This opinion will be unpublished and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

C5-01-1563

 

 

State of Minnesota,

Respondent,

 

vs.

 

Robert E. Bullen,

Appellant.

 

 

Filed June 18, 2002

Affirmed

Anderson, Judge

 

Sherburne County District Court

File No. K2991683

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, 13880 Highway 10, Elk River, MN  55330 (for respondent)

 

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge.

 

A jury found appellant guilty of conspiracy to manufacture and aiding and abetting the manufacture of methamphetamine in the first degree, violations of Minn. Stat. §§ 152.021, subds. 2a, 3(a), 152.096, subd. 1, 609.05 (1998), and possession of methamphetamine in the third and fifth degrees, violations of Minn. Stat. §§ 152.023, subds. 2(1), 3(a), 152.025, subds. 2(1), 3(a) (1998).  The district court sentenced appellant to 98 months in prison for the conspiracy-to-manufacture offense and 39 months in prison for the third-degree possession offense.  The sentences are to run concurrently.  Appellant challenges the sufficiency of the evidence at trial and also argues that he should not have been convicted and sentenced for the third-degree possession offense because it was part of the same behavioral incident as the conspiracy-to-manufacture offense.  We affirm.

FACTS

 

            On October 9, 1999, Jessica Hanson drove to a farm owned by her grandparents.  Hanson arrived at the farm between 10:00 and 11:00 a.m. and began to remove debris from the property.  Hanson remained on the property until 5:00 or 6:00 p.m., when she left to meet her boyfriend.  Hanson returned to the property between approximately 8:00 and 9:00 p.m. with her boyfriend and her neighbor, and noticed that the gate, which was locked when she left the farm earlier that evening, was now open.  She also noticed two vehicles, a black Ram Charger and a grey or silver hatchback, parked near a barn.
            Hanson recognized one of two men leaving the barn as Robert Hilleren, a friend of Hanson’s uncle who had given Hilleren permission to be on the property.  Hanson also noticed that another man, with dark hair in a ponytail, was also present.  Hilleren told Hanson that he was collecting wood and asked Hanson if she had an extension cord for an electric generator.  Hanson, however, did not see either man collect any wood.  Hanson, her boyfriend, and her neighbor left the property around 10:00 p.m.; both vehicles were still located on the property.

Hanson returned to the property at approximately 6:00 a.m. the next morning and entered the barn.  Hanson detected a strong chemical odor in the barn, and found white powder on tables and discarded remnants of lithium batteries on the floor.  Suspecting the barn had been used to manufacture illegal drugs, Hanson called the police.  Sergeant Brad Rolfe and officer Dan Block of the Elk River Police Department responded to Hanson’s call.  Rolfe and Block entered the barn and detected the strong chemical odor.  They also noticed the battery remnants among other objects not likely to be found in an abandoned barn.  Rolfe collected a sample of the white powder from the tables; the powder field-tested positive for methamphetamine.[1] 

Rolfe and Block left the farm, proceeded to Hilleren’s apartment, and noticed that a black Ram Charger was parked near the apartment.  The Ram Charger began to leave and Rolfe performed an investigatory stop.  The driver, appellant Robert Bullen, indicated that he had just left Hilleren’s apartment.  Appellant eventually consented to a search of his vehicle and told the officers, “Yeah, there is stuff in there.”  A search of appellant’s person revealed a small amount of marijuana and $705 in cash.  A search of appellant’s vehicle revealed a modified propane tank suspected to contain anhydrous ammonia, several hundred cold and sinus tablets containing ephedrine or pseudoephedrine, a pyrex glass baking dish, and starting fluid containing ether.  All of these items are either precursors to methamphetamine, or are commonly used in the manufacture of methamphetamine.  Inside a plastic tackle box, officers found four plastic baggies later determined to contain approximately 3.2 grams of methamphetamine, two plastic baggies, later determined to contain marijuana, and lithium batteries.  Another officer questioned appellant and he admitted that he was with Robert Hilleren the night before at “a farm.”

