This opinion will be unpublished and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

C9-00-1054

 

 

State of Minnesota,

Respondent,

 

vs.

 

Charles Theo McIntosh,

Appellant.

 

 

Filed May 1, 2001

Affirmed in part, reversed in part, and remanded
Klaphake, Judge

 

Olmsted County District Court

File No. K6-99-99

 

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

 

Raymond Schmitz, Olmsted County Attorney, Government Center, 151 4th Street S.E., Rochester, MN  55904 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

 

            Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            After a court trial, appellant Charles McIntosh was convicted of second-degree conspiracy to commit controlled substance crime, two counts of third-degree controlled substance crime, and second-degree controlled substance crime, all stemming from his conduct in the Rochester area between November 25, 1998 and January 8, 1999.  In this appeal, he claims that (1) the trial court erred in allowing a prosecution witness to testify about appellant’s illegal drug activities that occurred before the charging dates of the criminal complaint; (2) the evidence and findings were insufficient to sustain his conspiracy conviction; (3) the district court erred in calculating his criminal history score and in concluding that the conspiracy offense and individual controlled substance offenses were not one behavioral incident for purposes of sentencing; and (4) the court abused its discretion in imposing a sentence that constituted a durational departure from the presumptive sentence.  Appellant also filed a pro se brief contending that he did not possess the cocaine, his counsel was ineffective, and he was a victim of racial profiling.  Because the record does not reveal whether appellant’s Illinois conviction for possession of a stolen vehicle should be considered a gross misdemeanor or a felony under Minnesota law, we remand for recalculation of appellant’s criminal history score and possible resentencing after that determination is made.  Because the record supports the trial court’s determinations and conclusions on all other issues and we find appellant’s pro se issues to be without merit, we affirm on all other issues.

D E C I S I O N

            Testimony of Accomplice

            Appellant claims that the trial court erred by allowing appellant’s accomplice, Jeremy Wiley, to testify about criminal acts appellant allegedly committed before November 25, 1998.  He claims that any references to acts committed before the charging period of the criminal complaint violated the notice provisions of Minn. R. Crim. P. 7.02 (requiring prosecutor to give the defense written notice of “any additional offenses, the evidence of which may be offered at the trial under any exceptions to the general exclusionary rule”).

            The trial transcript reveals that witness Jeremy Wiley was unable to pinpoint certain dates involving appellant’s criminal conduct.  During the beginning of his direct examination, the prosecutor confined the dates of his questions to “from November 25th through January of--January 8th,” the charging period of the criminal complaint.  Thereafter, when Wiley became confused, the prosecutor asked him whether particular incidents occurred before or after the sale at Cub Foods that occurred on November 25, 1998.  Wiley was allowed to testify over appellant’s objection that on one occasion appellant purchased cocaine in Chicago and processed it before the November 25 drug sale in Rochester. 

            As the prosecutor pointed out at trial, however, Wiley’s January 1999 police statement satisfied the substance of the rule because it provided the defense with notice of the earlier conduct.  Further, even if evidence pertaining to a Chicago drug purchase that occurred prior to the current offenses was erroneously admitted, any such error was not prejudicial and was harmless.  Wiley testified that he personally went with appellant to Chicago “three or four times” to purchase cocaine.  Thus, the particular evidence about the first trip to Chicago was merely cumulative.  It was also a minor piece of evidence in a court trial that included direct evidence of drug sales and recorded conversations between the various witnesses during the sales.  See State v. Hofmann, 549 N.W.2d 372, 376 (Minn. App. 1996) (erroneous admission of evidence harmless, noting that “possibility of any unfair prejudice was diminished by the fact that the case was tried to a judge without a jury”), review denied (Minn.  Aug. 6, 1996).  Under these circumstances, we conclude that a new trial is not warranted because any error on the part of the trial court in admitting the evidence was not prejudicial.  See State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995) (new trial not required despite error in admission of other-crimes evidence, without Minn. R. Crim. P. 7.02 notice, where defendant not prejudiced); State v. Alexander, 259 N.W.2d 594, 595 (Minn. 1977) (evidence of other crimes under Minn. R. Crim. P. 7.02 properly admitted despite state’s failure to give proper notice where defendant not prejudiced).

