This opinion will be unpublished and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

C2-01-189

 

 

State of Minnesota,

Respondent,

 

vs.

 

Brian Lamont Burnside,

Appellant.

 

Filed October 16, 2001

Affirmed

Lansing, J.

 

Olmsted County District Court

File No. KX001957

 

 

Cathryn Middlebrook, Assistant Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Minnesota Attorney General, James B. Early, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

Raymond F. Schmitz, Olmsted County Attorney, 151 Fourth Street SE, Rochester, MN 55904-3712 (for respondent)

 

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Willis, Judge. 

U N P U B L I S H E D  O P I N I O N

LANSING, Judge 

A jury rejected Brian Burnside’s entrapment defense and found him guilty of two counts of second-degree controlled-substance crime and four  counts of third-degree controlled-substance crime.  Burnside argues that the evidence was insufficient to disprove entrapment, police conduct resulted in entrapment regardless of predisposition evidence, his sentence was improperly calculated, and he received ineffective assistance of counsel.  The evidence supports the jury’s finding that Burnside was not entrapped.  The evidence does not support Burnside’s claim of outrageous police conduct, error in the length of his sentence, or ineffective assistance of counsel, and we affirm.

F A C T S

At Burnside’s trial, the state’s primary witness was Patricia Barrow, an informant for the Rochester Police Department’s Narcotics Division.  In an attempt to obtain dismissal of her felony-theft charge, Barrow had begun providing the department with information in January 2000 about drug dealers in the Rochester area.

Working with Officer Robert Moilanen, Barrow set up four separate, controlled buys with Burnside.  Barrow had information that Burnside was a drug dealer when she first met him through a friend.  At each controlled buy, Barrow was to purchase crack cocaine from Burnside with money that had been photocopied, recorded, and given to her by the Rochester police.  Each buy was initiated with one or more phone calls from Barrow to Burnside’s cell phone.  All of these phone calls were recorded.  All four transactions between Barrow and Burnside were also recorded both by a listening device on Barrow’s person and by a video camera operated by a Rochester narcotics officer who was monitoring the transactions from a safe distance.  Officer Moilanen searched Barrow before each transaction to ensure that she had no drugs before meeting with Burnside.

Burnside was arrested on June 14, 2000.  The state charged Burnside with two counts of second-degree controlled-substance crime and four counts of third-degree controlled-substance crime.  Burnside raised entrapment as a defense and requested that the entrapment issue be submitted to the jury.  Burnside also contended that he was merely holding drugs for Barrow and when he gave her the drugs he was only returning her own property.

The jury found Burnside guilty of all six counts.  On appeal, Burnside argues that (1) the evidence is insufficient to disprove his entrapment defense, (2) the police conduct constituted entrapment regardless of predisposition evidence, (3) his sentence was improperly calculated, and (4) his counsel provided ineffective assistance.

D E C I S I O N

I

A defendant may elect between having an entrapment defense decided by the court before trial or by a jury at trial.  Minn. R. Crim. P. 9.02 subd. 1(3)(e); State v. Grilli, 304 Minn. 80, 95, 230 N.W.2d 445, 455 (1975).  To raise an entrapment defense, a defendant must show by a fair preponderance of the evidence that the government induced the crime by improper pressure, badgering, or persuasion.  State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985); State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980).  Once inducement has been shown, the burden shifts to the state to disprove entrapment by showing beyond a reasonable doubt that the defendant was predisposed to commit the crime.  Grilli, 304 Minn. at 96, 230 N.W.2d at 456.  Predisposition can be proved with evidence of “(a) defendant’s active solicitation to commit the crime, (b) prior criminal convictions, or (c) prior criminal activity not resulting in conviction * * *, or (d) defendant’s criminal reputation, or by any other adequate means.”  Id.

Burnside and the state dispute whether Burnside demonstrated inducement by a preponderance of the evidence.  Because the entrapment defense was submitted to the jury without a special interrogatory on whether Burnside established inducement, we review whether the evidence is sufficient for the jury to find beyond a reasonable doubt that Burnside was predisposed to commit the controlled-substance crimes.

