This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Clifford David Brimmer,




Filed July 6, 2004


Anderson, Judge


Pipestone County District Court

File No. K0-02-100


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, Lisa A. Crum, Assistant Attorney General, 445 Minnesota Street, 1800 NCL Tower, St. Paul, MN  55101-2134; and


James E. O’Neill, Pipestone County Attorney, 114 North Hiawatha, Pipestone, MN  56164 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Anderson, Judge.


U N P U B L I S H E D  O P I N I O N




            Appellant was convicted of multiple drug-related offenses.  Appellant takes this direct appeal from his conviction.  We affirm.



            On February 6, 2002, law enforcement officers arrested Aaron Hein for possession of controlled substances in Pipestone County.  Hein agreed to assist the officers in investigating narcotics offenses.  Hein told the officers that appellant was involved in committing controlled substance crimes. 

            Based on this information, law enforcement began an undercover investigation of appellant, and Hein and a plainclothes officer attempted to purchase methamphetamine from appellant at appellant’s house.  Appellant initially declined to sell them methamphetamine, claiming that he had none at the time, but instructed Hein and the officer to return later.  Hein and the officer returned in about an hour and entered appellant’s home.  Living with appellant in his home were Anthony Cole and appellant’s girlfriend, Lisa Gunnick.  Appellant told Hein and the officer that Cole would deliver methamphetamine to them later in the evening.  Cole did so. 

             In the affidavit supporting the warrant, the officer stated that he had negotiated the purchase of a half ounce of methamphetamine from appellant, that the officer had seen 3.5 grams of methamphetamine in appellant’s house, and a nighttime warrant execution was necessary because the warrant would not be issued until after 8 p.m. and stated, “Your affiant is aware that persons involved in the sales of controlled substances quickly sell their remaining quantities and your affiant believes that evidence may be destroyed o[r] sold should the warrant be delayed.”  The nighttime execution was authorized, and the warrant was executed at approximately 11 p.m.  The search uncovered $3,090 hidden in appellant’s couch, including the money the officer used to buy the methamphetamine; what appeared to be a record of appellant’s drug transactions; controlled substances; a large quantity of baggies; and drug paraphernalia.  Methamphetamine and a scale were found in Cole’s car, which was parked on appellant’s property. 

Shortly after execution of the warrant, appellant admitted that he “transferred” methamphetamine, that “the big guy” had picked up the money for his drug sales earlier in the evening, that appellant had paid $10,000 for a pound of methamphetamine, and that appellant and Gunnick would drive to South Sioux City, Nebraska, to purchase methamphetamine from appellant’s supplier.  Later, appellant was allowed to meet with Gunnick, apparently in private, and appellant changed his story and said that Cole was the only drug dealer in the house and that appellant had made up his confession so that he could go home.  Appellant was charged with: (1) importing a controlled substance across a state border in violation of Minn. Stat. § 152.0261, subd. 1 and subd. 3 (2000); (2) two counts of a controlled substance crime in the first degree in violation of Minn. Stat. § 152.021, subds. 1(1), 2(1), and subd. 3(a) (2000); (3) conspiracy to commit a controlled substance crime in the first degree in violation of Minn. Stat. § 152.096, subd. 1 (2000) and Minn. Stat. § 152.021, subds. 1(1) and 3(b); and (4) possession of a controlled substance not evidenced by a tax stamp in violation of Minn. Stat. § 297D.04 (2000) and Minn. Stat. § 297D.09, subd. 2 (2000). 

Prior to the trial, respondent moved to admit appellant’s previous gross misdemeanor conviction for theft as impeachment evidence if appellant took the stand.  In that case, appellant stole furniture when he moved out of a house – the furniture was, presumably, in the house, and appellant knew it was not his.  The district court admitted the evidence because it (1) involved dishonesty and (2) occurred within the last ten years and was more serious than a misdemeanor. 

At trial, respondent sought permission from the district court to have the undercover officer sit at the table with the prosecutor because of the complexity of the case.  The officer was to testify before joining counsel, and the officer wore a suit instead of a uniform.

The officer testified that, after receiving a call from the county sheriff, he spoke to “Hein about possible targets of methamphetamine distribution” and that Hein said “that he knew a person by the name of Clifford Brimmer.”  Appellant’s objection was overruled.  The county sheriff also testified that, after Hein was arrested, “Brimmer’s name came up as a potential suspect.”  Appellant’s objection to this testimony was also overruled. 

