This opinion will be unpublished and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,
Roxann Marie Biske,
Filed March 19, 2002
Crow Wing County District Court
File No. KX00379
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Donald F. Ryan, Crow Wing County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
Bradford W. Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
Appellant challenges her conviction for first-degree controlled substance crime, arguing that the evidence is insufficient to show she manufactured methamphetamine on the date stated in the complaint. Based on our examination of the record and governing principles of law, we conclude that the evidence is sufficient to support appellant’s conviction.
Appellant Roxann Biske’s conviction was based largely on the testimony of her roommate of five weeks, Jennifer Eue, who was arrested on February 14, 2000, while trying to cash a forged check at a bank. Police officers observed that appellant drove Eue to the bank, and Eue testified that she was attempting to get cash so she and appellant could buy the ingredients to make methamphetamine that night. While in custody, Eue offered to testify against appellant with the hope that it would reduce her own sentence. Although the state made no promises to Eue, she was never charged with production of methamphetamine and her sentence for check forgeries was ultimately reduced.
Later the same day, police executed a search warrant for appellant’s home, based on the information provided by Eue, and found methamphetamine and numerous products used in its manufacture. Those products included boxes of pills containing pseudoephedrine, lithium batteries, vinyl tubing, a hand-held torch, organic vapor cartridges for protective lung respirators, three containers of red devil lye, and toluene. The search did not uncover anhydrous ammonia, a key ingredient necessary to make methamphetamine.
Eue testified that appellant accompanied her to purchase the pills and chemicals two to three times per week, and in “exchange” for her participation, appellant provided her with methamphetamine for her personal use. Eue stated that she saw a full manufacture of methamphetamine two or three times. She described observing appellant popping out the pseudoephedrine pills from the packages, putting them in the toluene, and removing the lithium strips from the batteries to dry the methamphetamine.
In addition to Eue’s testimony, the state also presented evidence that appellant purchased toluene from a paint-store clerk, Rita Hulcy. Hulcy described the details of a February 10, 2000 transaction that she thought was suspicious. She testified that a woman walked into the store and purchased a discounted gallon of latex paint without looking at it, a paint roller, and a quart of toluene. Hulcy found it strange because quart quantities of toluene are typically purchased by professional painters to clean oil-based paint from paint-spray guns. Hulcy also testified that the woman entered a store-prize drawing by filling out and depositing a registration slip. After the woman left the store, Hulcy retrieved the registration slip and called her boss. The slip contained appellant’s name, address, and phone number. Ms. Hulcy observed the customer driving away in a white van with writing on the side advertising “spa” services, a description that matched the vehicle police saw appellant drive when she brought Eue to the bank several days later.
The jury found appellant guilty of manufacturing methamphetamine and aiding and abetting the manufacturing of methamphetamine, in violation of Minn. Stat. §§ 152.021, subd. 2a, 609.05, subd. 1 (2000).
D E C I S I O N
In considering a claim of insufficient evidence, the reviewing court is to conduct a “painstaking analysis of the record” and to view the evidence in the light most favorable to the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We are to uphold the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant first argues that the evidence is insufficient to prove that any methamphetamine was manufactured “on or about February 14, 2000,” because a key ingredient was not found at her residence on that date. Conceding that the state did introduce “some evidence” that methamphetamine may have been manufactured but at an earlier date, appellant argues that the language, “on or about” should be held to mean one or two days before the day specifically alleged in the complaint, citing State v. Harp, 3 P. 432, 433 (Kan. 1884).
Harp concerns a second-degree murder conviction wherein the defendant argued that the words “on or about” do not state with certainty the time the fatal assault occurred. Id. The court held that the words “on or about” were superfluous as they made no difference in the proof required or prejudiced the defendant’s rights in any way. Id. Appellant offers no Minnesota authority that evidence of an offense approximately one week before February 14, is insufficient to show that the offense occurred “on or about” that date.
And Minnesota cases hold that
it is not necessary to prove the commission of a crime on the precise day, or even year, laid in the indictment, except where the time is a material ingredient of the offense, as where the act done is unlawful only during certain seasons, on certain days, or at certain hours of the day.
State v. Fraser, 277 Minn. 421, 422, 152 N.W.2d 731, 732 (1967) (quotation omitted). In this case, time is not an essential element of the crime charged because the act of manufacturing methamphetamine is unlawful at any time. Moreover, in addition to the physical evidence found in appellant’s home, Eue testified that she observed appellant manufacture a batch of methamphetamine approximately one week prior to her arrest. Because under Minnesota law, a precise date is an essential element of a crime only where the act done is unlawful on certain days or at certain hours of the day, State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984), we are satisfied that the evidence supports the jury’s verdict that appellant manufactured methamphetamine “on or about” February 14, 2000.
Appellant also asserts that because the evidence convicting her is based largely on the testimony of Jennifer Eue, an accomplice witness, it is insufficient to support her conviction. “[T]he testimony of an accomplice is considered inherently untrustworthy[.]” State v. Sorg, 275 Minn. 1, 5, 144 N.W.2d 783, 786 (1966). By statute, the accomplice’s testimony is an inadequate basis for conviction unless it is corroborated by other evidence “as tends to convict” the defendant, which must include evidence other than a mere showing that the offense occurred. Minn. Stat. § 634.04 (2000).
The evidence corroborating an accomplice’s testimony “must link or connect the defendant to the crime.” State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980). Corroborating evidence may be direct or circumstantial, and it need not corroborate the accomplice’s testimony on every point. State v. England, 409 N.W.2d 262, 264 (Minn. App. 1987) (citing State v. Houle, 257 N.W.2d 320, 324 (Minn. 1977)). If a defendant’s connection to the crime may be fairly inferred from the corroborating evidence, the corroboration is sufficient. State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (quotations and citations omitted).
