This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed June 28, 2005
Kandiyohi County District Court
File No. K0-03-1102
Mike Hatch, Attorney General,
Lisa A. Crum, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St.
Paul, MN 55101-2134; and
Boyd Beccue, Kandiyohi County
Attorney, 415 Southwest Sixth
Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)
John M. Stuart, State Public
Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis,
MN 55414 (for appellant)
and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
challenges his conviction of second-degree sale of a controlled
substance, in violation of Minn. Stat. § 152.022, subd. 1(1) (2002). He argues that the district court made a
number of evidentiary errors, that the prosecutor committed prejudicial misconduct,
and that the evidence was insufficient to support the jury’s guilty
verdict. Because we find no error or
abuse of discretion and because the evidence was sufficient to support the
jury’s verdict, we affirm.
February 4, 2003, confidential informant Robert Moore purchased cocaine from
Ernesto Barco under police supervision.
Barco is appellant Norland Patino’s former stepfather. Moore
was equipped with an audio-transmitting device and provided with marked
money. Moore and Agent Adam Christopher
of the CEE-VI Drug Task Force drove to Barco’s mobile home in Willmar.
Agent Todd Neumann, also of the drug task force, waited outside the
mobile-home park, listening to the transaction.
Barco was not at home, but a gray Honda Accord drove up, and Moore recognized the
driver and went to talk to him. Moore told the driver,
“What’s up, man? I need an eight
ball.” The driver told Moore that he had to find his “dad.”
Moore returned to the van
where Christopher was waiting and told Christopher that the Honda’s driver was
Patino, Barco’s son. Moore testified that when the Honda returned,
Barco was sitting in the front passenger seat.
got out of the van and sat in the Honda as he, Barco, and Patino negotiated a price
for the cocaine. Barco went into the mobile
home and came out with a package. Moore handed the money to
Barco; Barco gave him the package and handed the money to Patino.
Moore returned to the van
and gave Agent Christopher the package and the balance of the money. The substance in the package was later
confirmed to be cocaine.
was charged with second-degree sale of a controlled substance, in violation of
Minn. Stat. § 152.022, subd. 1(1) (2002), and a jury trial was held in
November 2003. On the first day of the
trial, an amended complaint was filed, charging Patino also with conspiracy to
commit a controlled-substance crime in the second degree, in violation of Minn.
Stat. §§ 152.096, subd. 2 (2002); .022, subds. (1), 3(a) (2002).
trial, Patino and his witnesses told the jury that Patino was in Texas on February 4, 2003, and that he did not arrive in Minnesota until a few
days before Valentine’s Day. But Moore
and Agent Christopher testified, and they identified Patino as the third person
involved in the drug sale. The jury
convicted Patino of both charges. The
district court dismissed the conspiracy charge and sentenced Patino to the custody
of the Commissioner of Corrections for 54 months. This appeal follows.
D E C I S I O N
first argues that the district court made a number of evidentiary errors and
abused its discretion by (a) admitting Agent Neumann’s testimony identifying
Patino’s voice on the audiotape of the controlled buy; (b) admitting testimony
that Barco attempted to influence a state’s witness during trial; and (c) admitting
Agent Christopher’s testimony regarding the information used to identify
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) (citation
a. Agent Neumann’s testimony
At trial, Agent Neumann introduced the audiotape of
the controlled buy; he explained what the jury was about to hear before each
segment of the tape was played. Before
the first segment was played, Agent Neumann told the jury that they would hear
the voices of Agent Christopher, Moore,
a female, Patino, and Barco. Patino
argues that this testimony was inadmissible because Agent Neumann was not
present at the time of the controlled buy, and, therefore, there was “no basis”
for Agent Neumann to tell the jury that they would hear Patino’s voice on the
The state argues that Patino failed to make a timely
objection to Agent Neumann’s testimony describing whose voices would be heard
on the tape. A party seeking to prevent
the admission of evidence must make a timely objection and state the specific
ground of the objection if the specific ground was not apparent from the
context. Minn. R. Evid. 103(a)(1). A party fails to make a timely objection when
he does not object during the witness’s testimony. State v. Bauer, 598 N.W.2d 352, 359, 363 (Minn.
