This opinion will be unpublished and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,
Meeker County District Court
File No. K4-02-51
Mike Hatch, Attorney General, Jennifer Lynn Dekarske, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael J. Thompson, Meeker County Attorney, 325 Sibley Avenue North, Litchfield, MN 55355 (for respondent)
Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant challenges his convictions of conspiracy to manufacture methamphetamine and aiding and abetting in the manufacture of methamphetamine. Specifically, appellant argues that (1) the trial court did not have probable cause to issue a search warrant of appellant’s home; (2) the trial court abused its discretion in allowing a deputy to testify using hearsay statements in explaining his reason for applying for a search warrant of his home and in admitting a tape-recorded statement as substantive evidence; and (3) the evidence was insufficient to support the challenged convictions. Because there was probable cause to issue the search warrant, the tape-recorded statement was properly admitted as substantive evidence, and there was sufficient evidence in the record to support the convictions, we affirm.
On May 7, 2001,Meeker County Sheriff’s Deputy Brian Cruze was notified by a chemical company that it planned to deliver red phosphorus to the Sand’s Safety Center (Center) in Litchfield, Minnesota. On May 8, Deputy Cruze set up surveillance at the Center and observed a UPS truck deliver a package to David Smith and John Carlson; Smith placed the package in his vehicle.
The same day, Deputy Cruze executed a search warrant of Smith’s house and found a methamphetamine lab behind a false wall. The police found ingredients used to manufacture methamphetamine, including the red phosphorus sent to the Center, pseudoephedrine, and thirteen one-pound jars of crystal iodine that were, for the most part, empty. The iodine was traced to BME Incorporated, a lab store in St. Paul, which later identified seven different purchasers, including Tina Sommerfeld.
Sommerfeld was questioned on June 13, 2001, and provided a tape-recorded statement that appellant Ronald Rausch asked her to buy two jars of iodine and told her that the iodine was for “Dave” (Smith) and “Doreen” (Hackett). She stated that she recalled paying about $150 for each jar, but that Rausch paid her $1200 to purchase the first jar and $600 for the second. Sommerfeld stated that Rausch told her that she could no longer purchase the iodine because it would draw attention, and that “Jean” had purchased iodine for him in the past. Finally, Sommerfeld stated that it was her “understanding,” from what Rausch told her, that the iodine was for making methamphetamine, but that he told her to claim the iodine was for antiquing furniture.
With this statement, tying appellant to David Smith’s methamphetamine lab, Deputy Cruze applied for a search warrant of Rausch’s home. A search warrant was issued on July 5, 2001, and executed the next day. The police found, among other things: (1) a bag labeled “1999-2000” containing a handwritten note with Sommerfeld's name and phone number and receipts for the purchase of 13 boxes of pseudoephedrine, two gallons of acetone, and nine boxes of aluminum foil; (2) two bottles of expired liquid iodine; (3) bottles of hydrogen peroxide; (4) a can of acetone behind a chair in the kitchen; (5) a particle-fume mask; and (6) paraphernalia used for the ingestion of, and containing trace amounts of, methamphetamine On July 19, Rausch gave a tape-recorded statement to the police, denying that he paid anyone to purchase iodine for Smith and denying that he knew of Smith’s methamphetamine lab. When Rausch was questioned about the large quantity of pseudoephedrine receipts, he stated that his mother probably had the boxes and he did not know there was a limit on purchasing Sudafed.
Rausch was charged with five counts of drug-related offenses, including two counts of first-degree controlled substance crime, conspiring to manufacture and aiding manufacture of methamphetamine, in violation of Minn. Stat. §§ 152.021, subd. 2a; 609.175, subd. 2; 609.05, subd. 1 (2002).
At the April 26 and June 10, 2002, omnibus hearing Rausch argued that the evidence taken from his home should be suppressed because the police did not have probable cause to obtain a search warrant. During the hearing, Sommerfeld testified that she was harassed into giving a statement. She testified that she suffered an anxiety attack; that she requested that the police get her medications, Xanas and Paxil; and that she took a dose before she made her recorded statement and, consequently, did not remember parts of her statement because the medicine makes her sleepy and forgetful. Deputy Cruze testified that he was unaware that Sommerfeld was given medication before making her recorded statement and that she did not appear to be under the influence of, or in need of medication. The district court denied Rausch’s motion to suppress, concluding that there was a sufficient basis for the issuance of the July 5 search warrant and there was probable cause to believe Rausch committed a crime.
