This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Anthony Mathias Theobald, Jr.,



Filed March 11, 2003


Harten, Judge


Martin County District Court

File No. K4-01-502


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


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


Terry W. Viesselman, Martin County Attorney, 923 North State Street, Suite 130, Fairmont, MN 56031 (for respondent)


            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant Anthony Theobald was convicted of conspiracy to manufacture methamphetamine.  He appeals, claiming that the evidence presented at trial was insufficient to support his conviction.  He also claims that the prosecutor committed misconduct during closing arguments.  Finally, he claims that the prosecutor improperly presented evidence of society’s methamphetamine concerns.  Because we conclude that the evidence was sufficient to support the verdict and that the prosecutor committed no misconduct, we affirm.  



Nathan Moore met appellant at a drug and alcohol outpatient treatment center.  In June or July of 2001, appellant asked Moore if Moore could get him some anhydrous ammonia (anhydrous) to make methamphetamine.  Moore worked at a grain and fertilizer service; anhydrous is commonly used for a fertilizer, but is also used to manufacture methamphetamine.  Over the next couple of weeks appellant contacted Moore, attempting to obtain anhydrous.  Moore neither consented nor refused; he did not want to get involved with drugs. 

            Moore told the Martin County Sheriff’s department that appellant was trying to procure anhydrous from him and agreed to act as an informant.  After several more telephone calls, Moore agreed to supply appellant with anhydrous in a thermos container.  Moore testified that he was to receive some of the methamphetamine product for supplying the anhydrous.  At all times material, appellant claimed to be ready to make methamphetamine—all he needed was the anhydrous. 

            On 20 July 2001, Moore, accompanied by an undercover officer posing as his girlfriend, delivered a thermos of fake anhydrous to appellant at his house.  When appellant received the thermos, he asked if it was “stinking yet.”[1]  Shortly after Moore and the undercover officer left appellant’s house, the police emergency response unit arrived there to execute a search warrant.  Appellant claimed that the cooler with the thermos of bogus anhydrous had beer in it and that there were no precursors or drugs in the house.  The officers searched the house and did not find a methamphetamine lab or any other ingredients for making methamphetamine, but found numerous items of drug paraphernalia.  Appellant admitted that those items were his.

Appellant was charged with conspiracy to manufacture methamphetamine, attempt to manufacture methamphetamine, and possession of drug paraphernalia.  Following a jury trial, he was acquitted of the attempt to manufacture but convicted of conspiracy and possession of paraphernalia.  The district court sentenced appellant to 122 months in prison for the conspiracy conviction.  This appeal followed.


1.         Sufficiency of the Evidence

            Appellant challenges his conviction for conspiracy to manufacture methamphetamine, claiming that the evidence does not support a conspiracy relationship with Moore and that any agreement was merely a sales transaction. 

In 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, would allow the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We 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).  And 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).

For a jury to find a person guilty of conspiracy to manufacture methamphetamine, the state must prove that the person entered into an agreement with another to manufacture methamphetamine and that there was an overt act in furtherance of the conspiracy.  Minn. Stat. §§ 152.096, subd. 1, 152.021, subd. 2a, 609.175, subd. 2 (2000);  See State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980).

Proof of a formal agreement to commit a crime is not required for a conspiracy conviction.  In addition, the agreement required for a conspiracy need not be proved through evidence of a subjective meeting of the minds, but must be shown by evidence that objectively indicates an agreement.


State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002) (citations omitted). 

Appellant claims that his relationship with Moore was simply that of a buyer-seller and was insufficient to support a conspiracy conviction.  See State v. Pinkerton, 628 N.W.2d 159, 164 (Minn. App. 2001) (an agreement solely between a seller and a buyer of controlled substances cannot constitute a conspiracy), review denied (Minn. 24 July 2001).  Here, the evidence shows that Moore’s relationship with appellant was more than that of buyer-seller because Moore was to furnish a necessary precursor for the manufactured product.  The anhydrous was provided with the understanding that appellant would use the anhydrous to manufacture methamphetamine and Moore would receive some of the methamphetamine produced.  Moore was to be an integral part of the manufacturing operation.  Viewing these facts in the light most favorable to the conviction, the evidence was sufficient to support appellant's conspiracy conviction. 