1999) (noting that the defendant failed to make a timely objection when he did
not object after the disputed statement or at any time during the witness’s
testimony); State v. Peterson, 533
N.W.2d 87, 91 (Minn. App. 1995) (noting that
the defendant did not timely object to the use of photos at trial when he
failed to object during the witnesses’ testimony). Here, Patino objected during Agent Neumann’s
testimony, and he challenged Neumann’s personal knowledge of the events being
described. We conclude that Patino made
a timely and sufficient objection to Agent Neumann’s testimony, and we review
its admission for an abuse of discretion.
“A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.” Minn. R. Evid. 602. At trial, Agent Neumann explained what he
heard during the transmission and what he heard when he reviewed the tape. His narration provided no other details and
did not specifically identify Patino’s voice.
Because Agent Neumann heard the audiotape, on which Moore identifies Patino, and Agent Neumann
testified about what he heard, we conclude that the district court did not
abuse its discretion by admitting his testimony.
b. Testimony regarding Barco
Patino next argues that the district court committed
prejudicial error by admitting Moore’s testimony
that Barco had attempted to influence Moore
during the trial. At the end of Moore’s direct examination, the prosecutor asked Moore whether he had seen
Barco in the courtroom the day before and whether Barco had attempted to
communicate with him. Over the defense’s
objection, the district court allowed Moore
to testify, stating that testimony regarding “any attempt to influence a
witness one way or the other is certainly allowable.”
Moore testified that he saw Barco in the courtroom and
that Barco made signs with his hands to Moore: “[H]e motioned his hands to me. He just told me to be quiet.” He also testified that Barco motioned again
and that the motion could have meant: “Keep your mouth shut, or you can get
busted open. Or keep your mouth shut,
you can get paid.”
We review the admission of this testimony for an
abuse of discretion. Amos,
658 N.W.2d at 203. Relevant evidence may
be excluded when its probative value is substantially outweighed by the danger
of unfair prejudice. Minn. R. Evid. 403. Relevant evidence is “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Minn. R. Evid. 401. Barco’s attempt to influence Moore’s
testimony suggests that Moore
had knowledge that Barco did not want him to reveal. This could reflect Barco’s awareness that
Patino was guilty. Consciousness of a
defendant’s guilt or innocence is relevant.
v. Harris, 521 N.W.2d 348, 353 (Minn. 1994) (noting that
evidence of threats made to witnesses may be relevant because it demonstrates a
consciousness of guilt). Moore’s testimony was
short; it was not greatly emphasized; and significant other evidence existed
regarding Patino’s involvement in the controlled buy. Therefore, the probative value of this
statement was not outweighed by the danger of unfair prejudice. We conclude that the district court did not
abuse its discretion by admitting this testimony.
c. Agent Christopher’s testimony
Patino next argues that
the district court erred by allowing Agent Christopher to testify that he used
booking photos to identify Patino. At
trial, the prosecutor asked Agent Christopher how he identified the driver of
the Honda. Agent Christopher testified
that he compared the person whom he saw with photos available through Minnesota driver’s-license records and with booking
photos from the Kandiyohi
County jail. The defense did not object to this testimony. “[R]eview of unobjected-to errors is
discretionary” and is limited to review for plain error. State v. Griller, 583 N.W.2d 736, 740,
1998). “The plain error standard
requires that the defendant show: (1) error;
(2) that was plain; and (3) that affected substantial rights.” State v. Strommen, 648 N.W.2d 681, 686
(Minn. 2002) (citing Griller, 583
N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.
Ct. 1544, 1549 (1997))).
“If those three prongs are met, we may correct the error only if it
seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotations omitted).
