This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Sarah Ann Selix,
Filed December 31, 2002
Robert H. Schumacher, Judge
Norman J. Loren, Kanabec County Attorney, 18 North Vine Street, Suite 202, Mora, MN 55051 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Sarah Ann Selix appeals her conviction of conspiracy to sell methamphetamine, possession of methamphetamine, and child endangerment. Selix claims that evidence was improperly admitted at her trial, that an officer was improperly allowed to testify as to what amounts of methamphetamine are considered more than for personal use, and that the evidence presented at trial was insufficient to sustain the conspiracy conviction. Selix also claims that the jury was improperly instructed and that she was improperly sentenced. We affirm.
Between May and July of 2000, the Kanabec County Sheriff's Office and the Mora Police Department, as well as agents from other law enforcement agencies, investigated methamphetamine trafficking in Mora. The investigation focused on Jeff Carney, Sr., his wife Debra Carney, and their two sons, Jeff Carney, Jr. and Joshua Carney.
The undercover portion of the investigation began when Chisago County Deputy Sheriff Kris Scott made contact with Carney Jr. on June 8, 2000. Scott arranged to purchase methamphetamines from Carney Jr. the next day. During their telephone conversation Carney Jr. referred to his source as "she," referring to Selix.
The next day Scott met Carney Jr. and purchased .9 gram of methamphetamine. After the transaction, Scott gave the methamphetamine to Deputy Sheriff Tom Wachsmuth. The methamphetamine was then put into an evidence bag, marked by Wachsmuth, sealed, and locked in the evidence room at the Kanabec County Sheriff's Office. It remained in the evidence room until it was taken to the Bureau of Criminal Apprehension laboratory for testing.
Scott met Carney Jr. again on June 13, 2000, and purchased 1.1 grams of methamphetamine. During the transaction, Carney Jr. indicated that he was unable to obtain a larger amount of methamphetamine. He told Scott that "[Selix] can get it, but she" did not have any available.
Scott then gave the methamphetamine to Deputy Sheriff Steven Schulz. Schulz put the methamphetamine in the glove box of his squad car, locked the glove box, and locked his squad car in his garage. The next morning he gave the methamphetamine to Wachsmuth who placed it in an evidence bag and put it into an evidence locker where it remained until the Mora police requested it.
On June 15, 2000, Scott again arranged to purchase methamphetamine from Carney Jr. Carney Jr. told Scott over the phone, "I'll give [Selix] a call and see what I can do." Then Scott went to the Carney residence to buy methamphetamine. Carney Jr. indicated that he needed to go to a house near Fingerhut to pick up the methamphetamine. He then drove to Selix's house, which was located across the street from Fingerhut. When he arrived at the house, Selix told him that the methamphetamine was downstairs. He went downstairs and obtained methamphetamine from a person he knew as Karin. He then left the house and went back to the Carney residence. When he arrived, Scott purchased 4.2 grams of methamphetamine.
After the transaction, Scott gave the methamphetamine to Schulz. Schulz again put the methamphetamine in the glove box of his squad, locked the glove box, and locked the squad car in his garage. The following morning, Schulz gave the methamphetamine to Wachsmuth who put it in an evidence bag, filled out the evidence log, and placed it in the evidence room at the Kanabec County sheriff's office.
On July 6, 2000, Scott attempted to purchase another $600 worth of methamphetamine from Carney Jr. When Scott arrived at the Carney residence, he met with Carney Sr. who said he did not have any methamphetamine on hand. Carney Sr. and Debra Carney drove to Selix's house to get some methamphetamine for Scott but were unsuccessful. Scott and Carney Sr. attempted to obtain some later in the day at Selix's house but again were unsuccessful.
After the July 6 attempt to purchase methamphetamine, agent Michael Ardolf of the Bureau of Criminal Apprehension took Scott's place in the undercover aspects of the investigation. On July 12, 2000, Ardolf arranged to purchase methamphetamine from Carney Sr., who then called Selix to bring some methamphetamine to his house. Selix arrived at the house before Ardolf and waited in the bedroom with Debra Carney.
