This opinion will be unpublished and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,
Jeffrey Allen DeRuyck,
Filed June 25, 2002
Affirmed in part, reversed in part, and modified
Lyon County District Court
File No. K6-00-214
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Richard R. Maes, Lyon County Attorney, Lyon County Courthouse, 607 West Main Street, Marshall, MN 56258 (for State of Minnesota)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for DeRuyck)
Considered and decided by Toussaint, Presiding Judge, Kalitowski, Judge, and Hanson, Judge.
In these consolidated appeals, the defendant challenges his convictions of conspiracy to manufacture methamphetamine and aiding and abetting the possession of methamphetamine and the state challenges the sentence. We affirm the convictions, but reverse and modify the sentence for the conspiracy conviction.
Police officers executed a search warrant for stolen property at the house where defendant Jeffrey Allen DeRuyck lived. While conducting the search, the officers saw items they believed may have been acquired to manufacture methamphetamine. One officer remained in the home while the other applied for an additional search warrant.
While executing the second search warrant later that day, the officers found many items commonly used to manufacture methamphetamine and detected an odor associated with the manufacture of methamphetamine. The officers also found varying amounts of methamphetamine throughout the home.
The state charged DeRuyck with first- and third-degree controlled-substance crimes (aiding and abetting possession of methamphetamine) and conspiracy to commit a first-degree controlled-substance crime (manufacture of methamphetamine). At trial, the state offered testimony of DeRuyck’s alleged coconspirator, Amy Stenson. The state questioned Stenson about the terms of her guilty plea. Stenson admitted that, in exchange for her agreement to testify truthfully, she was sentenced to serve time in the local jail instead of in prison. Outside the jury’s presence, the court denied DeRuyck’s request to cross-examine Stenson about the percentage by which her sentence was reduced from the presumptive sentence.
The jury found DeRuyck guilty of “third-degree controlled-substance crime, liability for the crimes of another” in violation of Minn. Stat. § 152.023, subd. 2(1) (2000) (aiding and abetting possession of methamphetamine), and conspiracy to commit first-degree controlled-substance crime in violation of Minn. Stat. §§ 152.021, subd. 2a, .096, subd. 1 (2000) (conspiracy to manufacture methamphetamine). At sentencing, the district court granted DeRuyck’s motion for a one-half downward durational departure in his sentence for the conspiracy conviction and imposed the presumptive sentence for the aiding and abetting conviction. It sentenced DeRuyck to concurrent terms of 73 and 60 months, respectively.
DeRuyck appeals his convictions and the state appeals the downward durational departure.
DeRuyck argues that the district court erred by not allowing him to cross-examine Stenson about the percentage sentence reduction she received in her favorable plea agreement. The state counters that DeRuyck’s interests were sufficiently protected when the jury was told about Stenson’s lenient treatment, and that evidence of the percentage reduction would have been speculative because it would have required the assumption that Stenson would otherwise have received the full presumptive sentence.
We largely defer to the district court’s evidentiary rulings and will not overturn them absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). On appeal, a defendant has the burden of proving both that the district court abused its discretion when deciding to exclude defense evidence and that the defendant was thereby prejudiced. State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997). If the district court has erred in the exclusion of defense evidence, the error is harmless if it can be said beyond a reasonable doubt that, assuming the evidence had been admitted and its potential fully realized, an average jury would have reached the same verdict. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).
In a criminal prosecution, the defendant has a Sixth Amendment right “to be confronted with the witnesses against him.” In jointly-tried cases, the Minnesota supreme court has upheld a district court’s decision to preclude the defendant from cross-examining a co-conspirator about the percentage of the sentence reduction received. See State v. Greenleaf, 591 N.W.2d 488, 502 (Minn. 1999); State v. DeVerney, 592 N.W.2d 837, 844-45 (Minn. 1999). But those cases did not hold that it would be an abuse of discretion for the district court to do otherwise. Here, the district court carefully considered the issue outside the jury’s presence before making its decision to limit cross-examination. The court was concerned that testimony about the percentage of sentence reduction would be speculative, would possibly be misleading, and was not necessary for purposes of impeachment. Under the circumstances, the court’s restriction of cross-examination was not an abuse of discretion.
Moreover, even if the district court’s decision to restrict cross-examination had been erroneous, it would be harmless error. DeRuyck ultimately affirmed the truthfulness of Stenson’s testimony and thus, was not prejudiced by restrictions on his ability to impeach her testimony. In closing argument, DeRuyck’s counsel told the jury that he believed all of Amy Stenson’s testimony and suggested to the jurors that they should believe Amy Stenson.
