This opinion will be unpublished and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
Darshund Adonis Tate,
Filed August 22, 2006
Olmsted County District Court
File No. K8-04-2792
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street S.E., Rochester, MN 55904 (for respondent)
Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender,
Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his second-degree controlled-substance offense conviction and sentence, arguing that there was insufficient evidence to prove that the sale had taken place within a park zone and that the trial court abused its discretion in denying his motion for a downward durational departure. We affirm.
state charged appellant Darshund Adonis Tate with third-degree and
second-degree controlled-substance crimes.
The latter charge required proof that Tate sold cocaine within a park
zone in the City of
The court found that a paid police informant contacted Tate and stated that she would have money on the following day for the purchase of an “eight ball,” a term for a quantity of cocaine. Tate gave her a telephone number to call.
The informant called Tate the next day, and he arranged to pick her up in his car. Before Tate arrived, the police searched the informant, attached a “wire” to her, and gave her $300 in marked bills for the drug purchase.
picked up the informant, drove to various businesses, made a telephone call,
picked up another female, and eventually drove to the
The informant then gave the marked bills to Tate who went to the white car and returned with a substance, determined to be cocaine, that he gave to the informant. Tate then dropped the informant off and continued to drive with the other female until the police stopped his car. In their search of the car, the police found $100 of the marked money.
The court denied Tate’s motion for a downward departure from the sentencing guidelines and imposed the lowest range of the presumptive sentence.
D E C I S I O N
Sufficiency of the Evidence
The second-degree controlled-substance
crime of which Tate was convicted requires proof beyond a reasonable doubt that
the crime occurred within a “park zone.”
Minn. Stat. § 152.022, subd.1(6)(i) (2004). A “park zone” is an area designated as such
by a governmental entity. Minn. Stat.
§ 152.01, subd. 12a (2004). It
“includes the area within 300 feet or one city block, whichever distance is
greater, of the park boundary.”
Tate argues that “the state presented no evidence on the measured distance from the park to where the transaction allegedly occurred” and thus failed to establish an essential element of the crime.
We address claims of
insufficiency of the evidence through a painstaking review of the record to
determine whether the evidence, viewed in a light most favorable to the
verdict, was sufficient to allow the trier of fact to reach that verdict. State v. Webb, 440 N.W.2d 426, 430 (
Tate does not appear to
state presented no evidence showing the location
of the boundary of
He further indicates that there were “no maps, no surveyor’s plan, no photos, no video, or no measurements to establish where the park boundary was located.”
Tate relies on State v.
Estrella, 700 N.W.2d 496 (Minn. App. 2005), review denied (
officers watched Tate leave his car near
Tate complains that the
distance evidence was merely a product of the officers’ opinions, which lacked
foundation. But he failed to object to
the testimony about distance and, thus, has waived error, if any. State
v. Vick, 632 N.W.2d 676, 684-85 (
A witness may give an
estimate of a distance after perceiving that to which the distance
relates. See Landeen v. DeJung,
Tate’s second contention is that the
district court abused its discretion in denying his motion for a downward
durational departure. He was sentenced
to a presumptive term of 64 months for a second-degree controlled-substance
crime with two criminal history points.
district court has broad discretion in determining whether to depart from a
presumptive sentence under the sentencing guidelines. State
v. Gassler, 505 N.W.2d 62, 69 (
argues that the sentencing court did not consider that the drug transaction
took place within a park zone and not within a park. The legislative intent for enhancing drug
crimes that take place within the vicinity of a park or school zone is to
protect children from discarded drugs, drug paraphernalia, and drug dealers. State
v. Benniefield, 678 N.W.2d 42, 47 (
Tate also relies on State v. Wittman, 461 N.W.2d 247 (Minn. App. 1990), to argue that the sentencing court should have granted his motion for a downward durational departure because he was only “superficially” involved in the drug transaction.
In Wittman, the defendant was convicted of
conspiracy with her housemate to sell drugs.
In contrast to the defendant in Wittman, Tate arranged the drug sale, drove the informant to the site of the sale, collected money from her, obtained and delivered the drug, and drove her back to her earlier location. Tate was integrally involved in all aspects of the crime and was not a minor or passive participant.
Finally, Tate has failed to show that his sentence was disproportionate, considering the severity of the crime.