This opinion will be unpublished and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,
Raymond Michael Bodick,
Filed June 27, 2006
Affirmed in part, reversed in part, and remanded
Aitkin County District Court
File No. T2-04-22423
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Thomas Murtha, Aitkin County Attorney, 217 Second Street Northwest, Room 231, Aitkin, MN 56431 (for respondent)
John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Hudson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Raymond Michael Bodick challenges his convictions and sentences for first-degree controlled substance crime, manufacture of methamphetamine, and conspiracy to manufacture methamphetamine. He contends that (1) the search warrant that authorized a search of the residence where he was staying was not supported by probable cause; (2) the evidence was insufficient to support his convictions; and (3) the district court erred by sentencing him for convictions that arose from the same behavioral incident. In a pro se supplemental brief, appellant also argues that the district court erred by failing to give a jury instruction on circumstantial evidence and that he received ineffective assistance from trial counsel. We affirm appellant’s convictions but reverse his sentences and remand for resentencing.
D E C I S I O N
Appellant argues that the search warrant that authorized a search of the residence where he was staying was not supported by probable cause. He asserts that the affidavit supporting the warrant improperly relied on information supplied by an informant without establishing the informant’s veracity and did not contain sufficient corroborating information. We disagree.
In determining whether a
warrant is supported by probable cause, we do not review the district court’s
decision de novo. State v. Harris, 589 N.W.2d 782, 787 (
[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Here, on September 18, 2003, a deputy with the Aitkin County Sheriff’s Department met with a confidential first-time informant (CI) to discuss an ongoing clandestine methamphetamine lab operating at a house in the area. The CI had been in the house three to four times per week for several months and had seen methamphetamine produced there roughly 15 to 20 times. The CI described the house’s location and features, including the fact that the garage windows were painted black and the house’s windows were covered. The CI stated that the occupants of the house were Brad Kath, Kim Kath, and appellant, who went by the nickname “Moses.” According to the CI, each of them participated in producing and consuming methamphetamine and that production and sale of the drug was the primary source of income for each resident. The CI also explained, in considerable detail, the process by which appellant and his housemates produced methamphetamine.
Subsequently, the deputy applied for a warrant to search the house and its surrounding property. In his affidavit supporting the warrant application, the deputy relayed the information provided by the CI and stated that he had gone to the house to arrest appellant on a previous occasion. As a result of that arrest, the deputy could confirm that appellant stayed with the Kaths, that appellant’s nickname was “Moses,” that the garage windows were painted black, and that all the house’s windows were covered with blankets and sheets. The deputy also stated that Brad and Kim Kath both had prior and current charges against them for drug-related offenses. The district court judge signed the search warrant. The next day, officers searched the house and found numerous items and materials used to manufacture methamphetamine.
Appellant was charged with five counts of first-degree controlled substance crime. He moved to suppress the evidence obtained during the search of the house because the underlying search warrant was not supported by probable cause, but the district court denied his motion. The jury found appellant guilty of manufacturing methamphetamine, in violation of Minn. Stat. § 152.021, subd. 2a (2002); conspiracy to manufacture methamphetamine, in violation of Minn. Stat. §§ 152.021, subd. 2a(a), 152.096 (2002); and the lesser-included offense of possession of methamphetamine in the fifth degree, in violation of Minn. Stat. § 152.025 (2002).
Appellant argues that the
warrant did not establish probable cause because the deputy’s affidavit did not
establish the informant’s veracity.
Appellant correctly asserts that the CI was not a presumptively reliable
citizen informant because the deputy did not specifically aver in his affidavit
that the CI was not involved in criminal activity. State
v. Siegfried, 274 N.W.2d 113, 115 (
Here, the deputy independently corroborated the CI’s information relating to the location of the house, the identity of others living in the house, appellant’s nickname, and the black paint on the garage windows and the coverings over the house’s windows. Appellant contends that this corroborative information was not meaningful because the details were easily obtained. Easily corroborated facts are not, by themselves, sufficient to establish probable cause. Albrecht, 465 N.W.2d at 109. But corroboration of minor details can be considered when making a probable-cause assessment based on the totality of the circumstances. McCloskey, 453 N.W.2d at 704; see also State v. Kessler, 470 N.W.2d 536, 539-40 (Minn. App. 1991) (stating that while the information conveyed in the affidavit by the informant failed to establish probable cause on its own because of failure to establish reliability or past performance, the affiant corroborated the information by making a “flyover” of the premises).
