This opinion will be unpublished and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
Olmsted County District Court
File No. K4013438
Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn,
Assistant Public Defender,
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
Appellant Folashade Oloye challenges (1) the sufficiency of the evidence to support her convictions of controlled-substance crimes; (2) evidentiary rulings; and (3) separate sentencing for conspiracy to commit first-degree controlled-substance crime and aiding and abetting first-degree controlled-substance crime. Appellant raises additional issues in a pro se brief. Because the evidence was sufficient to support appellant’s convictions of first-degree controlled-substance crime and aiding and abetting first-degree controlled-substance crime, any evidentiary errors were harmless, the convictions did not arise from the same behavioral incidents, and appellant’s pro se arguments are without merit, we affirm.
A confidential informant (CI) working with Olmsted County law-enforcement officers participated in drug buys monitored by law-enforcement officers on August 21, 30, September 7, 13, 26, and 27, 2001. Search warrants executed on October 3, 2001, and January 2, 2002, at appellant’s two residences resulted in the recovery of crack cocaine. Appellant was alleged to have been involved in all of the sales either by aiding the sale or as part of a conspiracy to sell drugs. Based on the combined weight of crack cocaine involved, appellant was charged in count one with aiding and abetting controlled-substance crime in the first degree-sale, in violation of Minn. Stat. §§ 152.021, subds. 1(1), 3(b), 609.05, subds. 1, 2 (2000), and in count two with conspiracy to commit controlled-substance crime in the first degree. In counts three through thirteen, appellant was charged with aiding and abetting the lesser-included offenses underlying counts one and two.
The matter was tried to the district court without a jury. The district court dismissed count 13, found appellant not guilty of count six, and found appellant guilty of all the remaining counts. Appellant was convicted of only counts one and two. Adjudication was stayed on the remaining, lesser-included offenses. Appellant was sentenced to 134 months in prison for count one and a concurrent 158 months in prison for count two. This appeal followed.
I. Challenges to sufficiency of evidence
When the sufficiency of the evidence
is raised on appeal, this court’s standard of review is the same for bench
trials as it is for jury trials. State v. Cox, 278 N.W.2d 62, 65 (
a. Count Three: August 21, 2001 “park zone” sale
Selling drugs in a park zone is a second-degree offense. Minn. Stat. § 152.022, subd. 1(6) (2000). Appellant asserts that the district court erred by finding that she aided and abetted the sale of drugs in a park zone, as charged in count three of the complaint, because the sale did not occur in a park zone. But “sell” as defined in the statute includes offering to sell. Minn. Stat. § 152.01, subd. 15a(2) (2000). And it is undisputed that the initial contact between the CI and appellant that led to the exchange of money for drugs on August 21, 2001 occurred at appellant’s home, which is in a park zone. Within the park zone, appellant told the CI, who was looking for drugs to buy, to “go over to mamma’s house.” The actual exchange of money for drugs occurred at appellant’s mother’s residence, which is not in a park zone. Appellant argues that telling the CI to “go to mamma’s house” is insufficient to prove that the sale of drugs occurred in a park zone.
The state argues that this issue is “moot”
because appellant was not adjudicated on count three. A defendant may appeal as of right from any
adverse final judgment, and a judgment is final within the meaning of the rules
when there is a judgment of conviction and sentence is imposed or the
imposition of sentence is stayed.
Furthermore, as the state notes, appellant has not challenged the finding that she was guilty of count four, involving the same transaction without reference to a “park zone.” Therefore, reversing the finding of guilty on count three would not have any effect on appellant’s convictions of counts one and two, for which the amount of drugs from the separate sales were aggregated.
Even if we were to reach the merits of appellant’s claim, we note that the district court specifically found that the offer to sell occurred in a park zone, bringing the transaction within the ambit of Minn. Stat. § 152.022, subd. 1(6). Because there is circumstantial evidence in the record sufficient to support this finding, the district court did not err in finding appellant guilty of aiding and abetting a sale of drugs in a park zone.
Count One: Controlled-Substance
Crime in the First Degree -
The district court found that appellant was involved in sales of 11.1 grams of a mixture containing crack cocaine within a 90-day period. Appellant argues that because she should not have been found guilty of count nine, which involved the sale of five grams of crack cocaine at JJ’s Bar, the aggregate amount of crack cocaine she was involved in selling was less than the ten grams required for a conviction under Minn. Stat. § 152.021, subd. 1(1), as charged in count one.
The CI testified that on September 26, 2001, he talked to appellant by telephone about buying drugs. Appellant would not discuss drugs with him on the telephone, but told him to go to the Super America gas station by her house and call her from there. Appellant called the CI back when he was at the SA station and told him to go to JJ’s Bar, where Gilbert Jordan (appellant’s husband) and another man (Denolius James) would meet him. The meeting occurred, and the CI exchanged money for drugs with Jordan and James in the parking lot at JJ’s Bar.
Appellant contends that she was merely telling the CI where to find her husband and that the evidence is insufficient to support the finding that she is guilty of aiding and abetting the sale of drugs at JJ’s Bar. Based on the CI’s testimony, which was corroborated by officers who were monitoring him, we conclude that the evidence is sufficient to support appellant’s conviction of aiding and abetting this sale.
c. Count Two: Conspiracy to Commit Controlled-Substance Crime in the First Degree
“To prove the crime of conspiracy,
the state must show (1) an agreement between two or more people to commit a
crime, and (2) an overt act in furtherance of the conspiracy.” State v.