When Ardolf arrived, he gave $1,200 to Carney Sr., who then went into the bedroom where Selix was, took the methamphetamine she brought off the dresser, and put the money in its place. Selix then placed the money in a stuffed animal given to her by Debra Carney and left.
After Ardolf left the residence, he gave the methamphetamine to Wachsmuth who took the methamphetamine to the Kanabec County Sheriff's Office. He put it into an evidence container and placed it in the evidence room. The methamphetamine remained in the evidence room until it was turned over to the Mora police.
On July 20, 2000, Ardolf again went to the Carney residence to purchase methamphetamine. When he arrived, Ardolf gave $1,700 to Carney Jr. who then went to Selix’s house and obtained methamphetamine from Selix. He gave her $1,400 and kept $300 for himself. He then returned to the residence and gave the methamphetamine to Carney Sr., who then gave it to Ardolf.
Ardolf left the house and gave the methamphetamine to Schulz, who again put it in the glove box of his squad car and locked it in his garage. The next morning, he gave the methamphetamine to Wachsmuth who put it in an evidence bag, tagged the bag, and filled out an evidence sheet, and put it in the evidence room.
On July 27, 2000, Ardolf arranged with Carney Sr. to purchase more methamphetamine. When Ardolf arrived at the Carney residence, he gave Carney Jr. $1,700, and he left the house. Carney Jr. then went to Selix's house and was informed by her that she would try to get some methamphetamine. After several hours of waiting for Carney Jr. to return, Ardolf left the Carney's home without any methamphetamine.
On July 28, 2000, searches pursuant to warrant were conducted at the Carney and Selix residences. The search revealed a small plastic bag in the kitchen freezer of Selix's house containing a powder that field-tested positive for methamphetamine. The BCA laboratory analysis later determined it to be 2.8 grams of methamphetamine. None of the money used in the investigation was found at Selix's residence. Selix's children were present at the time of the search.
All the evidence that was collected throughout the investigation was transferred to the Mora police department, where it was inventoried and put in the evidence locker. It was then transferred to the BCA for analysis. Approximately two months later, the evidence was returned to the Mora police through certified mail.
Selix was charged with conspiracy to commit controlled substance crime in the first degree, two counts of controlled substance crime in the first-degree-sale, controlled substance crime in the second-degree-sale, controlled substance crime in the third-degree-sale, and child endangerment.
During a pretrial conference, Selix waived any challenge that the substance obtained by police during their investigation was methamphetamine. Selix objected to the chain of custody of the evidence. Selix did not make a request to have the lab analyst present to testify under Minn. Stat. § 634.15 (2002). The court ruled that the state needed to lay foundation for the chain of custody of the methamphetamine until it was transported to the lab.
At trial, all of the methamphetamine from the investigation was introduced and received as evidence. One of the officers was allowed to testify that any amount of methamphetamine over 1.75 grams indicated more than personal use.
Selix was convicted on all counts except one of the first-degree and the third-degree sale of controlled substances crimes. She was sentenced concurrently on all counts.
1. Selix claims she was denied her constitutional right to confrontation when the district court ruled that pursuant to Minn. Stat. § 634.15, the state did not have to call the BCA analyst to authenticate the lab report on the methamphetamine. This court will generally not consider matters not argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).
Selix waived her constitutional challenge to Minn. Stat. § 634.15. During a pretrial motion, Selix's attorney specifically waived any objection that the substances seized were methamphetamines. Therefore, we need not address the issue here.
2. Next, Selix argues that the district court improperly admitted methamphetamine obtained during the investigation that was kept in an officer's squad car overnight before being placed into an evidence locker.
A trial court's admission of physical evidence will be affirmed unless it constitutes an abuse of discretion. State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985).
State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976). Admissibility does not depend on the prosecution "negativing all possibility of tampering or substitution," but rather only that it is "reasonably probable that tampering or substitution did not occur." Id. at 505, 239 N.W.2d at 242. While contrary speculation may affect the weight that the fact finder accords the evidence, it does not affect its admissibility. Id., 239 N.W.2d at 242.
