This opinion will be unpublished and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,
Antonio Jose Alonzo,
Filed January 13, 2004
Clay County District Court
File No. K1011928
Mike Hatch, Attorney General, Gail A. Feichtinger, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56560 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of conspiracy to commit a fourth-degree controlled-substance crime, third-degree controlled-substance crime (possession), and fourth-degree controlled-substance crime (sale). Appellant argues that (1) the prosecutor committed misconduct and denied appellant his right to a unanimous verdict by mischaracterizing the law of conspiracy, (2) the district court erred by not giving the jury an accomplice-testimony instruction, (3) there was insufficient evidence to establish that appellant had constructive possession of the methamphetamine found in his apartment, and (4) the district court abused its discretion by imposing separate sentences for his conspiracy, possession, and sale convictions. Alonzo has also filed a pro se supplemental brief. We affirm.
On October 21, 2001, Officer Dahl of the Moorhead Police Department arrested David Hinojosa for possession of marijuana. On October 22, 2001, Hinojosa informed Detective Charles Anderson of the Clay County Sheriff’s Department that appellant Antonio Jose Alonzo had “fronted” him the quarter-pound of marijuana on October 19, 2001, and that he owed Alonzo $350 for it. Hinojosa stated that he and Alonzo had made other fronting arrangements in the past involving marijuana and methamphetamine.
Detective Anderson asked Hinojosa to act as a confidential informant and to set up another drug sale with Alonzo. Hinojosa agreed to cooperate and called Alonzo, telling him that he had Alonzo’s money and wanted to obtain more marijuana. The two arranged to meet at Alonzo’s apartment an hour later. Detective Anderson then outfitted Hinojosa with a device to record his conversation with Alonzo, gave him $350 in marked bills, and accompanied him to Alonzo’s apartment.
When Hinojosa arrived at Alonzo’s apartment, Alonzo’s girlfriend, Robyn Dean, answered the door and informed Hinojosa that Alonzo was not home. Hinojosa asked her, “Did he leave it with you to give it to me?” She replied that he had. Hinojosa then laid the $350 for the previously obtained quarter-pound of marijuana on a table. Dean counted the money and then gave Hinojosa another quarter-pound of marijuana. After the transaction, Hinojosa returned to the truck where Detective Anderson and others were waiting and informed them that he had seen additional marijuana inside the apartment.
Later that day, officers obtained and executed a search warrant for Alonzo’s apartment. In Alonzo’s bedroom, they found 61.1 grams of marijuana, a scale, drug paraphernalia, and cash, including the $350 in marked bills. In the kitchen, they found 1.8 grams of methamphetamine, another scale, plastic baggies, a tin with documents bearing Alonzo’s name, and a billfold containing approximately $4,000 in cash.
On September 5, 2002, an amended complaint charged Alonzo with six counts, including one count of conspiracy to commit a fourth-degree controlled-substance crime (sale), in violation of Minn. Stat. §§ 152.024, subd. 1(1), 152.096 (2000); one count of second-degree controlled-substance crime (sale), in violation of Minn. Stat. § 152.022, subd. 1(6)(i) (2000); one count of third-degree controlled-substance crime (possession), in violation of Minn. Stat. § 152.023, subd. 2(6) (2000); one count of fifth-degree controlled-substance crime (possession), in violation of Minn. Stat. § 152.025, subd. 2(1) (2000); one count of possession of prohibited drug paraphernalia, in violation of Minn. Stat. § 152.092 (2000); and one count of fourth-degree controlled-substance crime (sale), in violation of Minn. Stat. § 152.024, subd. 1(1) (2000).
After a two-day trial, a jury acquitted Alonzo of the charge of second-degree controlled-substance crime (sale) and found him guilty of all other charges.
On October 23, 2002, the district court sentenced Alonzo to 24 months for the conviction of conspiracy to commit a fourth-degree controlled-substance crime. The district court also sentenced Alonzo to concurrent terms of 51 months for the conviction of third-degree controlled-substance crime (possession) and 21 months for the conviction of fourth-degree controlled-substance crime (sale). The district court vacated the jury verdicts on the convictions of fifth-degree controlled-substance crime (possession) and possession of drug paraphernalia, determining that they arose from the same behavioral incident as the conviction of the third-degree possession charge. This appeal follows.