At trial, Deputy Cruze, testified without objection that he applied for a search warrant based on Sommerfeld’s statement. The state next called Sommerfeld as a witness, who once again claimed she did not remember the contents of her statement because she was medicated during the interview. The defense cross-examined Sommerfeld. Through Deputy Cruze’s testimony on redirect, and over the defense’s objection, the trial court admitted Sommerfeld’s tape-recorded statement as substantive evidence. Rausch also testified and, contrary to his police statement, admitted that he purchased large quantities of pseudoephedrine for Hackett, but denied knowing that they would be used to manufacture methamphetamine.
The jury found Rausch guilty of all charges. Rausch moved alternatively for a new trial or a dispositional departure in sentencing, which the trial court denied. This appeal from the convictions of conspiracy to manufacture methamphetamine and aiding and abetting in the manufacture of methamphetamine followed.
D E C I S I O N
We review the trial court’s determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed. State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999). “Substantial basis” in this context means a fair probability, given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place. State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998) (requiring “direct connection, or nexus, between the alleged crime and the particular place to be searched” (citations omitted)). In reviewing the probable cause determination this court “may consider only the information presented in the affidavit offered in support of the search-warrant application.” State v. Hochstein, 623 N.W.2d 617, 622 (Minn. App. 2001) (citation omitted). Great deference is given to the issuing judge’s determination of probable cause. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).
Rausch claims that Deputy Cruze’s affidavit did not establish probable cause to issue the July 5, 2001, search warrant because there was no direct evidence connecting any item of contraband or crime to his home.
The affidavit stated: (1) a methamphetamine lab and materials used for making methamphetamine, including 13 jars of iodine, were found in Smith’s home; (2) one of the jars of iodine was purchased by Sommerfeld; (3) Sommerfeld stated that Rausch asked her to purchase two jars of iodine for Smith and Hackett and that “Jean” had also purchased iodine for him; (4) on July 26, 2000, the police saw a vehicle registered to Jean Kay Walter parked outside Rausch’s home; (5) according to BME records, Jean Kay Walter purchased three one-pound jars of iodine between June 1998 and February 2000; (6) Hackett, Smith’s former girlfriend, was living with Rausch; (7) on May 24, 2001, Smith, from jail, phoned Hackett at Rausch’s home and referred to a note indicating she needed to make another phone call because “nothing had come”; (8) Smith and Hackett spoke on the phone on June 17, 2001, and when Hackett said she was moving out of Rausch’s home, Smith responded that she should be “careful because she [was] probably being watched”; and (9) in April 2000, an anonymous caller informed the police that she or he saw several people using methamphetamine at Rausch’s house and overheard someone say they were on their way to Rausch’s to “get some.” This evidence, when considered in its totality, creates a nexus between the alleged crimes and Rausch’s home. See State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (stating that in reviewing sufficiency of affidavit, courts must not view each component of affidavit in isolation).
Rausch claims that because the anonymous phone call and the officer’s observation regarding “Jean’s” vehicle occurred more than a year before the warrant was issued the evidence was too stale to provide probable cause for a search warrant. However, the record shows that the affidavit provided additional evidence that sufficiently supported the trial court’s determination that there was probable cause for a search warrant.
The trial court did not err in concluding that probable cause existed to issue a search warrant.
The trial court has considerable discretion when making evidentiary rulings and will not be reversed unless that discretion is abused. State v. Bjork, 610 N.W.2d 632, 636 (Minn. 2000). Ordinarily, a defendant’s failure to object at trial precludes review of the error on appeal. Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996). But the plain error doctrine allows us to consider errors “affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial.” Id. (citations omitted). To establish plain error, appellant must show that (1) there was error; (2) the error was plain; and (3) the error affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An error affects substantial rights “if the error was prejudicial and affected the outcome of the case.” Id. at 741.