In this case, the methamphetamine was locked in an officer's squad car in a locked garage overnight. There was no suggestion made that there was any tampering with the methamphetamine. Selix also claims that the Bureau's report identifying the contents of the evidence did not properly identify the evidence analyzed as that seized during the investigation. At trial, however, a witness testified to the correlation between the analyst's report and the evidence seized. The state also established that the evidence went from the lab back to the police evidence locker and then into court. The chain of custody of the evidence was established. The district court did not abuse its discretion in admitting the evidence.
3. Selix argues that there was insufficient evidence to sustain the conspiracy charge because there was no agreement between the Carneys and her to sell methamphetamine. She claims that she merely made individual sales to the Carneys and did not concern herself with what they did with the methamphetamine once they received it.
In considering a claim of insufficient evidence, this court's 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). The reviewing 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). The reviewing 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 the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Minn. Stat. § 609.175, subd. 2 (2002) defines conspiracy to commit a crime as:
Whoever 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 * * *.
Thus, "[c]onspiracy requires a collective criminal agreement to commit a crime and an overt act in furtherance of the agreement." In re Welfare of D.W.O., 594 N.W.2d 207, 210 (Minn. App. 1999) (quotation omitted). A formal agreement is not required for a conspiracy; the agreement may be inferred from the conduct of the defendant and actions of co-conspirators who act "in concert." American Tobacco Co. v. United States, 328 U.S. 781, 809-10, 66 S. Ct. 1125, 1139 (1946).
In viewing the evidence in the light most favorable to the conviction, the evidence was sufficient to sustain a conviction for conspiracy. Every time the undercover officers attempted to purchase methamphetamine from the Carneys, the Carneys would obtain it from Selix. On one occasion Selix brought the methamphetamine to the Carneys' residence and waited for the undercover officer to arrive with the money. Selix then took the money, put it in a stuffed animal, and left.
On another occasion, Carney Jr. went to Selix's house to purchase methamphetamine for an undercover officer. The officer had given Carney Jr. $1,700. When he arrived at Selix's house, Carney Jr. paid her $1,400 and kept $300 for himself. This shows an understanding that Selix would supply the drugs for Carney Jr. to sell. The times when Selix did not have methamphetamine on hand she would tell the Carneys that she could get it for them soon, and the Carneys would not look elsewhere to obtain more methamphetamine. This indicates an exclusive arrangement between the Carneys and Selix. Such an arrangement is sufficient to support a conspiracy conviction.
4. Selix argues that Ardolf's testimony in regards to what amount of methamphetamine suggests an intent to sell was not helpful to the jury. She also argues that Ardolf was not qualified to give such an opinion.
The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion.
State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation and citations omitted); see also State v. Grecinger, 569 N.W.2d 189, 194 (Minn.1997) (holding reversal requires "apparent error").
Admissibility of expert testimony is governed by Minn. R. Evid. 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Minn. R. Evid. 702. Rule 702's basic requirement is helpfulness. State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).
A primary consideration in determining whether a defendant has the required intent to sell a controlled substance is the quantity of the substance seized. State v. White, 332 N.W.2d 910, 912 (Minn. 1983). An expert witness may give testimony on the ultimate issue that the factfinder must decide. State v. Langley, 354 N.W.2d 389, 401 (Minn.1984); Minn. R. Evid. 704. The primary criterion for admissibility is whether the opinion testimony would be helpful to the finder of fact. State v. Saldana, 324 N.W.2d 227, 230 (Minn.1982).
At trial, Ardolf testified that an amount in excess of 1.75 grams of methamphetamine is more than is considered for personal use. Police recovered 2.8 grams of methamphetamine from Selix. The district court did not abuse its discretion in determining that Ardolf could testify regarding the amounts of methamphetamine that he considered was beyond the amount normally found for personal use. Such a determination would be helpful to the trier of fact.
