to the neighborhood only to buy a phone card.  The jury resolved the conflict by rejecting appellant’s theory of innocence and returning a verdict of guilty on the intent to sell a controlled substance charge.  Viewing the evidence in the light most favorable to the conviction and deferring to the jury’s credibility determinations, we conclude that the evidence was sufficient for the jury to decide beyond a reasonable doubt that appellant was guilty of third-degree sale of a controlled substance.      

            Appellant, by pro se supplemental brief, raises three additional issues.  He argues  (1) the state failed to prove constructive possession of the crack cocaine, (2) his trial counsel was ineffective, and (3) his constitutional equal protection rights were violated.

            Appellant’s constructive possession argument is without merit.  The officers saw appellant take a packet containing crack cocaine out of his pocket and throw it on the ground.  This evidence is sufficient to prove that appellant had actual possession of a controlled substance.  See State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (holding conviction for a possession crime requires proof of conscious possession, either actual or constructive).

            Appellant’s equal protection claim was not raised below or ruled on by the district court.  Accordingly, it is not properly before this court.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (as a general rule, reviewing courts will not decide issues that were not raised before the trial court).   

            The ineffective assistance of counsel claim also is not properly before this court and therefore we decline to address it.  See State v. Gustfason, 610 N.W.2d 314, 321 (Minn. 2000) (generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal).  

            Affirmed.



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