This opinion will be unpublished and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,
Filed October 26, 2004
Cottonwood County District Court
File No. K6-01-11
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
L. Douglas Storey, Cottonwood County Attorney, 1044 Third Avenue, Windom, MN 56101 (for respondent);
Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Willis, Presiding Judge; Schumacher, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of conspiracy to commit a first-degree controlled substance crime, Minn. Stat. § 152.021, subd. 1(1), .096 (2000), arguing that, in the absence of scientific testing to identify the substance and its quantity, the evidence is insufficient to support the conviction. We stayed this appeal pending the Minnesota Supreme Court’s review of the same issue in the appeal of appellant’s co-defendant. The supreme court has now affirmed that conviction. State v. Olhausen, 681 N.W.2d 21 (Minn. 2004). Our review of the record establishes that the evidence is sufficient to support appellant’s conviction. We affirm.
Appellant May Chantharath was charged with three counts of controlled-substance crime for his role in an aborted undercover purchase of methamphetamine that occurred on December 13, 2000. The state also charged Alan Olhausen, Chantharath’s alleged co-conspirator, and obtained a conviction. The facts surrounding the undercover buy that led to the convictions of Chantharath and Olhausen are set forth in the Minnesota Supreme Court’s opinion in Olhausen, 681 N.W.2d at 23-25.
Briefly, undercover officer Robert Nance made arrangements through an informant to buy methamphetamine from Olhausen. After a series of telephone calls during which Olhausen first indicated that he had two pounds of methamphetamine and then offered to sell that amount to Officer Nance, Olhausen and Officer Nance agreed to meet and exchange one pound for $10,000.
Olhausen then called his “source,” whom he addressed as “May.” Olhausen and Officer Nance drove to a Toro plant in Windom, where Chantharath worked. Olhausen again called his source, this time stating that they were ready to purchase the methamphetamine. While waiting for Chantharath, Olhausen produced a plastic baggy that contained a chunky yellow substance that Officer Nance recognized “immediately as possible methamphetamine.”
Officer Nance and Olhausen drove separately to another part of the Toro parking lot and parked. After driving his vehicle over to Chantharath’s vehicle, Olhausen returned to Officer Nance and showed him the drugs. Officer Nance testified:
It was [in] a clear piece of plastic. This plastic now was probably, I would say, 16 inches by 10 inches. And inside this plastic was an oval, hard object. And this plastic was heat shrinked or heat sealed, if you will. The oval package inside was brown. It was probably 8 inches in length by probably three to four inches in diameter. Again, it is heat sealed. Actually, something similar to . . . a piece of sausage . . . .
Officer Nance had seen methamphetamine packaged in this manner, but not frequently.
After they had driven to a different location to finish the transaction, Olhausen cut the corner of the package and explained that the methamphetamine was scented with cinnamon and mustard. Officer Nance could smell only the cinnamon, but he observed a “brown substance that was consistent with methamphetamine.” Olhausen offered Officer Nance some of the methamphetamine to try, although not from the one-pound package itself. But Officer Nance declined the offer, as it would be illegal for him to sample the drug. Officer Nance did not field-test the contents of the package because that would have made Olhausen suspicious. But on the tapes recorded during the transaction, Olhausen assured Officer Nance that the substance was methamphetamine.
After telling Olhausen that he would get the money from his vehicle, Officer Nance gave the signal for the other officers to move in and arrest Olhausen. Olhausen fled and avoided arrest at that time. During his flight, Olhausen discarded the package of alleged methamphetamine, which was never recovered.
Chantharath was subsequently arrested. When questioned by Officer Nance, Chantharath admitted that Olhausen had asked him to provide some methamphetamine for a deal and that Chantharath owed his supplier $6,000 for the “pound.”
Following a trial, the jury found Chantharath guilty of the charged offenses. This appeal followed.
D E C I S I O N
Chantharath argues that the evidence bearing on the weight and identity of the substance offered by Olhausen to Officer Nance was insufficient to support the conviction. In considering a claim of insufficient evidence, we conduct a careful 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 a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). In doing so, we assume the jury believed the testimony and other evidence supporting the conviction and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The verdict will not be disturbed if the jury, acting with due regard for the presumption of innocence and the burden of proof beyond a reasonable doubt, could reasonably find the defendant guilty. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Chantharath and Olhausen were both convicted of three offenses arising out of the December 13, 2000, aborted undercover deal: (1) first-degree sale of a controlled substance, Minn. Stat. § 152.021, subd. 1(1) (sale of 10 grams or more of methamphetamine); (2) conspiracy to commit a first-degree controlled substance crime, Minn. Stat. §§ 152.021, subd. 1(1) (sale of 10 grams or more of methamphetamine), .096 (conspiracy); and (3) first-degree possession of a controlled substance, Minn. Stat. § 152.021, subd. 2(1) (possession of 25 grams or more of methamphetamine). This court reversed Olhausen’s convictions, concluding that scientific testing of the package purported to contain methamphetamine was required to prove beyond a reasonable doubt the identity and weight of the substance. Olhausen, 669 N.W.2d 385, 393 (Minn. App. 2003). In reversing that decision, the Minnesota Supreme Court held that the nonscientific evidence was sufficient. 681 N.W.2d at 28. Chantharath now argues that Olhausen is not controlling in this case for two reasons. First, different evidence was introduced in the two trials. Second, it was Olhausen, not Chantharath, who fled the scene and discarded the package.
