This opinion will be unpublished and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
State of Minnesota,
Charles Edward Fraction,
Clay County District Court
File No. KX-04-1795
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Ken Kohler, Clay County Attorney, Clay County Courthouse,
John M. Stuart, State Public Defender, Jane E. Rydholm, Assistant
Considered and decided by Shumaker, Presiding Judge; Minge, Judge; and Hudson, Judge.
Appellant claims that three of his convictions should be reversed because they are not supported by sufficient evidence. Appellant also argues that his sentences should be vacated and his case should be remanded after resentencing because the district court lacked authority to submit sentencing factors to the jury, committed plain error by using the Hernandez sentencing method to calculate his sentence, and assigned an improper severity level to the unranked offense of racketeering in violation of Blakely. Finally, appellant raises several issues in his pro se supplemental brief. Because we conclude that there was sufficient evidence to support the three challenged convictions, that the district court did not err in its sentencing, and that appellant’s pro se supplemental claims are without merit, we affirm.
Charles Fraction was an active participant in a group that sold crack cocaine
in the Fargo-Moorhead area from early in 2003 to September of 2004. The group sold crack cocaine in the
Appellant was charged and tried for (1) racketeering; (2) third-degree controlled-substance crime; (3) second-degree controlled-substance crime; (4) fifth-degree possession of ecstasy; and (5) conspiracy to commit third-degree controlled-substance crime. A jury found appellant guilty on all counts. The state moved for an upward durational departure, and the district court submitted five aggravating factors to the jury. The jury found that four of the five factors were applicable, and appellant was sentenced accordingly. This appeal followed.
The first issue is whether there is sufficient evidence to support appellant’s convictions of second-degree controlled-substance crime, conspiracy to commit third-degree controlled-substance crime, and racketeering.
reviewing the sufficiency of the evidence we engage in a “painstaking analysis”
of the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, is sufficient to allow the jury to reach the
verdict it did. State v. Webb, 440 N.W.2d
426, 430 (
A. Second-Degree Controlled-Substance Crime
A person is guilty of second-degree controlled-substance crime if “the person unlawfully sells any amount of a schedule I or II narcotic drug to a person under the age of 18, or conspires with or employs a person under the age of 18 to unlawfully sell the substance.” Minn. Stat. § 152.022, subd. 1(5) (2004).
At trial, the state’s evidence for this offense was based largely on the testimony of a confidential informant. The state offered evidence that on June 14, 2004, the informant called appellant’s cell phone to arrange to purchase crack cocaine. After arranging the sale, the informant and an undercover police officer drove to the apartment complex where appellant lived. The informant called appellant’s phone again and then-16-year-old Christopher Lee came outside, got in the car, and completed the sale with the informant.
informant also testified that two months before the June transaction, he and an
undercover officer followed the same procedure, and during the prior
transaction appellant personally came out of the same building, got in the
vehicle, and sold the informant crack cocaine.
Appellant was convicted for this sale as well and does not dispute the
conviction. This prior transaction, which
was almost identical to the June 14 transaction, is strong evidence that
appellant agreed with Christopher Lee to deliver the crack cocaine to the
informant. Moreover, appellant’s cousin,
Marvin Fraction, testified that he and another person brought Christopher Lee
on this evidence, the jury drew the inference that appellant directed Christopher
Lee, under 18 at the time, to sell crack cocaine to the informant. We cannot say that the jury’s conclusion was
unreasonable. While appellant maintains that
the informant was not a credible witness, credibility determinations are left
to the jury, and even when a witness’s credibility is seriously called into
question, the jury is entitled to believe him or her. State
v. Pippitt, 645 N.W.2d 87, 94 (
B. Conspiracy to Commit Third-degree Controlled-Substance Crime
person is guilty of conspiracy to commit third-degree controlled-substance
crime if the person conspires with another person to sell crack cocaine and
that person or another member of the conspiracy engages in an overt act in
furtherance of the sale.
direct evidence of a conspiracy is often minimal, “[c]onvictions based on
circumstantial evidence alone may be upheld . . . [but] convictions based on
circumstantial evidence warrant particular scrutiny.” State
At trial, the state used the June 14, 2004 sale made by Christopher Lee, and facilitated by appellant, as appellant’s overt act taken in furtherance of the conspiracy and alleged that appellant entered into the agreement to sell crack cocaine between January 2003 and September 9, 2004. Appellant argues the evidence simply shows that “friends and relatives hung out together during this time . . . .”