Cole testified that he made several deliveries of methamphetamine for appellant.  He also testified that Gunnick and appellant drove together at least 10 times to visit appellant’s supplier.  Respondent also introduced Gunnick’s initial statement to law enforcement officers that she and appellant had driven to appellant’s supplier more than five times to get methamphetamine; on the stand, Gunnick testified that she had made up the entire story to secure her release from jail. 

In closing argument, the prosecutor explained that one of the charges against appellant was not paying his stamp tax.  To illustrate what this means, the prosecutor said:

You know, the classic case in American history deals with the Chicago mobster in the 1930’s who dealt with bootleg--bootlegging booze.  You know, you all know the Al Capone story.  He didn’t get caught for bootlegging.  He got caught for tax evasion because he wasn’t paying taxes on the money.  Well, Minnesota says that you want to have a controlled substance in Minnesota, if you have more than 7 grams, it’s not a lot, and you are a dealer, you gotta pay a tax on that.


He then went on to argue how appellant had committed tax evasion. 

            In discussing credibility, the prosecutor argued that the various officers were credible and appellant and Gunnick were not credible.  The prosecutor continued:

You listen to—you listen to [Cole] here.  I doubt there is anybody in this courtroom that didn’t believe a word he was saying.  That kid was so honest it was just incredible.  He was so—I mean, the way he made his statements, the way—everything about him, totally believable.


The prosecutor concluded:

I believe, you know, when you look at this evidence here, you could walk into ten thousand houses, you wouldn’t find that many little baggies.  You wouldn’t find a notebook with all the evidence in there.  I doubt most people have seen a little torch like this or know what it’s used for.  They wouldn’t find money stuffed in a couch, particularly $500 in marked bills.  You wouldn’t find five ounces of methamphetamine.  Everything here points toward guilt.


Appellant did not object to any of this argument.  In his rebuttal argument, the prosecutor said, “What the attorneys stated during opening and closing, that’s not evidence.” 

            After listing the elements of each crime, the district court instructed,  “For you to return a verdict, whether guilty or not guilty in regard to each of the counts, each juror must agree with the verdict.  Your verdict must be unanimous.”  Appellant had no objections to any of the instructions and did not request an instruction on a unanimous finding of the specific act for each element of each charge.  The jury convicted appellant, and the district court sentenced on only one of the two convictions of first-degree controlled substance crimes on the grounds that they were the same incident.  The district court relied on the various convictions to increase appellant’s criminal history score.  This appeal followed.



1.  Evidence

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  If the district court has erred in admitting evidence, the reviewing court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.  In completing a “harmless error impact” analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].”  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

a.  identification of appellant

Appellant argues that the district court abused its discretion in allowing the undercover officer and the county sheriff to testify that the reason they started investigating appellant was because Hein had identified him as a drug dealer; appellant argues this is hearsay evidence, which is inadmissible.  Minn. R. Evid. 802.  We conclude that the admission of this testimony was error.

In State v. Ford, law enforcement officers received a tip that there was a conspiracy to rob a specific store.  322 N.W.2d 611, 615 (Minn. 1982).  Testimony that the officers had received a tip was held to not be hearsay because it explained why they had placed the store under surveillance.  Id.  But the supreme court continued:

[I]t was not necessary for the jury to hear the contents of the tip, which pointed directly to defendant’s guilt of the crime of conspiracy to rob.  The risk that the jury would consider the contents as substantive evidence of defendant’s guilt was significant.  Since the proper purpose of admitting evidence of the tip, explaining the police conduct, could have been accomplished without informing the jury of the entire contents of the tip, we believe that the trial court should have limited the admission of the evidence accordingly.


Id.  Ultimately, the supreme court concluded that the error was harmless because the jury received a cautionary instruction and there was overwhelming evidence of the defendant’s guilt.  Id.

Here, the district court should not have admitted Hein’s identification of appellant.  While there is nothing in the record to indicate why respondent elicited this testimony, as in Ford, it appears, and the state argues here, that the purpose was to establish the reason for the officers’ actions.  See Ford, 322 N.W.2d at 615 (stating that the contents of a tip were admitted to establish the purpose of the investigation); see alsoState v. Purdy, 278 Minn. 133, 147, 153 N.W.2d 254, 263 (1967) (stating that testimony elicited to establish the reason for law enforcement actions against a particular person is not hearsay).