DeRuyck argues that the district court erred by not giving a cautionary instruction to the jury about accomplice testimony and the risks of perjury. See State v. Jones, 392 N.W.2d 224, 232 (Minn. 1986) (recognizing but not requiring use of such an instruction). Ordinarily, a defendant must request an accomplice instruction or object to the lack of such an instruction in order to preserve the issue for appeal. State v. Shoop, 441 N.W.2d 475, 479-80 (Minn. 1989).
DeRuyck did not request the instruction at trial. Before the jury was dismissed for deliberations, the district court asked whether either attorney wished to discuss any errors or omissions the court may have made. Both attorneys declined to do so. Thus, DeRuyck did not preserve the issue for appeal. Moreover, DeRuyck is unable to show he was prejudiced by the absence of the instruction because of his counsel’s affirmation of the truthfulness of Stenson’s testimony.
DeRuyck was convicted of conspiracy to manufacture methamphetamine and aiding and abetting possession of methamphetamine. He challenges the sufficiency of the evidence for both convictions.
When considering a claim of insufficient evidence, our review is limited to a thorough analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to have allowed the jury to reach the verdict it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We 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 will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
For a jury to find a defendant guilty of conspiracy to manufacture methamphetamine, the state must show that: (1) the defendant entered into an agreement with another to manufacture methamphetamine; and (2) there was an overt act in furtherance of the conspiracy. Minn. Stat. §§ 152.096, subd. 1, 152.021, subd. 2a, 609.175, subd. 2 (2000); see State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980) (setting out elements of crime of conspiracy). Circumstantial evidence is given as much weight as any other type of evidence, so long as the circumstances are consistent with the hypothesis that the defendant is guilty and inconsistent with any rational hypothesis except that of guilt. State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997). The circumstantial evidence must “form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (quotation omitted). However, “possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.” State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (citation omitted).
DeRuyck argues that there is no direct evidence to support a finding that he agreed with anyone to manufacture methamphetamine, pointing to Stenson’s lack of testimony about an agreement. He admits there is evidence of drug use and the existence of precursor items to manufacture methamphetamine in the house, but argues that there is no circumstantial evidence to support an inference that he agreed or knew of anyone else’s agreement to manufacture methamphetamine.
We conclude that the evidence is sufficient to support the conclusion that there was an agreement to manufacture methamphetamine and that DeRuyck took overt actions in furtherance of that agreement.
First, the evidence shows that methamphetamine was being manufactured in the home that DeRuyck rented. This evidence included the presence of 260 antihistamine tablets; coffee filters, some with methamphetamine on them; boxes of matches and broken down matches; water softener pellets, even though the home did not have a water softener; a hydrochloric acid generator, assembled and with traces of methamphetamine on the end; bottles of Heet; bottles of paint thinner; and clear jars and a green bowl with methamphetamine in them. It also included a BCA agent’s testimony that there was a strange odor in the house and, “without a doubt,” methamphetamine was being manufactured in the home.
Second, the state offered evidence that there was an agreement to manufacture methamphetamine. Stenson testified that the night before the police arrived, she temporarily moved into DeRuyck’s home. She testified that in the early morning, DeRuyck and his friend, Travis Moon, returned home with the orange duffel bag she had given Moon. The bag contained Pyrex materials, coffee filters, receipts, an address book, rags, and a bong. She testified that DeRuyck and Moon removed some clear jars from the bag, and that they had methamphetamine with them. She stated that she provided iodine, flasks, and tubing to Moon, knowing that Moon would give her finished methamphetamine in exchange.
Although there was no direct evidence of DeRuyck’s agreement to participate in the manufacture of methamphetamine, the actions of DeRuyck, Stenson and Moon support the inference that they each agreed to manufacture methamphetamine. Stenson bought iodine, tubing, and flasks and knew Moon would give her finished methamphetamine in exchange. Moon brought filters and Pyrex containers to the house. DeRuyck purchased antihistamines, brake fluid, and Heet. In fact, when the police executed the warrant, they found a box of DeRuyck’s personal papers that included his pay stubs, bank statements, personal letters, and bills. In that box, were five receipts, each of which showed the purchase of items commonly used for manufacturing methamphetamine: (1) multiple boxes of antihistamines; (2) brake fluid; (3) many bottles of Heet; (4) butane torches; and (5) gun cleaner. It is not necessary to show the alleged coconspirators formally agreed to commit the crime. State v. Burns, 215 Minn. 182, 188, 9 N.W.2d 518, 521-22 (Minn. 1943).
Where the evidence permits an inference of concert of action to accomplish a given unlawful result, as where several persons commit separate acts which form parts of a connected whole, an inference of conspiracy--that there was concert in both planning and execution--is permissible.
The evidence, when viewed in the light most favorable to the conviction and with the assumption that the jury believed the state’s witnesses, is sufficient to have allowed the jury to find DeRuyck guilty of conspiracy to manufacture methamphetamine.