            Sufficiency-of-the-Evidence Claim

            In considering a sufficiency-of-the-evidence claim, an appellate court must view the evidence in the light most favorable to the verdict and assume the fact-finder credited the state’s witnesses and discredited contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  An appellate court reviews a sufficiency-of-the-evidence claim in a criminal bench trial under the same standard as its review of a jury verdict.  State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998).

            Minn. Stat. § 609.175, subd. 2 (1998) defines conspiracy to commit a crime as follows:

            Whoever conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy * * *.

 

Thus, “the crime of conspiracy requires (1) an agreement between two or more people to commit a crime and (2) an overt act in furtherance of the conspiracy.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. Mar. 1, 2001) (citation omitted).  A formal agreement is not required for a conspiracy; the agreement may be inferred from the conduct of the defendant and actions of co-conspirators who act “in concert.”  American Tobacco Co. v. United States, 328 U.S.781, 809-10, 66 S. Ct. 1125, 1139 (1946).

            Appellant concedes that any of the separate drug sales could constitute an overt act in furtherance of a conspiracy.  He argues, however, that there is insufficient evidence to show that there was an agreement among the parties to sell cocaine or that the parties were more than mere accomplices.  Viewing the evidence in the light most favorable to the conviction, appellant’s conduct demonstrates that there was an agreement to commit a crime.  This evidence includes the numerous trips to Chicago to purchase cocaine, appellant’s role in preparing the cocaine for sale, the various parties’ actions and interactions in accomplishing particular drug sales to P.B., a police informant, and the negotiations over the price P.B. was to pay for the drugs.  In addition, Wiley testified that he and other accomplices sold drugs for appellant and that he did so “[e]very day.  Pretty much all day.” 

            Appellant claims that the testimony of Wiley should not have been given any weight because it was uncorroborated.  See Minn. Stat. § 634.04 (1998) (conviction may not stand on uncorroborated testimony of an accomplice). 

            Corroborating evidence may consist of: physical evidence associated with the crime, the testimony of eyewitnesses and experts at trial, inadequacies and admissions in a defendant’s testimony, and suspicious and unexplained conduct of an accused before or after the crime.

 

State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000) (citations omitted).  The entire course of conduct of appellant and his accomplices, the physical evidence of the various drug sales, and the testimony of other eyewitnesses, including P.B. and police officers, corroborates Wiley’s testimony that appellant was engaged in a conspiracy to sell cocaine in the Rochester area.

            Sufficiency-of-the-Findings Claim

            Appellant also claims that the court’s findings are insufficient to support his conviction.  Following a bench trial, a judge must make a general finding of guilt, and within seven days, must also “specifically find the essential facts in writing on the record.”  Minn. R. Crim. P. 26.01, subd. 2.  The rule further provides that “[i]f the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding.”  Id.  Here, the court found appellant guilty of conspiracy to commit second-degree controlled substance offense.  Appellant claims that the court’s specific finding on that issue is contained in its findings made on the record.  In its oral findings, the trial judge stated that “[i]n addition, the other statements made indicate that a conspiracy did exist.”  That statement, however, was both preceded and followed by a rendition of its factual findings on conspiracy in general and on conspiracy as it related to particular drug sales.  Further, in its written findings, the court found, “in accordance with Rule 26.01, subd. 2,” that appellant conspired with others to sell specific amounts of cocaine on four separate occasions.  These findings, both on their face and read in conjunction with the court’s general findings of guilt, satisfy the requirements of Minn. R. Crim. P. 26.01.

            Calculation of Appellant’s Criminal History Score

            Appellant claims, and the state agrees, that the trial court erred in calculating appellant’s criminal history score.  The trial court included an Illinois conviction for possession of stolen vehicle as a felony offense worth one criminal history point.  Appellant contends that the sentence for the offense, 24 months’ probation, could constitute either a gross misdemeanor or a felony sentence under Minnesota law, because in Minnesota the maximum period of probation to be imposed for gross misdemeanors that do not involve DUI is two years.  See Minn. Stat. § 609.135, subd. 2 (1998) (enumerating maximum periods of probation for felonies and gross misdemeanors).

