This opinion will be unpublished and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
State of Minnesota,
Tamara Leigh Wagner,
Crow Wing County District Court
File No. K400328
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103: and
Donald F. Ryan, Crow Wing County Attorney, Kristine R. Demay, Assistant Crow Wing Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Mulally Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Tamara Wagner appeals from her sentence for controlled substance crime in the fourth degree, controlled substance crime in the fifth degree, and child endangerment/controlled substance, arguing that the trial court erred in imposing a mandatory minimum sentence under Minn. Stat. § 609.11 (2000). Because appellant received adequate notice and was not prejudiced by the timing of the findings of accomplice liability and firearm involvement, which were based on the trial court record, we affirm.
On February 8, 2000, Crow Wing County law enforcement executed a search warrant at the home of appellant Tamara Wagner, her companion David Johnson, and her four-year-old daughter. Wagner and Johnson had been living together about two years. During their cohabitation, both had been using methamphetamine, and Johnson supplied Wagner with the drug. Johnson testified that he was dealing “larger amounts” of the drug and Wagner testified that she was an “active user.”
On December 15, 2000, the jury found Wagner guilty of fourth-degree-controlled-substance sale, fifth-degree-controlled-substance possession, and child endangerment/controlled substance. See Minn. Stat. §§ 152.024, subd.1; 152.025, subd. 2; 609.378, subd. 1 (b)(2)(2000). Sentencing, initially scheduled for January 29, 2001, was rescheduled for March 5th, so that the trial judge could hear the arguments regarding the firearms enhancement provision of the mandatory minimum sentencing statute, Minn. Stat. § 609.11, subd. 5(a) (2000). After that hearing, the court filed findings, conclusions and an order that the provision applied and that Wagner would receive the mandatory minimum sentence of three years in prison. Pursuant to section 609.11, she was sentenced to 36 months, at least 24 months of which were to be served in prison.
The firearms enhancement provision of the mandatory minimum sentencing statute states in relevant part that
any defendant convicted of an offense * * * in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years.
Minn. Stat. § 609.11, subd. 5(a) (2000). “Whenever reasonable grounds exist to believe that the defendant or an accomplice used a firearm or * * * had in possession a firearm, * * * the prosecutor shall, at the time of trial or at the plea of guilty, present on the record all evidence tending to establish that fact unless it is otherwise admitted on the record.” Id., subd. 7. “The question of whether the defendant or an accomplice, at the time of commission of [the offense] * * * used a firearm or other dangerous weapon or had in possession a firearm shall be determined by the court on the record at the time of a verdict or finding of guilt at trial * * * based upon the record of the trial or the plea of guilty.” Id.
Wagner argues that she was prejudiced by late notice of the state’s intent to request the firearms enhancement. She argues that she was entitled to notice in the complaint or before the verdict and was consequently denied the opportunity to present evidence at trial regarding firearms and accomplice liability.
The firearms enhancement provision is part of a sentencing statute that does not require that the state give notice to a defendant by citing the statute or charging the offense in the complaint. See Minn. Stat. § 609.11, subd. 5(a)(2000) (defining offender to whom statute applies). Those requirements were specifically removed from the statute in 1978 and 1981, respectively. 1978 Minn. Laws ch. 723, art. II, § 5 (deleting requirement that information or indictment cite § 609.11); 1981 Minn. Laws ch. 277, § 13 (repealing subd. 3 which required prosecution to allege possession of firearm in complaint). The statute requires only that the state present on the record all of the evidence tending to establish the firearms involvement and accomplice liability. Minn. Stat. § 609.11, subd. 7 (2000). In light of the clear legislative intent to eliminate the state’s obligation to specifically identify the sentencing provision in advance of trial, Wagner was entitled only to that notice required to sufficiently notify her of the nature and cause of the accusations against her. Minn. Const. art. I, § 6 (criminal defendant entitled “to be informed of the nature and cause of the accusation”); U.S. Const. amend. VI (same).
