This opinion will be unpublished and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

A04-333

 

 

State of Minnesota,

Respondent,

 

vs.

 

Steven David Bibro,

Appellant.

 

 

Filed December 21, 2004

Affirmed

Robert H. Schumacher, Judge

 

Meeker County District Court

File No. K302722

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Tiernee M. Murphy, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 Sibley Avenue North, Litchfield MN 55355 (for respondent)

 

John M. Stuart, State Public Defender, Melissa V. Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

Considered and decided by Schumacher, Presiding Judge; Minge, Judge; and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Steven David Bibro challenges his conviction for aiding and abetting the manufacture of methamphetamine, arguing (1) the evidence was insufficient to support his conviction, and (2) the prosecutor committed prejudicial misconduct during opening and closing arguments. We affirm.

FACTS

In the evening of September 10, 2002, Meeker County sheriff's deputy Jon Thoma went to the home of Kristin Renee Warren to execute an outstanding warrant for her arrest. As Thoma approached the house in a marked police car, he observed that the roll-down door of a freestanding two-car garage was closing. Thoma stopped the car, approached the garage on foot, and heard voices and activity inside the garage, but received no response when he pounded on the door. Approximately 10 minutes later, as Thoma stood outside the garage, the door opened suddenly and Bibro and Jeremy Stephen LaPointe ran out, whereupon a large explosion inside the garage occurred, setting the structure on fire.

Upon Thoma's order, Bibro and LaPointe stopped running and dropped to the ground. Bibro was wearing a protective coverall of the type worn by police while dismantling clandestine drug laboratories; after Bibro dropped to the ground, he discarded a glass vial containing 0.3 grams of methamphetamine. When the fire fighters arrived, they observed that the fire in parts of the garage intensified when water was sprayed on it; one of the firemen subsequently testified that this reaction is consistent with the presence of burning lithium, an ingredient used in the manufacture of methamphetamine.

Brian Cruze, a Meeker County sheriff's officer who is certified by the Drug Enforcement Administration as a methamphetamine-laboratory investigator, entered the burned garage and found various ingredients and materials used in the manufacture of methamphetamine, including a gallon tank of Toluol; a gallon can of Acetone; empty containers of muriatic acid, hydrogen peroxide, rubbing alcohol, and lye; plastic tubing, a laboratory-grade glass flask, and a Pyrex glass; and a gram scale. After obtaining a search warrant, Cruze entered Warren's residence, where he discovered a small amount of methamphetamine in a container in the kitchen as well as more methamphetamine-manufacturing paraphernalia, including seven lithium batteries with the covers removed; a container of HEET antifreeze; and more than 350 pseudophedrine pills. Cruze discovered similar manufacturing materials in the garbage can outside the residence.

Cruze asked Bibro if there was anhydrous ammonia on the premises; anhydrous ammonia is a crucial ingredient in the manufacture of methamphetamine. Bibro responded that there was none because the person who was supposed to bring it had not yet done so.

Warren and LaPointe were arrested and charged with manufacture of methamphetamine. Bibro was arrested and charged with aiding and abetting the manufacture of methamphetamine in violation of Minn. Stat. 152.021, subds. 2a, 3(a); 609.05, subd. 1 (2002), and possession of methamphetamine in violation of Minn. Stat.  152.025, subds. 2(1), 3(a) (2002). Warren and LaPointe both pleaded guilty; as part of the factual basis for their pleas, both testified that Bibro and LaPointe had been manufacturing methamphetamine in the garage on Warren's property on the evening of September 10, 2002. LaPointe specifically stated that with respect to the manufacture of methamphetamine in the garage, Bibro was the "head cook."

Bibro pleaded not guilty. At trial, officer Cruze testified that he had discovered items used in each of the four steps of methamphetamine production on Warren's property. He stated that although he had not discovered any anhydrous ammonia on the premises, he believed methamphetamine was being manufactured in Warren's garage. Cruze testified that no methamphetamine or residue thereof was found in the garage or on any of the items in the garage.

At trial, Warren repeated her guilty-plea testimony that Bibro and LaPointe had been manufacturing methamphetamine in the garage. LaPointe testified that although he had pleaded guilty to manufacturing methamphetamine, he had not previously stated that Bibro had participated in the manufacture, and that his reference to Bibro's status as "head cook" during his guilty-plea hearing indicated only that Bibro had cooked food for the people at Warren's home on the evening of September 10. LaPointe testified that the methamphetamine in Bibro's possession on the night of the arrest had been brought to Warren's home by Bibro and not manufactured by Bibro and LaPointe.

During opening and closing arguments, the prosecutor stated that this case is about "taking responsibility for your actions" and went on to suggest that Bibro was unwilling to do so. Bibro did not object to either statement. The jury found Bibro guilty as charged.

D E C I S I O N

1. Bibro argues the evidence at trial was insufficient to support his conviction of aiding and abetting the manufacture of methamphetamine because the state failed to show methamphetamine was actually manufactured. In considering a claim of insufficient evidence, this court's review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the resulting verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). It is the exclusive role of the jury to determine the weight and credibility of witness testimony. State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998). We 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), and 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 have reasonably concluded that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Bibro was convicted under Minn. Stat. 152.021 (2002), which provides that a person is guilty of first-degree controlled substance crime if the person "manufactures any amount of methamphetamine." Id., subd. 2a. "Manufacture" is defined to include "the production, cultivation, quality control, and standardization by mechanical, physical, chemical, or pharmaceutical means, packing, repacking, tableting, encapsulating, labeling, relabeling, filling, or by other process, of drugs." Minn. Stat.  152.01, subd. 7 (2002).

