This opinion will be unpublished and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
Filed March 28, 2006
County District Court
Attorney General, 1800 Bremer Tower, 445 Minnesota,
Street, St. Paul, MN 55101;
Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50
West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for
Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue S.E., Suite 425,
55414 (for appellant)
and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a conviction
of sale of marijuana, appellant contends that, because the police did not find
the money he allegedly received in the sale on his person, the evidence was
insufficient to support the conviction.
response to complaints about drug dealing at city bus stops, St.
Paul police and Metro Transit police conducted a surveillance of a
bus stop at Fifth and Minnesota Streets in downtown St. Paul.
A St. Paul officer watched the bus
stop through binoculars from a skyway above the street and 35 yards away. He maintained telephone contact with Metro
Transit officers in the area.
St. Paul officer
testified that, at about 3:00 p.m., he saw appellant Richard McFee leaning
against a fence next to the bus stop. A
man approached and spoke to McFee, who took two small bags of marijuana out of
his pocket and showed them to the man.
The man gave McFee a $5 bill, and McFee then opened one of the bags and
poured some of the marijuana into the man’s hand. The officer had a clear and unobstructed view
of the transaction and knew that McFee received a $5 bill because “[w]ith
binoculars it was plain as day.” He did
not see what McFee did with the money.
officer notified the Metro Transit officers, who drove to the scene and
arrested McFee. McFee admitted that he
had two bags of marijuana and the officers seized them. The officers did not find the “buy” money.
a jury found McFee guilty of one count of controlled substance sale in the fifth
degree. McFee appealed.
D E C I S I O N
charge of which McFee was convicted is the sale of a small amount of marijuana
for remuneration. Minn. Stat. § 152.025,
subd. 1(1) (2002). McFee concedes that
he possessed a small amount of marijuana at the time of the incident in
question and that he transferred approximately 0.4 grams, also a small amount,
to another. But he contends that he did
not “sell” marijuana and that the evidence did not show that he received any
remuneration for the marijuana he gave to another. The transfer of a small amount of marijuana
for no remuneration is a petty misdemeanor, Minn. Stat. § 152.027, subd. 4
(2002), whereas a “sale” for remuneration is a felony. Minn. Stat. § 152.025, subds. 1(1), 3(a)
considering a claim that the evidence presented at trial was insufficient to
support a criminal conviction, the reviewing court must assess 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. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).
The reviewing court views the evidence in a light most favorable to the
conviction. State v. Moore, 438 N.W.2d 101, 108
1989). But it is not the province of the
appellate court to evaluate the credibility of witnesses who testified at
trial. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).
Rather, the jury determines the credibility of witnesses. Moore, 438
N.W.2d at 108. “As a general matter,
judging the credibility of witnesses is the exclusive function of the
jury.” Dale, 535 N.W.2d at 623. The
appellate court must assume that “the jury believed the state’s witnesses and
disbelieved any evidence to the contrary.”
Moore, 438 N.W.2d at 108. Furthermore, a conviction may be based on the
testimony of a single credible eyewitness.
State v. Bliss, 457 N.W.2d
385, 390 (Minn.
St. Paul police
officer testified that he saw McFee transfer marijuana to another man in
exchange for a $5 bill, and that he watched the arrest process. The arresting officers did not find a $5 bill
in McFee’s possession, and neither they nor the St. Paul officer saw McFee drop the
bill. Because no $5 bill was located,
McFee contends that the evidence was insufficient to show that the transfer of
marijuana involved remuneration.
the St. Paul police officer testified that, in
his experience, it is not unusual for the police to fail to find money on the
person of a suspected drug seller because the suspect often discards the money
to avoid being in possession of incriminating evidence.
circumstantial evidence of the absence of the $5 bill competes with the direct
evidence of the St. Paul
officer’s observation of the transfer of marijuana in exchange for that
bill. Conflicts in the evidence are for
the jury to resolve. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). The direct evidence of the exchange of drugs
for money was sufficient to support the verdict if the jury believed it. The jury obviously did so, and we do not find
its conclusion unreasonable on this record.