The sufficiency of the circumstantial evidence to corroborate an accomplice’s testimony that the defendant participated in the crime is reviewed in the light most favorable to the verdict. State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995) (citation omitted); see State v. Mathiasen, 267 Minn. 393, 393-94, 127 N.W.2d 534, 535 (1964) (describing potential sources of circumstantial evidence and provable facts that might corroborate accomplice testimony). In this case, Eue’s testimony was amply corroborated by the testimony of a clerk at the store where appellant purchased toluene, as well as the testimony of the narcotics investigator who found the equipment and ingredients for manufacturing methamphetamine in appellant’s home.
Because the corroborative testimony and evidence, when viewed in the light most favorable to the verdict, affirms the truth of Eue’s testimony and points to the guilt of appellant in a substantial degree, the evidence was sufficient for the jury to convict appellant. See State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988) (stating that “[c]orroboration of accomplice testimony is sufficient if it restores confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial degree.”), aff’d 484 N.W.2d. 21 (Minn. 1992).
Appellant also argues that Eue’s testimony was unbelievable, citing State v. Langteau, 268 N.W.2d 76 (Minn. 1978). In Langteau, the supreme court overturned a defendant’s robbery conviction partly because it did not believe the victim’s unexplained testimony that he was robbed after visiting a friend at the hospital well after visiting hours were over. Id. at 77. Further, police never uncovered physical evidence linking the defendant to the crime, and there was no evidence supporting the state’s argument, in lieu of a motive, that the defendant was under the influence of drugs at the time of the crime. Id.
In contrast, in this case there was physical evidence that appellant manufactured methamphetamine in her home, Eue testified that she observed appellant manufacture the drug, and the store-clerk’s testimony corroborated Eue’s testimony regarding the purchase of methamphetamine ingredients. Moreover, it is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the factfinder. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). The jury in this case had ample opportunity to evaluate the credibility of Eue and the witnesses who corroborated her testimony. Based on the facts presented at trial and viewed in the light most favorable to the verdict, the jury could reasonably conclude that appellant was guilty of the offenses charged beyond a reasonable doubt.
Appellant next argues that because the date of manufacture was imprecise, the court should have instructed the jury that it had to consider each potential date of manufacture separately and unanimously agree that the state had proven the same underlying conduct beyond a reasonable doubt in each scenario. Although appellant did not request such an instruction, she argues that the court should have given the jury instruction on its own initiative, and that its failure to do so was an error of fundamental law that substantially prejudiced appellant’s rights.
Trial courts are allowed "considerable latitude" in the selection of language for jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quotation and citations omitted). A trial court’s decision to give a particular instruction will not be reversed absent an abuse of the court’s broad discretion. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). In order to show prima-facie evidence of error, appellant must show that the instruction contained “a material misstatement of law when read in the context of the instructions as a whole.” State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980) (citation omitted).
Initially we note that appellant did not object to the jury instructions. The failure to propose specific instructions or to object before they are given “generally constitutes a waiver of the right to appeal.” State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998), denial of habeas corpus aff’d, Cross v. Burton, 249 F.3d 752 (8th Cir. 2001) (citation omitted). But this court nevertheless may consider the issue on appeal if it involves plain error that is shown to affect substantial rights. State v. Hage,595 N.W.2d 200, 204 (Minn. 1999); Minn. R. Crim P. 31.02. If the plain-error elements are met, this court may then assess whether it should address the error to ensure fairness and the integrity of the judicial proceedings. Hage, 595 N.W.2d at 204.
Minnesota requires unanimous jury verdicts in criminal cases. Minn. R. Crim. P. 26.01, subd. 1(1)(5); State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). The transcript reveals that the judge instructed the jury on the necessity of a unanimous verdict. But when jury instructions allow for the possibility of significant disagreement among jurors as to what criminal act or acts the defendant committed, the instructions violate the defendant’s right to a unanimous verdict. State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988).
Appellant relies on State v. Stempf, 627 N.W.2d 352 (Minn. App. 2001) to support her argument that the trial court erred in not providing a specific unanimity instruction. In Stempf, this court held that the defendant was denied his right to a unanimous jury verdict where the state charged the defendant with one count of possession but introduced evidence of two different acts of possession, one at defendant’s place of employment and another in the truck he was riding in as a passenger. Stempf, 627 N.W.2d at 357-58. This court held that the two different acts of possession “lack[ed] unity of time and place,” and therefore the defendant was entitled to a jury instruction requiring the jury to unanimously agree upon which act of possession warranted a conviction. Id. at 358-59.
Appellant argues that like the appellant in Stempf, she was charged with one count of manufacturing methamphetamine although the state introduced evidence that the manufacturing could have occurred at several different times. Appellant’s reliance on Stempf is misplaced. In Stempf, the defendant requested and was denied a specific unanimity jury instruction. Id. at 357-58. More importantly, in contrast to Stempf, the state in this case did not allege distinct acts in support of appellant’s conviction for manufacturing methamphetamine, but rather offered evidence that the manufacturing was an on-going criminal enterprise occurring in one location with one criminal intent and one continuous plan. And separate defenses were not offered to events said to have occurred at different times and places. Accordingly, “unity of time and place” is not lacking, and a specific unanimity instruction was not required. Id. at 358-359. There was no plain error in the trial court’s jury instructions.
 The paint was mistinted, that is paint erroneously mixed for a former customer that the store subsequently sells at a discount.