Chantharath contends that Officer Nance testified in Olhausen’s trial that he believed Olhausen was offering “genuine methamphetamine” for sale. Chantharath contrasts this with Officer Nance’s testimony in this case that the package was “consistent with methamphetamine.” Id. at 28. The supreme court in Olhausen, however, was not quoting Officer Nance when ascribing to him the belief that he saw “genuine methamphetamine.” And the Olhausen court noted elsewhere in the opinion that Officer Nance admitted that he could not detect the odor of methamphetamine because of the cinnamon used to mask the scent and that he could not say with “100 % certainty” that the substance was methamphetamine. Id. at 24. Thus, Officer Nance did not testify at Olhausen’s trial that he was absolutely certain that the discarded package was methamphetamine. Officer Nance’s testimony at Olhausen’s trial, as described in the supreme court opinion, was not significantly stronger than his testimony here, namely that the package was “consistent with methamphetamine.”
The Olhausen court cited seven factors that combined to establish that the substance Olhausen showed Officer Nance was methamphetamine:
(1) [Olhausen’s] agreement to sell 1 pound of methamphetamine, (2) [Olhausen’s] phone calls to arrange the sale, (3)[Olhausen’s] representation of a small sample to Nance, a sample that Nance believed to be authentic methamphetamine, (4) [Olhausen’s] various statements, including an offer to sell “ten for one,” or 1 pound of methamphetamine for $10,000, (5) [Olhausen’s] various indications that the package he obtained from Chantharath was 1 pound of methamphetamine, (6) Chantharath’s representations to the police that he furnished [Olhausen] with 1 pound of methamphetamine, and (7) [Olhausen’s] dramatic flight from the scene of the incident.
Id. at 26. Evidence of each of these factors is present here. Although most of the factors involve representations or statements made by Olhausen rather than Chantharath, that fact alters neither the nature of the proof nor the weight the jury was entitled to give to it. Admittedly, testimony, based on first-hand knowledge, from the person who prepared the package would have been stronger evidence of the identity and weight of the substance. But neither Olhausen nor Chantharath was that person. And the evidence established that Chantharath was closer in the distribution chain to the “source” than Olhausen. Presumably, Chantharath’s admission to police that the substance he gave Olhausen was methamphetamine is entitled to slightly more weight than Olhausen’s.
Chantharath argues that factors in Olhausen, such as Olhausen’s flight and his discarding the package, are inapplicable here because Chantharath did not commit those acts. But just as Chantharath’s statements are probative evidence against Olhausen, the actions of Olhausen are probative evidence of the identity and weight of the substance that help establish Chantharath’s guilt. That Olhausen fled and discarded the package supports the same inference in Chantharath’s trial that it did in Olhausen’s. And Chantharath’s failure to flee the scene does not support an inference that he believed the substance in the package was not methamphetamine.
It is true, as Chantharath argues, that the Olhausen court implied that Olhausen should be estopped from challenging the identity and weight of the substance because he discarded it. But the Olhausen court offered this estoppel theory primarily to distinguish the facts in Olhausen from those in State v. Robinson, 517 N.W.2d 336 (Minn. 1994), and State v. Vail, 274 N.W.2d 127 (Minn. 1979), cases in which the supreme court had held the nonscientific evidence insufficient. In distinguishing those cases, the Olhausen court noted, “It was [Olhausen], not the state, who prevented more thorough testing.” 681 N.W.2d at 28. But the supreme court did not rest its holding on Olhausen’s wrongdoing.
The circumstantial evidence in this case does not dispel all possibility of simulated methamphetamine, as scientific testing would. But circumstantial evidence need only disprove any rational theory of innocence. See State v. Johnson, 616 N.W.2d 720, 726 (Minn. 2000). It is highly unlikely that Olhausen and Chantharath agreed to sell such a large quantity of methamphetamine and then delivered a purely placebo substance. Olhausen’s actions, opening the package for inspection and offering Officer Nance the opportunity to test the methamphetamine, demonstrate Olhausen’s ability to dispel the likely suspicions of a buyer in a $10,000 drug transaction. The same factors relied on by the supreme court in Olhausen are present here, in almost the same degree.
Our careful review of the record leads us to conclude that the circumstantial evidence is sufficient to prove both the identity and the weight of the controlled substance. Accordingly, the evidence is sufficient to support the conviction.