Although Rausch failed to object at trial, he claims that Deputy Cruze’s testimony regarding the contents of Sommerfeld's statement when explaining why he applied for a search warrant was plain error. In criminal cases, law enforcement officers may testify that a tip was the basis for conducting surveillance, but they may not relate hearsay statements under the guise of explaining how the investigation came to focus on a particular person. State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002). Even if the Deputy relied on a hearsay statement, however, if the testimony was a hearsay statement admissible as substantive evidence under Minn. R. Evid. 803(24), there would be no ground to claim the error constituted denial of a fair trial, affecting one’s substantial rights. See Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993) (holding that defendant had no legitimate complaint regarding admission of accomplice’s statement for impeachment purposes where statement was admissible substantively under rule 803(24)).
Under Minn. R. Evid. 803(24), a statement may be admitted in situations not covered by a specific exception and regardless of the declarant’s availability if the statement meets certain requirements, including, having “circumstantial guarantees of trustworthiness.” Minn. R. Evid. 803(24). A determination of sufficient circumstantial guarantees of trustworthiness turns on whether the: (1) Confrontation Clause is implicated; (2) declarant admitted making the statement; (3) statement was against the declarant’s interest; and (4) statement is consistent with other evidence introduced by the state. State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).
Here, there is no confrontation problem because Sommerfeld testified at trial and was available for cross-examination. See Oliver, 502 N.W.2d at 778 (no confrontation problem in admission of prior statement admitted as substantive evidence where declarant testified at trial and was available for cross-examination). Even though Sommerfeld testified at trial that she did not remember the contents of the statement, her statement was tape-recorded. Ortlepp, 363 N.W.2d at 44 (second factor met when statement is recorded). Sommerfeld admitted during her statement that she bought the iodine and understood that the iodine eventually would be used for the manufacture of methamphetamine. Sommerfeld further stated that when she picked up the iodine she was informed that if the iodine was traced to the manufacture of methamphetamine she could be criminally charged. Thus, Sommerfeld knew the statement incriminated her, which increased its reliability. See Oliver, 502 N.W.2d at 778 (when statement is against declarant’s penal interest it dramatically increases its reliability). Finally, the BME invoices verified that Sommerfeld purchased one jar of iodine found in Smith’s home, which is consistent with her statement that Rausch told her the iodine was for Smith and Hackett. Because the four Ortlepp factors are met, Sommerfeld’s tape-recorded statement has “circumstantial guarantees of trustworthiness.”
To be admitted, the statement must also be of material fact, be more probative than other admissible evidence on the same point, and further the interests of justice. Minn. R. Evid. 803(24). These additional requirements are also met. Sommerfeld’s tape-recorded statement is of material fact because it helps prove essential elements of the crimes charged—that Rausch agreed to purchase precursor ingredients for the manufacture of methamphetamine and that by making the purchase he committed an overt act in furtherance of the conspiracy and aided in the manufacture of methamphetamine. See Minn. Stat. §§ 152.021, subd. 2a (manufacture of methamphetamine); 609.175, subd. 2 (conspiracy); 609.05, subd. 1 (aiding and abetting) (2002). The statement is also more probative than other admissible evidence on the same point because there is no other direct evidence that creates a better link between Rausch and Smith’s methamphetamine manufacturing business. Finally, the interests of justice will be served by its admission.
Because Sommerfeld’s tape-recorded statement was admissible as substantive evidence under Minn. R. Evid. 803(24), the trial court’s plain error in allowing Deputy Cruze to testify about the contents of that statement when explaining why he applied for a search warrant did not deprive Rausch of a fair trial. Therefore, this court need not review the error on appeal.
A. Conspiracy to Manufacture Methamphetamine
To convict a defendant of conspiracy to manufacture methamphetamine, the state must prove beyond a reasonable doubt that the defendant entered into an agreement with another to manufacture methamphetamine and there was an overt act committed by the defendant or another party to the conspiracy with the purpose of furthering the conspiracy. See Minn. Stat. §§ 152.021, subd. 2a; 609.175, subd. 2. A conspiracy need not be established by proof of a formal agreement, but may be inferred from the circumstances. State v. Vereb, 643 N.W.2d 342, 348 (Minn. App. 2002). “[W]here several persons commit separate acts which form parts of a connected whole, an inference of conspiracy—that there was concert in both planning and execution—is permissible.” State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943).