When the sufficiency of the evidence is challenged, the reviewing court engages in a thorough analysis of the record to determine if the evidence, viewed in the light most favorable to the conviction, can support the conviction.  State v. Church, 577 N.W.2d 715, 719 (Minn. 1998).  Evidence is sufficient to support a conviction if the facts in the record and any legitimate inferences drawn from those facts could reasonably lead the factfinder to conclude that the defendant committed the crimes charged.  Id.

Burnside’s predisposition to sell drugs is well-established by the record.  Burnside demonstrated a working knowledge of drug prices in the negotiation of each transaction.  By making repeated requests that Barrow contact him on a different phone-line or at a more convenient time, Burnside demonstrated an experienced caution in arranging the drug transactions.  Burnside admitted that he was addicted to cocaine and Barrow testified that he had a reputation for selling drugs.  It is undisputed that Burnside had seven prior drug-related convictions.  From each of these segments of trial testimony the jury could infer predisposition.  See Grilli, 304 Minn. at 93, 230 N.W.2d at 454.  When taken in a light most favorable to the verdict, the facts firmly establish Burnside’s predisposition.  Thus, the jury could reasonably determine that the state proved Burnside’s predisposition beyond a reasonable doubt and thereby negated the entrapment defense.

II

Before trial Burnside raised a general entrapment defense, but did not specifically claim that outrageous police behavior would negate proof of predisposition.  See Minn. R. Crim. P. 10.01 (requiring defenses and objections to be raised before trial to avoid waiver).  The issue of outrageous police conduct was not specifically presented to the jury and the jury received no instruction on this theory.  But even if Burnside had properly raised the issue, the record provides no support for it.

The concept of fundamental fairness embodied in due process may permit dismissal of a criminal charge when police involvement in a criminal investigation reaches outrageous proportions.  See Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S. Ct. 1646, 1653 n. 7 (Powell, J. concurring) (1976) (plurality opinion) (five of eight justices concluding that a predisposed defendant may still raise a due process defense if police involvement “reach[es] a demonstrable level of outrageousness”).  Factors that have been applied to determine if police involvement reaches a level of outrageous conduct include whether (1) the police manufactured a crime that would otherwise not have occurred, (2) the police themselves committed criminal acts, (3) the police used improper tactics to overcome a defendant’s reluctance, or (4) the police were merely attempting to gain a conviction rather than to achieve legitimate goals of police investigation and protection.  See State v. James, 484 N.W.2d 799, 802 (Minn. App. 1992) (citing People v. Isaacson, 378 N.E.2d 78 (N.Y.1978)), review denied (Minn. Jun. 30, 1992).

Burnside argues that application of these factors to his case merits reversal.  We disagree.  First, Burnside relies on State v. James for his argument that the police manufactured the crime because they initiated contact with him before each buy.  But in James the court found that undercover agents selling drugs outside a known crack-house were not manufacturing crimes and were permissibly involving themselves in ongoing criminal activity.  James, 484 N.W.2d at 802-03.  The police were even less involved in the investigation resulting in Burnside’s arrest because they were not providing the drugs nor soliciting people who had no prior involvement with drugs.  See Hampton v. United States 425 U.S. at, 495 n. 7, 96 S. Ct. at 1653 n. 7 (Powell, J. concurring) (stating that cases in which a due process defense will overcome a finding of predisposition will be rare, especially in contraband cases that are difficult to detect without undercover police involvement).

Second, Burnside argues that the police’s exploitation of his addiction to cocaine when setting up the controlled buys was repugnant to a general sense of justice.  Even if this conduct could be considered repugnant exploitation, the record contains no evidence that the police knew of Burnside’s addiction to drugs when the controlled buys were arranged.  See James, 484 N.W.2d at 802 (due process defense focuses on conduct of police, not defendant).

