This opinion will be unpublished and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,
Robert Gene Lillico,
Filed July 20, 2004
in part, reversed in part, and remanded
Pennington County District Court
File No. K3-02-459
Mike Hatch, Attorney General, Thomas W. Raggatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
David Olin, Pennington County Attorney, Pennington County Courthouse, 101 North Main Street, P.O. Box 396, Thief River Falls, MN 56701 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Crippen, Judge.*
Appellant Robert Gene Lillico was convicted of conspiracy to commit first-degree controlled substance crime and sentenced to 49 months, executed. Appellant argues that the district court erred by refusing to suppress evidence discovered during an investigative stop, that the evidence was insufficient to sustain his conviction, and that the district court erred by admitting other crime testimony without determining whether there was clear and convincing evidence of the alleged acts.
Because police had a reasonable suspicion of criminal activity based on a citizen informant’s tip, we affirm the court’s refusal to suppress evidence found in the co-conspirator’s car. But because the court failed to consider whether the evidence of other crimes was clear and convincing and whether its prejudicial effect outweighed its probative value, we reverse appellant’s conviction and remand for a new trial.
1. Investigative Stop
The district court’s determination of the legality of a limited investigatory stop based on reasonable suspicion is reviewed de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). The district court’s findings are reviewed for clear error. Id.
A police officer making a limited investigatory stop must be able to point to specific and articulable facts that create an objective manifestation that the party “stopped is, or is about to be, engaged in criminal activity.” Id. (quotation omitted). “Reasonable articulable suspicion may be based on an informant’s tip if police know enough about the informant to believe he or she is credible and the information given to police appears to have some factual basis.” State v. Vereb, 643 N.W.2d 342, 346-47 (Minn. App. 2002). This court reviews the reasonableness of the stop by considering the totality of the circumstances. Britton, 604 N.W.2d at 87.
Here, two citizen informants, who identified themselves and were known to police, observed appellant and two companions, who were later identified as appellant’s daughter and Kristin Vanderbeek, collectively purchase from Kmart in Thief River Falls a number of known precursor ingredients for the manufacture of methamphetamine, including eight packages of pseudoephedrine, or 768 tablets, and Coleman lantern fuel. While in Kmart, appellant and his companions appeared to ignore each other, but the informants observed them together in the parking lot and saw money change hands. The informants further informed police that the car in which appellant and his companions were traveling appeared to have no license plates, a common tactic in methamphetamine cases.
In order to make an investigative stop, the police need only have reasonable suspicion, based on specific and articulable facts; this is a lesser standard than probable cause. State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). The observations of the two informants here provided a basis for reasonable suspicion of criminal activity.
Appellant argues that the purchase of cold tablets and lantern fuel, two common household items, is consistent with innocent behavior and cannot provide reasonable suspicion for a stop. Appellant cites State v. Bergerson, 659 N.W.2d 791, 796 (Minn. App. 2003), in which this court concluded that the purchase of rubber tubing and acetone from a hardware store did not create reasonable suspicion of criminal activity because both items have a number of legitimate uses. In Bergerson, we distinguished the facts before us from Vereb, where the suspects separately made repeated purchases of a large quantity of cold tablets, which we described as a “palpably more suspicious” activity. Bergerson, 659 N.W.2d at 797. Because appellant’s actions here, together with the actions of his companions, are much more similar to those in Vereb than to those in Bergerson, we conclude that the district court did not err in finding the stop valid.
2. Sufficiency of the Evidence
When reviewing a claim of insufficiency of the evidence, this court is limited to a “painstaking analysis” of the record to determine whether the evidence, viewed in a light most favorable to the conviction, is sufficient to permit the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). It may be assumed that the jurors believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
Appellant was charged with conspiracy to manufacture methamphetamine. Minn. Stat. §§ 152.021, subd. 2a, 609.175, subd. 2 (2000). A conspiracy conviction does not require proof of a formal agreement. State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). An agreement may be inferred by circumstantial evidence. Vereb, 643 N.W.2d at 348.
