This opinion will be unpublished and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

A04-1479

 

 

State of Minnesota,

Respondent,

 

vs.

 

Rodney Allan Schliemann,

Appellant.

 

 

Filed September 6, 2005

Affirmed

Halbrooks, Judge

 

 

Kandiyohi County District Court

File No. K1-02-1776

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Boyd Beccue, Kandiyohi County Attorney, John Kallestad, Assistant County Attorney, 415 Southwest 6th Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne Senecal-Hill, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of first-degree controlled-substance offense, arguing that evidence that he sold methamphetamine to an informant in a controlled buy was insufficient to support the conviction because the credibility of the informant, who was paid for the buy, was suspect, and her testimony was not corroborated.  Appellant also argues that because the forensic scientist did not test the entire amount of the purchased substance, there was insufficient evidence to prove that the quantity of methamphetamine was more than ten grams.  In addition, he contends that the district court erred by failing to give no-adverse-inference and addict-informer jury instructions.  Because credibility is an issue for the jury and Minnesota law requires no corroboration of non-accomplice testimony, because the homogeneous nature of the substance is such that its weight may be established through extrapolation from random samples of the substance, and because appellant presents no evidence that he requested the jury instructions in question, we affirm.

FACTS

            In April 2002, Deputy Jason Dingman contacted Katherine Braun, a paid police informant, and asked if Braun knew of anyone from whom she could buy drugs.  Braun then made several phone calls, including one to appellant Rodney Allan Schliemann.  According to Braun, appellant told her that he “could get some [drugs] or had some.”  She then called Deputy Dingman and set up a meeting with him.  Deputy Dingman testified that after Braun showed him where appellant lived, they

returned to the [l]aw [e]nforcement [c]enter where Ms. Braun was searched by [a female detective] and fitted with [a] body transmitter device or [a] body wire.  [Braun] was then provided with $700 cash, which was previously photocopied so that [law enforcement] could have control over the money that she was using.  [Braun] was then provided with one of the . . . [d]rug [t]ask [f]orce’s undercover vehicles, which had been . . . searched before it was given to Ms. Braun. 

 

The search of Braun did not include her mouth or other body cavities. 

Braun next placed a recorded phone call to appellant and arranged to meet him at his home.  After arranging the meeting, Braun drove the undercover car to appellant’s home, followed by Deputy Dingman and two additional police vehicles.  The officers parked the cars at various locations near appellant’s residence.  The officers saw Braun drive up to appellant’s home, but, due to obstructions, did not actually see her enter the house. 

The transmission from the body wire was poor, and Deputy Dingman was able to hear only bits of the conversation that took place.  He did hear Braun use appellant’s name, saying “Hey, Rod.  What’s up?  Wake up.”  He also heard a male voice respond.  In addition, he heard the parties discussing a “scale,” “an eight ball,” and haggling over a price, indicating that a drug deal was taking place. 

Braun testified that, after arriving at appellant’s home, she entered through an open garage door and saw appellant sleeping in a chair.  Braun woke appellant, who then pulled a “tin container” containing methamphetamine from his pocket.  She stated that appellant then put the methamphetamine in a plastic bag and sold it to her for $550.  According to Braun, appellant sold her everything he had—“a little over 10 grams.” 

Braun returned to her car and drove away.  The officers followed her to a predetermined location where she gave Deputy Dingman a plastic bag containing chunks of a substance he believed to be methamphetamine and $150 cash.  Braun and the vehicle were searched once again, and Braun provided a tape-recorded debriefing statement in which she described what happened in appellant’s home.  She was then paid $500 for her assistance.  According to the state, appellant was not arrested at this time because the officers wanted to use Braun as an informant in other cases. 

The substance sold to Braun was initially field-tested and weighed, then sent to the Bureau of Criminal Apprehension (BCA) laboratory for analysis.  The substance was analyzed by BCA forensic scientist Lisa Seurer, who reweighed the substance and found that it weighed 10.6 grams.  Seurer testified that she first did a preliminary examination to provide “some sort of idea [of] what [she] might be working with,” then conducted a confirmatory analysis using a gas chromatograph mass spectrometer.  To conduct this analysis, Seurer “shaved portions of numerous chunks, combined them, [and] ground them to form a composite of the entire sample.”  She stated that she considered all of the chunks to compose “one sample” because they were all in the same package and noted that the sample “appear[ed] to be uniform in nature as well as color and consistency.”  Based on her analysis, Seurer determined that the substance was methamphetamine. 

On December 9, 2002, appellant was charged with one count of controlled substance crime in the first degree in violation of Minn. Stat. § 152.021, subds. 1(1), 3(a) (2000).  Appellant moved to dismiss the complaint for lack of probable cause.  At the omnibus hearing, appellant also moved to suppress the audiotape of Braun’s body wire because the recording was inaudible.  The district court denied both motions. 

