This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Ramsey County District Court
File No. K8012976
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Sydnee Nicole Woods, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, Minnesota Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge, Lansing, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
This is an appeal from a conviction of a third-degree controlled-substance crime. Appellant argues that the evidence was insufficient to prove that he sold crack cocaine to undercover police officers. Because we conclude the evidence is sufficient, we affirm.
This case is about two versions of an event involving crack cocaine that occurred on the evening of August 21, 2001, in St. Paul’s Frogtown neighborhood. One account of that evening is Randy Quilling’s version. The other account is based on testimony that was primarily given by one of the two undercover St. Paul police officers directly involved in the incident. The jury heard both versions, found the police version more credible, and found Quilling guilty of selling crack cocaine.
On August 21, 2001, Officers Slagle and Zebro of the St. Paul Police Department were working undercover in Frogtown due to citizen complaints of street-level narcotics sales. They were dressed in plain clothes, driving an unmarked car, and attempting to buy narcotics. Several other officers kept visual and auditory surveillance on them for safety purposes. An arrest van with uniformed officers was also nearby.
The undercover officers drove slowly, trying to make contact with drug dealers. At trial, Officer Slagle testified that typically drug dealers attract attention with a nod, a whistle, or a wave and that on that evening Quilling waved them over. The officers pulled over to the side of the street where they saw Quilling standing with a man in a wheelchair. At that point, the officers gave their location and a complete description of Quilling to the surveillance team. Officer Slagle testified that Quilling got into the back seat of the car before anything was said. Officer Slagle added that this is typical behavior for people selling drugs:
They want to get in the car and get moving so that the patrol squads working the area will not be tipped off to what’s going on.
Slagle added that while in the back seat, Quilling told the officers that he could get them better dope than the man in the wheelchair could get them. Slagle observed that the man in the wheelchair was trying to come along, but that since Quilling had waved them over, they focused the investigation on him.
According to Slagle’s testimony, the officers told Quilling they were looking for a “20,” which is a pea-sized, $20 rock of crack cocaine. Quilling told the officers he could get a “20” and directed them to drive about a block, drop him off, and then wait for him to return, which they did. The officers gave Quilling a $20 bill and took his keys as collateral.
Officer Slagle testified that Quilling walked away and returned a short time later. He then got back into the back seat of the car and handed Officer Zebro what the officers assumed was a rock of crack cocaine. Quilling then directed the officers to drive him a few blocks. The officers dropped Quilling off, he walked south, and the officers drove away. The officers then gave their location, another description of Quilling, which direction he was headed, and the “bust signal” to the surveillance team and the arrest van.
Officer Lehner was one of the uniformed officers in the arrest van. He testified that following the bust signal, the officers located Quilling and arrested him. Officers Slagle and Zebro then went to the arrest location to make certain that Lehner and his team had arrested the correct man. At the end of his shift, Slagle secured the crack cocaine they obtained from Quilling in an evidence locker. He testified that he filed a report of the incident shortly afterwards.
When Quilling testified, he admitted to four prior drug-related offenses and admitted that he has a problem with crack cocaine. Quilling stated that on the night of August 21, 2001, he was in Frogtown pushing a man in a wheelchair when a brown car pulled up and one of the men inside asked the man in the wheelchair if he had any dope. Quilling testified that the man in the wheelchair told the officers that he sold dope and asked them what they wanted. The officers responded that they wanted a “20.” At that point, according to Quilling, two other men walked toward them calling Quilling a snitch; so Quilling asked the officers if he could get a ride and got into the back seat. The officers then asked Quilling if he knew where they could get some dope, and Quilling said that he did and told the officers he had five dollars to contribute to the purchase. Quilling testified that the officers did not give him any money, so he got some crack cocaine out of his pocket and was going to smoke it with the officers. Quilling testified that when he saw the officers exchange looks, he realized they were police officers and asked them to drop him off at the corner. According to his testimony, Quilling exited the car and left the crack cocaine on the back seat.
On cross-examination, Quilling denied waving down the officers and stated that it was the man in the wheelchair who insisted on making the sale. When asked if he gave the officers his keys, Quilling stated that he gave the officers his keys because he thought they were going to give him some money so he could go get them a “20.” When the officers failed to give him the money, he was going to share the crack that he had in his pocket with the officers. He stated, “I figure to share my high with them, that’s more high for me.” He also stated that although he was high that night, his memory of the events on August 21, 2001, was unclouded.
After deliberating for one hour and 15 minutes, the jury came back with a guilty verdict. Quilling was sentenced to serve a 33-month prison term, with a minimum incarceration time of 22 months and a maximum supervised-release term of 11 months, and was fined $500 under Minn. Stat. § 152.023, subd. 3(a) (2000). Quilling appeals, arguing there was insufficient evidence to show that he sold crack cocaine to the undercover officers.
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 they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The dispositive consideration is not whether reasonable doubt existed, but “whether there was sufficient evidence for a jury to reasonably conclude that no reasonable doubt existed.” State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Kelbel, 648 N.W.2d 690, 703 (Minn. 2002); 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).
Quilling was found guilty of selling crack cocaine, a controlled-substance crime in the third degree, in violation of Minn. Stat. § 152.023, subd. 1(1) (2000), which states that a person is guilty of that crime “if the person unlawfully sells one or more mixtures containing a narcotic drug.” Id. Quilling concedes that the state’s evidence proved beyond a reasonable doubt that he was in possession “of a small amount of crack cocaine.” The state also established that Quilling was a crack addict and had crack in his possession at some point while he was in the unmarked car.
The only element that Quilling argues the state did not prove beyond a reasonable doubt was that he sold the crack cocaine. The statute defines “sell” in relevant part as “to sell, give away, barter, deliver, exchange, distribute or dispose of to another.” Minn. Stat. § 152.01, subd. 15a (1) (2000). Officer Slagle testified that when he pulled over to the side of the street, Quilling got into the back seat of the car and said that he knew where to get a “20.” Quilling then took the $20 the officers gave him and returned with crack cocaine. Quilling testified that when he got into the car with the officers, he told them that he knew where he could get a “20,” but that when the officers did not give him any money, he decided to share the crack cocaine he had in his pocket with them. The jury apparently found Officer Slagle’s testimony more credible and that Quilling sold the officers crack cocaine. See State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998) (holding that it is the jury that determines the weight and credibility to be assigned to the testimony of individual witnesses).
Quilling argues that Officer Slagle’s testimony on cross-examination showed that his testimony on direct examination and his written report of the incident were incomplete and that this cast substantial doubt on Officer Slagle’s credibility. Specifically, Quilling refers to the fact that Slagle did not mention the man in the wheelchair on direct examination or in his report and did not mention that Quilling stated he could obtain better drugs than the man in the wheelchair could.
Minor inconsistencies in a witness's testimony, however, 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). In addition, “[a] jury, as the sole judge of credibility, is free to accept part and reject part of a witness’ testimony.” State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977) (citing Kmetz v. Johnson, 261 Minn. 395, 398, 113 N.W.2d 96, 98 (1962)); see also State v Stevens, 248 Minn. 309, 313, 80 N.W.2d 22, 26 (1956) (“[I]f the jurors believe that a witness has knowingly and willfully testified falsely as to a material fact, * * * they may believe or disbelieve his testimony as to other facts as they deem it worthy or unworthy of belief.”).
Here the inconsistencies in Officer Slagle’s testimony are minor and were not sufficient to make it unreasonable for the jurors to reach the verdict they did. We therefore affirm the conviction.