Ardolf was an expert qualified to give such an opinion. At the time of trial, Ardolf had been a narcotics agent with the BCA for two years. He had been a narcotics officer with the St. Paul police for over four years. During that time, Ardolf had worked on between 200 and 300 narcotics investigations and had attended various narcotic training courses. We agree with the district court that this experience qualified Ardolf to give his opinion as to what constituted an amount of methamphetamine usually kept for personal use.
5. Selix also argues that the jury was wrongly instructed regarding accomplice testimony and regarding the child endangerment charge. District courts are allowed "considerable latitude" in the selection of language for the jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).
An instruction is in error if it materially misstates the law. Furthermore, it is well settled that the court's instructions must define the crime charged. In accordance with this, it is desirable for the court to explain the elements of the offense rather than simply to read statutes.
State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted).
Selix argues that the trial court erred in failing to give a jury instruction stating that she could not be convicted solely on uncorroborated accomplice testimony. 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) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)).
A defendant may not be convicted solely on the uncorroborated testimony of an accomplice. State v. Henderson, 620 N.W.2d 688, 700 (Minn. 2001). Minn. Stat. § 634.04 (2002) states that
[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
An accomplice instruction "'must be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime.'" Henderson, 620 N.W.2d at 700 (quotation omitted). There seems to be no dispute that the Carneys were accomplices to the crime in this case. Thus, the district court was required to give a jury instruction regarding accomplice testimony.
Even though the court erred in failing to give the instruction, this court must consider whether the error was harmless. A new trial is required if the error is prejudicial but is not required if the error is deemed harmless. State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989). In determining whether the error is harmless, a mere review of whether corroborating evidence was presented is insufficient; rather, the focus must be "upon the impact of the error on the verdict." Id. at 481. If, after consideration of the record and all other factors, it can be concluded that the jury may have been prompted to reach a harsher verdict than it might have otherwise if the instruction was given, then appellant must be given a new trial. Id. If it is determined beyond a reasonable doubt that the omission did not have a significant impact on the verdict, however, reversal is not warranted. Id.
In this case, the Carneys’ testimony was corroborated with recorded conversations between the Carneys and the undercover police officers. The officers also testified as to what they saw and heard when they were with the Carneys and Selix. With all of the evidence that was presented against Selix, it does not appear that the failure to give the instruction had a significant impact on the verdict, and reversal is not necessary on this issue.
Selix also argues that the district court erred in not instructing the jury on the elements of the child endangerment charge against her. Selix claims that the jury was never instructed to determine whether the predicate crimes had been proven. Selix never objected to the lack of such an instruction at trial. This court will generally not consider matters not argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Because Selix never raised the issue at trial we decline to address it on appeal.
6. Finally, Selix argues that the district court improperly sentenced her for the sale of illegal substances, conspiracy, and child endangerment. Selix claims that the sale charge and the child endangerment charge were part of the conspiracy and therefore should only be considered as part of the conspiracy and not as separate crimes.
Minnesota law prohibits the imposition of multiple sentences, including concurrent sentences, arising from a single behavioral incident. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn.1995). "Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of [a] particular case." Id. at 294. Such a factual determination will not be reversed on appeal unless clearly erroneous. State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996) (citing Ettinger v. State, 380 N.W.2d 483, 489 (Minn. 1986)), review denied (Minn. Dec. 17, 1996). To determine whether multiple offenses arose from a single behavioral incident, this court examines whether they were motivated by a single criminal objective and whether they were unified in time and place. Bookwalter, 541 N.W.2d at 293.
In this case, it appears that the conspiracy between Selix and the Carneys to sell methamphetamine can be separated from the overt act of child endangerment and possession and sale of methamphetamine. Although the acts may have been out of a single plan to earn profit, "the criminal plan of obtaining as much money as possible" does not constitute a single criminal objective. State v. Soto, 562 N.W.2d 299, 304 (Minn.1997). Selix’s sales of methamphetamine took place on different days, at different locations, and are separate crimes from conspiracy itself. See Minn. Stat. § 609.175 (2002). The district court did not abuse its discretion in sentencing Selix to concurrent sentences.