In May 2003, the public defender assigned to appellant moved to withdraw as counsel because appellant was uncooperative and “[a]dopted a hostile, abusive, and accusatory attitude toward counsel, culminating with four separate consecutive abusive, profane and threatening voice[-]mail messages.”  The district court found that appellant had constructively terminated his attorney-client relationship and that it would be “impossible” for a public defender to continue to represent him.  The district court then granted appellant a continuance to hire a private attorney. 

In late August, appellant filed a pro se motion to dismiss because of the actions of the public defender’s office or, in the alternative, for appointment of a new public defender or another continuance to hire an attorney.  Appellant also requested a second omnibus hearing.  The district court granted appellant two additional months to hire an attorney and denied appellant’s other motions.  In mid-November, appellant’s private attorney filed a certificate of representation and asked for a continuance, which the district court granted. 

Following a jury trial, appellant was convicted of first-degree sale of a controlled substance.  Appellant moved for a new trial or, alternatively, that the district court find him guilty of a lesser charge of fifth-degree controlled-substance crime.  Appellant also moved for a downward sentencing departure.  The district court denied appellant’s motion for a new trial or guilty verdict on the lesser-included offense.  The district court then sentenced appellant to the presumptive sentence of 93 months in prison.  This appeal follows.

D E C I S I O N

I.          Corroboration

Appellant first argues that the evidence at trial was insufficient to support his conviction of sale of a controlled substance because the testimony of the police informant was inherently suspect and was not corroborated.  When considering a claim of insufficient evidence, our review is limited to a careful assessment of the record to determine whether “a jury could reasonably find the defendant guilty given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  “The dispositive consideration . . . is not whether reasonable doubt existed, but whether there was sufficient evidence for a jury to reasonably conclude that no reasonable doubt existed.”  Id. (quotation omitted). 

When reviewing the record, an appellate court must view the evidence in the light most favorable to the jury’s verdict.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  Determining the weight and credibility of witness testimony is a matter for the jury.  Id.; see also Miles, 585 N.W.2d at 373 (stating that “[t]he jury determines the weight and credibility of individual witnesses and of the defendant’s story”).  We must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  Moore, 438 N.W.2d at 108.  Moreover, “a conviction may rest on the testimony of a single credible witness.”  Miles, 585 N.W.2d at 373.

Appellant argues that the informant’s testimony requires corroboration because the informant was paid, has used drugs in the past, and had a prior relationship with appellant.  But under Minnesota law, only accomplice testimony must be corroborated.  See Minn. Stat. § 634.04 (2004) (“A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense.”) (emphasis added).  Minnesota has not adopted a corroboration requirement for testimony from drug users or paid informants, either legislatively or judicially.  Implementing such a requirement is a task most appropriately reserved for the supreme court.  See Northfield Ins. Co. v. St. Paul Surplus Lines Ins. Co., 545 N.W.2d 57, 62 (Minn. App. 1996) (noting that “[t]he Minnesota Supreme Court is the appropriate forum to address a question regarding the extension of existing law” (quotation omitted)), review denied (Minn. June 19, 1996).  Accordingly, we decline to implement a corroboration requirement here.

            Moreover, even if corroboration were required, it exists in this case.  Circumstantial evidence can provide the requisite corroboration.  Cf. State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995) (stating that “[c]ircumstantial evidence indicating the defendant’s participation in the crime is sufficient to corroborate [an] accomplice’s testimony”).  Such circumstantial evidence is reviewed in the light most favorable to the verdict.  Id.  Here, the officers involved testified regarding their observations, and, although significant portions of the recording of the conversation that took place in appellant’s home are inaudible, the parts that can be heard reasonably support the inference that a drug buy was occurring.  Evidence thus exists to corroborate Braun’s testimony.

            Appellant asserts Braun’s status as a paid informant, her alleged history with appellant, and her drug use render her testimony unreliable and insufficient to support a conviction.  But Braun’s potential bias and the deal she had made with the police were brought out multiple times during the trial, both by the state and by appellant.  Braun’s prior drug use and her alleged relationship with appellant were also addressed during the trial.  Moreover, in closing, appellant argued that Braun’s drug history, relationship with appellant, status as a paid informant, and deal with the police made her unreliable and asked the jury to disregard her testimony.  The weight and credibility of Braun’s testimony was for the jury to determine.  Moore, 438 N.W.2d at 108.  Under the applicable standard of review, we must assume that the jury believed Braun’s testimony.  Id.  Thus, appellant has not demonstrated that the evidence was insufficient to support his conviction.

