This opinion will be unpublished and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

C5-01-1093

 

Demostenes Flores,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed January 8, 2002

Affirmed in part, reversed in part, and remanded

Mulally, Judge*

 

Olmsted County District Court

File No. K798960

 

Melissa V. Sheridan, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103;

 

Raymond F. Schmitz, Olmstead County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

 

Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Mulally, Judge.


U N P U B L I S H E D   O P I N I O N

MULALLY, Judge

            A jury convicted appellant of four first-degree controlled-substance offenses.  Appellant did not pursue a direct appeal, but now pursues several issues in a petition for postconviction relief.  The district court denied the petition.  We affirm in part, reverse in part, and remand. 

FACTS

On March 10, 1998, a Winona County Deputy Sheriff contacted Bureau of Criminal Apprehension special narcotics investigator Jeffrey Hansen about an informant who could introduce an undercover agent to a drug seller, Greta Odell, and her source, a man named “Dave” in Rochester.  Hansen suspected that Odell’s source might be Demostenes Flores a/k/a David Segundo (Flores), whom he had been investigating.  Later that day, Hansen purchased an eighth of an ounce of cocaine from Odell and asked her about purchasing larger amounts.  Odell told Hansen that she would contact him if she could get more drugs from “Dave,” her source. 

On March 15, 1998, the informant arranged a buy for Hansen with Odell and her boyfriend, James Cooley.  After meeting, Cooley drove Hansen to an apartment building at 1251 4½ Street Northwest in Rochester.  Hansen waited in the car while Cooley entered the apartment building and bought one ounce of cocaine for Hansen and a quarter ounce for himself from Flores.

On March 17, 1998, Hansen drove Cooley to the same apartment building.  Cooley went into the building and waited until Flores and another man, later identified as Flores’s brother, Marco, arrived in a car and sounded the horn.  Cooley got into the backseat of the car and, during a ride around the block, bought one and a quarter ounces of cocaine from Flores. 

Odell and Cooley were arrested on March 24, 1998, and agreed to cooperate with police in the investigation of Flores.  The next day, Odell arranged to buy an ounce of cocaine from Flores.  Flores told Odell to meet him in a parking lot behind an apartment building located at 620 Second Street Southwest, Rochester.  Odell wore a wire transmitter to the meeting and was supplied with marked cash.  Flores took Odell inside the building, and Odell identified to police the apartment they were entering.  Once inside the apartment, Flores took two bags of drugs out of a TJ Maxx bag that his brother had handed him.  Odell told Flores that she needed the “big one,” not the “little one.”  She bought the cocaine and, after leaving the building, gave officers a 27-gram bag of cocaine mixture. 

Hansen and several other officers decided to enter the apartment building to arrest both Flores brothers and to secure the location.  Without knocking, the officers opened the unlocked door and entered.  Both Flores and Marco were in the living room, sitting near a large pile of cash.  The police secured the apartment while they applied for a search warrant. 

In a subsequent search of the apartment, police found $23,239 in cash, the marked money police had given Odell, and 13.1 grams of cocaine in a bag inside a TJ Maxx shopping bag that police had observed the Flores brothers carry as they entered the apartment building with Odell.  That same day, police also executed a search warrant at Flores’s house, which he shared with four other adults.  In two bedrooms of that house, police found a handgun, ammunition, and a flash suppressor that were later introduced at trial. 

Flores was charged with four counts of controlled-substance crimes.  A jury convicted Flores of all four counts, and the district court sentenced Flores to concurrent terms of 86 months for count four, 110 months for count three, 134 months for count two, and 158 months for count one.

            Flores did not pursue a direct appeal after the conviction.  More than one year after the sentencing hearing, Flores filed a petition for postconviction relief.  The district court denied the petition, finding that Flores had waived his right to raise the issues he could have raised on direct appeal, as well as finding that he did not prevail on the merits of the issues he raised.  This appeal followed.

D E C I S I O N

“We review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  Great deference is afforded to the district court’s findings of fact, and we will not reverse the findings unless they are clearly erroneous.  Id.

I.

Flores first argues that the district court erred in finding that he had waived the issues raised in his petition for postconviction relief because he did not raise those issues in a direct appeal.  “[A] convicted defendant is entitled to at least one right of review by an appellate or postconviction court.”  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  A defendant who has not filed a direct appeal does not waive those issues that could have been raised in such an appeal.  See Rairdon v. State, 557 N.W.2d 318, 322 (Minn. 1996) (where a defendant’s direct appeal was dismissed before appellate review actually occurred, defendant was entitled, in petition for postconviction relief, to raise those issues that were raised, but not considered, in the dismissed direct appeal).   It is only

once a defendant has had a direct appeal, [that] all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.