On appeal, Patino cites
the plain-error standard, but he has not argued that Christopher’s testimony
affected Patino’s substantial rights or affected the fairness, integrity, or
public reputation of the judicial proceedings.
Because Patino has not adequately briefed plain error here, we choose
not to review the issue he raises regarding Agent Christopher’s testimony.
next argues that the prosecutor committed prejudicial error by stating
(a) that Barco was “toast” and that “he’s going to go anyway” for his
involvement in Patino’s charged offenses; and (b) that Patino had not produced
any documents showing that he was in Texas the day of the charged
offenses. Prosecutorial misconduct
warrants reversal only “when the misconduct, considered in the context of the
trial as a whole, was so serious and prejudicial that the defendant’s
constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720,
a. Statements regarding Barco
During the state’s
limited rebuttal after final arguments, the prosecutor made the following
If [Patino’s witnesses] were so concerned
as relatives about protecting Norland, why did they all bail out on what he
called Papi, which is Ernesto Barco?
That’s real, real easy. Ernesto
Barco is toast in this, on these facts.
He’s dead. He’s going to go
away. Okay. They are not giving up anything by saying
it’s Ernesto Barco. He’s already
gone. He’s identified on the tapes
already . . . .
defense objected to this comment and asked for a cautionary instruction. The court then cautioned, “The jury should
not conclude that Mr. Barco has been convicted of any crime or wrongdoing. That would be an erroneous conclusion. . .
. [T]here should be no conclusion that
any criminal wrongdoing has been established or that there’s been any type of
adjudication or conviction of any type.”
Patino argues that the prosecutor
improperly suggested that Patino was guilty because Barco was guilty and
improperly expressed his personal opinions about the credibility of Patino’s
witnesses. It is misconduct for a
prosecutor to express a personal opinion about the credibility of a
witness. State v. Buggs, 581
N.W.2d 329, 343 (Minn.
1998). But the supreme court has noted
that the standard prohibiting prosecutors from expressing their personal
opinions regarding a witness’s credibility was “not designed to prevent the
prosecutor from arguing that particular witnesses were or were not
credible.” State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991). In fact, a prosecutor “may present to the
jury all legitimate arguments on the evidence, analyze and explain the
evidence, and present all proper inferences to be drawn from the
evidence.” State v. Roman Nose,
667 N.W.2d 386, 402 (Minn.
Here, the prosecutor attempted to
explain why Patino’s witnesses would have protected him but not Barco. Arguably, by suggesting that Barco was
“toast” and “dead,” the prosecutor did not choose his words well. See Buggs, 581 N.W.2d at 342 (noting
that the prosecutor’s references to the defendant as a “coward” with a
“twisted” thought process were improper but did not require a new trial given
the other evidence in that case). But
the prosecutor did not use these words to describe Patino; the district court
addressed the implication of this word choice to the jury; and the district
court warned the jury not to infer that Barco had been convicted of a
crime. The prosecutor presented an
inference that could properly be drawn from the evidence, and his comments were
b. Statements regarding the lack of
Patino also argues that
the prosecutor committed prejudicial error when he stated in his limited
rebuttal after closing arguments:
Tessa Patino said, “I know that he was in Texas, because just before Valentine’s Day when he was
down in Texas, I wired him money by Western Union.” .
. . We have no documents. In fact, we
have absolutely nothing at all other than their testimony. We have nothing with regard to the tintings,
we have nothing with regard to any wired funds sent down to him, we have
nothing from people in Texas,
we have nothing like that at all.
While a prosecutor may not comment
on a defendant’s failure to call witnesses because it impermissibly shifts the
burden of proof to the defendant, “a remark by a prosecutor on the lack of
evidence regarding the defense’s theory [does] not shift the burden of proof to
the defense.” State v. Gassler,
505 N.W.2d 62, 69 (Minn. 1993) (citing State v. Race, 383 N.W.2d 656, 664 (Minn. 1986)). Here, the defense’s theory was that Patino
was not the third person involved in the controlled buy because he was in Texas on February 4,
2003. The prosecutor made a short,
isolated remark here about the lack of corroborating evidence for Patino’s
theory. This comment did not shift the
burden of proof to Patino and was not misconduct.