II.        Sampling Methods

Appellant argues that because the sampling method used by the BCA was defective, the state failed to meet its burden of proof regarding the weight of the methamphetamine.  Under Minnesota law, a person is guilty of a first-degree controlled-substance sale crime if “on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing cocaine, heroin, or methamphetamine.”  Minn. Stat. § 152.021, subd. 1(1) (2000).  The weight of the controlled substance is an essential element of the offense and must be proved beyond a reasonable doubt.  State v. Papadakis, 643 N.W.2d 349, 354 (Minn. App. 2002). 

In support of his argument, appellant cites State v. Robinson, 517 N.W.2d 336 (Minn. 1994).  In Robinson, the defendant was charged with first-degree sale of a controlled substance after police found a plastic bag containing packets of what appeared to be crack cocaine stuffed in the crease of a car seat where the defendant had been sitting.  Id. at 337.  The chemist who tested the substance testified that the bag contained thirteen packets, each holding “a piece of a white substance,” and that she emptied the contents of six or seven of the packets into a container and then tested samples of the mixture.  Id. at 338.  The chemist determined that the mixture was 87.6 percent base cocaine and that the total weight of the substance in the thirteen packets was 16.7 grams.  Id.  The defendant was subsequently convicted of selling ten or more grams of a controlled substance.  Id. at 337-38.  This court affirmed the conviction.  Id.at 338.

The supreme court reversed, finding that the state’s evidence was insufficient to sustain a conviction.  Id.  The supreme court concluded that randomly sampling six or seven of the thirteen bags was inadequate to establish beyond a reasonable doubt that appellant had sold more than ten grams of cocaine because the state had not proved what was in the untested packets.  Id. at 339. 

But Robinson is distinguishable.  There, as the supreme court noted, the evidence consisted of thirteen “individually wrapped plastic packets with some amount of some kind of white substance in each, whose packaging [gave] no assurance that the same substance was wrapped in each packet.”  Id. at 340.  Consequently, “[t]he degree of homogeneous packaging needed for random sampling [was] not present.”  Id.  Here, in contrast, all of the substance was contained in one package.  Accordingly, the concerns of the Robinson court that different packages may contain different substances does not apply.  Contra People v. Hill, 524 N.E.2d 604, 611 (Ill. App. Ct. 1988) (cited in Robinson, 517 N.W.2d at 339, and stating that “[w]here separate bags or containers of suspected drugs are seized, a sample from each bag or container must be conclusively tested to prove that it contains a controlled substance”) (emphasis added)).

The question thus becomes whether the state is required to test all of a suspected controlled substance when the entire amount is contained in a single package.  The supreme court has not adopted a per se rule requiring the detailed testing of all disputed evidence.  Rather, as the Robinson court recognized, instances may arise when extrapolation from random samples is sufficient to establish the weight of an entire mixture.  517 N.W.2d at 340; see also State v. Traxler, 583 N.W.2d 556, 561 (Minn. 1998) (noting that “Robinson does not . . . preclude the state from establishing the weight of a mixture through extrapolation from random samples in every controlled substance case”).  Here, Seurer testified that she conducted a “gross physical examination” of the substance and that it “appear[ed] to be uniform in nature as well as color and consistency.”  She then shaved pieces from “numerous chunks” of the substance for testing.  We also note that, in contrast to Robinson, where there was no controlled buy and the suspected drugs were found during a search of a car, the circumstances surrounding the buy in this case support the inference that a sale of methamphetamine had occurred.  Braun called appellant to arrange a drug sale, and during the transaction, the parties discussed “an eight ball” and haggled over the price.  The record thus indicates that this is one of the cases anticipated by Robinson “where the individual items are so alike and the risk of benign substitutes so unlikely that random testing may legitimately permit an inference beyond a reasonable doubt that the requisite weight of the whole mixture is established.”  517 N.W.2d at 340.  Given the facts and circumstances of this case, we conclude that the state met its burden of proof regarding the weight of the methamphetamine.

III.       Jury Instructions

In his pro se brief, appellant argues that the district court erred by failing to instruct the jury that no adverse inference should be drawn from appellant’s decision not to testify on his own behalf and by failing to give “cautionary addict-informer instructions.”  But appellant points to no evidence in the record that he requested either of these jury instructions.

The supreme court has held that the district court “ordinarily should obtain a criminal defendant’s permission before giving” a no-adverse-inference instruction.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  Because appellant did not request such an instruction, the district court did not err by failing to give it.  Likewise, appellant points to no authority requiring the district court to give an unrequested addict-informer instruction.  Cf. United States v. Hoppe, 645 F.2d 630, 633 (8th Cir. 1981) (declining to adopt a per se rule requiring an addict-informant instruction even when requested by defendant, but holding that the circumstances of each case determine the need for such an instruction). 

            Affirmed.