Robert Hilleren testified for the state.  Hilleren testified that he drove to the farm at approximately 5:00 p.m. on October 9 in his silver Honda CRX, with appellant following in his Ram Charger.  He intended to collect some wood at the property.  He confirmed that he spoke with Jessica Hanson.  Hilleren testified that appellant suggested that they manufacture methamphetamine in the barn and he subsequently assisted appellant with the manufacturing of approximately 14 to 15 grams of methamphetamine.  He stated that he had manufactured methamphetamine with appellant three times before that night.  According to Hilleren, he and appellant returned to Hilleren’s apartment at approximately 3:00 a.m., smoked some of the methamphetamine, and then retired for the evening.  Hilleren admitted that he received a stayed sentence as part of his plea agreement, which was a downward dispositional departure from the presumptive 86-month executed prison sentence.  Defense counsel, moreover, repeatedly and persuasively impeached Hilleren’s testimony by referring to prior statements he offered as part of his plea agreement.  Hilleren’s testimony was riddled with inconsistencies about what actually occurred at the farm and at his apartment that day and night.

            Appellant testified in his own defense.  Appellant admitted that he used methamphetamine.  He stated that he went to Hilleren’s apartment to borrow $500 because his wife wanted to have a medical procedure performed, and he did not have any money for the procedure.  He stated that he accompanied Hilleren to the farm and assisted Hilleren with the electric generator.  Appellant testified, however, that he left the farm at approximately 7:00 p.m., before it was dark, to return to Hilleren’s apartment to speak with Hilleren’s girlfriend about accompanying his wife to a clinic.  As he left the farm, appellant noticed Hilleren’s roommate arrive at the farm.  Appellant testified that he went to Hilleren’s apartment and, after he was unable to locate Hilleren’s girlfriend, he returned to his Ram Charger and resumed drinking whiskey as he had during the day.  He testified that Hilleren returned to the apartment later that night and woke him up because he had passed out after consuming the whiskey.  According to appellant, Hilleren invited him into his apartment, gave him $500 and three grams of methamphetamine, and told appellant that he had been at a bar and that was where he obtained the $500. 

            Appellant also alleged that Hilleren planted the seized evidence, including the suspected anhydrous ammonia tank and the cold and sinus tablets, in his Ram Charger.  He also stated that he could not have purchased the cold and sinus tablets, as evidenced by a Target receipt found in his Ram Charger, because the purchase was made using a check, and appellant did not have a checking account at that time.

            Appellant admitted that he wrote a note to Hilleren while in jail awaiting trial.  The note stated, in relevant part:

If we work together then it’s only you [and] me, NO ONE ELSE!  and up North.  I know a area.  Besides, this county is on a witch hunt for dope. * * * 

Hey, our stories need to match.  * * *  Do you understand?  I need to be in your apt.  Cause that’s when [the officer] put the Pills & tank in my truck.  * * * 

If our stories don’t match, or they use everything as evidence that was found in my truck, We are fu**ed--if not Manufacture, then Conspiracy. 

 

(alterations in original).  Appellant also admitted that on several occasions he lied to the officers investigating the case. 

D E C I S I O N

 

I.          Sufficiency of the Evidence

Appellant argues that a close examination of the evidence demonstrates that sufficient doubt exists as to whether he was actually involved in a conspiracy to manufacture methamphetamine.  Appellant argues that Hilleren’s testimony is unreliable because of his plea agreement, and because of the substantial inconsistencies in his testimony.  Appellant argues that his possession of approximately three grams of methamphetamine is consistent with a theory that he had not been involved in its manufacture because Hilleren had given him the methamphetamine.  Appellant claims he did not know that the cold and sinus tablets and the propane tank were in his Ram Charger when it was stopped and searched. 

When 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, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (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 reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  Although circumstantial evidence warrants stricter scrutiny, it is entitled to the same weight as direct evidence.  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430. 