D E C I S I O N
Alonzo contends that the prosecutor committed misconduct in his closing argument by misstating the law of conspiracy as it applied in Alonzo’s case. The district court specifically instructed the jury that to convict Alonzo of the conspiracy charge they would have to find that a conspiracy existed between Alonzo and his girlfriend; the court stated that the jury would have to find that “the defendant conspired with Robyn Dean to commit the crime of Controlled Substance Crime in the Fourth Degree, Sale. A person conspires with another when he agrees with the other to commit a crime.” But because the prosecutor told the jury that Hinojosa could also be considered a party to the conspiracy, Alonzo argues that the prosecutor misstated the law and committed misconduct. See State v. Pinkerton,628 N.W.2d 159, 163 (Minn. App. 2001) (holding that conspiracy cannot exist between seller and buyer), review denied (Minn. July 24, 2001). Appellate courts reviewing claims of prosecutorial misconduct “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers,654 N.W.2d 667, 678 (Minn. 2003). There are two distinct standards for prosecutorial misconduct: serious misconduct will be found “harmless beyond reasonable doubt if the verdict rendered was surely unattributable to the error,” while for less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. (quoting State v. Hunt,615 N.W.2d 294, 302 (Minn. 2000)).
The specific sections of the prosecutor’s closing argument that Alonzo contends are misconduct are as follows:
All you have to say is that [Alonzo] conspired with another, Robyn Dean and/or David Hinojosa, to commit this crime
. . . .
[Alonzo] conspired with Robyn Dean and David Hinojosa. Those are the players here, folks. Those are the three people that are involved here. [Alonzo] or another party to the conspiracy did the overt act alleged.
. . . .
They provided marijuana to Mr. Hinojosa in another front. Was that done for the purpose of following through with the conspiracy? Of course it was. That was the plan. That’s the conspiracy.
. . . .
What’s a conspiracy? Remember the phone call. I got your money, can I get some more? Sure. Come to my house this afternoon. I got more. That comes directly from the mouth of [Alonzo].
Alonzo argues that he was unfairly prejudiced by the prosecutor’s comments because they increased the likelihood that the jury convicted Alonzo of conspiracy because of his relationship with Hinojosa, rather than because of his relationship with Dean.
The state argues that even if the prosecutor’s statement during closing argument regarding the conspiracy was “arguably technically inaccurate,” it does not constitute prejudicial misconduct because the jury was properly instructed regarding the law of conspiracy. Before closing arguments, the district court instructed the jury that giving the rules of law was the court’s exclusive responsibility and that the jury should disregard any of counsel’s statements regarding the law that differed from the district court’s instructions. The district court then instructed the jury regarding conspiracy law.
Alonzo objected during the prosecutor’s closing argument, arguing that the prosecutor’s statements were a “mischaracterization of the law of conspiracy,” but the district court overruled the objection. Following Alonzo’s objection, the prosecutor reminded the jury that the district court was the authority on the law, that they were to consult the district court’s instructions for the definition of conspiracy, and that if he had misstated the law they were to follow the district court’s instructions. Defense counsel did not further address the issue in his own closing argument or ask the district court for any additional jury instructions. After the jury was excused, the district court stated that the prosecutor had made his conspiracy argument in a confusing way but that the state’s allegation of conspiracy would have been clear to the jury from the court’s instruction.
We agree that the prosecutor’s misstatement was not prejudicial because both the prosecutor and the judge told the jury that the district court had the exclusive responsibility of instructing them on the law and that they were required to follow the judge’s instructions. Thus, we conclude that under the circumstances, the misconduct was of the less-serious variety and that it was unlikely that the prosecutor’s misstatement played a substantial part in influencing the jury’s verdict to convict Alonzo of conspiracy.
Alonzo argues further that the prosecutor’s comments denied him the constitutional right to a unanimous verdict because the jury could have disagreed on whom he entered into the conspiratorial agreement with, Hinojosa or Dean. The right to a unanimous verdict requires the jury to “unanimously agree on which acts the defendant committed if each act itself constitutes an element of the crime.” State v. Stempf,627 N.W.2d 352, 355 (Minn. App. 2001); see Minn. R. Crim. P. 26.01, subd. 1(5). Because the state was required to show, as an element of conspiracy, that Alonzo entered into an agreement with “another,” the jury must have unanimously agreed that the state proved this element.
Alonzo argues that the prosecutor’s misstatement improperly allowed the jury to find that he entered into a conspiratorial agreement with Hinojosa. Alonzo contends that this finding would have allowed the jury to convict him of a conspiracy that cannot exist as a matter of law. Thus, Alonzo contends that for his conviction to be lawful, the jury was required to agree unanimously that the conspiracy occurred between Alonzo and Dean.
