This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Kamal Mustafa Fahim,
St. Louis County District Court
File No. K101600324
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103-2106; and
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN† 55802 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN †55414 (for appellant)
††††††††††† Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.
U N P U B L I S H E D†† O P I N I O N
In this appeal from a conviction of fifth-degree controlled-substance crime in violation of Minn. Stat. ß 152.025, subds. 1(1), (3) (2000) (sale of marijuana), appellant Kamal Mustafa Fahim argues that the evidence is insufficient to support his conviction.†† We affirm.
††††††††††† Fahimís conviction arose out of the discovery of marijuana in the possession of Janice Johnson, a resident of an adult foster-care facility operated by Traumatic Brain Injury Residential Community Services (TBIRCS).† TBIRCS had an arrangement with One Stop Car Wash, under which TBIRCS provided a manager for the car wash and employees to work at the car wash.† Michael Byrne, a TBIRCS employee, worked as the manager at One Stop and supervised the TBIRCS residents working there.† On two occasions before January 10, 2001, TBIRCS staff found marijuana in Johnsonís possession.
††††††††††† On January 10, 2001, Johnson and two or three other TBIRCS residents were working at the car wash.† Johnsonís job assignment was to spray the cars as they entered the car wash.† Byrne testified that at one point, Johnson left her post and approached a silver Cadillac waiting in line to enter the wash and spoke to the driver for about two minutes.† Byrne directed Johnson to return to her post.† Byrne testified that Johnsonís behavior made him suspicious, so he instructed another staff person, Eric Sundquist, to sit inside the spraying area and watch Johnson.† From the doorway of the spraying area, Byrne saw Johnson making a head gesture, shaking her head ďno,Ē towards the Cadillacís driver, the only person in the car, before she began spraying it.
††††††††††† Sundquist saw Johnson leave the spraying area and run around the building to the area where cars exit from the car wash onto the street.† Sundquist reported this to Byrne.† Byrne testified that he watched Johnson re-enter the car wash through the exit area.† Byrne described Johnsonís behavior as very unusual because she was assigned to spray cars and there were cars lined up and waiting in the spray area.† Byrne watched Johnson approach the Cadillac while it was in the drying area and talk to the driver.† Byrne testified that Johnson leaned her elbow on the carís open window and looked back and forth from the driver to Byrne and then to Sundquist.† Bryne saw Johnson lean over and drop her arm into the Cadillac and then raise it up and hold it tightly to her chest.† As Johnson walked by Byrne, she slid her arm down her body toward her pocket.† Byrne and Sundquist each grabbed one of Johnsonís arms and found three bags containing marijuana in her hand.
††††††††††† Byrne called 911 and reported the Cadillacís license number to the dispatcher.† Police stopped the Cadillac about 18 blocks from the car wash.† Fahim was driving, and Byrne identified Fahim as the person who had been in the Cadillac at the car wash.† Police did not find any drugs or cash on Fahimís person or in the Cadillac.
††††††††††† Officer Donald Boso interviewed Fahim and Johnson.† Johnson told Boso that she had purchased the marijuana for herself and two other individuals and paid $60 for the three bags, $20 of her own money and $40 that she had received from the other two people.† Johnson told Boso that she had paid for the marijuana two days earlier.† Fahim admitted to Boso that he had been at the car wash but denied knowing anything about a drug transaction.
††††††††††† Johnson testified at trial that she noticed Fahim at the car wash on January 10 because he was smoking a marijuana cigar.† She asked him if he could get marijuana for her, and he said that he could.† At one point, Johnson denied knowing Fahim before she saw him at the car wash on January 10 and testified that she paid him the $60 on that day.† But Johnson also testified that she had asked Fahim to get her marijuana sometime before January 10 and that she had paid him the $60 on January 8.† Johnson testified that when Fahimís car was at the end of the car wash, she approached it and asked for the marijuana.† Johnson told Fahim to hurry because staff people were watching her.† Johnson told Fahim to put the marijuana down her shirt.† When he did not do so, she quickly put her hands in the car, grabbed the marijuana, and walked away.
††††††††††† Fahim was charged by complaint with one count of fifth-degree controlled-substance crime in violation of Minn. Stat. ß 152.025, subds. 1(1), (3) (2000) (sale of marijuana).† The case was tried to a jury, which found Fahim guilty as charged.†
††††††††††† In considering a claim of insufficient evidence, this courtís 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 reached.† State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).† This court must assume that the jury believed the stateís witnesses and disbelieved any contrary evidence.† State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).† This court 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).
Inconsistencies in the stateís case or 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).
Minn. Stat. ß 152.025, subd. 1(1) (2000), states:
A person is guilty of controlled substance crime in the fifth degree if:
††††††††††† (1) the person unlawfully sells one or more mixtures containing marijuana or Tetrahydrocannabinols, except a small amount of marijuana for no remuneration[.]
Minn. Stat. ß 152.01, subd. 15a (2000), defines ďsellĒ as
††††††††††† (1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or
††††††††††† (2) to offer or agree to perform an act listed in clause (1); or
††††††††††† (3) to possess with intent to perform an act listed in clause (1).
This case involved 6.6 grams of marijuana, which is a small amount, so the state had to prove that Fahim received remuneration for the marijuana.† See id., subd. 16 (2000) (defining a small amount of marijuana as 42.5 grams or less).
††††††††††† Although Fahimís conviction is not based entirely on circumstantial evidence (it is based also on Johnsonís testimony, which was corroborated by circumstantial evidence), Fahim argues that the stricter standard of review applicable to convictions based entirely on circumstantial evidence should be applied in this case because inconsistencies in Johnsonís testimony made it wholly incredible.† Fahim also cites Johnsonís brain injury and her admission that she lies when she perceives herself to be in trouble as casting doubt on Johnsonís credibility.†
Johnson testified that she did not know Fahim before she saw him at the car wash on January 10, but she also testified that she asked him to get her marijuana sometime before then and that she paid him $60 for marijuana on January 8.† There were, however, no inconsistencies in Johnsonís testimony that she received marijuana from Fahim at the car wash on January 10 or her testimony about how the exchange took place, and Byrneís observations corroborated Johnsonís testimony about how the exchange took place.† Johnson also consistently testified that she paid $60 for the marijuana, $20 for herself and $20 for each of two friends, and her testimony on that issue was consistent with her statement to Boso.† Minor inconsistencies in a witnessís testimony do not deprive a verdict of sufficient support if the testimony, taken as a whole, is consistent and credible. State v. Higgins, 422 N.W.2d 277, 281 (Minn. App. 1988); see also State v. Porter, 411 N.W.2d 187, 191 (Minn. App. 1987) (upholding verdict based on the testimony of a single witness despite minor inconsistencies in her testimony).
††††††††††† The jury had the opportunity to evaluate the credibility of Johnsonís testimony that she bought marijuana from Fahim in light of the inconsistencies in her testimony, the evidence about her brain injury, and her admission that she lies when she perceives herself to be in trouble.† The inconsistencies in Johnsonís testimony and the other factors tending to cast doubt on her credibility do not make her testimony incredible as a matter of law.† Compare State v. Guy, 409 N.W.2d 248, 251 (Minn. App. 1987) (discounting testimony when it was incoherent and, at times, nonresponsive to questioning and witness confused his watch with a shoe and had difficulty naming members of his own family).†
††††††††††† The evidence is sufficient to support Fahimís conviction.