This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Earl Russell St. Claire,
Clay County District court
File No. K200566
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Lisa Borgen, Clay County Attorney, Courthouse, P.O. Box 280, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.
Appellant disputes his conviction for conspiracy to commit a first-degree, controlled-substance crime, contending that the trial court erred in admitting tape-recorded statements of alleged coconspirators, one of whom was a police informant. Because the trial court did not abuse its discretion in receiving the evidence, we affirm.
In September 2000, following a jury trial, appellant Earl Russell St. Claire was convicted of conspiracy to commit a first-degree, controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 1(1) (2000), and Minn. Stat. § 152.096 (2000). In October 2000, the trial court sentenced appellant to the presumptive sentence of 146 months.
At trial, the state introduced tape-recorded statements between appellant and a police informant, Doug Lanctot, and tape-recorded statements between Lanctot and Rick Timm, an alleged coconspirator. In the conversations between Lanctot and appellant, the parties discussed their plans to get some “stuff” from a “guy” in Belcourt, North Dakota, who did not “want to bring nothing down,” but “[i]f nothing else [appellant would] go up and get it.” Appellant complained that his guy “upped the price pretty good on me because they got it down in * * * Bismarck” and the “guy’s been taken off for 18.”
In the tape-recorded statements between Timm and Lanctot, Lanctot informed Timm of appellant’s plans to travel to Belcourt and that he was looking for “somebody else that has 900 bucks cause [appellant] doesn’t want to go through for halfs.” Timm responded that the deal “[s]ounds good.” Lanctot expressed his reservations about giving his money up front to appellant, and Timm responded, “Well, the risk will be worth the rewards.” When Lanctot asked Timm if he was interested, Timm stated, “It sounds good, you know.” Timm told Lanctot that he would call him in the morning before he left town for an interview.
Detective Charles Anderson testified that it is common for sellers of methamphetamine to purchase the drug in quantities of an ounce or half ounce and that $900 is consistent with the price of half an ounce of methamphetamine while the price of an ounce is between $1,200 and $1,800. Neither Lanctot nor Timm testified at trial.
Other evidence introduced at trial included photographs of appellant arriving at Lanctot’s house to collect $900 before leaving for Belcourt; a taped conversation of appellant getting the money from Lanctot; Lanctot’s wife’s testimony that she handed the money to appellant; a North Dakota trooper’s testimony that he stopped appellant near Belcourt for speeding and noticed a large amount of money in his wallet and found a small scale in his coat pocket; appellant’s inconsistent statements to police explaining the source of the $900; and appellant’s admission to North Dakota Narcotics Investigator Duane Stanley that “he had picked up $900 from Rick Timm and Doug [Lanctot] in Moorhead and that it was for a half ounce of methamphetamine.” In addition, Investigator Stanley testified that he conducted a search of appellant’s North Dakota residence and found scales for weighing small items and Inositol, a food additive used to cut cocaine and methamphetamine.
Appellate courts defer to the trial court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989); see also State v. Glaze, 452 N.W.2d 655, 660-61 (Minn. 1990) (applying abuse of discretion standard to trial court’s decision on hearsay evidence). The party claiming error on an evidentiary ruling has “the burden of showing [both] the error and [the] resulting prejudice.” State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996) (citation omitted). Generally, an out-of-court statement cannot be offered to prove the truth of the matter asserted unless it falls under an exemption or exception to the rules of evidence. Minn. R. Evid. 801(c) (defining hearsay); Minn. R. Evid. 802 (declaring hearsay inadmissible except as otherwise provided by the rules).
Statements between coconspirators made in furtherance of the conspiracy are excluded from the hearsay rule. Minn. R. Evid. 801(d)(2)(E) (providing there must be a showing by a preponderance of the evidence that a conspiracy existed and “the statement was made in the course of and in furtherance of the conspiracy”). The declarant need not testify for the statements to be admitted. State v. Brown, 455 N.W.2d 65, 68-69 (Minn. App. 1990) (providing it is not necessary to show that the declarant is unavailable to testify), review denied (Minn. July 6, 1990).
Appellant contends that the trial court violated the Minnesota Rules of Evidence and his constitutional right to confront witnesses against him when it admitted the tape-recorded statements of an unavailable informant and another non testifying witness under the coconspirator exemption to hearsay. See U.S. Const. amend. VI (“[T]he accused shall enjoy the right * * * to be confronted with the witnesses against him * * * .”).
1. Informant’s statements
Appellant maintains that Lanctot’s statements (his responses to appellant in one conversation and his conversation with Timm) should not have been admitted because Lanctot was an informant, not a coconspirator. Appellant concedes that case law provides a conspiracy may be formed between an informant and another individual. State v. St. Christopher, 305 Minn. 226, 233-35, 232 N.W.2d 798, 802-03 (1957)(affirming a conspiracy conviction even though the coconspirator, defendant’s cousin, never intended to participate in the crime committed). But appellant asserts that for purposes of rule 801(d)(2)(E), the informant is not a coconspirator because the informant is not making the statements in furtherance and in the course of the conspiracy.