The state interprets Alonzo’s argument as an objection to the district court’s jury instructions regarding the need for a unanimous verdict, contending that because Alonzo did not object to the district court’s instruction or request any additional instructions on the need for a unanimous verdict, he forfeited his right to object on appeal. But Alonzo does not raise an objection to the district court’s instructions; instead, he asserts that the prosecutor’s comments improperly allowed the jury to find that he conspired with either Hinojosa or Dean and, thus, violated his right to a unanimous verdict.
But the district court’s instructions on the elements of conspiracy did not permit the jury to find that the conspiracy occurred between Alonzo and Hinojosa. The district court instructed the jury that to convict Alonzo of the conspiracy charge they would have to find:
First, [Alonzo] conspired with Robyn Dean to commit the crime of Controlled Substance Crime in the Fourth Degree, Sale. A person conspires with another when he agrees with the other to commit a crime.
. . . .
Second, [Alonzo] or another party to the conspiracy did the overt act alleged and did so with the purpose of furthering the conspiracy. The overt act alleged in this case is providing marijuana to [Hinojosa] with the understanding that [Hinojosa] would pay for the drugs at a later time.
Thus, because the district court instructed the jury that any conspiracy had to be between Alonzo and Dean and the prosecutor reminded the jury that they were to follow the district court’s instructions regarding the law, the prosecutor’s statements did not violate Alonzo’s right to a unanimous verdict. Again, we conclude that the misconduct did not play a substantial part in influencing the jury’s verdict.
Alonzo next asserts that Hinojosa was arguably his accomplice and because Hinojosa testified at the trial, the district court erred in not giving the jury an accomplice-testimony instruction. The state contends that defense counsel’s failure to object below constitutes a waiver of this issue and that this court should not, therefore, address it. A defendant’s failure to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). Nevertheless, appellate courts have discretion to consider the issue if the instructions contain plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under the three-prong test for plain error, an appellate court must determine if (1) there was error, (2) it was plain, and (3) the error affected substantial rights. Id. If these three prongs are met, an appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings. Id.
Under the first prong of the Griller test, we must determine whether the district court erred by not giving the jury an accomplice-testimony instruction. District courts are allowed “considerable latitude” in the selection of language for the jury instructions. State v. Baird,654 N.W.2d 105, 113 (Minn. 2002). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law. State v. Flores,418 N.W.2d 150, 155 (Minn. 1988). Minn. Stat. § 634.04 (2000) requires the court to instruct the jury that a conviction may not be based on the uncorroborated testimony of an accomplice. To give effect to this statute, the supreme court has held that the accomplice-testimony instruction must be given in any criminal case in which any witness against the defendant “might reasonably be considered an accomplice” to the defendant’s crime. State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989). The general test for determining whether a witness is an accomplice “is whether that person could have been indicted and convicted for the crime for which the accused is charged.” State v. Landro,504 N.W.2d 741, 745 (Minn. 1993). A corollary is that when the acts of several participants are declared by statute to constitute separate and distinct crimes, the participants guilty of one crime are not accomplices of those who are guilty of a separate and distinct crime. State v. Tennyson, 212 Minn. 158, 162, 2 N.W.2d 833, 836 (1942).
First, Alonzo argues that “it should have been undisputed” that Hinojosa was his “accomplice to the October 19 sale of marijuana” because Hinojosa was arrested for possessing marijuana that he said Alonzo sold him on this date. But in a drug sale, the buyer is not the accomplice of the seller because the buyer’s and the seller’s acts are separate and distinct crimes. State v. Swyningan, 304 Minn. 552, 555-56, 229 N.W.2d 29, 32 (1975). Thus, the district court did not err in failing to instruct the jury on accomplice testimony regarding the fourth-degree controlled-substance (sale) crime.
Second, Alonzo argues that “Hinojosa could reasonably have been considered an accomplice to the conspiracy” because the two were involved in a “fronting” arrangement. This argument has no merit, however, because the district court instructions to the jury provided that to convict Alonzo of conspiracy, they would have to find that he and Dean agreed to sell a controlled substance to Hinojosa. The evidence shows that Hinojosa had no involvement with the conspiracy apart from being a confidential informant acting as the buyer. Because Hinojosa could not have been indicted and charged for the conspiracy, the district court did not err in failing to give an accomplice-testimony instruction to the jury.