The evidence in the record supports the jury’s conviction of conspiracy to manufacture methamphetamine. Sommerfeld stated in her tape-recorded statement that Rausch paid her to buy two jars of iodine, he told her the iodine was for Smith and Hackett, and she understood he wanted the iodine to manufacture methamphetamine. Sommerfield’s statement was sufficient for the jury to permissibly infer that Rausch had agreed to conspire with Smith to manufacture methamphetamine. Additionally, Hackett was linked to the iodine and the manufacture by the two phone calls made by Smith to Hackett at Rausch’s home in which Smith informed Hackett that “nothing had come in” and she should “be careful” when leaving Rausch’s home because she was probably being “watched.” This evidence could lead the jury to make the permissible inference that Hackett was involved in Smith’s manufacturing business. This inference, together with Rausch’s admission that he purchased 13 boxes of pseudoephedrine for Hackett, his inconsistent statements regarding the reasons for the purchase, the receipts found in his attic for the purchase of other precursor ingredients and materials, and his statement to Sommerfeld that the iodine was for Smith and Hackett and that “Jean” had purchased iodine for him in the past could also lead a jury to permissibly infer that Rausch supplied Smith with ingredients to manufacture the methamphetamine, thereby committing an overt act in furtherance of the conspiracy.
Rausch claims, however, that Sommerfeld’s statement is insufficient to show an agreement because Sommerfeld testified at trial that she was heavily medicated at the time and did not remember what she said. But, the tape-recorded statement was admitted as substantive evidence, and Deputy Cruze testified that Sommerfeld appeared normal and coherent while making the statement. It is for the jury, not this court, to determine the weight and credibility of Sommerfeld’s varying statements and Deputy Cruze’s testimony. State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).
Rausch also claims that the statement was unreliable because Sommerfeld was an accomplice. See State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000) (stating that accomplice testimony is inherently untrustworthy and must be corroborated by independent evidence). We disagree. BME’s records confirming that Sommerfeld bought two jars of iodine, one of which was found in Smith’s methamphetamine lab, together with the fact that Sommerfeld’s statement was ultimately admitted as substantive evidence, corroborates the statement.
Given the evidence in the record, the jury could have reasonably concluded that Rausch was guilty of conspiring to manufacture methamphetamine.
B. Aiding and Abetting the Manufacture of Methamphetamine
In order to convict a defendant of aiding and abetting in the manufacture of methamphetamine the state must prove that he or she “intentionally aid[ed], advise[d], hire[d], counsel[ed], or conspire[d] with . . . the other to [manufacture methamphetamine].” Minn. Stat. §§ 152.021, subd. 2a (manufacture of methamphetamine); 609.05, subd. 1 (aiding and abetting). A defendant is criminally liable for aiding and abetting if he or she played a knowing role in the crime and took no steps to “thwart its completion.” State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (citation omitted). While active participation in the offense’s overt act is not required, a person’s presence, companionship, and conduct before and after an offense are circumstances from which a person’s criminal intent may be inferred. Id.
Here, Sommerfeld’s tape-recorded statement indicates that Rausch asked her to purchase two jars of iodine, that he told her that he intended to give the iodine to Smith and Hackett, and that Sommerfeld understood, from what Rausch had told her, that the iodine would be used to manufacture methamphetamine. Sommerfeld also stated that Rausch told her that she could no longer purchase the iodine because it would draw attention and that a person named “Jean” had purchased iodine for him in the past. Rausch admitted at trial that he had also purchased the 13 boxes of pseudoephedrine for Hackett. The record contained receipts, found in Rausch’s home, for the purchase of other ingredients and materials used in the manufacture of methamphetamine. Some ingredients and materials used in the manufacture of methamphetamine, as well as trace amounts of methamphetamine, were also found in Rausch’s home.
Sommerfeld’s tape-recorded statement, coupled with the other evidence in the record, could lead the jury to reasonably infer that Rausch knew that Smith was manufacturing methamphetamine and that Rausch aided and abetted in the crime by supplying the ingredients and materials necessary for its “completion.” Thus, the evidence in the record, considered in its totality, was sufficient for the jury to convict Rausch of aiding and abetting in the manufacture of methamphetamine.