Appellant’s interpretation of the rule is questionable because the reasoning behind the coconspirator exemption is based primarily on the nature of the adversary system rather than any specific guarantee of trustworthiness or reliability. Minn. R. Evid. 801 1989 comm. cmt.; see also Bourjaily v. United States, 483 U.S. 171, 190, 107 S. Ct. 2775, 2786 (1987) (Blackmun, J., dissenting), (describing adversary-system rationale as the “thought that a party could not complain of the deprivation of the right to cross-examine himself (or another authorized to speak for him) or to advocate his own, or his agent’s, untrustworthiness” (citation omitted)). The coconspirator exemption has also been justified on the basis “that the need for this evidence, which was particularly valuable in prosecuting a conspiracy, permitted a somewhat reduced concern for the reliability of the statement.” Bourjaily, 384 U.S. at 190, 107 S. Ct. at 2786 (footnote and citations omitted).
But we decline to question whether rule 801(d)(2)(E) governs in the circumstances of this case for two reasons. First, there is merit in the state’s contention that the statements were not admitted to prove the truth of the matter asserted, but rather to provide context to appellant’s statements, which were already a part of the record as party admissions under Minn. R. Evid. 801(d)(2)(A). See United States v. Abrahamson, 568 F.2d 604, 606 (8th Cir. 1978) (holding that portions of the recordings containing federal agents’ statements were admissible “to provide a context for [coconspirator’s] end of the conversation”); State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000) (concluding that it was proper for the trial court to admit police officers’ recorded statements to provide context for defendant’s statements).
Second, there was overwhelming evidence against appellant that renders harmless any error in receiving the statements of the informant. It is evident that the jury could have found appellant guilty based solely on his admissions and his testimony. See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (“[W]eighing the credibility of witnesses is the exclusive function of the jury.” (citation omitted)); State v. Edge, 422 N.W.2d 315, 318 (Minn. App. 1988) (“Determination of intent is a question for the jury to decide.” (citation omitted)), review denied (Minn. June 21, 1988). Appellant testified to the substance of the conversations on the tapes and admitted that he told Lanctot he would purchase drugs for him, but alleged that he never intended to go through with the purchase because he wanted only to “rip [Lanctot and Timm] off.” Appellant claimed he was not familiar with the street prices for methamphetamine, but his own statements on the tapes, whose admissibility is not challenged, indicated otherwise when he told Lanctot that “[t]hey upped the price on me”; referred to Lanctot as having “nine” for a “half”; and stated that he may “as well just get a whole one.” The record also shows appellant’s admission to Investigator Stanley that he conspired to buy drugs for Timm and Lanctot and that they were going to sell the ounce for $1,800.
To find appellant guilty, the jury could also have relied significantly on the discovery of $900 and the scale when appellant was stopped en route to Belcourt and the search of his home that uncovered drug paraphernalia, scales, and Inositol.
2. Timm’s statements
The admissibility of Timm’s statements under Minn. R. Evid. 801(d)(2)(E) is less controversial. But Timm’s statements are admissible as nonhearsay, and we need not determine whether they are admissible under the coconspirator exclusion; appellant never denied that the statements were made, and the statements were not used to prove an element of the crime.
3. Pro se issues
In his pro se brief, appellant largely attacks the weight of the evidence against him, but the evidence was sufficient to find that he was guilty beyond a reasonable doubt. Appellant’s procedural arguments regarding the jury pool, the timing of the omnibus hearing, and the conduct of the prosecutor are without merit.
Appellant also questions whether his sentence is justified by the degree of his culpability and the offense, but in this instance the trial court sentenced him within the boundaries of the law. If the court had recognized a downward departure for reasons that the sentence exceeded appellant’s culpability, it would have been within its discretion to do so. See State v. Esparza, 367 N.W.2d 619, 621 (Minn. App. 1985) (“[T]o be the basis for a downward departure, a factor must tend to excuse or mitigate the offender’s culpability for the offense.”); see also State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994) (stating a reviewing court will not substitute its own judgment for that of the trial court regarding sentencing matters),review denied (Minn. Apr. 21, 1994). But the court did not clearly abuse its discretion by electing against departure.
 Lanctot died suddenly in 1999.
 Detective Anderson posted a BOLO (Be On the Lookout) notice to law enforcement agents in North Dakota to track appellant to the residence of his source. There was a misunderstanding about the BOLO, which led the trooper to stop appellant en route to Belcourt rather than waiting until he was leaving Belcourt.
 Appellant had a total of $1,286 in cash and had separated $900 from the remaining $386. Detective Anderson faxed to the state trooper photocopies of the money he had given Lanctot to give to appellant, and the serial numbers matched the money appellant had on him.
 Initially, appellant claimed that he had just received his tax refunds, but later said the money was from some land he owned in Montana.
 Appellant also told Investigator Stanley that “they were going to sell it for $1800 an ounce.”
 The harmless-error standard for erroneous admission is “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn. 1994). As appellant observes, erroneous admission could constitute a violation of appellant’s right to confront the witnesses against him. Should that be the nature of the alleged error of the trial court, harmlessness must be demonstrated beyond a reasonable doubt. See State v. Scott, 501 N.W.2d 608, 619 (Minn. 1993) (“When there is error of a constitutional dimension in a criminal trial, a new trial is required unless the state can show beyond a reasonable doubt that the error was harmless.” (citation omitted)).