This opinion will be unpublished and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

C2-00-1610

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Angel Rosillo,

Appellant.

 

Filed July 31, 2001

Affirmed

Willis, Judge

Dissenting, Hanson, Judge

 

Freeborn County District Court

File No. K30060

 

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

 

Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 S. Broadway, Albert Lea, MN  56007 (for respondent)

 

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

 

            Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of controlled-substance crime in the first degree, arguing that the evidence was not sufficient to prove that he intended to sell cocaine.  Appellant also argues that the jury’s verdict that he was guilty of the sale of cocaine was legally inconsistent with the verdict that he was guilty of theft by swindle, which was premised on his having accepted money without an intent to deliver the cocaine.  We affirm because the evidence was sufficient to prove that appellant offered to sell the cocaine while accepting a large amount of money, an act consistent with fulfilling that offer, and because his convictions are not legally inconsistent.

FACTS

            Appellant Michael A. Rosillo was arrested in January 2000 and charged with first-degree controlled-substance crime for offering to sell an ounce of cocaine.  Later, a count of theft by swindle was added. 

At Rosillo’s trial, testimony was offered as to the following facts: On October 21, 1999, police informant Rubin Trevino told Rosillo that a friend wanted to buy an ounce of cocaine.  The next day, Trevino paged Rosillo to arrange a meeting to buy the drugs.  Before his page was returned, Trevino met with police officer Robert Toland and an undercover police agent, Pedro Aboytes, to discuss a controlled purchase of drugs from Rosillo.  Trevino talked with Rosillo later that day and asked him “[i]f he could get an ounce of coke for me,” and Rosillo “said he’d bring it down to me.”

Rosillo came to Trevino’s house later that day.  While Rosillo was there, Aboytes called Trevino.  Trevino told Aboytes that “a buy of an ounce of cocaine” had been set up with Rosillo.  Aboytes obtained $1,200 from officer Toland to make a controlled purchase from Rosillo and went to Trevino’s house, where Aboytes recorded a conversation among Rosillo, Trevino, and himself about the purchase of drugs.

During his conversation with Aboytes and Trevino, Rosillo said:

I don’t come all the way down here for nothing and I don’t come all the way down here with the sh-t roll on me because I don’t know.  Don’t know who you are.

 

Rosillo also explained that “I don’t like to exchange money and sh-t together.”  Rosillo did not use the word “cocaine” during the conversation.[1]  Aboytes gave Rosillo the $1,200.  Rosillo said he was going to the Twin Cites and arranged to meet Aboytes at a restaurant in Faribault to deliver the drugs.

            After their conversation, Trevino, Rosillo, and several others drove to the St. Paul home of one of Rosillo’s brothers.  According to Trevino, Rosillo gave the money to somebody there but did not receive any cocaine.

            Rosillo did not meet Aboytes as agreed at the restaurant in Faribault.  On several occasions thereafter, Trevino asked Rosillo about the cocaine; Rosillo responded that he would handle things in his own way and deliver it when he had time.

The jury found Rosillo guilty of first-degree controlled-substance crime and theft by swindle.  At the sentencing hearing, the district court imposed an executed sentence of 60 months on the charge of first-degree controlled-substance crime, a downward departure, and dismissed the theft-by-swindle charge.  This appeal follows.


D E C I S I O N

1.            Sufficiency of the evidence

            Rosillo contends that the evidence is insufficient to support his conviction of first-degree controlled-substance crime under Minn. Stat. § 152.021, subd. 1(1) (1998).[2]  Where there is a challenge to the sufficiency of evidence, appellate review is

limited to a painstaking analysis of 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) (citation omitted).  A reviewing court must assume that “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).

Under Minnesota law, a person is guilty of first-degree controlled-substance crime if

on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing cocaine, heroin, or methamphetamine.

 

Minn. Stat. § 152.021, subd. 1(1).  The statute defines “sell” as:

(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or

(2) to offer or agree to perform an act listed in clause (1); or

(3) to possess with intent to perform an act listed in clause (1).

 

Minn. Stat. § 152.01, subd. 15a (1998).

Rosillo argues that the statute requires an intent to sell that the state did not prove in this case.  In support of his argument, Rosillo cites an unpublished opinion of this court, State v. Bautista, for its persuasive value.  State v. Bautista, No. C5-97-1668, 1998 WL 422221 (Minn. App. July 28, 1998), review denied (Minn. Sept. 22, 1998).

But the constitutional problem identified in Bautista--the danger that the statute could be used to punish “pure speech”--can be solved without reading an intent element into the statute.  As was argued to the legislature when the statute was under consideration, all that is required is that an “offer” to sell include some conduct “consistent with fulfilling that offer” that accompanies the speech involved in the “offer” to sell.  See id. at *2-*3 (citing March 1989 subcommittee hearing discussions).  Such conduct, that is, the acceptance of a large amount of cash, is present here, as it was in Bautista.

            The object of statutory interpretation is to ascertain and effectuate the intent of the legislature.  State v. Larson, 605 N.W.2d 706, 713-14 (Minn. 2000).  Accordingly, a narrowing construction that was argued to, and apparently accepted by, the legislature is preferable to one that the legislature never considered.  We have no doubt that the statute criminalizes, and, we conclude, may constitutionally prohibit, even insincere offers to sell controlled substances when a large amount of cash changes hands and a meeting for purposes of delivery is arranged, as occurred here.  Because there was ample evidence that Rosillo made an offer to sell, and because the statute does not require proof of intent to perform, the evidence was sufficient to support Rosillo’s conviction of first-degree controlled-substance crime.