But, because this evidence explicitly identified appellant as a drug dealer, it should have been excluded under rule 403.  See Ford, 322 N.W.2d at 615 (stating that, because the contents of the tip implicated the defendant, they should not have been admitted under rule 403).  Thus, the identification of appellant was error.

But the error was harmless.  The tipster was identified in other testimony heard by the jury.  Further, identification of appellant by the officer and the sheriff was brief and in passing.  Finally, as with Ford, the evidence against appellant was overwhelming.

b.  prior conviction

Appellant next argues that the district court abused its discretion in admitting his previous conviction for theft as impeachment evidence.  Respondent argues that the crime involved dishonesty and was therefore admissible.  Rule 609 states, “For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime . . . involved dishonesty or false statement, regardless of punishment.”  Minn. R. Evid. 609(a)(2).  Theft may or may not be a crime of dishonesty depending on the type of theft; shoplifting is not a crime of dishonesty, but swindling is a crime of dishonesty.  State v. Sims, 526 N.W.2d 201, 202 (Minn. 1994).

Here, the district court concluded that the type of theft appellant previously committed was a crime of dishonesty.  One permissible view of the facts of appellant’s prior conviction is to conclude that appellant had possession of, and control over, the property of another.  While moving out, appellant took that person’s property, knowing that he had no right to it, and attempted to deceive the owner by concealing the theft of the missing property under cover of the move.  Therefore, because appellant’s actions in committing the crime involved an element of dishonesty, the district court did not abuse its discretion in admitting evidence of appellant’s prior conviction.

c.  officer at counsel’s table

Appellant next argues that the district court abused its discretion by allowing the undercover officer to sit at counsel’s table with the prosecutor.  Respondent argues that appellant was not prejudiced by any error.  The supreme court has specifically cautioned against this practice and has said:

[T]he opportunity for prejudice to the defendant is present where the investigating officer sits at prosecuting counsel’s trial table throughout the trial--if for no other reason than the potential for confusion with the jury in the perception of a close alignment between the neutral fact-finding function of the police investigator with the adversary role of the prosecution.  Here, however, [the officer] was the first to testify, so he did not hear the testimony of other witnesses before he took the witness stand, he was not in uniform, and there is no indication of inappropriate intimidation.  On the record here, we conclude that the trial court did not commit prejudicial error in permitting [the officer] to sit at prosecuting counsel’s trial table throughout the trial.


State v. Koskela, 536 N.W.2d 625, 631 (Minn. 1995).

The facts of this case are virtually identical to those in Koskela.  The officer in this case who sat at counsel’s table was the first to testify, he did not wear his uniform, and there is no allegation or evidence of intimidation, which were the key facts in Koskela.  While it is not entirely clear what about this case made the presence of the officer at counsel table essential, and the better practice would have been to deny consent, we cannot say on this record that the district court abused its discretion in permitting the officer to sit with the prosecutor.

2.  Prosecutorial misconduct

            Appellant argues that his right to due process was violated by the prosecutor’s closing argument because: (1) the prosecutor vouched for Cole’s credibility, (2) made an inflammatory closing argument, and (3) misled the jury.  See U.S. Const. Amend. XIV, art. I; see also Minn. Const. art. I, § 7.  Appellant did not object to any of these arguments and therefore waived these issues.  Sanderson v. State, 601 N.W.2d 219, 224 (Minn. App. 1999), review granted/stayed (Minn. Jan. 18, 2000), review denied (Minn. Mar. 28, 2000).

            Even though appellant waived the issues, we still review the prosecutor’s arguments for plain error.  State v. Yang, 627 N.W.2d 666, 678 (Minn. App. 2001), review denied (Minn. July 24, 2001).  “The issue is whether any inappropriate comments played a substantial role in convincing the jury to convict the defendant.”  Sanderson, 601 N.W.2d at 224.   The test is whether the argument was (1) improper and (2) “so prejudicial that it constituted a denial of the defendant’s right to a fair trial.”  Id. at 225.  If the improper argument is “unusually serious,” there should be a reversal unless it is harmless beyond a reasonable doubt; if the improper argument is less serious, there should not be a reversal unless the argument “had a substantial influence upon the jury’s decision to convict the defendant.”  Id. (quotation omitted).  Because appellant did not object, this court infers that appellant did not view the arguments as improper at the time they were made.  Id.

            a.  witness credibility

             “The prosecuting attorney has a right to argue that the state’s witnesses were worthy of credibility.”  Yang, 627 N.W.2d at 679.  “But, the prosecuting attorney may not express a personal opinion about the witnesses’ credibility.”  Id.  In other words, the prosecutor may not personally endorse the credibility of a witness.  See id. (stating that there was no misconduct where the prosecutor had not “personally endorsed the witnesses”).