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 that they did. State v. Webb,440 N.W.2d 426, 430 (Minn. 1989). A reviewing court 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). This is especially true when the resolution of the matter depends mainly on conflicting testimony. State v. Pieschke,295 N.W.2d 580, 584 (Minn. 1980). 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).
Alonzo argues that there was insufficient evidence to support his conviction of possession of a controlled substance because the state failed to prove that the methamphetamine found on top of the refrigerator belonged to him. To support a conviction of unlawful possession of a controlled substance, the state must prove that the “defendant consciously possessed, either physically or constructively, the substance and that defendant had actual knowledge of the nature of the substance.” State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). Because there is no evidence that Alonzo physically possessed a controlled substance, we must determine whether there was sufficient evidence that Alonzo constructively possessed it.
The purpose of the constructive-possession doctrine is to include within the possession statute those cases where the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it up to the time of the arrest.
Id. at 104-05, 226 N.W.2d at 610. To establish constructive possession, the state must show: (1) that the police found the substance in an area that was under defendant’s exclusive control and to which others would not normally have access, or (2) if the substance was found in an area where others did have access, that there is a strong probability that the defendant was consciously exercising dominion and control over the substance. Id. at 105, 226 N.W.2d at 611.
Because he shared his apartment with his girlfriend and the drugs were found in an area that was just as accessible to her, Alonzo argues that the state’s evidence was insufficient to prove that he constructively possessed the methamphetamine. But the jury may find constructive possession, even if the defendant jointly shared a living space with another. For example, this court has upheld a finding of constructive possession when marijuana was found in close proximity to appellant’s personal effects and in areas of the residence over which she likely exercised at least joint dominion and control with her husband. State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000), review denied (Minn. June 13, 2000). Similarly, in State v. Lozar, this court held that the evidence was sufficient to support a finding that the appellant constructively possessed marijuana when large quantities of it were found in common areas of the home that the appellant shared with her husband. 458 N.W.2d 434, 441 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).
Here, there is sufficient evidence to support the inference that Alonzo exercised dominion and control over the methamphetamine found on top of the refrigerator in his apartment. Hinojosa testified that on prior occasions he had obtained methamphetamine from Alonzo at Alonzo’s apartment. Hinojosa also told Detective Anderson that he had seen methamphetamine stored in the freezer when he had purchased the marijuana from Alonzo on October 19, 2001. Further, when executing the search warrant at Alonzo’s apartment, officers discovered a tin containing documents bearing Alonzo’s name in close proximity to the refrigerator and the methamphetamine. Because the evidence showed that the methamphetamine was discovered in close proximity to Alonzo’s personal effects and in an area over which Alonzo exercised at least joint dominion and control with Dean, the jury could reasonably have found that Alonzo constructively possessed the drugs. Denison, 607 N.W.2d at 800 (court looks to totality of circumstances in assessing constructive possession).
An appellate court will not interfere with the district court’s decision regarding sentencing unless there has been a clear abuse of discretion. State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998). Minnesota’s statutory double-jeopardy protection precludes multiple sentencing for conduct that is part of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (2000). Whether multiple offenses form part of a single behavioral act is a question of fact. See Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986) (reviewing district court’s finding of two separate behavioral acts under clearly erroneous standard). The analysis focuses on whether the conduct occurred at the same time and place and whether there was a single criminal objective. See State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). When the offenses are committed and proved independently of one another, they are not part of a single behavioral incident. State v. Butcher, 563 N.W.2d 776, 784 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). The state has the burden of showing that conduct is not part of a single behavioral incident. State v. Clark, 486 N.W.2d 166, 171 (Minn. App. 1992).
Count one of the complaint charged that on or about October 19 through 22, 2001, Alonzo conspired with another to sell marijuana. Count three charged that on or about October 22, 2001, Alonzo unlawfully possessed methamphetamine. And count six charged that on or about October 19, 2001, Alonzo unlawfully sold marijuana. The district court sentenced Alonzo to concurrent terms of 24 months on the first count, 51 months on the third count, and 21 months on the sixth count. Alonzo argues that the court erred by imposing three separate sentences for his conspiracy, sale, and possession convictions because they arose from the same behavioral incident.