position is unpersuasive; the state presented sufficient evidence to support
the finding of a conspiracy to sell crack cocaine. The record establishes that members of the
group regularly pooled their money to buy crack cocaine. Group members relied on appellant and
appellant’s cousin, Greg Fraction, to buy crack cocaine in
Contrary to appellant’s assertion, the evidence shows that the group members were more than social friends. They were organized, they worked together, and they depended on one another to sell crack cocaine. The state’s evidence was sufficient to allow a reasonable jury to conclude that appellant agreed with other group members, at the very least tacitly, to sell crack cocaine, and that appellant engaged in an overt act in furtherance of the conspiracy.
person is guilty of racketeering if the person “is employed by or associated
with an enterprise and intentionally conducts or participates in the affairs of
the enterprise by participating in a pattern of criminal activity.”
1) a common purpose among the individuals associated with the enterprise; where
2) the organization is ongoing and continuing, with its members functioning under some sort of decisionmaking arrangement or structure; and where
3) the activities of the organization extend beyond the commission of the underlying criminal acts either to coordinate the underlying criminal acts into a pattern of criminal activity or to engage in other activities.
v. Huynh, 519 N.W.2d 191, 196 (
Appellant does not dispute that the members of the alleged enterprise had a common purpose under the first prong of Huynh’s enterprise test. Instead, appellant argues that under the second and third prongs of the test, there is insufficient evidence to prove that the members had a continuing and ongoing structure, and also insufficient evidence to prove that the activities of the group extended beyond the commission of the underlying criminal acts. We will consider these last two prongs.
a. Continuity and Structure of Personnel
Under the second prong of the Huynh enterprise test, a group has an ongoing and continuous structure “where there is an organizational pattern or system of authority that provides a mechanism for directing the group’s affairs on a continuing, rather than ad hoc, basis.” Huynh, 519 N.W.2d at 199.
the record makes clear that the group’s activities were ongoing and
continuous. Different members of the
group operated together for four years moving between
The record also establishes that the group had a consistent organizational structure. The record does not indicate a decision-making hierarchy in the classical sense, but the statute’s definition is not so rigid to require an authoritarian or formal structure. See Minn. Stat. § 609.902, subd. 3 (defining an enterprise to include specified business entities or a group of individuals associated in fact but not a legal entity). Here, group members systematically pooled their money to buy crack cocaine. Appellant and Greg Fraction were the group’s regular middlemen, facilitating the purchase of crack cocaine from suppliers. The group systematically divided the crack cocaine for resale by all members of the group, and appellant participated. The group also conducted its crack cocaine selling business from one central location and regularly relied on the same women for transportation. Members also taught Christopher Lee how to sell in Fargo-Moorhead, and appellant used Christopher Lee to complete crack cocaine sales. Telephone records indicate constant communication between members of the group, which also indicates that the group operated systematically. All of this evidence together demonstrates that the group operated in a unified, structured, and methodical way that was designed to sell crack cocaine for profit. Here, the evidence is sufficient to allow a reasonable jury to find that the group operated continuously and in a structured way.
b. Extended Organization
Under the third prong of the Huynh enterprise test, the group’s activities must extend beyond the commission of the underlying criminal acts to coordinate a pattern of criminal activity or to engage in other activities. This requirement ensures that the group is “an entity distinct from the predicate crimes.” Huynh, 519 N.W.2d at 196 n.7.
Here, the record and facts cited above amply indicate the group was structured for the purpose of coordinating the sale of crack cocaine into the future and not merely to engage in sporadic or ad hoc criminal acts. The members of the group regularly relied on one another to purchase, transport, and sell crack cocaine, for transportation and lodging, and to bail one another out of jail. The record is sufficient to allow a reasonable jury to find that the group’s activities extended beyond mere commission of the predicate criminal acts.