The state’s initial complaint alleged both firearms involvement and accomplice liability. The complaint alleged that approximately 31 firearms were in the home and accessible to the child, that Wagner had received a stolen firearm, and that Johnson was her accomplice in possessing 25 grams or more of methamphetamine. Although the counts for child endangerment/firearm access and the receipt of stolen property/firearm were dismissed at the conclusion of the state’s case, evidence establishing Johnson’s possession of firearms and Wagner’s drug possession had already been elicited at trial. Officers had testified to the location and accessibility of the drugs and firearms throughout the home. Furthermore, Wagner’s testimony confirmed her association with Johnson and knowledge of his drug sales and firearm possession and use. She clearly took responsibility for possessing methamphetamine in the bedroom and was aware of additional methamphetamine in the living room. Specifically, she testified that, on the day of the search, she was aware that in their bedroom there was a picture frame with traces of methamphetamine on it, several plastic bags containing 1.2 grams of methamphetamine in her purse, a bag containing .5 grams of methamphetamine, and a loaded .357 magnum revolver. The gun was neither covered nor locked.
In short, Wagner had adequate notice that the state would present evidence intending to prove her possession of methamphetamine, Johnson’s status as her accomplice, and Johnson’s firearm possession.
Wagner also argues that the court failed to make findings at the time of the verdict as required by the statute. While the statute states that the findings “shall be determined by the court * * * at the time of the verdict,” Minn. Stat. § 609.11, subd. 7(2000), the timing of the court’s findings, as long as they are made prior to sentencing, is not critical. See State v. Thomas, 467 N.W.2d 324, 326 (Minn. App. 1991). The critical factor is whether the timing of the findings prejudiced Wagner. Id. at 326-27.
As Wagner’s counsel conceded at oral argument, no prejudice resulted from the findings being made after the verdict. There is no allegation that new evidence or evidence not in the trial record formed the factual basis for the court’s findings and decision. The relevant facts were in large part derived from Wagner’s own testimony at trial admitting to obtaining the drugs in her possession from Johnson, to being aware of his drug and firearms involvement, and to knowing of the proximity of the drugs and firearms in the bedroom and elsewhere in the house. This court will not reverse due to a technical error unless the accused has been “prejudiced through the impairment of substantial rights essential to a fair trial.” State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 393 (1954) (footnote omitted).
Because the mandatory minimum sentencing statute imposes no duty on the state to notify the defendant before trial and only a direction that the court make findings at the time of the verdict, and Wagner was not prejudiced by the procedure used, the court correctly concluded that the firearms enhancement provision was applicable.
Wagner also argues that Johnson was not her accomplice in the offenses for which she was convicted.
“A person is criminally liable for a crime committed by another 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). Presence, companionship, and conduct before and after the offenses are circumstances from which participation in another’s crime may be inferred. State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995). Accomplice liability can be based on a combination of presence at the crime scene, long-term association with the defendant, failure to act to thwart completion of the crime, and passively condoning the crime. Id. at 925-26. It is for the court, not the jury, to decide whether a defendant, or an accomplice, possesses a firearm at the time of committing the offense. State v. Hannam, 601 N.W.2d 454, 456 (Minn. App. 1999), review denied (Minn. Dec. 21, 1999).
The trial court determined that Johnson was an accomplice to the offenses committed by Wagner, stating:
It is undisputed from the evidence that the drugs that were found in the possession of the Defendant were provided by David Johnson. Mr. Johnson also provided the Defendant with a place to use and possess her drugs. The Defendant was aware that Mr. Johnson sold drugs and that he possessed firearms.
The parties admitted a long-term relationship throughout which Wagner was a regular possessor/user of methamphetamine and Johnson was a large-scale drug dealer and supplier. They lived together where drug sales took place and the firearms were possessed and stored. In short, the court had ample evidence upon which to base accomplice liability.
Wagner also argues that neither she nor Johnson physically or constructively possessed firearms. The firearms enhancement statute does not require actual possession; constructive possession is adequate. State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999). The statute
reflects the obvious reality that possession of a firearm while committing a predicate felony offense substantially increases the risk of violence, whether or not the offender actually uses the firearm.
Wagner concedes that she knew of the gun in their bedroom and that Johnson owned many firearms and always carried a gun. The gun in the bedroom was loaded. Even if Johnson had it only for purposes of repairing it, which the court apparently did not find credible, Wagner did not know that. Furthermore, the gun was near Johnson on the floor of the bedroom, where he, Wagner, her child, and her drugs, supplied by Johnson, were also found. These facts support accomplice liability and imposition of the mandatory minimum sentence under the firearms enhancement provision.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn.Const. art. VI, § 10.