Here, the following facts support an inference that an agreement existed between appellant and his two companions: (1) store employees observed the three enter Kmart together, but saw them check out separately and act as if they did not know each other; (2) the three engaged in a type of behavior called “smurfing,” where several people separately purchases precursor chemicals in order to avoid arousing suspicion; (3) store employees watched appellant and his daughter return to the car together and observed appellant hand her what appeared to be money; (4) Vanderbeek testified that appellant directed her to buy no more than three boxes of cold tablets; (5) appellant asked Vanderbeek whether an unnamed party was “going to get it done,” an apparent reference to cooking methamphetamine; (6) all the purchases were put in Vanderbeek’s car, together with a blender that had traces of ephedrine in it; (7) Vanderbeek testified that she assumed appellant had directed them to purchase the items because he planned to make methamphetamine; and (8) although appellant’s daughter denied that he was involved in the manufacture of methamphetamine, she claimed that her brother, who was Vanderbeek’s boyfriend, was involved in manufacturing methamphetamine, a claim that was confirmed by Vanderbeek. Viewed in a light most favorable to the verdict, this evidence was sufficient to permit the jury to reach a guilty verdict here.
Appellant also contends that his conviction is based on uncorroborated accomplice testimony.
A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Minn. Stat. § 634.04 (2000). “Corroborating evidence need not establish a prima facie case of the defendant’s guilt.” State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000). Because accomplice testimony is inherently unreliable, corroboration is sufficient if it reinforces the truth of the accomplice’s testimony and points to the defendant’s guilt in a substantial way. Id.
Here, store employees corroborated elements of Vanderbeek’s testimony. Vanderbeek testified that appellant gave her money to purchase cold tablets, which she understood would be used to manufacture methamphetamine, and that he warned her to purchase no more than three boxes. Store employees observed appellant purchase cold tablets and his daughter purchase Coleman fuel, and saw appellant give his daughter money in the parking lot. When police searched Vanderbeek’s car, they found three bags of cold tablets, two of which contained three boxes of cold tablets. These bags were also found next to a blender containing a residue of ephedrine and stripped batteries, further reinforcing Vanderbeek’s testimony that these purchases were intended for manufacturing methamphetamine. Because corroborating evidence need not establish guilt beyond a reasonable doubt, but must only support the reliability of the co-conspirator’s testimony, we conclude that the corroborating evidence here was sufficient.
3. Other Crime Testimony
Evidence of another crime or wrongful act, while not admissible to prove the character of a person, may be used for other purposes, such as proof of intent, knowledge, or plan. Minn. R. Evid. 404(b). When used in this manner, however, the evidence of the other crime or wrongful act, and the participation in it by the relevant person, must be proven by clear and convincing evidence. Id. It is generally within the district court’s discretion to admit evidence of other crimes under an exception to the exclusionary rule. State v. Nunn, 561 N.W.2d 902, 907-08 (Minn. 1997). However, if it is not clear that an exception applies, the defendant must be given the benefit of the doubt and the evidence should be excluded. Id.
Before admitting testimony about another crime, a district court must determine that (1) the evidence that defendant participated in the other offense is clear and convincing; (2) the evidence is relevant and material to the state’s case; and (3) the probative value of the evidence outweighs its prejudicial effect. State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998). “[C]lear and convincing evidence is more than a preponderance of the evidence but less than proof beyond a reasonable doubt [and] is met when the truth of the facts sought to be admitted is highly probable.” Id. at 584 (quotation omitted).
Here, Vanderbeek, the co-conspirator, was allowed to testify that she had seen appellant manufacture and use methamphetamine. Beyond these bare statements, she gave no dates, places, times, or other details. The co-conspirator’s testimony may have been relevant to the charge of conspiracy to manufacture methamphetamine, but it shed no light on the particular conspiracy charged and merely suggested that appellant had acted poorly in the past. Finally, portraying appellant as a user and manufacturer of methamphetamine had a potentially prejudicial effect. Under these facts, we conclude that the co-conspirator’s testimony should have been excluded.
To be reversible, this court must determine whether there is a reasonable likelihood that the error substantially affected the jury’s verdict. State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002). In Strommen, witnesses were permitted to testify in a general way that the defendant had a prior criminal record and had killed someone in the past; no details were given about his record or criminal history, other than broad, general statements. Id. at 684-85. The supreme court concluded that this was plain error that substantially affected the verdict, noting that “the state cannot ‘be permitted to deprive a defendant of a fair trial by means of insinuations and innuendoes which plant in the minds of the jury a prejudicial belief in the existence of evidence which is otherwise inadmissible.’” Id. at 688 (quoting State v. Currie, 267 Minn. 294, 301, 126 N.W.2d 389, 395 (1964)).
Similarly, based on the record before us, we conclude that there is a reasonable likelihood that Vanderbeek’s testimony substantially affected the verdict. Although we find that there is sufficient evidence to permit the jury to reach its verdict, we are unable to conclude that the evidence against appellant is so overwhelming that the erroneous admission of the Spreigl evidence did not substantially influence the jury’s decision. We therefore reverse appellant’s conviction and remand for a new trial.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.