This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Aitkin County District Court
File No. K5-03-209
Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James P. Ratz, Aitkin County Attorney, Aitkin County Courthouse, 217 Second Street Northwest, Aitkin, MN 56431 (for respondent)
John M. Stuart, State Public
Defender, Theodora Gaïtas, Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Ross, Judge.
Gregory Graton appeals his convictions for conspiring to manufacture and aiding and abetting the manufacture of methamphetamine in his home and a nearby trailer. Graton argues that the district court violated his Sixth Amendment right to confrontation by admitting testimonial statements of an alleged co-conspirator and that the court erred by imposing separate sentences for the two offenses. He also challenges the sufficiency of the evidence to support the convictions. Because we find that the district court’s admission of testimonial statements did not constitute plain error, that sufficient evidence supports the convictions, and that the conduct underlying the convictions was not part of a single behavioral incident, we affirm.
The state charged Gregory Graton with three controlled-substance crimes after police discovered methamphetamine and materials to manufacture methamphetamine during a March 2003 search of Graton’s property. Four days before the search, police officers had accompanied Graton’s estranged wife to retrieve her personal property from the home. Graton generally cooperated, but he became nervous when a deputy asked whether any of his wife’s property might be in his “fishing room” inside the home. He adamantly refused to let the officers in the room. The next day a confidential reliable informant told the deputy that Graton was manufacturing methamphetamine in his home. Based on this information and the suspicions raised by the deputy’s earlier observations in the home, the deputy obtained a search warrant. Officers executing the warrant found chemicals associated with manufacturing methamphetamine in Graton’s fishing room. Officers found components of a methamphetamine lab in a camper trailer parked in the backyard of the home. Five jars containing unknown substances were in the trailer. Testing of one indicated that it contained 44.7 grams of methamphetamine. The state charged Graton with three first-degree controlled-substance crimes for conspiring to manufacture methamphetamine, aiding and abetting the manufacture of methamphetamine, and possessing methamphetamine.
Graton spoke to police and testified at trial about methamphetamine in or around his home. When questioned, Graton told a deputy that his wife’s friend, Rob Nelson,hadcooked methamphetamine in his home on three occasions. At trial, Graton testified that his wife used methamphetamine that Nelson made. Although Graton acknowledged using methamphetamine, he testified that he had little knowledge of what was happening in his home regarding it. On cross-examination, however, Graton again admitted that he knew Nelson had manufactured methamphetamine in his fishing room and in his trailer.
The jury found Graton guilty of the three charged offenses. The district court dismissed the possession conviction and sentenced Graton to 86 months’ imprisonment on each of the other offenses, to be served concurrently. Graton appeals, arguing that the district court violated his Sixth Amendment right to confrontation by allowing the deputy to testify to testimonial statements by Nelson and by erroneously imposing two sentences for conduct that arose out of a single behavioral incident. Graton also challenges the sufficiency of the evidence to support his convictions.
D E C I S I O N
We first address Graton’s challenge arising from his right to confront
witnesses. The federal and state
constitutions provide that, in a criminal prosecution, the defendant has the
right “to be confronted with the witnesses against him.” U.S. Const. amend. VI;
Graton challenges the
district court’s admission of the deputy’s testimony about statements Nelson
made to the deputy. Based on the
information gained from the search of Graton’s property and the statements by
Graton, the deputy obtained a search warrant for Nelson’s property, where he
discovered methamphetamine. The deputy then questioned Nelson, who made
the now-challenged statements. At Graton’s
trial, the state asked the deputy whether Nelson said he knew Graton, how they
met, and how often they saw one another. The deputy testified that Nelson said he
was friends with Graton and they were “fishing buddies.” Because these statements were obtained during
an interrogation and were not made to assist the police in an emergency, they
are testimonial. See Davis v.