            In State v. Parker, the prosecutor said:

I think[] they are telling the truth. . . . That is why I say to you that if you think that these witnesses are lying, you can only come to that conclusion if you come to the conclusion that this whole thing is phony and stinks from top to bottom and stem to stern. . . . But I do tell you these witnesses couldn’t have done it by themselves, make up a big lie and tell it.


353 N.W.2d 122, 138 (Minn. 1984).  The supreme court disapproved of that argument but did not believe it rose to “the threshold of impropriety” and also did not prejudice the defendant.  Id.

            On the other hand, in State v. Porter, the prosecutor argued that an expert witness was credible because the state and federal judges of Minnesota recognized her as an expert and that this acknowledged expertise made it unnecessary for the expert to examine the victim.  526 N.W.2d 359, 364 (Minn. 1995).  The supreme court ruled that it was misconduct for the prosecutor to bolster the expert’s testimony by making untrue statements; this misconduct, coupled with numerous other improper comments that seriously misstated the record and the law as well as strongly appealing to the jury’s passions, “permeated the entire closing argument” and “struck at the heart of the jury system, juror independence” and was thus prejudicial.  Id. at 365.

            In Sanderson, the prosecutor argued that one witness was particularly credible because three other witnesses believed that witness’s account.  601 N.W.2d at 225.  This court concluded that there was nothing improper about that argument because it accurately summarized those witnesses’ testimony.  Id.  Further, this court concluded that it was not prejudicial in any event because “[t]here were 33 lines of alleged vouching in the prosecutor’s closing argument, which totaled approximately 875 lines.”  Id

            Here, appellant challenges the prosecutor’s statement that Cole was believable.  We conclude the prosecutor’s statement was not plain error.  The prosecutor is permitted to argue that a witness is credible.  Id.  Thus, the only question is whether the prosecutor’s statement went too far in arguing credibility.  The prosecutor, here, did not insinuate that he knew anything the jury did not, and he did not misrepresent any testimony.  The argument was that Cole’s delivery was believable.  There was nothing indicating that the prosecutor personally guaranteed the truthfulness of Cole.  Thus, the argument was not improper.  As to the other, allegedly improper, statements, appellant fails to analyze why those statements were improper.  We find no error.

            b.  inflammatory argument

            Appellant argues that the prosecutor’s argument was prejudicially inflammatory because it referred to Al Capone and Columbian drug dealers and asked for sympathy for appellant’s victims.  “A persuasive final argument is more art than science; so long as an argument remains within acceptable bounds it should not be found wanting merely because it is colorful.”  State v. Smith, 619 N.W.2d 766, 771 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). 

            In this case, the prosecutor did not compare appellant to either Al “Scarface” Capone or a Columbian drug runner.  The reference to Capone was merely for the purposes of explaining the tax stamp charge.  Nothing in the prosecutor’s argument even hinted that appellant was similar to Capone, nor did the prosecutor misstate the evidence.  Thus, there was nothing improper about the Capone reference. 

            Likewise, the reference to the Columbian drug runner did not compare appellant to a Columbian drug dealer but merely illustrated how appellant was involved in trafficking drugs.  As with the Capone reference, the Columbian drug runner reference was not misconduct.

            Appellant mischaracterizes the prosecutor’s statements regarding sympathy and the “victims” of appellant’s crimes.  The prosecutor did not ask for sympathy for the victims, other than to reply to appellant’s anticipated argument, based on the evidence presented at trial, that the jury should have sympathy for appellant because he alleged some personal property was damaged when the officers searched his home.  The prosecutor argued that the jury should understand that appellant had harmed his victims, i.e. drug users, and, thus, appellant’s anticipated sympathy argument should fail.  Because the standard of review is only for plain error, we conclude that there was no clear prejudicial misconduct.[1]

            c.  misleading argument

            Appellant also argues that the prosecutor’s statement that methamphetamine was found in his home was misleading.  Respondent concedes that it was not technically accurate to state that five ounces of methamphetamine were found in appellant’s home because the suspected methamphetamine found in the home was not tested.