In addition to the content
of the CI’s tip and the deputy’s corroboration, the fact that the CI met with
the deputy personally and provided a detailed description of the methamphetamine-manufacturing
process also supports the district court’s probable-cause determination. An informant’s face-to-face meeting with an
officer is significant when considering the informant’s credibility and the
totality of the circumstances supporting a probable cause determination. See
McCloskey, 453 N.W.2d at 704; see
also State v. Lindquist, 295
Appellant argues that the state’s evidence was insufficient to convict him of manufacturing methamphetamine and conspiracy to manufacture methamphetamine. We disagree.
In assessing a claim
attacking the sufficiency of evidence, the evidence is viewed in the light most
favorable to the verdict to determine whether the facts in the record and any
other legitimate inferences would permit a jury to conclude that a defendant
was guilty beyond a reasonable doubt.
“When weighing the
sufficiency of circumstantial evidence, [this court] give[s] it as much weight
as any other kind of evidence, as long as the circumstances are both consistent
with the hypothesis that the defendant is guilty and inconsistent with any
rational hypothesis except that of guilt.”
State v. Hatfield, 639 N.W.2d
372, 376 (
Here, the deputy testified that when the officers searched the house where appellant was staying, they recovered every material necessary to manufacture methamphetamine. And photo exhibits supported the deputy’s claim. Officers recovered a propane cylinder holding anhydrous ammonia, a blender and coffee grinder that tested positive for ephedrine, toluene, acetone, isopropyl alcohol, muriatic acid, an empty aluminum foil box, lithium batteries, tubing, numerous canning jars, a heat-resistant gas plate that tested positive for methamphetamine, and a coffee filter that tested positive for methamphetamine. Additionally, the officers found appellant sleeping in his bedroom and discovered 142 pills hidden between his mattress and box spring. The pills tested positive for pseudoephedrine. They also found in appellant’s bedroom a packet of aluminum foil containing .1 grams of methamphetamine concealed underneath the drawer of his nightstand and the top of an isopropyl-alcohol bottle.
Appellant argues that the
evidence was insufficient to support his conviction because the evidence failed
to exclude the alternative theory that he was merely renting a room from the
Kaths and was uninvolved with the methamphetamine operation. “[T]o succeed in a challenge to a verdict
based on circumstantial evidence, a convicted person must point to evidence in
the record that is consistent with a rational theory other than guilty.” State
v. Ostrem, 535 N.W.2d 916, 923 (
Viewing the evidence in a light most favorable to the verdict, we cannot conclude that no jury could determine that appellant was guilty of manufacturing methamphetamine. Therefore, the evidence produced at trial was sufficient to support his conviction for manufacture of methamphetamine.
To convict a defendant of conspiracy to manufacture methamphetamine, the state must prove beyond a reasonable doubt that (1) the defendant entered into an agreement with another to manufacture methamphetamine; and (2) the defendant or another party to the conspiracy committed an overt act with the purpose of furthering the conspiracy. Minn. Stat. §§ 609.175, subd. 2, 152.096, subd. 1, .021, subd. 2a (2002).
need not be established by direct evidence, but may be inferred from the
circumstances.” State v. Watson, 433 N.W.2d 110, 114-15 (Minn. App. 1988) (citation
omitted), review denied (Minn. Feb.
10, 1989). Thus, a jury may infer from
the evidence presented that a defendant acted with another to accomplish the
agreed-upon criminal objective.
Appellant argues that the evidence was insufficient to establish that he was guilty of conspiracy to manufacture methamphetamine. Specifically, he argues that the state failed to prove that appellant entered into an agreement to manufacture the drug.
Here, testimony and evidence established that all of the materials needed to manufacture methamphetamine were present at the home where appellant lived and that methamphetamine had been made there in the past because many items were covered with methamphetamine residue. Further, the deputy testified that groups of people commonly participate in methamphetamine manufacture because they believe that if each person is responsible for procuring some precursor ingredients, they will avoid the suspicions of law enforcement. Other evidence presented at trial established that (1) the first step of methamphetamine manufacture entails procuring ephedrine or pseudoephedrine, most commonly found in cold pills, and soaking it in a solvent such as isopropyl alcohol; (2) officers recovered 142 pills containing pseudoephedrine from the space between the mattress and box spring of appellant’s bed; (3) the pills had been removed from their blister pack and were stored in a sandwich bag; (4) officers also found the cap of an isopropyl alcohol container in appellant’s room; and (5) officers discovered other ingredients needed to complete the methamphetamine-manufacturing process in the Kath’s bedroom, in the home’s common areas, and on the property surrounding the house.
