This opinion will be unpublished and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,
Filed June 17, 2003
Renville County District Court
File No. K201778
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Molly Ryan, Certified Student Attorney, 525 Park Street, Suite 500, St. Paul, MN 55103; and
David J. Torgelson, Renville County Attorney, Commerce Building, P.O. Box D, Olivia, MN 56277 (for respondent)
John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Stoneburner, Judge.
Appellant challenges his conviction of first-degree controlled-substance crime on the grounds that (1) the evidence was insufficient because the state did not prove his intent to sell and (2) his attorney’s failure to object to the state’s use of an audiotape and other hearsay evidence constituted ineffective assistance of counsel. Because Minn. Stat. § 152.021(1) (2000) is unambiguous and contains no specific-intent requirement, we affirm. Because the record is not fully developed, we preserve appellant’s ineffective-assistance-of-counsel claim for a postconviction proceeding, should he choose to pursue one.
Officer Aaron Sturm was recruited to work with a police informant in a drug buy in the town of Sacred Heart. As part of the preparation, a tape recorder and microphone were placed on Officer Sturm’s upper thigh, and police deputies followed Officer Sturm from a distance of a few blocks in order to monitor the wire. At approximately 7:00 p.m., Officer Sturm and the informant reached Sacred Heart. They approached a residence and knocked on the front door, but received no response. When they knocked on the side door, they were invited to enter. Once inside, they asked if BJ, a known drug dealer, was home and where they could get some drugs. The person who answered the door did not know where BJ was and stated that he had nothing that he wanted to sell. As Officer Sturm and the informant were preparing to leave, three people in a red car pulled into the driveway. The informant recognized the two passengers and asked one of them, later identified as appellant Ryan Hebrink, if he had any drugs to sell. Appellant said that he would go get some cocaine. Ten minutes later, appellant returned and handed the informant and Officer Sturm a bag of white powdery substance in exchange for $250. The substance was subsequently tested and found to be cocaine.
A week or two later, Deputy Doug Pomplen asked Officer Sturm to attempt to set up a second drug buy. Officer Sturm initially called BJ, but then contacted appellant and set up a time to meet him in order to buy an unconfirmed amount of drugs. Officer Sturm again wore a body wire. Upon his arrival at the same location, Officer Sturm spoke with appellant and gave him $600 in cash for one-half ounce of cocaine. Appellant took the money and left to get the cocaine, but never returned.
Appellant was later charged with one count of controlled-substance crime in the second degree (sale), Minn. Stat. § 152.022, subd. 1 (2000); one count of controlled-substance crime in the first degree (sale), Minn. Stat. § 152.021(1) (2000); one count of theft (over $500 but not over $2,500), Minn. Stat. § 609.52, subds. 2(1), 3(3)(a) (2000); and one count of sale without affixed stamps, Minn. Stat. § 297D.09 (2000). On the day of trial, the state dismissed the charges of theft and sale without affixed stamps.
A portion of the taped recording of the first drug buy was played at trial, but it had gaps and was difficult to hear. When use of the tape was discussed in chambers before trial, appellant’s counsel did not object to its admission, but he questioned what use it would be to the jury, given its poor quality. But after listening to Officer Sturm testify as to his recollection of what occurred during the gaps in the tape and, specifically, what other individuals who were not called as witnesses were saying during those gaps, appellant’s counsel objected on the basis of hearsay and requested a curative instruction. In response, the judge told the jury that the tape would not be admitted into evidence due to its poor quality and instructed the jury to disregard any testimony of Officer Sturm concerning statements made by anyone who was not called as a witness at trial. Appellant was subsequently convicted on both counts.
Appellant argues that the state failed to prove that he had the intent to complete the second sale of cocaine because no drugs were ever delivered to Officer Sturm in exchange for the $600 payment. When the sufficiency of evidence is challenged, our review is limited to an analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to have allowed the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will not disturb the verdict if the finder of fact, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
But statutory construction is a question of law that an appellate court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Minn. Stat. § 645.16 (2000). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000). A statute is only ambiguous when its language can have more than one reasonable interpretation. Id. In considering a criminal statute, courts should resolve any ambiguity in favor of lenity. State v. Niska, 514 N.W.2d 260, 265 (Minn. 1994).
Under Minn. Stat. § 152.021, subd. 1(1) (2000), a person is guilty of a first-degree controlled-substance crime if
(1) on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing cocaine, heroin or methamphetamine.
Minn. Stat. § 152.01, subd. 15a (2000), defines “sell” 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).