2. Pattern of Criminal Activity
we consider appellant’s argument that there was not a “pattern of criminal
activity.” The racketeering statute
requires the state to prove that the individual participated in a “pattern of
(1) were committed within ten years of the commencement of the criminal proceeding;
(2) are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a single criminal offense; and
(3) were either: (i) related to one another through a common scheme or plan or a shared criminal purpose or (ii) committed, solicited, requested, importuned, or intentionally aided by persons acting with the mental culpability required for the commission of the criminal acts and associated with or in an enterprise involved in those activities.
Appellant does not dispute his conviction for sale of crack cocaine on March 16; this constitutes one criminal act. And we already rejected appellant’s challenges to the sufficiency of the evidence for his conviction of second-degree controlled-substance crime on June 14 and his conviction of an extended conspiracy to commit third-degree controlled-substance crime. These are the second and third acts. The record establishes that these three criminal acts were neither isolated incidents nor so closely related as to make up a single offense. The two sales offenses were completed three months apart, and the conspiracy was ongoing, detailed, and executed over a long period of time. The conspiracy encompassed substantially more activity than the two sales. All three acts also had the shared purpose of furthering the group’s crack cocaine selling enterprise. We conclude that the state has offered sufficient evidence to allow a reasonable jury to find that appellant participated in a pattern of criminal activity.
next issue is whether the district court erred by submitting aggravating sentencing
factors to the jury. The Minnesota
Supreme Court’s recent decision in State
v. Chauvin, 723 N.W.2d 20 (
The next issue is whether the United States Supreme Court’s Blakely decision prohibits the judicial assignment of a severity level for appellant’s unranked racketeering offense.
application of Blakely is a
constitutional issue, which we review de novo. State v.
argues that the district court violated Blakely
by assigning a severity level, which implicitly involved factfinding, to
appellant’s unranked racketeering offense.
Blakely is not applicable to the
district court’s assignment of a severity level to appellant’s unranked
offense. In this context, a Blakely issue arises only when the district
court applies a sentence beyond the prescribed maximum. See Blakely
v. Washington, 542
contrast to the determinate-sentencing scheme at issue in Blakely, sentencing for unranked offenses is best described as
indeterminate. In this state, judges have
broad discretion to rank unranked offenses in accordance with an offender’s underlying
criminal conduct on a case-by-case basis.
In Blakely, the Court reasoned that indeterminate-sentencing schemes do not run afoul of an offender’s Sixth Amendment right to a jury:
Of course indeterminate schemes involve judicial factfinding, in that a judge . . . may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence–and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail.
Because Blakely does not apply to indeterminate sentencing, it does not preclude a district court from determining an offender’s presumptive sentence, and because the scheme at issue here is best characterized as indeterminate and outside the purview of Blakely, we conclude that the district court did not violate Blakely by ranking appellant’s racketeering offense at severity level IX.
However, we note that contrary to respondent’s assertion, Blakely’s non-applicability to the district court’s severity ranking does not mean that Blakely does not apply to the district court’s departure from the presumptive sentence after the district court ranked appellant’s offense. Here, once the district court, in its discretion, ranked appellant’s offense at severity level IX, the legislative scheme provided a presumptive sentence of 110 months based on appellant’s criminal history score of two. The district court’s upward departure to 156 months was subject to Blakely and was required to be based on facts found by the jury. Because we have concluded that the district court had the inherent authority to impanel a jury to find sentencing factors and in this proceeding the jury found aggravating factors, we affirm the district court’s sentence for appellant’s racketeering offense.
Next, we address whether the district court’s use of the Hernandez sentencing method to increase appellant’s criminal history score for his second-degree sale and fifth-degree possession convictions was reversible error.
appellant did not object to the district court’s use of the Hernandez method during sentencing, and
appellant even indicated its approval of the district court’s use of Hernandez among the predicate offenses,
we apply the plain error test to determine whether we review this issue. We review unobjected-to error only if there
is (1) error; (2) that is plain; and (3) the error affects the defendant’s
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (
Hernandez sentencing method allows a district
court sentencing a defendant on the same day for multiple convictions to cumulatively
assign one additional point for each prior felony conviction, provided that the
offenses are not part of a single behavioral incident or conduct. State
v. Hernandez, 311 N.W.2d 478, 480-81 (
Here, the district court first sentenced appellant on his racketeering conviction and calculated appellant’s criminal history score at two. The district court did not use appellant’s racketeering conviction to increase the criminal history score for any of the other predicate crimes sentenced that day. But the district court did use the Hernandez method to sentence two of the three predicate crimes. It started with the third-degree sale conviction, used a criminal history score of two, the same criminal history score that the district court had used to sentence appellant’s racketeering conviction, and sentenced appellant to 66 months. Then, based on the third-degree sale conviction, the district court increased appellant’s score to three for his second-degree sale conviction and sentenced him to 156 months. Finally, based on the third-degree and second-degree sale convictions, the district court calculated appellant’s criminal history score at four for the fifth-degree possession conviction, and sentenced him to 34 months. The district court ordered that all sentences run concurrently.