2.            Consistency of the verdicts

            Rosillo also contends that his convictions of first-degree controlled-substance crime and theft by swindle are legally inconsistent.  Two verdicts are legally inconsistent when “proof of the elements of one offense negates a necessary element of another offense.”  State v. Cole, 542 N.W.2d 43, 50 (1996) (citation omitted).

The relevant elements of the first-degree controlled-substance crime of which Rosillo was convicted are that (1) on one or more occasions within a 90-day period, Rosillo unlawfully offered to sell one or more mixtures containing cocaine and (2) Rosillo knew or believed that the substance he offered to sell was cocaine.  Minn. Stat. §§ 152.021, subd. 1(1) (defining offense), .01, subd. 15a (defining “sell”).  The relevant elements of the crime of theft by swindle of which Rosillo was convicted are that (1) Rosillo obtained property from another “by swindling, whether by artifice, trick, device, or any other means” and (2) he acted with the intent to do so.  See Minn. Stat. § 609.52, subd. 2(4) (1998) (defining offense); State v. Saybolt, 461 N.W.2d 729, 735 (Minn. App. 1990) (“Theft by swindle requires the intent to defraud.”), review denied (Minn. Dec. 17, 1990).

Rosillo argues that his conviction of first-degree controlled-substance crime requires a finding that he intended to sell cocaine to Aboytes when he took the money and that his conviction of theft by swindle requires a finding that he did not then intend to sell cocaine to Aboytes.  The state argues that even if Rosillo’s conviction of controlled-substance crime in the first degree requires proof of intent, the verdicts are not legally inconsistent because the jury could have concluded that appellant’s intent changed between the time he agreed to bring cocaine to Trevino and the time that Aboytes gave him the money.

Rosillo’s convictions of the two crimes do not require conflicting findings on a necessary element of each offense.   As noted above, the state did not need to prove that Rosillo intended to sell cocaine, only that he offered to sell it.  There is nothing in that requirement of an offer to sell that is inconsistent with an intent to swindle.  The jury could have found that Rosillo made the offer and yet, because he had no intent to perform, intended to swindle.

As discussed above, we disagree with the dissent’s argument that we should follow Bautista in reading an intent element into Minn. Stat. § 152.01, subd. 15a(2).  Bautista is an unpublished opinion that does not have precedential value.  Moreover, its resort to an intent element to save the statute from constitutional challenge is unnecessary, as the legislative history reveals.

Because proving the elements of either charged offense did not negate a necessary element of the other, Rosillo’s convictions are not legally inconsistent. 

Affirmed.

           


HANSON, Judge (dissenting)

 

            I respectfully dissent on the issue of inconsistent verdicts.  I would interpret Minn. Stat. § 152.01, subd. 15a(2) (1998) to imply an intent element in an “offer” to sell a controlled substance.  With that implied intent element, the two verdicts become legally inconsistent because intent to complete the sale is an element of the first-degree controlled-substance crime and intent not to complete the sale is an element of the theft-by-swindle crime.

            While not precedential, I am persuaded by the reasoning expressed in our unpublished opinion in State v. Bautista, No. C5-97-1668, 1998 WL 422221 (Minn. App. July 28, 1998), review denied (Minn. Sept. 22, 1998).  In Bautista, this court recited the legislative history that the words “offer or agree” to sell were not intended “to punish ‘pure speech’ absent evidence that a defendant had the specific intent to complete a drug transaction.”  Id. at *2.  This court recognized “that a strict, literal reading of this statute could result in unconstitutional and absurd results,” and that “[t]he legislature does not intend an absurd, impossible, or unreasonable result and does not intend to violate the state or federal constitution.”  Id. at *3 (citation omitted).  While Bautista mentioned offers to sell that were made “in jest or as a prank,” these were given as examples of absurd or unconstitutional applications of the statute and were not said to be exclusive.  See id. (noting that a person could be convicted for such behavior under a narrow reading of the statute).  Of course, if an intent element is implied for some purposes, it must be implied for all.

            In Bautista, this court upheld the conviction because the intent to complete the sale was shown by Bautista’s meeting with the purchaser and accepting payment for future delivery of the drug.  Id. at *4.  The same facts exist in the present case and would constitute sufficient evidence of intent to complete the sale as required for conviction of first-degree controlled-substance crime.  But the finding that, at the time of the meeting, Rosillo intended to complete the sale and accepted payment would defeat the theft by swindle charge, which requires proof that the defendant had the exact opposite intent at precisely the same moment.  See, e.g., State v. Belfry, 353 N.W.2d 224, 226 (Minn. App. 1984), review denied (Minn. Oct. 30, 1984) (stating that for theft by swindle to exist, the criminal intent not to perform the offer must be contemporaneous with the act of taking money or property).

            The majority opinion cannot avoid implying unstated requirements in the statute, to avoid the “pure speech” issues.  The majority’s distinction—to imply the requirement of proof of some significant conduct, such as the acceptance of money, but not to imply the requirement of an intent to sell—is too fine to solve the constitutional problems.  The only relevance of the acceptance of money is that it supports an inference of an intent to sell.

            Because the verdicts are legally inconsistent, I would reverse and remand for a new trial.

 



[1] Aboytes testified that the term “sh-t roll” could refer to many controlled substances, but that as used by Rosillo in the context of the conversation here, it referred unambiguously to cocaine.

 

[2] Rosillo does not challenge the sufficiency of the evidence for his conviction of theft by swindle.