Third, Burnside argues that the police’s failure to arrest him after the first controlled buy and waiting until two months after the final controlled buy constituted outrageous conduct.  Burnside supplies no caselaw to support his claim that this delay in arrest constitutes outrageous police conduct, and the timing of the arrest does not appear unreasonable.  Officer Moilanen testified that it is common practice for police to attempt more than one purchase when using an informant in order to preserve the credibility of the informant for as long as possible and to determine whether the suspect has any recurring sources from which he obtains his drugs.  Moilanen further explained that police did not arrest Burnside until after the final controlled buy because of problems in setting up several of the transactions.

Finally, Burnside argues that the sole motive behind the police investigation was to obtain his conviction.  Burnside overlooks the importance of police initiative in reducing drug sales and drug-related crime.  Even prosecution for a small, personal-use drug purchase supports the additional purpose of reducing drug traffic in the surrounding area.  James, 484 N.W.2d at 802-03.  The police extended leniency to Barrow in exchange for information on drug-dealers in the Rochester area.  Burnside’s arrest was part of a larger investigation into Rochester drug-trafficking and was not solely for the purpose of obtaining Burnside’s conviction.

Burnside has not demonstrated any outrageous police conduct.  Further, his allegation that he was not selling Barrow drugs but returning drugs to her was rejected by the jury.  That finding is amply supported by the evidence of the transactions, the tape-recorded conversations, and the testimony at trial.

III

In his pro se supplemental brief, Burnside argues that his sentence was improperly calculated.  The gist of Burnside’s argument is that his seven prior Illinois convictions should count as only five and that the convictions were given an incorrect numerical weight in computing his criminal history score under the Minnesota Sentencing Guidelines.  Neither of these claims was raised in the district court.  But even without a full opportunity for the state to provide factual refutation, we conclude that the sentence was not improperly extended by an incorrect criminal history score. 

First, Burnside claims that because his three June 1990 convictions were part of the same investigation, the three should be counted as one for sentencing purposes.  “[I]f a person’s conduct constitutes more than one offense under the laws of [Minnesota],  the person may be punished for only one of the offenses.”  Minn. Stat. § 609.035 (2000).  Conduct, as used in the statute, means a single behavioral incident.  See State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).

Burnside’s claim that the three June 1990 convictions should be considered one because they resulted from the same investigation is not a correct statement of the law.  Further, the convictions, on their face, do not demonstrate a single behavioral incident that would trigger the prohibition against multiple prosecutions.  See id.  (identifying singleness of purpose and unity of time and place as significant factors in determining whether offenses are part of single course of conduct).  Burnside’s June 6 conviction was for unlawful delivery of less than one gram of cocaine; the June 7 convictions were for unlawful delivery of less than one gram of cocaine and unlawful possession of between 1 and 15 grams of cocaine.  The delivery offenses occurred on two different dates and thus do not have a unity of time.  Although the June 7 convictions were on the same day, the possession conviction involved a larger quantity of cocaine that was separate from the smaller amount involved in the delivery conviction.  Furthermore, possession and delivery are two separate objectives and thus the conduct lacks a singleness of purpose.  Because the convictions are not based on one unified course of conduct, Minn. Stat. § 609.035 does not apply, and the trial court properly counted these convictions as separate.

Second, Burnside claims that each of his Illinois convictions only constituted class-four felonies, the lowest class of felony recognized in Illinois, and thus each should receive only .5 felony points, the lowest sum one can receive in Minnesota for a prior felony.  Burnside’s seven prior felonies at .5 would yield a total of 3.5 felony points.  Burnside acknowledges one more felony point attributable to his being on parole when arrested for the present offense.  Adding the 1.5 points that he received for his April 2000 conviction results in a 6-point criminal-history score for his second offense.  Six felony points is the highest number on the sentencing guideline’s grid.  Minn. Sent. Guidelines IV.  Once a defendant has 6 felony points any additional felony points have no effect.  Consequently, accepting Burnside’s argument that he should receive .5 felony point for each of his Illinois convictions would not change his sentence.

