This opinion will be unpublished and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,
Shawn Daniel Lenz,
Filed July 1, 2003
Wright County District Court
File No. K9-02-358
John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Thomas N. Kelly, Assistant Wright County Attorney, Wright County Courthouse, 10 Northwest Second Street, Buffalo, MN 55313; and
Mike Hatch, Attorney General, Thomas R. Ragatz, Joan M. Eichhorst, Assistants Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)
Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Minge, Judge.
Appellant challenges his conviction of second-degree controlled substance crime, arguing that there was insufficient evidence to support his conviction and that the district court erred in failing to obtain his consent on the record before instructing the jury on his right not to testify. Because we conclude that the evidence was sufficient for the jurors to reach their verdict and that there was no reversible error, we affirm.
On 31 January 2002, the police executed a search warrant at the home of Randy Johnson and found a small amount of methamphetamine. Johnson told the police that he “was getting his methamphetamine from [appellant] Shawn Lenz.” Johnson later testified that he had attempted to install a stereo in appellant’s truck earlier that day in exchange for the methamphetamine, that the stereo did not work properly, and that appellant planned to return to Johnson’s house later that day after exchanging the stereo in Elk River.
Johnson agreed to act as an informant for the police. As Johnson was talking with the police, his phone rang. He recognized appellant’s number on the caller ID, and a police officer told him to “line up a deal.” Johnson told appellant that he “wanted some more meth,” and they agreed to meet at a Pump and Munch gas station. Appellant called Johnson a second time, however, and asked to meet him at a different gas station after he returned from exchanging the stereo.
Two officers left Johnson’s residence to intercept appellant, going first to the Pump and Munch and then to the second gas station. When they arrived at the second gas station, they saw two marked police cars in the parking lot. As the officers arranged to have the cars moved, they received a call notifying them that appellant, after seeing the marked cars, had moved the meeting place to a Burger King.
When the officers arrived at the Burger King, they saw two people sitting in a black Chevrolet pickup truck matching the description Johnson had given of appellant’s vehicle. The officers approached the truck and questioned the occupants. The driver identified himself as appellant, and the passenger identified himself as appellant’s cousin, Jason Lewis. The police asked Lewis if he had any drugs, and Lewis replied that he had “some of the bad kind on him.” The police searched Lewis and found a Marlboro Lights cigarette box containing small bags of methamphetamine, a glass tube containing methamphetamine, and an electronic gram scale. An officer later testified that the bags and glass tube contained a total of 4.3 grams of methamphetamine. The police arrested appellant and Lewis. At the police station, the police searched appellant and found a box of Marlboro Lights cigarettes.
In a statement to the police, Lewis said that he met appellant at the Pump and Munch gas station, that they drove to Elk River to exchange a stereo, and that appellant stopped at a Burger King to use a pay phone. He also said that, prior to exchanging the stereo, appellant asked him to hold a cigarette pack, a glass tube, and little plastic bags full of what he suspected was cocaine. At trial, Lewis testified that he had intended to give the suspected drugs back to appellant.
Appellant was charged with one count each of second-degree conspiracy to sell and sale of methamphetamine in violation of Minn. Stat. §§ 152.022, subds. 1(1), 3(b), 152.096 (2000), and one count each of third-degree conspiracy to possess and possession of methamphetamine in violation of Minn. Stat. §§ 152.023, subds. 2(1), 3(b), 152.096 (2000). The case was tried to a jury. At the conclusion of the trial, the district court instructed the jury, “You should not draw any inference from the fact that [appellant] has not testified in this case.” The jury found appellant guilty on all four counts. The district court, however, entered judgment only on the second-degree sale of methamphetamine conviction and dismissed the other counts. This appeal followed.
D E C I S I O N
1. Sufficiency of the Evidence
Appellant argues that there was insufficient evidence to support his conviction of second-degree sale of methamphetamine. 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, was sufficient to allow the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A reviewing court must assume that the factfinder 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 that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
A person is guilty of second-degree sale of a controlled substance if
on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of three grams or more containing * * * methamphetamine.
