This opinion will be unpublished and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

C4-00-801

 

State of Minnesota,

Respondent,

 

vs.

 

Theodore Stevie Varner,

Appellant.

 

Filed May 15, 2001

Affirmed in part, reversed in part, and remanded

Harten, Judge

 

Ramsey County District Court

File No. K7-99-2238

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellant challenges his conviction, arguing that a juror’s prejudicial remark denied him a fair trial, that the evidence was insufficient, and that it was an error of law to convict him of sale of a controlled substance; he also challenges his sentence, arguing that he was not a career offender.  Because we see neither an abuse of discretion nor an error of law in appellant’s conviction, we affirm; and because the law on career offenders has changed, we reverse and remand for re-sentencing in accord with the new law.

FACTS

 

            Appellant Theodore Varner directed Tonya Stelzer and Zacharus Turner to a particular house on Blair where they could meet friends of his who would exchange cocaine for sex with Stelzer.  Because Turner overheard appellant discussing a plan to rob him, Turner left his keys in the car before entering.  Inside the entrance, appellant met Turner with a gun and asked for the keys; when Turner said he did not have them, appellant hit him with the gun.  Turner was then forced to strip, threatened with dogs, and otherwise intimidated and abused.  Stelzer witnessed this.  She later had sex with other men who came to the house wanting to exchange cocaine for sex.  She and appellant were each given cocaine, but she had to turn over to appellant some of what she was given.

Stelzer also had sex with appellant, who took her to a nearby house where they spent the night.  When appellant left the next day, Stelzer called the police.  The police searched the Blair house and found a semi-automatic pistol and drug paraphernalia.  Appellant was not present but was later arrested and charged with possession of a firearm, criminal sexual conduct, promotion of prostitution, assault, kidnapping, false imprisonment, and sale of a controlled substance.  Appellant pleaded not guilty and the case was set for a jury trial.

During appellant’s trial, one juror remarked to the others that the neighborhood of the crimes was known as the Miracle Mile because it would be a miracle if a white person walked a mile in it without being robbed or beaten.  That juror was dismissed, and the judge gave a curative instruction. 

The jury convicted appellant only of possession of a firearm and sale of a controlled substance.  Appellant moved for a new trial on the ground that the juror’s remark deprived him of a fair trial; his motion was denied. The district court sentenced him first to 60 months for possession of the firearm, then, on the ground that he was a career offender, to a consecutive 75 months for sale of a controlled substance. 

Appellant alleges that the district court abused its discretion in finding that the juror’s remark did not prejudice him, that the evidence was insufficient to allow the jury to convict him of possession of a firearm, and that it was an error of law to convict him for sale of a controlled substance and sentence him as a career offender.[1]

D E C I S I O N

 

1.                  Juror Misconduct

 

The decision to grant a new trial based upon juror misconduct rests within the discretion of the trial court and will not be reversed unless there is an abuse of discretion.

 

State v. Landro,504 N.W.2d 741, 745 (Minn. 1993).  The district court removed the juror who allegedly committed misconduct by making the “Miracle Mile” remark and gave a curative instruction, but denied appellant’s motion for a new trial based on juror misconduct.[2]

Appellant, who is black, argues that the “Miracle Mile” remark was prejudicial because jurors, fearing appellant’s retribution, would have convicted him to ensure his imprisonment and their own safety.  But appellant’s attorney stated that the motion for a new trial was based on “the joke that was made by one of the jurors” and appellant’s brief states that “one of the jurors made a joke.”  Therefore, appellant’s contention that the remark was a racial slur rather than a joke is not solidly supported by his own references to it.  Moreover, the jurors acquitted appellant of most of the charges, and Turner, a principal witness against appellant, is also black.  Appellant’s argument that he was prejudiced by the remark is unpersuasive. 

            The district court did not abuse its discretion in denying a new trial on the ground that the jury had heard the “Miracle Mile”  remark.

 

2.                  Firearm Possession

 

The reviewing court will not disturb the verdict if the jury, 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).  The jury concluded that appellant was guilty of possession of a firearm. 

Appellant stipulated that he was ineligible to possess a gun, and both Turner and Stelzer testified that appellant had a gun.  Appellant argues that their testimony cannot constitute proof beyond a reasonable doubt because the jury “implicitly found that both of these witnesses were liars” when it acquitted appellant on the other charges.  But the acquittal signified only that the jury did not find appellant guilty beyond a reasonable doubt of those offenses; it was not an indictment of the honesty of Turner and Stelzer. 

Moreover, 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).  Turner testified that he “didn’t have much of a choice” about obeying appellant’s orders because appellant had a gun.  Stelzer testified that appellant had a gun while he was giving orders to her and to Turner.  The jury could reasonably have concluded that appellant was guilty of possessing a firearm.

 

3.                  Sale of a Controlled Substance

 

A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).  Appellant argues that, as a matter of law, he should have been charged with and convicted of possession of a controlled substance, not sale of a controlled substance.

Minn. Stat. § 152.01, subd. 15a (1) (2000), defines “sell” as “to sell, give away, barter, deliver, exchange, distribute or dispose of to another * * * .”  Stelzer testified that appellant gave her crack in exchange for having sex with him and with other men who were in the house.  Appellant relies on State v. Carithers, 490 N.W.2d 620 (Minn. 1992), to argue that, because he also was using the crack, he was jointly possessing it with Stelzer rather than selling it to her.  But appellant’s reliance is misplaced; Carithers is distinguishable on both the facts and the law.  It concerned possessors who jointly acquired the substance, not one individual who gave it to another in exchange for sex.  Id. at 620.  Moreover, Carithers holds that when a controlled substance is not sold but jointly acquired, a joint possessor may not be convicted of third-degree felony murder under Minn. Stat. § 609.195(b) (1990) (providing that one who causes the death of another by unlawfully selling a controlled substance is guilty of third-degree murder).  Id.  Carithers does not hold that sale of a controlled substance is somehow voided if the seller uses the substance in the company of the buyer, and it does not support reversing appellant’s conviction for sale of a controlled substance.

 

4.                  Sentencing

 

State v. Huston, 616 N.W.2d 282, 283 (Minn. App. 2000), holds that “five sequential felony offenses and convictions are required” for career-offender status.[3] Therefore, appellant’s conviction for possessing a firearm could not be used to sentence him as a career offender for sale of a controlled substance because he had not yet been convicted of possessing the firearm when he sold the controlled substance.  The parties agree that the case must be remanded for re-sentencing in accord with Huston.

We therefore affirm appellant’s conviction, but reverse and remand the  sentence.

Affirmed in part, reversed in part, and remanded.



[1] In his pro se supplemental brief, appellant argues ineffective assistance of counsel.  We see no merit in this argument.

[2] Appellant requested the district court to poll jurors to assess the impact of the remark, pursuant to Minn. R. Crim. P. 26.03, subd. 9, (providing that, when material disseminated to jurors outside the proceedings “raises serious questions of possible prejudice,” the court, on motion of either party, shall interrogate jurors individually about their exposure to the material).  The district court, however, determined that “[the “Miracle Mile” remark] did not raise serious questions of possible prejudice” and declined to interrogate the jurors.  Nothing indicates that the remark did raise questions of prejudice, and the jurors’ acquittal of appellant on most of the charges indicates that it did not.

[3] We note that Huston was released five months after appellant was sentenced.