This opinion will be unpublished and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

C9-01-30

 

State of Minnesota,

Respondent,

 

vs.

 

Matthew Eugene Horsman,

Appellant.

 

Filed October 9, 2001

Affirmed
Klaphake, Judge

 

Mower County District Court

File No. K8991422

 

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

 

Patrick A. Oman, Mower County Attorney, 201 First Street Northeast, Austin, MN  55912 (for respondent)

 

David G. Roston, Marc S. Berris, Segal, Roston & Berris, PLLP, 250 Second Avenue South, Suite 225, Minneapolis, MN  55401-2161 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In this appeal of his conviction and sentence for conspiracy to commit first-degree controlled substance crime, Matthew Horsman contends that the evidence was insufficient to support the conviction because it was based on the suspect testimony of his co-conspirators and because the jury’s verdict represented a rejection of the co-conspirator’s testimony.  He also claims the district court abused its discretion in imposing a 240-month sentence, a durational departure of approximately fifty percent.  Because we conclude that the evidence was sufficient to support the conviction and that the court did not abuse its discretion in sentencing, we affirm.     

D E C I S I O N

            1.         Sufficiency of the Evidence

            In considering a sufficiency-of-the-evidence claim, an appellate court must decide “whether a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000) (quotation omitted).  The reviewing court must also 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).

            Conspiracy to commit a crime requires “conspir[ing] with another to commit a crime” and an “overt act in furtherance of [the] conspiracy.”  Minn. Stat. § 609.175, subd. 2 (2000).  For controlled substance offenses, a “person who conspires to commit any act prohibited” may be punished in the same manner as if the person had committed “the act the person conspired to commit.”  Minn. Stat. § 152.096, subd. 1 (2000).  The manufacture of “any amount of methamphetamine” is a first-degree controlled substance offense.  Minn. Stat. § 152.021, subd. 2a (2000).     

            We find ample evidence in the record to support appellant’s conviction.  Appellant was arrested after a methamphetamine operation run by him and three co-conspirators caught fire in a body shop in Rochester.  Even without the evidence provided by his co-conspirators, the police, the shop owner, and two shop customers provided strong evidence placing appellant at the shop on the day of the fire and connecting him to the crime.  Evidence was found at the shop, in the cars that drove from the shop as the conspirators attempted to flee during the fire, and at a third party’s house.  This evidence included anhydrous ammonia, lye, drain cleaner, a kerosene heater, lithium batteries, plastic pop bottles with connected tubing and containing residual chemicals, tools and implements that tested positive for methamphetamine, 22.7 grams of freshly made amphetamine, and an SKS assault rifle.  Other physical evidence, including store receipts and a large amount of empty Sudafed boxes and battery packages, demonstrated the longevity of the conspiracy.  The shop owner and a shop customer identified appellant leaving the shop in his pickup truck on the date of the fire; at that time his truck was carrying a smoking chair and other items in the back.

            In addition to this evidence, appellant’s three co-conspirators testified on behalf of the state, their testimony establishing a conspiracy to manufacture methamphetamine that existed from mid-August, 1999 to October 6, 1999, the date of the fire.  Appellant challenges the credibility of his co-conspirators, who all testified subject to plea agreements and received reduced charges for their testimony.  As the supreme court stated in another criminal case where co-conspirators provided evidence to establish a conspiracy,

[t]hese statements came from the mouths of individuals who, to say the least, left much to be desired as contemplated conspirators, even in crime, but the weight and credibility of their testimony was for the jurors, who had the chance to observe them and to evaluate the truth of what they were saying.

 

State v. Thompson, 273 Minn. 1, 17, 139 N.W.2d 490, 504 (1966).  Likewise here, the jurors were fully apprised of the reduced sentences the co-conspirators received for testifying.  Further, their testimony was corroborated by the testimony of other witnesses and by the physical evidence.  As a reviewing court, this court does not decide credibility, but must determine whether the evidence, if credible, is sufficient.  See State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996), review denied (Minn.  Jan. 21, 1997); State v. Jones, 347 N.W.2d 796, 801 (Minn. 1984) (credibility of witnesses not proper subject for appellate review).  We conclude that the evidence is sufficient to support appellant’s conviction. 

            Appellant also contends that the jury’s verdict amounted to a rejection of the co-conspirators’ testimony because the jury found appellant guilty of conspiracy to commit controlled substance crime, but not aiding and abetting controlled substance crime.  A person aids and abets in a crime if the person “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (2000).  While conspiracy requires an overt act in furtherance of the conspiracy, Minn. Stat. § 609.175, subd. 2, aiding and abetting merely requires a “knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (quotation omitted).  Here, the verdict could reflect the jury’s rejection of appellant’s having merely a passive role in the criminal operation.  Appellant’s argument on this issue does not provide a proper basis for challenging the sufficiency of the evidence supporting his conviction.

            2.         Sentence

            Appellant next contends that the trial court abused its discretion in imposing a 240-month sentence, a durational departure from the presumptive 158-month sentence for an offender with a criminal history score of six.  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 district court found that the offense was a major controlled substance offense:  (1) appellant manufactured the methamphetamine for persons other than those in the conspiracy; (2) appellant possessed a firearm during the offense; (3) the offense involved a very high degree of planning; and (4) the offense involved at least two additional persons in addition to the co-conspirators.  The court also found that the crime was committed in a business and residential area where the operation showed a “profound disregard for not only society’s rules, but virtually anyone who surrounded this particular circumstance.” 

            For a departure based on the existence of a major controlled substance offense, the sentencing court must find the existence of two of seven aggravating factors enumerated in the sentencing guidelines.  See Minn. Sent. Guidelines II.D.2.b.5.  The record supports the trial court’s findings justifying departure.  The evidence showed that appellant possessed the assault rifle and kept it in close proximity to him and the manufacturing operation.  It also showed that the amount of methamphetamine found in the car, 22.7 grams, was in excess of an amount for personal use.  Cf. State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987) (concluding five grams of cocaine more than for personal use), review denied (Minn. Jan. 15, 1988).  The evidence further demonstrates that appellant committed the offense with a high degree of planning, as evidenced by the multiple purchases and thefts of ingredients from a variety of sources, and the moving of the operation to several different locations over a several-month period.  Under these circumstances, we conclude that the trial court properly applied its discretion in imposing an upward durational departure in sentencing appellant.  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).

            Affirmed.