DeShay, 645 N.W.2d 185, 190 (Minn. App. 2002) (quotation omitted), aff’d (669 N.W.2d 878 (
“No formal agreement to commit the
acts charged need be shown. The
existence of the combination or conspiracy may be inferred from other facts
proved.” State v. Kahner, 217
II. Evidentiary rulings
Evidentiary rulings are generally
left to the sound discretion of the trial court. State
v. Horing, 535 N.W.2d 296, 298 (
a. Evidence from James’s motel room
Prior to trial, appellant moved in limine to exclude evidence found in an October 3, 2001 search of a motel room rented by James, who was involved in the September 26, 2001 sale of drugs. Appellant argued that James’s participation in the alleged conspiracy had ended as of September 26, so that evidence found in his motel room on October 3 was irrelevant to any issues involving appellant. The district court denied the motion and admitted: (1) evidence that James made numerous cash payments for the room from August through October 2001; (2) digital scales and baggie corners; (3) a bus ticket from Detroit to Rochester, paid for in cash; (4) an empty box of baking soda; and (5) an ATM receipt for a deposit of $1,500.
Acts of a conspirator occurring
after a conspiracy has ended are admissible against former co-conspirators only
when they are relevant to show the previous existence of the conspiracy or the
attainment of its illegal ends. Lutwak v.
The state argues that the conspiracy was ongoing and had not ended as of October 3, but admits that the evidence, which it asserts proved that James was a drug dealer and part of the conspiracy, was of little importance. The district court made no reference to this evidence in its findings, and appellant has not explained how the admission of evidence was prejudicial. Because this was a court trial, we conclude that if there was any error in admission of this evidence, the error was harmless.
b. Evidence of appellant’s welfare filing
Appellant argues that the district
court abused its discretion by allowing Spreigl
evidence from an
c. Other circumstantial evidence
Appellant also challenges the admission
of evidence recovered from the searches of her two residences consisting of
eight cell phones, a police scanner, and caller-ID evidence showing a high
number of calls from pay phones. Officer
Daryl Seidel testified about the use of cell phones and police scanners by drug
traffickers and testified that it is not uncommon for drug dealers to receive
calls from pay phones. Appellant asserts
that this evidence was improperly admitted as “profile” evidence, citing State v. Williams, 525 N.W.2d 538,
545-48 (Minn. 1994) (holding inadmissible testimony that defendant fit the
profile of a drug courier), and State v.
Litzau, 650 N.W.2d 177, 185 (Minn. 2002) (noting that testimony that drug
dealers often purchase vehicles without transferring title, sometimes use a
second older vehicle to transport drugs and often hide drugs in obscure places
such as the air cleaner was drug-profile evidence, akin to character evidence “plainly
inadmissible” under Williams). But the evidence admitted in this case is
distinguishable from the evidence in Williams,
which invited the jury to infer that because a defendant’s conduct fit a “drug
courier profile,” she must have known that her luggage contained crack cocaine. 525 N.W.2d at 548. The evidence in Litzau is also distinguishable, because it similarly implied that
because drug dealers were known to behave in a certain way, Litzau must have
known drugs were hidden in the air cleaner of his car. 650 N.W.2d at 184. In this case, Siedel’s testimony explained
why certain evidence found in appellant’s possession was considered by the state
to be circumstantial evidence of appellant’s involvement in drug sales. Williams
recognized that not “all testimony by police officers as to techniques employed
by known drug dealers or couriers is always inadmissible at trial.” Williams,
525 N.W.2d at 548. We conclude that the
evidence in this case was properly admitted as circumstantial evidence of
appellant’s involvement with drug sales.
d. Admission of Lionell Davis’s Guilty Plea
Over appellant’s objection, the
state was permitted to introduce portions of a guilty plea entered by Lionell
Davis as past recollection recorded and portions of the complaint against
Appellant argues that because
Appellant argues that the district court erred by sentencing her both for the conspiracy conviction and for the aiding-and-abetting conviction because the offenses arose from the same course of conduct. We disagree.
Under Minn. Stat. § 609.035, subd. 1
(2000), to protect against exaggerating the criminality of a person’s conduct,
“[t]he trial court may impose only one sentence if a person’s conduct
constitutes more than one offense but is part of the same behavioral
incident.” State v. Heath, 685 N.W.2d 48, 61 (
The facts and circumstances of the
particular case determine whether offenses arose out of the same behavioral
In Heath, we held that the record supported the district court’s
determination that conspiracy to manufacture methamphetamine and possession of
methamphetamine with intent to sell were not a single behavioral incident. Heath,
685 N.W.2d at 61. We reasoned that the
conspiracy occurred when there was an agreement to manufacture the drug and the
conspirators committed the first overt act in furtherance of the agreement and
preceded the second behavioral incident in which methamphetamine was in their
possession, making the two offenses divisible.
IV. Pro se arguments
Appellant raises several arguments in her pro se brief, some of which duplicate issues addressed above and none of which merit reversal or a new trial. Appellant argues ineffective assistance of counsel, but all of her arguments pertain to trial tactics, which do not support such a claim. From our review of the record, we find no merit in appellant’s assertions of prosecutorial misconduct or judicial bias.
 Appellant does challenge count four in her pro se brief, but on the same basis as her attorney challenges count three. Controlled-substance crimes in the third degree do not require a sale to be in a park zone, and appellant fails to attack that count on any other basis. See Minn. Stat. § 152.023, subd. 1(1) (2000). Her argument fails.