This opinion will be unpublished and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,
Charles Edward Scott,
Filed April 30, 2002
Hennepin County District Court
File No. 1017332
John M. Stuart, State Public Defender, Rochelle Rene Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.
Appellant challenges his conviction for an attempted sale of a controlled substance. He claims that the state did not prove that his actions constituted a substantial step toward the commission of the crime because the evidence failed to show “firmness of criminal intent.” Because we find there was sufficient evidence to support the conviction, we affirm.
On 27 February 2001, Minneapolis Police Officers Christopher House and Kara Parker worked undercover to purchase controlled substances while other officers videotaped and audiotaped the transactions. They drove to an area on Franklin Avenue in Minneapolis and observed appellant Charles Edward Scott curbside, waving at passing cars. He nodded at the officers. House then pulled the car over and appellant approached the front passenger window. Their conversation was recorded:
[Parker]: Hey man, looking for a twenty.
[Parker]: You got a twenty?
[Appellant]: No, I ain’t got it on me. I gotta get it from a [or my] guy over there.
[Parker]: Well, should we just meet him over there or what? We, just sit in the back seat. We’re moving.
[Appellant]: Well, just turn around and park on that side ‘cause you can’t park on this side.
[Appellant]: Just turn around and park and I’ll - - by the time you do that, I’ll get - - I’ll be back.
Parker testified that, as appellant walked away from the car, appellant flagged down another individual, Michael Jefferson. Jefferson then approached the officers’ car. The officers exchanged a twenty-dollar bill for twenty dollars’ worth of crack cocaine. During this transaction, appellant walked over to the officers’ car. After Parker and House drove away, other officers arrested both appellant and Jefferson.
Appellant was charged with a third-degree controlled substance crime for the sale of crack cocaine. He waived his right to a jury trial. At his bench trial, appellant testified that he approached the officers’ car because he thought they were lost. He admitted that he left the car to go to a nearby “Subway and get [his] dealer to come with the drugs.” But appellant testified that he did not know Jefferson and had never made contact with him.
The district court found that the state had not proved beyond a reasonable doubt that appellant and Jefferson worked together to sell controlled substances. But the district court did find appellant guilty of an attempted third-degree controlled substance crime, noting that appellant “aggressively pursued the sale of the substance to the police officers after being asked if he had a twenty.” This appeal followed.
In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, supports the factfinder’s decision. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the factfinder believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the decision if the factfinder, 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).
A person is guilty of third-degree sale of controlled substances if “the person unlawfully sells one or more mixtures containing a narcotic drug.” Minn. Stat. § 152.023, subd. 1 (1) (2000). A person is criminally liable for the crimes of another if that 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). To be found guilty of attempt, Minnesota law requires both an “intent to commit a crime” and a “substantial step toward, and more than preparation for, the commission of the crime.” Minn. Stat. § 609.17, subd. 1 (2000).
Here, there is no question of appellant’s intent. Appellant testified that he left the officers’ car intending to talk to a dealer. And in his brief, appellant specifically waives the intent issue. But appellant argues that his actions did not constitute a substantial step because he did not specifically agree to return to the car with drugs and did not negotiate a price for the drugs.
Appellant’s actions were more than mere preparation. Viewing the evidence in the light most favorable to the conviction, appellant was waving at passing cars and deliberately made contact with the officers. In response to the officers’ inquiry, appellant offered to get drugs from his “guy.” He then walked away from the car, promising to come back. All that he had left to do was contact the dealer and make the sale.
According to appellant, he was prevented from doing so when Jefferson intervened. He testified, “If he was going to already do it, * * * it didn’t make no sense for me to go do what I was going to do.” That appellant was prevented from carrying out his intention does not mean that he did not attempt to sell drugs. See State v. Valentine, 630 N.W.2d 429, 436 (Minn. App. 2001) (result of a defendant’s actions is not relevant for the crime of attempt), review denied (Minn. Aug. 22, 2001). Moreover, appellant cannot claim that he voluntarily abandoned his attempt because he was prevented from selling the drugs only when Jefferson intervened. See State v. Cox, 278 N.W.2d 62, 66 (Minn. 1979) (“[A]n attempt is not voluntarily abandoned * * * if a defendant refrains from carrying out his criminal act because of intervening circumstances.”).
We agree with the district court that there is sufficient evidence to support appellant’s conviction of an attempted third-degree controlled substance crime.