Furthermore, Burnside’s argument that each of his prior Illinois felonies should result in only .5 felony points is not well supported.  The Minnesota Sentencing Guidelines, provide that “[t]he designation of out-of-state convictions as felonies * * * shall be governed by the offense definitions and sentences provided in Minnesota law.”  Minn. Sent. Guidelines II.B.5.  If a prior crime could fit into multiple severity levels and the information that would determine the severity levels is unavailable, the lowest possible severity level should be used.  Minn. Sent. Guidelines cmt. II.B.101. 

Burnside’s two prior convictions for delivery of cocaine would both have been convictions  of   third-degree   controlled-substance  crime  in  Minnesota.    Minn.  Stat. § 152.023, subd. 1(1) (2000).  Both convictions were for unlawful delivery of less than one gram of cocaine.  The delivery of any amount of cocaine in Minnesota constitutes a third-degree controlled-substance offense with a severity level VI and a weight of 1.5 points.  Minn. Stat. § 152.023, subd. 1(1); Minn. Sent. Guidelines II.B.1a.  This means that Burnside properly received 4.5 criminal history points for his three distribution convictions.  Burnside’s conviction for intent to distribute would also be considered a sale or delivery because one who intends to distribute any amount of a narcotic is considered to be selling a narcotic for the purposes of the controlled-substance statutes.  Minn. Stat. § 152.01, subd. 15a. (2000).  Thus the district court properly attributed 1.5 felony points to that conviction.

Burnside’s claim has merit as it applies to his four prior convictions of possession of 1 to 15 grams of cocaine.  Because the specific amount is unknown, the lowest severity level possible is assigned. Guidelines cmt. II.B.101.  Cocaine is a schedule II controlled-substance and possession of a schedule II substance is a fifth-degree controlled substance crime.  Minn. Stat. §§ 152.02, subd. 3(1)(d), 152.025, subd. 2(1) (2000).  Fifth-degree controlled-substance convictions have a severity level of II, which yields .5 points per conviction.  Minn. Sent. Guidelines II.B.1a.  This means that Burnside’s possession convictions should only have added 2 felony points to his total.  Adding up all of his points, Burnside should have, after the present conviction, a total of 9 felony points.

Although the court erred in assigning 1.5 rather than .5 points to the possession convictions, the error is meaningless.  The fact that Burnside should have received only 9 felony points instead of 13 felony points does not affect the length of his sentence.  A court, without departing, may properly sentence a defendant to 104-112 months for a second-degree controlled-substance conviction (severity level of VII) when the defendant has 6 or more felony points.  See id; Minn. Sent. Guidelines IV.  The district court did not err in imposing a sentence of 111 months based on six or more felony points.

IV

Burnside’s remaining contention, that he received ineffective assistance of counsel, also fails.  To prevail on an ineffective-assistance-of-counsel claim a defendant must show (a) that counsel’s performance fell below an objective standard of reasonableness and (b) that a different outcome would have resulted at trial were it not for counsel’s performance.  Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001).  The allegations underlying an ineffective-assistance-of-counsel claim must be more than argumentative assertions without factual support.  Hodgson v. State, 540 N.W.2d 515, 518 (Minn. 1995).

Burnside claims that his attorney failed to call witnesses that would help his case and also failed to properly impeach Barrow.  The claims are not supported by the record.  Burnside’s lawyer initially attempted to gain a continuance in order to locate witnesses, but Burnside chose to proceed to trial.  Burnside’s lawyer made a record of Burnside’s demand and Burnside stated his decision on the record.  The record further establishes that Burnside’s attorney conducted a thorough cross-examination of Barrow that exposed her prior convictions and gave the jury ample opportunity to assess her credibility.  Further, Burnside has not established that a different outcome would have resulted at trial were it not for the alleged deficiencies in counsel’s performance.  Consequently, Burnside’s ineffective-assistance-of-counsel claim does not provide a basis for relief.

Affirmed.