            In Yang, the prosecutor stated that five witnesses identified the defendant as the murderer when only three people actually identified the defendant as the murderer; five people had placed the defendant at the scene.  627 N.W.2d 666, 680 (Minn. App. 2001), review denied (Minn. July 24, 2001).  The prosecutor also stated that a database linked the defendant to the crime when it actually only displayed the defendant’s photograph, and witnesses were then able to link the defendant to the crime.  Id.   This court held that, while not technically accurate, the statements, when viewed in context of the entire argument, were not misstatements, apparently because they were minor, unintentional errors.  Id.  We concluded that, in any event, they were not plain error or so prejudicial as to necessitate reversal.  Id.

Here, it would have been technically accurate for the prosecutor to state that five ounces of methamphetamine were found on appellant’s property (because five ounces were found in Cole’s car, which was parked on appellant’s property) and that an untested substance that was believed to be methamphetamine was found in appellant’s home.[2]  But appellant did not object to the statement.  See Sanderson, 601 N.W.2d at 224 (stating that a failure to object to an improper argument can lead to an inference that the wronged party did not view the argument as prejudicial).  As with Yang, the errors here were minor and not prejudicial and do not rise to the level of plain error.

Appellant’s additional argument about the statement concerning the baggies is incorrect; the prosecutor did not misstate the facts.

3.  Ineffective assistance of counsel

Appellant argues in this direct appeal that he was deprived of the effective assistance of counsel because his trial counsel did not challenge the nighttime execution of the search warrant. 

The U.S. and Minnesota constitutions grant defendants the right to be represented by counsel in criminal prosecutions.  U.S. Const. amend VI; Minn. Const. art. I, § 6.  This has been interpreted to mean that the defendant’s counsel must not be merely present but also effective.  Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063 (1984).  “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Id.  In order to prevail on a claim for ineffective assistance of counsel, appellant must show by a preponderance of the evidence: (1) that his trial attorney’s conduct was objectively unreasonable and (2) that this unreasonable conduct probably changed the result of the trial.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).  An attorney has acted unreasonably if his representation falls below the standard that a reasonably competent attorney under similar circumstances would provide; it is strongly presumed that an attorney acted reasonably.  Id.  Usually, a defendant brings a claim for ineffective assistance in a post-conviction appeal, not a direct appeal, so that the record may be more fully developed.  State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981).

We need not decide whether appellant’s trial counsel acted reasonably because we conclude that appellant has not established that he was prejudiced by any alleged failure on the part of his trial counsel.  Even if appellant were to prevail on the issue, because an invalid nighttime execution is merely a statutory, not a constitutional, violation, the suppression of evidence is not required.  State v. Lien, 265 N.W.2d 833, 841 (Minn. 1978).  Appellant has not shown that a statutory violation requires suppression of the evidence in this case.  In the absence of prejudice, appellant has not demonstrated ineffective assistance of counsel.

4.  Jury instructions

            Appellant argues that he was entitled to an instruction to the jury that it must unanimously agree on which act(s) of importation appellant committed and which acts of the conspiracy appellant committed.  Appellant did not request such an instruction, and his trial counsel explicitly stated that there were no objections to the instructions.  Thus, this court only reviews for “plain error affecting substantial rights or an error of fundamental law.”  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).  To find such an error, this court must find that “(1) there is error; (2) the error is plain; and (3) the error affects the defendant’s substantial rights.”  Id. (quotations omitted).  Even if all three conditions are met, this court may reverse “the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.”  Id. (quotations omitted).  The jury must unanimously agree on specific acts only if the “act itself constitutes an element of the crime.”  State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001).  “But unanimity is not required with respect to the alternative means or ways in which the crime can be committed.”  Id. at 354 (quotation omitted).

            a.  importation

            There is no plain error here.  While respondent alleged multiple acts of importation, all were based on two pieces of evidence, Cole’s testimony and Gunnick’s statement.  Both merely said that appellant had imported drugs on multiple occasions.  The same evidence was used to prove each of the various acts.  Neither Cole nor Gunnick differentiated between any of the acts of importation or gave specific dates for them.  Thus, the jurors could not all reasonably come to believe appellant imported methamphetamine but disagree on which act of importation he committed.  Thus, appellant has not and cannot establish that he was prejudiced by the jury instruction.  Therefore, there is no plain error on the importation instruction.