Patino argues that the evidence was not sufficient to support the jury’s
verdict. When considering a claim of
insufficient evidence, this court’s review is limited to a painstaking 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 the
verdict that they did. State v. Webb,
440 N.W.2d 426, 430 (Minn.
1989). The reviewing court must assume
that “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).
This is especially true when resolution of the matter depends mainly on
conflicting testimony. State v.
Pieschke, 295 N.W.2d 580, 584 (Minn.
1980). The reviewing court 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
reasonably conclude that the defendant was guilty of the charged offense. State v. Alton,
432 N.W.2d 754, 756 (Minn.
Patino was convicted of a
controlled-substance crime in the second degree, in violation of Minn. Stat. §
152.022, subd. 1(1) (2002). “A person is
guilty of controlled substance crime in the second degree if . . . on one or
more occasions within a 90-day period the person unlawfully sells one of more
mixtures of a total weight of three grams or more containing cocaine, heroin,
or methamphetamine.” Minn. Stat. §
152.022, subd. 1(1).
argues that the evidence is insufficient to prove beyond a reasonable doubt
that he was involved in the sale of cocaine on February 4, 2003. Patino challenges Agent Christopher’s ability
to identify him, and he attacks the credibility of Moore’s testimony.
Christopher testified that the gray Honda was parked approximately 20 feet from
his van and that he could see the driver’s features. Agent Christopher also testified that he
later identified Patino by comparing the person whom he saw with photos. And when asked at trial to identify the
driver, Agent Christopher pointed to Patino.
Moore testified that the
driver of the gray Honda Accord was Norland Patino. It is clear that Moore and Patino knew each
other. Patino testified that he
considered Moore a friend. In the
identified Patino as the person who drove the Honda Accord and who negotiated
the price of the cocaine.
his sisters, his mother, and Barco’s girlfriend all testified that Patino was
until the week or so before Valentine’s Day.
They also all testified that Patino’s voice was not on the audiotape of
the controlled buy and that the Honda’s windows were darkly tinted.
jury determines the weight and credibility given to the testimony of individual
witnesses. State v. Bias, 419
N.W.2d 480, 484 (Minn.
1988). An identification can be
sufficient to support a conviction “if a witness testifies that in his belief,
opinion, and judgment the defendant is the one he saw commit the crime.” State v. Daniels, 361 N.W.2d 819, 827
1985). The fact that a person has a
criminal history and might be cooperating with the police for personal gain
does not invalidate the witness’s testimony.
See id. (noting that the verdict rested on the jury’s
assessment of the credibility of the witnesses and that the jury had been
“fully appraised of the witnesses’ criminal records and plea bargains”).
points to no specific evidence, except for Moore’s
criminal background, that would make Moore’s
testimony not credible. The jury was
made aware of Moore’s
criminal history. Moore testified that Patino was wearing a
coat, and the jury heard other witnesses testify that Patino never wore a
coat. The jury also heard Patino and
other witnesses testify that Patino was in Texas on February 4, 2003. But the jury obviously found Moore’s testimony and Agent Christopher’s
testimony credible. Moore positively identified Patino as the
Honda Accord’s driver, the person who negotiated the price of the cocaine, and
the person who received the drug money from Barco. Agent Christopher also identified Patino as
the person he saw during the controlled buy.
And the evidence showed that Moore
bought more than three grams of cocaine at the controlled buy.
will not disturb the jury’s credibility determinations, and we conclude that
the evidence is sufficient to support the jury’s verdict.
we have considered the arguments raised by Patino in his pro se supplemental
brief and conclude that they do not provide a basis for relief.