            Out-of-state conviction designations are “governed by the offense definitions and sentences provided by Minnesota law.”  Minn. Sent. Guidelines II.B.5; see Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992) (relevant factors in weighing out-of-state offenses include definition of offense, nature of offense, and sentence received).  The determination of whether appellant’s Illinois conviction should be considered a felony or gross misdemeanor, however, depends on the stayed prison sentence he received and not on the probation period included as part of that sentence.  Minn. Stat. § 609.13, subd. 1(1) (1998) (felony conviction deemed gross misdemeanor if sentence imposed is within limits provided for gross misdemeanor); Minn. Sent. Guidelines II.B.5.  Because it is unclear from the record what sentence appellant received for the Illinois conviction, we remand for resentencing after a recalculation of appellant’s criminal history score that takes into account the sentence imposed for the Illinois conviction.[1]

            Appellant also claims that the trial court erred in sentencing appellant separately for the conspiracy offense because the sales offenses for which he was also sentenced comprised the overt acts of the conspiracy.  Minn. Stat. § 609.035 (1998) prohibits the imposition of more than one sentence for multiple crimes committed during a single behavioral incident.  In determining whether there is a single behavioral incident, courts consider “time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.”  State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).

            The conspiracy offense encompassed a broader criminal objective than the particular objectives of the individual sales, which were to make money on specific occasions.  Additionally, the conspiracy also took place in two locations, Chicago and the Rochester area.  As to time, the specific sales offenses occurred on three separate dates, but the parties’ agreement to conspire occurred long before the sales and necessitated their coming to Rochester in the first instance.  Cf. State v. McAlpine, 352 N.W.2d 101, 104-05 (Minn. App. 1984) (rejecting a defendant’s claim that acquittal of a conspiracy charge barred the state from initiating separate controlled substance offenses under Minn. Stat. § 609.035, court noted that specific drug offenses and a conspiracy offense have different elements, typically lack a close relationship of time and place, and have different criminal objectives).  The trial court did not err in concluding that the conspiracy and controlled substance offenses could be sentenced separately, because they are not a single behavioral incident. 

            Durational Sentencing Departure

            Appellant also claims that the trial court abused its discretion in sentencing him to a 24-month upward durational departure on the second-degree controlled substance conviction, the presumptive sentence for which is 98 months.  Under the sentencing guidelines, the trial court may depart from the presumptive sentence only if “substantial and compelling circumstances” exist.  Minn. Sent. Guidelines II.D.  As reasons for the departure, the court found that the offense was a major controlled substance offense and identified three aggravating factors justifying the departure.  See Minn. Sent. Guidelines II.D.2.b.5. (two aggravating factors required for major controlled substance offense).  The court found that appellant “occupied a high position in the drug distribution hierarchy”; the offense “involved the manufacture of controlled substances for use by other parties”; and the offense “involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use.”  Id. at II.D.2.b.5.(b, c & e).

            The record supports these findings.  The evidence showed that appellant was the leader of the conspiracy; he made decisions on behalf of the other members and dictated their actions, including procuring and pricing the cocaine.  The evidence also shows that appellant manufactured the powdered cocaine he purchased by cooking it to make crack cocaine.  Further, according to the testimony at trial, the amount of the cocaine sold for this offense, 6.1 grams, was an amount in excess of an ordinary amount for personal use.  See State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987) (concluding five grams more than for personal use), review denied (Minn.  Jan. 15, 1988).  Under these circumstances, the trial court properly applied its discretion in imposing an upward durational departure on the second-degree controlled substance offense.  See State v. Morris, 609 N.W.2d 242, 244-45 (Minn. App. 2000) (appellate court will not alter trial court’s sentencing decision unless “there has been a clear abuse of discretion”), review denied (Minn.  May 23, 2000).

            Appellant’s Pro Se Issues

            Appellant filed a pro se brief and contends that (1) he did not possess the cocaine; (2) his counsel was ineffective; and (3) he was a victim of racial profiling.  As to the first claim, it is not an element of a charged offense in this case and is therefore without merit.  Further, nothing in the record supports appellant’s claim that his attorney was ineffective or that appellant was subjected to racial profiling, in particular by the judge who tried the case.

            Affirmed in part, reversed in part, and remanded.

 



[1] The state contends that the trial court should have included other out-of-state offenses in calculating appellant’s criminal history score.  Because the state did not file a notice of review, we decline to consider this issue.  Minn. R. Civ. App. P. 106; see Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).