            b.  conspiracy

Because there is no plain error in the importation instruction, there is no plain error in the conspiracy instruction.  While respondent alleged procuring, transporting, and sale all as overt acts, the jury only needed to agree that appellant or someone else had committed one overt act in furtherance of the conspiracy.  Because the jury believed that appellant had imported methamphetamine, as discussed earlier, the jury still unanimously necessarily agreed that appellant had committed the overt act of transporting methamphetamine.  Thus, appellant was not prejudiced by the instruction, and there was no plain error.

5.  Sentencing

Appellant’s last argument is that he was impermissibly sentenced for both the conspiracy and the importation because, he argues, they constitute the same behavioral incident.  The district court imposed concurrent sentences on appellant but utilized one conviction to increase appellant’s criminal history score and thus subject him to a longer sentence.  Minnesota Statute section 609.035, subdivision 1 states, “[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.”  Minn. Stat. § 609.035, subd. 1 (2000).  It is the state’s burden to establish that multiple crimes are not a single behavioral incident.  State v. Barnes, 618 N.W.2d 805, 813 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).            The test whether multiple offenses stem from a single behavioral incident is whether the time and place are coincidental and the offenses are motivated “by a single criminal objective.”  State v. Bookwalter, 541 N.W.2d 290, 294-95 (Minn. 1995).  “When one crime is committed with the intent of facilitating another or is but a means toward committing another, the offenses are part of a single behavioral incident.”  State v. Huynh,504 N.W.2d 477, 483 (Minn. App. 1993), aff’d 519 N.W.2d 191 (Minn. 1994).  “Drug sales, even within a short period of time, may be considered separate behavioral incidents.”  Barnes, 618 N.W.2d at 813.

In State v. Soto, the defendant sold cocaine to the same undercover police officer on four separate occasions within approximately one month.  562 N.W.2d 299, 301-02 (Minn. 1997).  The defendant was convicted of four counts of first-degree sale of cocaine.  Id. at 302.  The district court imposed four concurrent sentences but utilized the convictions to increase the defendant’s criminal history score.  Id.  The supreme court concluded that this was not a single behavioral incident because each sale happened on a different day and at a different place; the supreme court also concluded that there was not a single objective for the sales and stated:

While [the defendant] and other defendants convicted of drug sales may be motivated by the single criminal objective of selling drugs to relieve financial hardship, this court has held that the criminal plan of obtaining as much money as possible is too broad an objective to constitute a single criminal goal.


Id. at 304.

            Here, there was not a single criminal objective.  Appellant’s objective in importing the methamphetamine was to import methamphetamine on that particular occasion, and he actually had multiple objectives, as many objectives as times he imported methamphetamine.  See id. at 304 (holding that the defendant had a different objective for each drug sale without an overarching objective of acquiring money).  On the other hand, appellant’s objective in the conspiracy was to enter into an agreement to facilitate obtaining and distributing methamphetamine.  This is a different objective from the importation objective of importing methamphetamine on a specific day.

Moreover, the acts happened at a different time and place.  The conspiracy is evaluated at the time and place the agreement was reached; the importation is evaluated at the time and place appellant imported the methamphetamine.  Appellant agreed to the conspiracy prior to importing methamphetamine at his home.  Therefore, the two crimes occurred at different times and in different places.  Because there was not a single objective or a unitary time and place, appellant’s crimes were not a single behavioral incident.


[1] In Porter, the supreme court found that it was prejudicial misconduct in a sex crimes case to refer to a fictional school of sex education named after the defendant and to imply that the jurors were stupid if they believed the defendant’s story.  526 N.W.2d at 363.  In State v. Bright, the prosecutor stated that crack cocaine was the equivalent of a thermonuclear device despite the fact that there was no evidence to support such a comparison.  471 N.W.2d. 708, 711-12 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991).  This court concluded that this comparison in Bright, along with other improper arguments, constituted prejudicial error.  Id. at 713.


[2] The law enforcement officers testified that they had found controlled substances in appellant’s home, but tests were neither performed nor introduced into evidence.  Appellant’s defense was that Cole was the drug dealer and that appellant had nothing to do with it; appellant did not deny that drugs were present.