This opinion will be unpublished and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

CX-02-662

 

 

State of Minnesota,

Respondent,

 

vs.

 

Curtis Jerome Robinson,

Appellant.

 

 

Filed January 7, 2003

Affirmed

Robert H. Schumacher, Judge

 

Stearns County District Court

File No. K1011872

 

 

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

 

Roger S. Van Heel, Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56302 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Curtis Jerome Robinson contends the evidence at trial was insufficient to support his conviction for second-degree controlled substance crime because the informant's testimony that Robinson sold her crack cocaine was not sufficiently corroborated. We affirm.

FACTS

On September 11, 2000, a female informant contacted Officer Steven Soyka of the Stearns County Sheriff's Department with information regarding Robinson. The informant said that Robinson was selling crack cocaine in Southside Park in St. Cloud. The informant conceded at trial that she was supplying information to the police in return for leniency with respect to her own prior arrest for drug possession. The informant testified that she had agreed to supply information out of a concern that the police would take her children from her if she did not cooperate.

Soyka met with the informant and arranged for her to purchase drugs from Robinson. The informant did not know Robinson's actual name and referred to him as "Pep," a street name. Soyka searched the informant and found no drugs or money on her. He then gave her $100. The informant was outfitted with a wireless transmitter and Soyka drove her to Southside Park. He watched the informant walk into the park; then he parked near some apartments adjacent to the park. Three other officers were stationed in the area to keep the informant under surveillance. The informant walked across the park and met Robinson in a parked car.

The informant testified that when she entered the vehicle, a bag containing crack cocaine was on the center console. She took the bag and left the money in its place. The transmitter did not pick up the conversation clearly. Soyka testified that this was not uncommon. The informant returned to the area where Soyka had dropped her off and immediately gave him the bag containing the crack cocaine. Soyka brought the informant back to the police station and interviewed her about the drug purchase.

On October 16, 2000, Soyka contacted the informant to make a photo identification. The informant picked Robinson out of a six-person photo array. On May 2, 2001, Robinson was charged with controlled-substance crime in the second degree for sale of crack cocaine in a park zone.

At trial, Soyka testified to his observations regarding the drug purchase. He conceded that he had not actually witnessed the drug purchase. The informant testified and identified Robinson at trial as the person who had sold her the crack cocaine. The defense cross-examined the informant regarding her agreement with the sheriff's department to work as an informant following her own arrest on drug charges. The informant also was cross-examined regarding her own drug use. The jury found Robinson guilty. He was sentenced to 78 months, the presumptive sentence under the sentencing guidelines.

D E C I S I O N

Robinson contends the evidence at trial was insufficient as a matter of law to support his conviction for the second-degree controlled substance offense. When 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, was sufficient to allow the jurors to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state's evidence and did not believe evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

The informant's testimony and additional evidence at trial were sufficient to sustain Robinson's conviction. He essentially concedes this but argues instead for the creation of a new rule of law regarding informant testimony. Robinson argues that the informant's testimony is inherently suspect and therefore inherently unreliable. Robinson equates this testimony to that of an accomplice, for which corroboration is required to sustain a conviction. State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995)

Robinson cites to case law from other jurisdictions arguably supporting this rule of law. See People v. Perkins, 186 N.E.2d 330, 332 (Ill. 1962); People v. Huffman, 532 N.E.2d 556, 562 (Ill. Ct. App. 1988); State v. Johnson, 627 N.W.2d 753, 763 (Neb. 2001). Minnesota has not adopted such a requirement on informant testimony. We believe that any such requirement would emanate most appropriately from the supreme court, and we decline to adopt it here.

Moreover, even with cases involving accomplice testimony requiring corroboration, circumstantial evidence can provide the corroboration required. Bowles, 530 N.W.2d at 532. In the case at bar, the officer's testimony regarding his observations, although somewhat limited, provides significant corroboration by way of circumstantial evidence supporting the informant's testimony and the elements of Robinson's crime. Thus, even if corroboration comparable with that which is required with accomplice testimony were required with respect to this informant's testimony, such corroboration exists here.

Robinson claims the informant's bias renders her testimony insufficient to sustain a conviction. The informant's bias was brought out on cross-examination and Robinson's attorney argued in closing that the informant's testimony was not credible and asked the jury to disregard it. The weight to be given the informant's testimony was for the jury to determine. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Under the applicable standard of review, we must assume that the jury believed the informant's testimony.

In his supplemental pro se brief, Robinson argues an entrapment defense for the first time on appeal. Robinson waived this defense by failing to properly raise it in the district court. Minn. R. Crim. P. 9.02. Even if we were to consider it here, we believe it is without merit. In order to successfully establish an entrapment defense, Robinson cannot merely show that the government initiated the contact or solicited the crime. State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985). Instead, Robinson must demonstrate "by a fair preponderance of the evidence that a government actor initiated the criminal idea." State v. Oanes, 543 N.W.2d 658, 664 (Minn. App. 1996) (citation omitted). Robinson did not make such a showing at trial. Accordingly, the entrapment claim is without merit.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.