Appellant argues that because the third-degree sale, second-degree sale, and fifth-degree possession convictions all constitute part of the racketeering conviction, they are collectively a means toward, or were in furtherance of, a common crime, and, therefore, the court erred by using the Hernandez method among those predicate convictions. Here, except for their tie to racketeering, the predicate offenses are separate, distinct, and discrete offenses. In fact, under the racketeering statute the predicate offenses must not be “so closely related and connected . . . as to constitute a single criminal offense . . . .” Minn. Stat. § 609.902, subd. 6(2). Here, the predicate offenses were committed three or more months apart. Appellant’s possession conviction was based on his personal use of ecstasy and was not related to the other two sales convictions. While the two sales convictions were similar in their execution, they were not part of the same behavioral incident. The record provides no indication that either sale was completed in furtherance of the other sale, and the two sales were completed three months apart.
effect, appellant is urging that we adopt a rule that once appellant was
convicted and sentenced for racketeering, he was insulated from any use of Hernandez in sentencing the predicate
offenses, regardless of the distinctive nature of the offenses, and despite the
statute authorizing separate sentences.
Because these offenses were not part of the same course of conduct, we conclude that, in this proceeding, the district court did not err in its use of the Hernandez method to calculate appellant’s criminal history score for his second-degree sale and fifth-degree possession convictions. As a result of this determination, we do not reach the plain error and prejudice prongs of the Griller test.
raises several claims in his pro se supplemental brief. We address each in turn. First, appellant argues that two different jurors
were biased and that the district court should have dismissed them. “In an appeal based on juror bias, an
appellant must show that the challenged juror was subject to challenge for
cause, that actual prejudice resulted from the failure to dismiss, and that
appropriate objection was made by appellant.”
State v. Stufflebean, 329
N.W.2d 314, 317 (
Here, appellant did not raise bias below and did not exercise a preemptory challenge to either juror. Moreover, the first juror ultimately said he would be able to apply the law and the second juror said that he thought everyone should be treated the same regardless of race, he would treat appellant fairly, look at appellant without considering his race, and overcome any preconceptions. Because the district court is in the best position to determine bias, because appellant’s counsel did not strike either juror, and because the record does not clearly show bias, appellant’s claim is without merit.
next pro se argument is that the accomplice testimony in this case was not sufficiently
Here, the state sufficiently corroborated the testimony of Marvin Fraction and other accomplices. The state offered the testimony of a confidential informant and two law enforcement officers, one of whom operated in an undercover capacity during the controlled buy on March 16. In addition, the state offered corroborating audio and video evidence. The state also offered corroborating testimony of several women who were not implicated in the larger racketeering enterprise. All of this evidence consistently reinforced the truthfulness of accomplice testimony and pointed to appellant’s guilt. Based on the record, we conclude that the state produced sufficient evidence to corroborate the accomplice testimony offered at trial.
Finally, appellant argues that the district court erred by not giving the jury an accomplice-testimony instruction. The record indicates that the district court did give such an instruction, and appellant’s claim is without merit.
 The maximum penalty for a racketeering conviction is
20 years in
 Appellant cites unpublished cases for support. However, we note that such cases are not
precedential. See Minn. Stat. § 480A.08, subd. 3 (2004); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (
 The district court also sentenced appellant for conspiracy to commit third-degree controlled-substance crime, using a criminal history score of three, based on the prior third-degree sale. But the district court ruled that because the conspiracy charge was governed by the racketeering charge, if the racketeering charge is upheld on appeal, the conspiracy conviction should be vacated and that sentence vacated.