Appellant contends that Minn. Stat. § 152.021, subd. 1(1), is ambiguous and that it requires an intent to sell. He argues that the state failed to prove the requisite intent necessary to find him guilty of a first-degree controlled-substance crime. This court recently responded to the same argument in State v. Lorsung, 658 N.W.2d 215 (Minn. App. 2003), which involved a conviction of the crime of second-degree controlled substance. Id. at 217. Lorsung appealed on the ground that the state had failed to prove the requisite intent or ability to carry out the sale because, although Lorsung took $500 from a police informant, he never returned with the promised drugs. Id. This court concluded that the language of Minn. Stat. § 152.01, subd. 15a, is unambiguous because offering to sell is an act that is equivalent to completing the sale. Id. at 218. We further concluded that Minn. Stat. § 152.022, subd. 1(1), is similarly unambiguous and contains no specific-intent requirement. Id. Because Minn. Stat. § 152.021, subd. 1(1), contains no specific-intent requirement, the same analysis applies in the context of this case.
But even if intent were an element of the statute, we would affirm appellant’s conviction. Intent may be inferred from a person’s words or actions in light of the surrounding circumstances. Lorsung, 658 N.W.2d at 218. Here, the record shows that Officer Sturm spoke with appellant on a cell phone and arranged to meet him. Appellant was at the agreed-upon location, and the two discussed the specific drug buy. Appellant then accepted the money and told Officer Sturm that he would return with the drugs. These actions provide sufficient evidence to permit a reasonable fact-finder to infer that appellant intended to complete the sale of drugs in the amount of one-half ounce. See id. (noting that appellant’s acts of arriving at meeting place at a set time and accepting money are sufficient to infer an intent to complete a sale).
Relying on State v. Robinson, 517 N.W.2d 336 (Minn. 1994), appellant next argues that the state failed to establish beyond a reasonable doubt that appellant “sold” ten or more grams of cocaine because there was no substance that could be weighed and tested. In Robinson, the defendant was found to be in possession of several items, including a plastic bag containing 13 packets of what appeared to be cocaine. Id. at 338. The state randomly tested approximately 7 of the 13 packets. Id. The court concluded that the weight of the controlled-substance mixture is an “essential element” of the offense that must be proved beyond a reasonable doubt and that random testing was insufficient to establish the substance’s total weight. Id. at 339. But, unlike the defendant in Robinson, appellant here was convicted of offering or agreeing to sell an agreed-upon quantity of a controlled substance, not possession with intent to sell the controlled substance.
Appellant contends that the state’s sole evidence consisted of Officer Sturm’s testimony that appellant made an offer to sell more than ten grams of cocaine. But the state also provided evidence that Officer Sturm set up a drug buy with appellant, put on a body wire, met with appellant, and gave him $600 after appellant offered to sell him one-half ounce of cocaine. The reviewing court must assume that 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). Reviewing the evidence in the light most favorable to the conviction, and giving deference to the jury’s findings, the evidence was sufficient to convict appellant.
Appellant asserts that his trial counsel provided ineffective assistance by failing to object to the state’s use of a poor quality audiotape with gaps in the recording and to other hearsay evidence. To succeed on a claim of ineffective assistance of counsel,
[t]he defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Appellate courts do not review matters of trial tactics or strategy. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). Moreover, “[t]here is a strong presumption that a counsel’s performance falls within the wide range of reasonable professional assistance.” Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997).
Generally, the appropriate way to challenge ineffective assistance of trial counsel is to raise the issue in a postconviction hearing rather than on direct appeal. State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). Without a postconviction hearing, a reviewing court may not have the benefit of all of the facts underscoring defense counsel’s actions. State v. Hanson, 366 N.W.2d 377, 379 (Minn. App. 1985). But on occasion, when the record is sufficient to allow proper review, an ineffective-assistance-of-counsel claim need not be addressed in a postconviction proceeding. Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001). Appellant takes the position that the record here was adequately developed so that a postconviction hearing on this issue is unnecessary. We disagree.
As noted, the record shows that appellant’s counsel objected during Officer Sturm’s direct examination to the introduction of both the audiotape and hearsay statements related by Officer Sturm. The court sustained the objection and gave the jury a curative instruction. The state contends that appellant’s counsel’s decisions were made as part of his trial strategy because he had listened to the tape before trial. But the record is not clear or complete on this issue. Therefore, without making any determination of its merit, we preserve appellant’s ineffective-assistance-of-counsel claim for postconviction proceedings, should he choose to pursue it.
 Minn. Stat. § 152.022, subd. 1(1), a controlled-substance crime in the second degree, differs from the statute at issue in this case, Minn. Stat. § 152.021, subd. 1(1), a controlled-substance crime in the first degree, only as to the total weight of the controlled substance that is the object of the sale. Otherwise, the language is identical.