We conclude that the evidence is sufficient to support a finding that DeRuyck aided and abetted possession of three or more grams of methamphetamine. DeRuyck argues that the 3.6 grams of methamphetamine recovered from a box on the basement stairs was not under his exclusive control and, because it was in an area which other people could access, he had no dominion or control over it. See State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610-11 (Minn. 1975) (stating that possession can be either physical or constructive and that constructive possession can be proven by showing either the item was in an area under the defendant’s exclusive control or that there is a strong probability the defendant exercised dominion and control over the item when it was in a place to which others had access).
A person may be held liable for another’s crime “if the person intentionally aids, advises, hires, counsels, or conspires with * * * the other to commit the crime.” Minn. Stat. § 609.05, subd. 1 (2000). A defendant is criminally liable for aiding and abetting if he or she played a knowing role in the crime and took no steps to “thwart its completion.” Ostrem,535 N.W.2d at 925. But mere presence at the crime scene “does not alone prove that a person aided or abetted, because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability.” Id. at 924 (citing State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993)) (emphasis added). A person’s presence, companionship, and conduct are circumstances from which a person’s criminal intent may be inferred. Id.; State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991) (stating that while “active participation” must be shown for aiding and abetting an “active crime” such as sale or manufacture, “knowledge and acquiescence are pertinent” to show one aided and abetted possession).
Although Moon and Stenson could access the methamphetamine, DeRuyck was the house’s sole tenant, had ultimate control over the premises, and was not a mere observer to the presence of the methamphetamine. All three were involved in the conspiracy to manufacture methamphetamine, and all three had used methamphetamine on the date DeRuyck was arrested. DeRuyck admitted that he used methamphetamine and that he had pipes and syringes for taking methamphetamine.
The state challenges the district court’s downward durational departure in sentencing DeRuyck for the conspiracy conviction. The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling” mitigating factors that warrant a downward departure. Minn. Sent. Guidelines II.D; State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). A decision to depart from the sentencing guidelines is within the district court’s discretion and will only be reversed if the district court clearly abused its discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
The state argues that the district court cited inappropriate reasons for departure. If reasons for departure are stated on the record at the time of sentencing, “this court will examine the record to determine if the reasons given justify the departure.” Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the district court cites inadequate reasons for departure, this court will affirm the departure if the record contains sufficient evidence to justify it. Id.
The presumptive sentence for conspiracy to commit a first-degree controlled-substance crime is 146 months. In granting a durational departure to one-half the presumptive sentence, or 73 months, the district court stated that the strongest reason for departure was that DeRuyck had completed chemical dependency treatment, which shows he made some positive changes in his life. The district court also said that society would have nothing to gain if DeRuyck were given the presumptive sentence. It further stated that the presumptive sentence was disproportionate because the conspiracy crime was not comparable to other crimes sentenced at that level.
The reasons given by the district court do not justify a durational departure. Durational departures must be supported by offense-related factors, not offender-related factors. State v. Behl, 573 N.W.2d 711, 713 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998). DeRuyck’s completion of chemical dependency treatment is an offender-related, not an offense-related factor. The district court’s secondary reason, the need for proportionality, appears to be based on the court’s disagreement with the sentencing guidelines and is impermissible because the guidelines control. See, e.g., State v. Carter, 424 N.W.2d 821, 823 (Minn. App. 1988) (stating that it was inappropriate for the district court to dispositionally depart downward on the basis that the sentence was harsh for the crime committed).
Because the stated reasons for departure are inadequate, we have examined the record to determine whether there were other reasons argued by DeRuyck that would support the durational departure. We conclude that there were not.
DeRuyck argued to the district court that he played a minor or passive role in the conspiracy; that the crime occurred 15 months before sentencing; that he had not yet gone through chemical dependency treatment at the time he committed the crime; that he is amenable to probation; and that Stenson’s sentence was reduced by 86%. The district court properly rejected each of these arguments, finding the evidence sufficient to show DeRuyck played an active role and that DeRuyck’s other arguments were not valid grounds for a durational departure. The district court also recognized DeRuyck’s extensive criminal history.
We reverse the sentence for conspiracy to manufacture methamphetamine and modify it by imposing the presumptive sentence of 146 months.
Affirmed in part, reversed in part, and modified.
 The complaint did not include a reference to “liability for the crimes of another.” However, it is not essential for charging documents to specifically cite aiding and abetting, especially when the defendant has been charged with the underlying crime. State v. DeFoe, 280 N.W.2d 38, 40 (Minn. 1979). DeRuyck does not challenge his conviction on the basis that he was not liable for the crimes of another, but on the basis of whether the items in the house were subject to his control.