Minn. Stat. § 152.022, subd. 1(1) (2002). “Sell” is defined as:
(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another * * * 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).
Minn. Stat. § 152.01, subd. 15a (2002).
Appellant contends that the only evidence supporting his conviction came from the uncorroborated accomplice testimony of Johnson and Lewis. A conviction may not be based on the testimony of an accomplice unless the state corroborates that testimony with other evidence that tends to convict the defendant of the crime charged. Minn. Stat. § 634.04 (2002). “Corroborating evidence is sufficient to convict if it reinforces the truth of the accomplice’s testimony and points to the defendant’s guilt in some substantial degree.” State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995) (citation omitted). The testimony of a police officer and other evidence, particularly the methamphetamine found in appellant’s truck, corroborated both Johnson’s testimony that appellant agreed to meet him and sell him methamphetamine and Lewis’s testimony that he met appellant at the Pump and Munch, that they drove to Elk River, and that they stopped at a Burger King. This evidence adequately corroborates both Lewis’s and Johnson’s testimony.
There was sufficient evidence for the jury to conclude that appellant either agreed to sell or possessed with the intent to sell three or more grams of methamphetamine. Johnson testified that appellant agreed to “get” him more methamphetamine, and an officer who overheard the phone call between Johnson and appellant testified that appellant
was supposed to meet * * * Johnson at this gas station to sell him, I believe it was an eight ball of methamphetamine which is a street term for three-and-a-half grams of meth.
Moreover, appellant twice called Johnson to change the meeting place (once after seeing two marked police cars) and was present at each of the three meeting places. Finally, the police found 4.3 grams of methamphetamine, small plastic bags, and an electronic gram scale in appellant’s truck. Although the items were on Lewis’s person, Lewis testified that they belonged to appellant. The jury could also have inferred that appellant constructively possessed the methamphetamine. See State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2002) (constructive possession can be proved by showing a strong probability, inferable from evidence, that defendant consciously exercised dominion and control over drugs). Appellant had sold methamphetamine to Johnson just hours before his arrest; he agreed to meet Johnson and sell him more methamphetamine, and the police found a cigarette box in his possession matching the box that contained the drugs. Viewed in the light most favorable to the conviction, the evidence is sufficient to support the jury’s verdict.
2. Jury Instruction
Appellant argues that the district court committed reversible error by instructing the jurors not to draw any adverse inference from his decision not to testify without making a record of his agreement to give the instruction. A district court should not give an instruction on a defendant’s right not to testify unless personally requested by the defendant on the record. State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); see also Minn. Stat. § 611.11 (2002) (defendant’s failure to testify shall not be alluded to by prosecuting attorney or court).
It is undisputed
that the district court did not make a record of appellant’s preference on
whether to give the no-adverse-inference instruction. The district court erred by giving the instruction without
appellant’s permission on the record. See
State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (giving
no-adverse-inference instruction without defendant’s permission on record was
error). But the giving of the
instruction without a record of appellant’s permission, by itself, does not
entitle appellant to a new trial. See
Thompson, 430 N.W.2d at 153 (defendant not entitled to a new trial simply
because record on appeal was silent as to whether defendant wanted a no-adverse-inference instruction).
 Appellant also argues that there was insufficient evidence to support convictions on the conspiracy and possession counts. The district court dismissed those counts, however, and convicted appellant only of second-degree sale of methamphetamine. Accordingly, appellant’s arguments on the other counts are moot.
 We assume without deciding that Johnson, a police informant, was an accomplice. See State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001) (an accomplice is someone who could have been indicted and convicted of charged offense).
 The officer later testified that appellant agreed to sell Johnson less than an eight ball of methamphetamine and that he did not remember the exact amount. The jury, however, was free to believe his earlier testimony. See State v. Obasi, 427 N.W.2d 736, 738 (Minn. App. 1988) (resolution of conflicting testimony is within province of factfinder).