First, Alonzo argues that his convictions of selling marijuana and of entering into a conspiracy to sell marijuana resulted from a single behavioral incident. The sale charge arose out of Alonzo fronting Hinojosa the marijuana on October 19, 2001. The evidence shows, however, that the conspiracy charge arose out of a separate behavioral incident. The crime of conspiracy requires (1) an agreement between two or more people to commit a crime and (2) an overt act in furtherance of the conspiracy. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). Proof of a formal agreement to commit a crime is not required, but there must be evidence that objectively indicates an agreement between the parties to commit a crime. State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). Here, the jury was instructed that to convict Alonzo of conspiracy they had to find either that the agreement or the overt act occurred on October 22, 2001. On October 22, 2001, Hinojosa telephoned Alonzo and arranged to pick up marijuana at Alonzo’s apartment. Later that day, Hinojosa arrived at Alonzo’s apartment where Dean told him that Alonzo was not home. Hinojosa then asked Dean if Alonzo had left him something; Dean replied that Alonzo had and gave Hinojosa a quarter-pound of marijuana. This conversation shows that Alonzo and Dean agreed to sell Hinojosa the marijuana. The overt act in furtherance of the conspiracy was Dean giving Hinojosa the marijuana following Alonzo and Hinojosa’s conversation. Thus, the district court did not err in treating the sale and conspiracy convictions as arising from separate behavioral incidents.
Second, Alonzo argues that because the conspiracy’s overt act and the possession of methamphetamine both occurred on October 22, 2001, at his apartment, the conspiracy and the possession form a single behavioral incident. Alonzo further asserts that, even if this court does not agree that the offenses arose from a single behavioral incident, we should find that the conspiracy covered both the sale and possession, and, as a result, the conspiracy sentence should be vacated. But the evidence shows that the possession charge arose out of a behavioral incident separate from both the sale and the conspiracy charges. Alonzo’s apartment was searched on October 22, 2001, following the sale of marijuana to Hinojosa. During the search, Clay County officers discovered the methamphetamine that resulted in the possession charge against Alonzo. Because the possession of methamphetamine occurred at a separate time and had a criminal objective separate from both the sale of marijuana and the conspiracy to sell marijuana, the district court did not err by imposing separate sentences for the possession, sale, and conspiracy convictions.
Alonzo raises several additional arguments in a pro se supplemental brief but cites no legal authority. An assignment of error in a brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc.,558 N.W.2d 770, 772 (Minn. App. 1997). Although we find no obvious prejudicial error on mere inspection, we nevertheless will address Alonzo’s claims.
Alonzo asserts that there was no probable cause supporting the search warrant for his apartment because it was based on unreliable information. But the search warrant for Alonzo’s apartment was obtained based on a statement given by Hinojosa after his arrest, in which he informed the officers that he had obtained marijuana from Alonzo’s apartment and that he had observed additional marijuana and methamphetamine in the apartment. We conclude that the affidavit set forth sufficient facts to support the issuance of a search warrant.
Alonzo further asserts that his right to a speedy trial was violated because although he had made a demand that required his trial to commence by September 8, 2002, his trial did not commence until September 10, 2002. But at a pretrial hearing on August 14, 2002, Alonzo agreed to start the trial on either August 27, 2002, or September 10, 2002. His constitutional right to a speedy trial was not violated.
Alonzo also argues that Detective Anderson discriminated against him by coercing Hinojosa to falsely testify. The record shows that Hinojosa met with Detective Anderson before he testified. But nothing suggests that he coerced Hinojosa to testify falsely.
Alonzo further asserts that Hinojosa’s testimony was unreliable because he was “under the influence” when he testified. But the jury was in the best position to determine the credibility of the testimony given at trial, and it found Hinojosa’s testimony to be credible.
Alonzo argues that he received ineffective assistance of counsel because his attorney failed to request a probable-cause hearing, failed to challenge probable cause, and was unsuccessful in suppressing the contents of an exhibit. When, as here, a reviewing court needs additional facts to explain an attorney’s decisions, a postconviction evidentiary hearing is the preferred method for raising such a claim. See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). Thus, we will not address the claim here.
Alonzo also argues that he was discriminated against because the prosecutor referred to him as “Hispanic.” He also asserts that Dean was slandered, apparently because the prosecutor stated that Alonzo lived in his apartment with “his girlfriend slash wife, whatever it is.” We find these arguments to be without merit.
Finally, Alonzo complains that certain witnesses were wrongfully excluded by the prosecution. The record shows, however, that the prosecutor objected to the proposed testimony of several potential defense witnesses on grounds of relevancy and that the objection was sustained by the district court. We find no error in the court’s ruling.
 The term “sell” as it is used with regard to controlled substances includes “to sell, give away, barter, deliver, exchange, distribute or dispose of to another or to manufacture.” Minn. Stat. § 152.01, subd. 15a(1) (2000).