This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed June 28, 2005
Clay County District Court
File No. K4-03-2091
Mike Hatch, Attorney General, Omar A. Syed, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56560 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.
On appeal from conviction of first-degree controlled substance offense, appellant argues that (1) the district court committed plain error in failing to give an accomplice testimony instruction because the three primary witnesses against appellant were, or could have been, charged for the same incident; (2) he was denied the effective assistance of counsel when his attorney failed to request the instruction; and (3) police testimony that methamphetamine (meth) was manufactured at two of appellant’s temporary residences was insufficient to corroborate the accomplice testimony. We affirm.
At trial, Officer Toby Krone testified that at about 3:00
p.m. on November 12, 2003, he observed appellant and his girlfriend,
Officer Krone continued to follow Molstad’s vehicle for
about a half-hour, but stopped when Molstad exited the interstate because he
did not want to raise appellant’s suspicions.
After appellant’s arrest, Officer Krone went to Molstad’s apartment to question Molstad. Molstad admitted that earlier that evening he and appellant had been searching for anhydrous ammonia, an important ingredient in the manufacture of meth. Molstad consented to searches of his vehicle and apartment, but no evidence of meth was found, so he was not taken into custody.
The next day, November 13, Officer Krone spoke with
At trial, Molstad testified that
After seizing the red bag, Officer Krone interviewed
While talking to Wetzel, Officer Krone showed him a photo
of the red bag found in Molstad’s apartment.
Wetzel told Officer Krone that he recognized the bag as a Marlboro bag
that belonged to appellant. In addition,
During the interview, Wetzel allowed Officer Krone to enter his garage, which was generally locked and to which only Wetzel and appellant had keys. After Wetzel identified his belongings and those of appellant, Officer Krone obtained a search warrant for the garage. A search of the items that Wetzel claimed belonged to appellant revealed many items that are commonly used to manufacture and distribute meth. Some of these items were contained in a cooler belonging to Wetzel, but which, according to him, he had given to appellant in 2002. Wetzel also denied ownership of any of the meth-related items and any knowledge of appellant’s suspected meth production. Samples of the items found in the bag and in Wetzel’s garage were sent to the Bureau of Criminal Apprehension; the items tested positive for meth and ephedrine, which is the precursor of meth. Appellant was subsequently charged with the first-degree controlled substance offenses.
While in jail, appellant communicated several times with
Wetzel and Smith. In a November 14 phone
At trial, appellant stipulated that the components found
in the red bag and later in Wetzel’s garage constituted a fully functioning
meth laboratory. Molstad also testified
at trial that appellant provided him with meth and that he sometimes observed
appellant manufacturing meth. Molstad
further testified that he would go on “anhydrous ammonia runs” with appellant
and that both were on an “ammonia run” the night of November 12, 2003. Although Molstad was charged with aiding and
abetting manufacturing meth, and
The jury found appellant guilty as charged, and appellant was sentenced to the presumptive sentence of 129 months. This appeal followed.
I. Accomplice Testimony Instruction
Appellant argues that the district
court erred by failing to instruct the jury that accomplice testimony must be corroborated. District courts are allowed
“considerable latitude” in the selection of the language for jury
instructions. State v.
Here, appellant did not object to
the district court’s failure to provide the accomplice testimony
instruction. Failure to request specific
jury instructions or to object to instructions before they are given to the
jury generally constitutes a waiver of the right to appeal. State v. Cross, 577 N.W.2d 721, 726 (
The state concedes that the district court should have issued an accomplice instruction regarding the testimony of Molstad and Forster because both were appellant’s accomplices. But the state contends that appellant was not prejudiced by the district court’s failure to give the instruction.
For plain error to be reversible
error, it must affect substantial rights.
N.W.2d at 740. The accomplice testimony
instruction states that “[a jury] cannot find the defendant guilty of a crime
on the testimony of a person who could be charged with that crime, unless that
testimony is corroborated by other evidence that tends to convict the defendant
of the crime.” 10
Appellant argues that he was
prejudiced because the outcome of the trial would have been different if the
accomplice instruction had been provided.
We disagree. At trial, appellant
stipulated that the components found
in the red bag and later, in Wetzel’s garage, constituted a fully functioning
meth lab. Thus, the only issue was the ownership
of the bag. Molstad and
Molstad also testified that on the evening of November 12, 2003, he was with appellant looking for anhydrous ammonia. This testimony is corroborated by Wright who testified that Molstad and appellant stopped by her residence on November 12 to inquire about where they could obtain anhydrous ammonia for manufacturing meth. Moreover, appellant’s suspicious conduct and the statements to Wetzel and Smith while he was in jail tend to establish appellant’s guilt. The district court specifically instructed the jury that
such matters as the witness’s interest or lack of interest in the outcome of the case, their relationship to the parties, their ability and opportunity to know, remember and tell the facts, their manner, age, experience, frankness and sincerity or the lack thereof, the reasonableness or unreasonableness of their testimony in light of all of the other evidence and any other factors that bear on the question of believability and credibility.
The district court later reminded the jury that “[y]ou are the sole judges of the truthfulness and the credibility of the witnesses.” Accordingly, there is enough corroborating evidence that the omission of the accomplice instruction did not affect appellant’s substantial rights.
II. Ineffective Assistance of Counsel
Appellant argues that he was denied
effective assistance of counsel because trial counsel failed to request the
accomplice testimony instruction. An appeal from a judgment of conviction is
generally not the proper method of raising an issue concerning the
effectiveness of defense counsel. See State v. Gustafson, 610 N.W.2d 314,
prevail on a claim of ineffective assistance of counsel, the defendant must
show that counsel’s representation “‘fell below an objective standard of
reasonableness’ and ‘that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Gates v. State, 398 N.W.2d 558, 561 (
argues that because the accomplice testimony instruction is mandated by law to
ensure that the jury does not convict on inherently unreliable accomplice
testimony, a reasonably competent attorney would have requested the
instruction. But the court should
instruct on accomplice testimony regardless of whether counsel asks for the instruction, and, therefore, failure to request an instruction the court is already obligated to give is not
ineffective assistance of
counsel. See State v. Strommen, 648 N.W.2d 681, 689 (
III. Sufficiency of Evidence
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 jury to reach the verdict that it did.
Appellant argues that (1) the nonaccomplice testimony was insufficient to sustain his conviction, and (2) the state failed to prove that he had constructive possession of the meth labs.
A. Nonaccomplice Testimony
As stated above, an accused
may not be convicted on the uncorroborated testimony of an accomplice.
B. Constructive Possession
argues that the state failed to prove that he had constructive possession of
the meth labs found in Molstad’s apartment and in Wetzel’s garage. A person may constructively possess
a controlled substance alone or with others.
Here, the meth labs were found in
Molstad’s apartment and in Wetzel’s garage.
Thus, in order to show that appellant constructively possessed the meth
labs, the state must show that there was a strong probability that he exercised
dominion and control over the area. See Florine, 303
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Following an omnibus hearing, the charge for the fifth-degree controlled substance offense was dropped. Evidence relating to this charge was not allowed at trial.
Appellant also argues that Wetzel was an accomplice, but appellant’s trial
counsel did not make this argument at trial.
Therefore, a determination of whether Wetzel should have been considered
an accomplice in this matter is not properly before this court. See
Thiele v. Stich, 425 N.W.2d 580, 582 (