Appellant argues that the evidence is insufficient to demonstrate a conspiratorial agreement under the Minnesota Supreme Court’s decision in Hatfield, 639 N.W.2d at 376-78. In Hatfield, a party delivered to the appellant a cooler and propane tank, the appellant and the party were “involved,” and police found drugs and drug paraphernalia on appellant. Id. at 374. Because “there was no evidence of a common plan, concerted conduct, or prior involvement with the alleged co-conspirator” and the evidence was consistent with a rational hypothesis other than guilt, the appellant’s conspiracy conviction was reversed. Id. at 377-78.
Appellant’s reliance on Hatfield is misplaced because that case is fact-specific and distinguishable. Here, appellant was involved with his alleged co-conspirators; they were his friends and roommates. And the rational hypothesis that appellant simply delivered to a friend a product that he did not know would be used in methamphetamine production does not apply as easily here as it did in Hatfield. Under the state’s theory of the case, appellant was not the recipient of the precursor material, as the appellant was in Hatfield, but he was the deliverer. Moreover, the manner in which he stored the pills was inconsistent with personal use.
The fact that appellant had
some of the precursor material hidden in his bed, while the Kaths had precursor
material in their bedroom and most of the other ingredients were stored in the
house’s common areas or outside, suggested a common scheme between appellant
and the Kaths. Thus, a jury could
reasonably infer that several individuals committed separate acts which formed
parts of a connected whole. See Burns, 215
Appellant argues that the district court erred by sentencing him for both his conviction of manufacturing methamphetamine and his conviction of conspiracy to manufacture methamphetamine because the convictions arose from the same behavioral incident. We agree.
Whether multiple offenses
arose out of a single behavior incident depends on the facts and circumstances
of the particular case. State v. Hawkins, 511 N.W.2d 9, 13 (
Here, appellant was convicted of both manufacture of methamphetamine and conspiracy to manufacture methamphetamine. The district court sentenced him to concurrent sentences of 134 months in prison.
Consideration of the relevant factors demonstrates that appellant’s convictions were based on a single behavioral incident. First, the conduct underlying both of appellant’s convictions occurred “[o]n or about September 23, 2003.” Second, the relevant conduct for both convictions occurred at the house in which appellant was renting a room. Third, the conspiracy and manufacture offenses were motivated by a single criminal objective, to produce methamphetamine. Thus, the record demonstrates that the conduct underlying appellant’s two convictions stemmed from activity on the same day, at the same place, and with a common criminal goal. Because we conclude that the district court erred by imposing separate sentences for the manufacture-of-methamphetamine and conspiracy-to-manufacture-methamphetamine convictions, we remand to the district court for resentencing.
Appellant argues in a supplemental pro se brief that the district court failed to adequately instruct the jury on circumstantial evidence and that he received ineffective assistance of counsel at trial. We disagree.
1. Jury instruction
Appellant argues that the district
court should have instructed the jury that to convict based on circumstantial
evidence, the evidence must exclude every reasonable hypothesis but guilt. District courts are allowed considerable
latitude in selecting the language in jury instructions. Alholm
v. Wilt, 394 N.W.2d 488, 490 (
did not object to the absence of the jury instruction at trial. Generally, when a defendant fails to object
to instructions before they are given to the jury, the right to appeal is
waived. State v. Cross, 577 N.W.2d 721, 726 (
does not analyze whether the district court’s failure to submit the instruction
was plain error. Thus, we decline to
consider whether the absence of the instruction constituted plain error. State
v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating that issues not
briefed on appeal are waived), review
denied (Minn. Aug. 5, 1997). We note,
2. Ineffective assistance of counsel
Appellant contends that his trial counsel provided him ineffective assistance because counsel admitted appellant’s guilt during his closing argument without appellant’s consent.
Appellant contends that during closing argument, his trial counsel admitted his guilt without appellant’s consent. This claim is not supported by the record. During closing argument, defense counsel stated:
[Appellant] did not manufacture anything. And, in fact, I think one of the last things that [deputy] confirmed is that the items that were found in [appellant’s] room, within his possession and control, again, assuming that they were within his possession or control, but they were certainly in his room, he couldn’t manufacture anything with that.
Although appellant interprets this statement as admitting that he was guilty of possession, it appears that counsel was challenging the manufacture charge by arguing that even if appellant had possession or control of the items in his room, he could not use those items alone to manufacture methamphetamine. Appellant’s claim that counsel admitted his guilt is further negated by the fact that counsel asserted during closing argument that reasonable doubt existed as to whether appellant had control over the methamphetamine found in his nightstand. Because appellant’s claim that his counsel admitted his guilt without his consent is not supported by the record, we conclude that appellant has not met his burden of proving that he received ineffective assistance of counsel at trial.
Affirmed in part, reversed in part, and remanded.