Under Minnesota law, “a person is guilty of controlled substance crime in the first degree if the person manufactures any amount of methamphetamine.”  Minn. Stat. § 152.021, subd. 2a.  Moreover, any person who conspires to manufacture methamphetamine is also guilty of a felony and may be convicted and sentenced as if he had actually manufactured methamphetamine.  Minn. Stat. § 152.096, subd. 1.     

            A conspiracy to commit a crime exists when a person

conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy. 

 

Minn. Stat. § 609.175, subd. 2 (1998).  “Proof of a formal agreement to [manufacture methamphetamine] is not required for a conspiracy conviction.”  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002) (citations omitted).  Moreover, a subjective meeting of the minds is not required to prove the requisite agreement; rather, agreement “must be shown by evidence that objectively indicates an agreement.”  Id.  (citation omitted); see also State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521 (1943) (stating that “a conspiracy need not be established by direct evidence”).  In determining whether a conspiracy existed, the presence of drug paraphernalia and methamphetamine on an alleged co-conspirator’s person may be probative to show knowledge of the conspiracy and an overt act.  See Hatfield, 639 N.W.2d at 377. 

            Here, the evidence at trial contained both direct and circumstantial evidence of a conspiracy to manufacture methamphetamine between, at least, appellant and Robert Hilleren.  Viewing the totality of the evidence, we conclude that it was sufficient to allow the jurors to reach their verdict. 

            First, Hilleren’s testimony, although burdened with multiple inconsistencies and misstatements, had some probative value.  Hilleren’s testimony contained direct evidence of both an agreement between appellant and Hilleren to manufacture methamphetamine, and an overt act in furtherance of the conspiracy.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (stating that this court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary).

Second, the circumstantial evidence also suggested appellant and Hilleren conspired to manufacture methamphetamine.  Hanson, an objective witness, placed a black Ram Charger at the farm on the night in question.  Appellant admitted that he was present at “a farm” that night.  Precursors to methamphetamine such as cold and sinus tablets, a propane tank suspected to contain anhydrous ammonia, brake fluid, and lithium batteries were found in appellant’s Ram Charger when it was searched the next morning.  Appellant possessed over three grams of methamphetamine in a tackle box located in his Ram Charger.  Appellant admitted that he needed to borrow $500 and that he personally used methamphetamine.  Therefore, appellant had the opportunity, materials, and motive to manufacture methamphetamine on October 9, 1999.  See State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995) (stating that the sufficiency of circumstantial evidence to corroborate an accomplice’s testimony that a defendant participated in the crime is reviewed in the light most favorable to the verdict); see also State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000) (stating that evidence such as “physical evidence associated with the crime, * * * inadequacies and admissions in a defendant’s testimony, and suspicious and unexplained conduct of an accused before or after the crime” may corroborate the inculpatory testimony of an accomplice (citations omitted)); State v. Vereb, 643 N.W.2d 342, 348 (Minn. App. 2002) (“A conspiracy need not be established by direct evidence, but can be inferred from the circumstances.” (citations omitted)).

 The combination of direct evidence at trial, in the form of Hilleren’s testimony, and the substantial circumstantial evidence suggesting appellant’s guilt, was sufficient to show that appellant and Hilleren agreed to manufacture methamphetamine on October 9, 1999, and performed an overt act in furtherance of that agreement.  Therefore, the jury could have reasonably concluded that appellant was guilty of conspiracy to manufacture methamphetamine in the first degree. 

II.         Single Behavioral Incident

A.         Multiple Convictions

Without citing any apposite authority, appellant briefly argues that he was improperly convicted of both conspiracy to manufacture methamphetamine and possession of methamphetamine because the convictions arose from the same behavioral incident.  Appellant’s contention has no merit.