Townsend v. State, 582 N.W.2d 225, 228 (Minn. 1998) (emphasis added and quotation omitted).  Here, Flores never filed a direct appeal.  Because Flores has a right to appellate review, we review the issues raised in his petition for postconviction relief. 

II.

Flores contends he has standing to contest the warrantless search and argues that the evidence seized in the warrantless search should have been suppressed.  He further contends that the state waived its right to contest the standing issue.[1] 

            In order to claim protection under the Fourth Amendment, a defendant must show that he or she held a subjective expectation of privacy and that the expectation was reasonable in light of “a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”  Carter, 525 U.S. at 88, 119 S. Ct. at 472 (quotation omitted).  Applying this mode of analysis, the Court held that a defendant visiting another’s apartment for a short time to package cocaine had no legitimate expectation of privacy in that apartment.  Id. at 90-91, 119 S. Ct. at 473-74.  The Supreme Court has expressly repudiated the idea that anyone legitimately on the premises where a search occurs may challenge its legality.  Id. at 89-90, 119 S. Ct. at 473.  While overnight guests may claim protection under the Fourth Amendment, guests who are merely present with the consent of the householder may not.  Id. at 90, 119 S. Ct. at 473.  Additionally, a visitor to another’s home for commercial purposes retains only a limited privacy interest, because “[a]n expectation of privacy in commercial premises * * * is different from, and indeed less than, a similar expectation in an individual’s home.”  Id. at 90, 119 S. Ct. at 474 (quotation omitted).  Because the Carter defendants had visited a confederate’s apartment for approximately two hours to bag cocaine, the Court held that they lacked a sufficient privacy interest to trigger Fourth Amendment scrutiny.  Id. at 91, 119 S. Ct. at 474.

Here, the district court found that the searched apartment belonged to Flores’s girlfriend, none of Flores’s personal belongings was in the apartment, except for drugs, money, and a bag of new clothes in a shopping bag he had brought with him.  Flores had keys to the apartment and “sometimes” spent the night there.  There was no evidence that Flores had spent the previous night there, and, in fact, Flores had been there for less than an hour before the search.  Flores was present in the apartment simply to sell Odell cocaine.  The person who leased the apartment was not present.  Clearly, then, this was not a social call, but simply a convenient and private place to conduct business.  Under these circumstances, Flores does not have standing to assert a Fourth Amendment right to contest the warrantless search.  Because we conclude that Flores does not have standing, we need not address whether exigent circumstances justified the warrantless search.

III.

            Flores contends that the district court abused its discretion when, over defense counsel’s objection, it allowed evidence of the gun, flash suppressor, and ammunition found in his apartment to be admitted.  He also contends that it was prejudicial error for the district court to allow testimony by two police officers that, in their experience, drug dealers typically carry guns to protect themselves, the drugs they have in their possession, and their operation.

Evidentiary rulings rest within the trial court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).  Evidentiary errors warrant reversal when there is a reasonable doubt that the result would have been different had the evidence not been admitted.  Id.

Evidence is relevant if it

logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.

State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995).  “A weapon is admissible in a criminal case if it has some relevance to the issues in the case, but is not admissible if its only purpose is to create suspicion in the minds of the jurors that because a defendant owns a gun he is likely to commit crimes.”  State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985) (citation omitted).  Where physical evidence connects the defendant to the crime, it is admissible.  Id.  But the absence of an absolute connection between the physical evidence introduced and the alleged crime only affects the weight of the challenged evidence, not its admissibility.  State v. Olson, 436 N.W.2d 817, 820 (Minn. App. 1989), review denied (Minn. Apr. 26, 1989). 