2.         Prosecutorial Misconduct

Appellant claims that the prosecutor committed misconduct in his closing argument to the jury by improperly vouching for a state’s witness and by improperly attempting to shift the burden of proof.  The appellant also asserts that the prosecutor committed misconduct by improperly presenting evidence of society’s general concern about the methamphetamine problem, which distracted the jury from focusing on the case before it.

 A district court’s denial of a new trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citations omitted).  “When assessing prosecutorial misconduct, the closing argument will be considered as a whole.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citation omitted).  In cases involving “unusually serious prosecutorial misconduct,” the reviewing court must be certain beyond a reasonable doubt that the misconduct was harmless before it will affirm; in cases involving less serious prosecutorial misconduct, the test on review is “whether the misconduct likely played a substantial part in influencing the jury to convict.”  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

A.        Closing Argument

            Appellant claims that the prosecutor committed misconduct during closing argument by stating:

Now, there has been some talk about Mr. Moore’s motivation.  He told you he doesn’t have anything to gain by testifying about [appellant] getting convicted.  * * *  He ha[d] no motivation to lie, ladies and gentlemen.  He’s telling the truth and he was pretty sure * * * what [appellant] was talking about.  * * *  People’s words show intent.  [Appellant] thinks he can get up on the stand and give some story about trash talk and that should be enough to acquit him.  No, ladies and gentlemen, no.  Freedom and liberty is important so follow the law and the law will show when taken in context of evidence presented here today that [appellant] is guilty on the charges, on all charges beyond a reasonable doubt. 


Appellant claims that this statement improperly shifted the state’s burden of proof to appellant and constituted improper vouching for the veracity of the state’s witness. 

“A prosecutor engages in misconduct if he expresses his personal opinion on the defendant’s credibility as a witness.”  Powers, 654 N.W.2d at 679 (citation omitted).  It is also misconduct for a prosecutor to disparage the defense.  Id.   And a prosecutor may not express a personal opinion about the witnesses’ credibility.  See State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995) (prosecutor may not personally endorse credibility of witnesses).  But a prosecutor may argue that the state’s witnesses were worthy of credibility.  State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977).

Here, we conclude that the prosecutor’s comments did not reach the level of misconduct.  The prosecutor’s closing comments, when taken in context, merely urged that the state’s witnesses were worthy of credibility.  Although inappropriately phrased, this argument was not misconduct and it did not improperly tend to vouch for a witness’s credibility or shift the burden of proof.

            B.        Societal Methamphetamine Problem

            Appellant claims that the prosecutor committed misconduct by alarming the jury about society’s methamphetamine problem in an attempt to “tarnish appellant with guilt by association.”  Thus, appellant claims that the prosecutor committed misconduct in his questioning a task force officer as follows:

Prosecutor:    Do you have any experience in dealing with [methamphetamine]?


Officer:          Yes.


Prosecutor:    How much?


Officer:          I guess quite a bit.  In the last two years our [methamphetamine] cases that we investigate involve hours and [have] increased dramatically in the last couple years.


Prosecutor:    So you have had some experience prior to [this investigation]?


Officer:          Yes, since being with the task force.

Appellant also points to the following exchange with a special agent with the Drug Enforcement Administration:

Prosecutor:    Does a person need to have a chemical background to make [methamphetamine]? 


Agent:             Not necessarily.

Prosecutor:    To your knowledge has methamphetamine actually been produced in the state of Minnesota?


Agent:             Yes.


Prosecutor:    How widespread is the project?


Agent:             During the calendar year 2001 approximately 236 [methamphetamine] labs were seized in Minnesota.


Prosecutor:    How many in 2000?


Agent:             I believe it was a hundred and thirty-eight.


* * * *


Prosecutor:    Based on your experience how do people who manufacture methamphetamine get the anhydrous ammonia?


Agent:             In many cases they are stealing it.


Appellant also claims that questioning the agent regarding the mobility of methamphetamine labs and the fact that labs can be located at places other than a manufacturer’s home constituted misconduct.  We disagree.  A prosecutor may not argue to inflame the passions and prejudices of the jury.  Porter, 526 N.W.2d at 363.  Here, although the prosecutor’s questioning may have informed the jury about the number of methamphetamine cases in the community generally, the apparent intent of the questions was to show the experience and qualifications of the prosecution witnesses and the means of producing methamphetamine.  When viewed in the light of the prosecutor’s case as a whole, presenting this evidence was neither misconduct nor prejudicial to appellant. 


[1] If not properly stored, anhydrous produces a strong ammonia odor and can be explosive.