Bibro argues that his conviction is not supported by the evidence because there was no evidence of anhydrous ammonia on Warren's property and because no methamphetamine or methamphetamine residue was found on the premises except for the small amount he threw to the ground and that found in the kitchen, neither of which was proved to have been manufactured by Bibro.

The state offered direct evidence that Bibro was manufacturing methamphetamine in the form of Warren's and LaPointe's guilty pleas to manufacturing methamphetamine and Warren's testimony at trial that Bibro was manufacturing methamphetamine on the night of his arrest. Because Warren and LaPointe are accomplices to Bibro's charged crime, their testimony is "considered inherently untrustworthy." State v. Sorg, 275 Minn. 1, 5, 144 N.W.2d 783, 786 (1966). An accomplice's testimony is an inadequate basis for conviction unless it is corroborated by other evidence "as tends to convict" the defendant, which must include evidence other than a mere showing that the offense occurred. Minn. Stat. 634.04 (2002). The evidence corroborating an accomplice's testimony "must link or connect the defendant to the crime." State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).

Here, the corroborating evidence of Bibro's guilt consisted primarily of circumstantial evidence referenced in Cruze's testimony, who stated that based upon the material he discovered around Warren's home and garage, he believed that Bibro was manufacturing methamphetamine. Corroborating evidence may be direct or circumstantial, and it need not corroborate the accomplice's testimony on every point. State v. England, 409 N.W.2d 262, 264 (Minn. App. 1987). If a defendant's connection to the crime may be fairly inferred from the corroborating evidence, the corroboration is sufficient. State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995). The sufficiency of the circumstantial evidence to corroborate an accomplice's testimony that the defendant participated in the crime is reviewed in the light most favorable to the verdict. State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995).

The jury determines the credibility and weight of circumstantial evidence, and, as always in a sufficiency-of-the-evidence case, this court must assume that the jury disbelieved any evidence contrary to the verdict. State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997). Here, the jury made inferences based upon Cruze's corroboration of the accomplice testimony, weighed the evidence, and found that the state had met its burden with respect to the elements of the charged offense. The jury determined that the state's failure to produce methamphetamine manufactured by Bibro or demonstrate discovery of each ingredient necessary for such production was not fatal to a reasonable finding of guilt. See State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (stating that inconsistencies in state's case or possibilities of innocence do not require reversal of jury verdict so long as evidence taken as whole makes such theories seem unreasonable). The evidence is sufficient to support the verdict.

2. Bibro argues for the first time on appeal that the prosecutor committed prejudicial misconduct at the opening statement and closing argument by referring, in each, to Bibro's failure to "take responsibility" for his actions.

A defendant usually waives his right to raise the issue of prosecutorial misconduct on appeal when he fails to object or to seek a curative instruction at trial. State v. Torres, 632 N.W.2d, 609, 617-18 (Minn. 2001). Relief will be granted in the absence of a timely objection only in cases involving plain error that is "so prejudicial to the defendant's right to a fair trial, that the defendant's failure to object and thereby present the trial court with an opportunity to avoid prejudice should not forfeit his right to a remedy." Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996). The failure to object implies that the defendant found nothing improper in the closing argument. State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983).

It is proper for a prosecutor to talk about . . . accountability, in order to help persuade the jury not to return a verdict based on sympathy for the defendant, but the prosecutor should not emphasize accountability to such an extent as to divert the jury's attention from its true role of deciding whether the state has met its burden of proving defendant guilty beyond a reasonable doubt.

 

State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985). In reviewing a prosecutor's statements, this court looks at the prosecutor's arguments "as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence." State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

Taken in the context of the opening statement and closing argument considered as a whole, the prosecutor's remarks about Bibro's responsibility were not prejudicial. During closing argument, the prosecutor discussed the state's burden of proof at length and reminded the jury that it must find Bibro guilty of each element of the charged offenses. The prosecutor's mention of Bibro's responsibility for his actions bore little or no risk of distracting the jury from its duty to weigh facts. And although Bibro cites to State v. Salitros, 499 N.W.2d 815 (Minn. 1993), for the proposition that a prosecutor may not emphasize accountability at closing argument, that case holds improper a prosecutor's "belittling a particular defense in the abstract." Id. at 818.

Even if the prosecutor's statements were improper, their effect was not sufficient to warrant a new trial. See Walsh, 495 N.W.2d at 607 (concluding that, even where closing argument was "in some respects out-of-bounds," it is regarded as harmless error unless misconduct played substantial role in jury's decision to convict). First, the offending remarks comprised three sentences of a five-page opening statement and seven sentences of a ten-page closing statement. Second, the court twice cautioned the jury that counsels' statements were not to be considered evidence. See State v. Washington, 521 N.W.2d 35, 40 (Minn.1994) (stating instruction that arguments of attorney are not evidence is factor in determining prosecutorial misconduct). Third, in light of the amount of evidence presented to prove Bibro's guilt, we cannot conclude the mention of responsibility improperly influenced the jury. See id. (stating reviewing court must consider "the strength of the other evidence against the defendant in determining if an improper comment influenced the jury").

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.