Here, the district court ruled that the weapons evidence was relevant on the issue of whether Flores was a drug dealer.  The supreme court has previously held in a trial for the sale of controlled substances that the district court did not abuse its discretion by admitting evidence of a handgun and ammunition found by police on the premises where drugs were sold, holding that “it may reasonably be inferred that an armed possessor of drugs has something more in mind than personal use.”  State v. Love, 301 Minn. 484, 485, 221 N.W.2d 131, 132 (1974) (quotation omitted).  We cannot say that the district court abused its discretion in admitting the weapons evidence.  Furthermore, there was overwhelming evidence of Flores’s guilt.  Both Odell and Cooley testified to outright purchases of controlled substances from Flores.  Law-enforcement officers testified that Flores possessed additional cocaine when he was arrested.  The jury’s verdict is “surely unattributable” to the weapons evidence and any error would be harmless.  See State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (error harmless if jury’s verdict “surely unattributable” to erroneously admitted evidence).

            The state also presented testimony from two police officers connecting weapons possession to drug dealing.  Defense counsel did not object to the testimony.  Generally, we consider the failure to object to evidence as a waiver of the objection on appeal unless appellant shows that admission of the evidence was plain error.  State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999) (quotation omitted).  The testimony was exceedingly short and would not have affected the outcome of the case.  It cannot be characterized as plain error.  See State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (plain error must affect the outcome of the case to warrant reversal). 

IV.

Flores contends that the cocaine from the March 25, 1998, sale and the cocaine found in the apartment later that day are part of the same criminal act and that the conviction and sentence for one of those counts therefore should be vacated. 

[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses. 

Minn. Stat. § 609.035, subd. 1 (2000).  This rule protects criminal defendants from multiple sentences for offenses resulting from the same behavioral incident.  State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000).  Any multiple sentences, including concurrent sentences, are barred if section 609.035 applies.  State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). 

Whether a multiple offense arose out of a single behavioral incident depends on the facts of each case.  State v. Reiland, 274 Minn. 121, 123, 142 N.W.2d 635, 637 (1966). 

In determining whether a defendant may be prosecuted and punished for multiple offenses, the court must ascertain whether the conduct underlying the offenses was unitary or divisible.  The test employed, when intent is an element of each offense, is whether the conduct involved was motivated by a desire on the part of the defendant to obtain a single criminal objective, or whether the motivation was divisible into two or more criminal objectives.

State v. Gilbert, 262 N.W.2d 334, 338 (Minn. 1977).  

            In Kemp the defendant was convicted for a sale of cocaine to an undercover agent and for possession of cocaine found in her apartment after the sale occurred.  305 N.W.2d at 323.  The state argued that the sale and the possession with intent to sell counts were part of different behavioral incidents.  Id. at 326.  The supreme court rejected the state’s argument and held that the district court’s determination that there was only a single course of conduct was not erroneous.  Id.  

            Here, Flores sought to sell Odell his cocaine.  We find Kemp controlling.  In counts one and two, Flores was charged with violating both Minn. Stat. §§  152.021, subd. 1(1) (Supp. 1997) (sale of controlled substance), and 152.01, subd. 15a (1996) (“sell” defined as selling, offering to sell, or possessing with intent to sell).  Here, the offenses took place at the same time, in the same place, and with the same criminal objective.  The sale of the cocaine and the possession took place in the same apartment and within minutes.  The criminal objective was the same.  The simple fact that Odell did not buy the entire lot of cocaine does not turn Flores’s acts into a separate crime.  We vacate the conviction and sentence for possession and remand to the district court to resentence Flores.

            Affirmed in part, reversed in part, and remanded.



*   Retired judge of the district court, serving as judge of the Minnesota  Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] As a preliminary matter, we reject Flores’s contention that the state waived the standing issue.  At the omnibus hearing, the prosecutor specifically stated that, under State v. Carter, 569 N.W.2d 169 (Minn. 1997), Flores had standing to contest the warrantless search based on his status as an invited guest.  In that case, the Minnesota Supreme Court held that a person who had a leaseholder’s permission to be in her apartment had standing to assert Fourth Amendment rights even though he was only inside for 2 ½ hours to work on a drug sale. Id. at 175-76.  But after the date of the omnibus hearing in this matter, the United States Supreme Court in State v. Carter reversed the decision and greatly restricted a defendant’s standing to challenge a warrantless search.  See Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 473 (1998) (holding that guests who are merely present with the consent of the householder, without more, may not raise Fourth Amendment defense to warrantless search).  Therefore, the argument that Flores did not have standing was unavailable at the time of the omnibus hearing.  Because a waiver is “an intentional relinquishment of a known right,” State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990), and no legal right to challenge Flores’s standing existed at the time of the omnibus hearing, we hold that the state could not have waived its right to challenge Flores’s standing to raise a Fourth Amendment defense to the warrantless search.