Minn. Stat. § 609.04, subd. 1 (1998), provides that a person “may be convicted of either the crime charged or an included offense, but not both.”  An “included offense” may be a lesser degree of the same crime; an attempt to commit the crime charged; an attempt to commit a lesser degree of the same crime; or a crime necessarily proved if the crime charged were proved.  Id., subd. 1(1)-(4).  “[W]e must look at the statutory definitions rather than the facts in a particular case to determine if the lesser offense is necessarily included.”  State v. Lucas, 372 N.W.2d 731, 740 (Minn. 1985) (citations omitted).  If a person

can commit the charged offense without committing the lesser offense (because the lesser offense requires an additional element not needed to constitute the charged offense), then the lesser offense is not a necessarily included offense.   

 

Id. (citation omitted). 

            Here, in addition to conspiracy, appellant was also convicted of possession of methamphetamine.  Conspiracy to manufacture methamphetamine does not require possession of methamphetamine; rather, it merely requires an agreement between two or more individuals to manufacture methamphetamine and an overt act by one of the conspirators in furtherance of the conspiracy.  Appellant and Hilleren could conspire to manufacture methamphetamine without possessing methamphetamine.  Therefore, appellant could be convicted of both substantive offenses. 

            B.         Multiple Sentencing

Appellant also argues that there was not a sufficient break in time or place to permit separate punishment for his possession of methamphetamine on October 10 because that methamphetamine had allegedly been manufactured the night before on October 9.

Minn. Stat. § 609.035, subd. 1 (1998), provides:

[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 and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.

 

Minn. Stat. § 609.035, subd. 1, was intended “to broaden the protection afforded by our constitutional provisions against double jeopardy.”  State v. Johnson, 273 Minn. 394, 400, 141 N.W.2d 517, 522 (1966). 

Multiple punishment “refers not to multiple convictions but multiple sentences and any multiple sentences, including concurrent sentences, are barred if section 609.035 applies.” 

 

State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995) (quotation omitted).  Protection against double punishment in § 609.035 cannot be waived and appellant may raise this issue on appeal without having contested the issue at sentencing.  State v. Mendoza, 297 N.W.2d 286, 288 (Minn. 1980); State v. White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (1974).   

“[T]he prohibition against multiple punishment contained in Minn. Stat. § 609.035 applies only if the multiple offenses arose out of a single behavioral incident” and this determination “depends on the facts and circumstances of the particular case.”  Bookwalter, 541 N.W.2d at 294 (citations omitted).  To determine if two intentional offenses arose from a single behavioral incident, we must “consider the factors of time and place and whether a defendant is motivated by a single criminal objective in committing [the] two intentional crimes.”  Id.  The state must show that the underlying conduct was not part of a single behavioral incident.  State v. Clark, 486 N.W.2d 166, 171 (Minn. App. 1992).

            “Possession of two controlled substances at the same time and place, for personal use, constitutes a single behavioral incident.”  State v. Barnes, 618 N.W.2d 805, 813 (Minn. App. 2000) (citation omitted), review denied (Minn. Jan. 16, 2001).  Drug sales within a short period, however, may be separate behavioral incidents.  Id.

            Appellant was apprehended possessing methamphetamine approximately ten to twelve hours after he and Hilleren allegedly conspired to manufacture methamphetamine at the farm.  It is unclear whether the methamphetamine found in appellant’s Ram Charger was destined for later sale or appellant’s personal use.  It is also unclear whether the methamphetamine found in appellant’s Ram Charger was the same methamphetamine allegedly manufactured the night before.  Hilleren testified that he and appellant split the manufactured methamphetamine and used a portion of it before appellant left Hilleren’s apartment. 

Therefore, we conclude that based on the facts and circumstances of this case, appellant’s possession of methamphetamine on October 10 was motivated by a separate criminal objective apart from the conspiracy to manufacture methamphetamine the night before.  Consequently, the district court did not err by sentencing appellant for both convictions.

We have also reviewed and considered appellant’s pro se claims.  After a close examination of appellant’s claims, we have also concluded that they have no merit.

            Affirmed.



[1] As appellant notes in his pro se supplemental brief, the white powder later tested negative for controlled substances.