But Graton did not object to
the testimony he now contests. When a
defendant fails to object to the district court, we review the challenged
testimony for plain error. State v. Martin, 695 N.W.2d 578, 582-83
The state asserts that we
need not apply a plain-error analysis because Graton waived his Sixth Amendment
right to confrontation both by opening the door to the state’s questions and by
later addressing Nelson’s statements in Graton’s testimony. A defendant may waive his
right to confrontation either knowingly, intelligently, and voluntarily, or by
his own wrongdoing. See Brady v. United States, 397
When a defendant opens the
door, the state may introduce rebuttal evidence to explain, contradict, or
refute the evidence that the defendant elicited. State
v. Gutierrez, 667 N.W.2d 426, 435 (
We also conclude that no waiver occurred by Graton’s testimony. Graton directly addressed Nelson’s statements when Graton testified. He testified that he knew Nelson only through his wife, that he had never seen Nelson outside of Nelson’s visits to his wife, and that he would not characterize Nelson as a friend. He stated that the deputy’s testimony of a friendship with Nelson was inaccurate. Graton’s decision to rebut the testimonial statements in his own testimony did not constitute a waiver. Although Graton responded to the damaging testimony, he had no opportunity to confront Nelson through cross-examination. This is unlike cases suggesting that a waiver resulted from the defendant’s later response to the statements, because in those cases the defendant had the opportunity to cross-examine the declarant. See Lasnetski, 696 N.W.2d at 394 (rejecting argument that defendant was forced to call witness to respond to allegedly testimonial statements).
Although we find that Graton did not waive his right to confrontation, the district court did not commit plain error that requires a new trial by allowing the deputy’s testimony. Graton asserts that Nelson’s statements were prejudicial because they established a relationship between Graton and Nelson. But the state’s trial strategy did not rest on the strength of the relationship between Nelson and Graton. The state instead focused mainly on the evidence discovered in Graton’s home and Graton’s own testimony. Conspiring and aiding and abetting convictions do not hinge on the depth of the relationship between the actors; they require, respectively, proof of a conspiracy and proof of aiding another to manufacture methamphetamine. See Minn. Stat. §§ 152.021, subd. 2a, .096, 609.05, subd. 1 (2002) (stating elements of conspiring to manufacture and aiding and abetting manufacture of methamphetamine). The deputy testified that finding in one location the many chemicals and materials discovered in Graton’s home and trailer would be highly unusual unless the home is a methamphetamine lab. Tests confirmed that at least 44 grams of methamphetamine were on Graton’s property.
Graton testified that he knew Nelson cooked methamphetamine and that he was aware of at least three times that Nelson had manufactured methamphetamine in either his fishing room or trailer. Graton admitted both that he had used methamphetamine on multiple occasions and that Nelson was the source of the methamphetamine he used. We also note that the challenged testimony regarding their relationship essentially consists of four statements: “[Nelson] gave a statement that he was friends with [Graton]”; “I think [Nelson] said something to the fact that he . . . goes fishing with [Graton] or something like that”; “I had documented that [Nelson] says that they were fishing buddies”; and “In my report I documented that it was quite frequently, but I don’t have a quantitative number. I don’t know how often they went fishing.” These statements comprise only about seven lines of transcript in a three-day trial with approximately 215 transcript pages of testimony. On balance, with the significant evidence of guilt, the four statements do not establish prejudice.
Graton also challenges the
deputy’s testimony that Nelson implied that Graton’s wife was “emotionally
unstable” and that Graton’s statements to the officer were inconsistent with
Nelson’s statements. We reject Graton’s suggestion
that Nelson’s opinion of Graton’s wife bears on Graton’s guilt or affected his
trial theme that his wife and Nelson were the only conspirators. And the deputy’s testimony to Graton’s own statements
is admissible as nonhearsay. See
Because the state based its
case primarily on Graton’s admitted association with Nelson and knowledge that Nelson
manufactured methamphetamine on his property on multiple occasions, and not on
the strength of his personal relationship with Nelson, and because the evidence
of Graton’s guilt was weighty, a new trial is not required. See
Caulfield, 722 N.W.2d at 317 (requiring new trial when state relied mainly
on erroneously admitted testimonial evidence); State v. Bradford, 618 N.W.2d 782, 794 (
a pro se supplemental brief, Graton challenges the sufficiency of the evidence
to support the jury verdicts. When
reviewing a claim of insufficient evidence, we carefully review the record to
determine whether the evidence, viewed in the light most favorable to the jury
verdict, is sufficient to support the verdict.
State v. Webb, 440 N.W.2d 426,
asks the court to review the credibility of his now ex-wife. But she did not testify at trial and the
documents to which he refers are not part of the record. See Minn. R. Crim. P. 28.02, subd. 8 (defining record on appeal as
papers filed with district court, offered exhibits, and transcripts of
proceedings). The record provides sufficient evidence
to support the jury’s verdicts. Police
found ample evidence of a methamphetamine laboratory on Graton’s property,
Graton admitted that he knew Nelson had been making methamphetamine on his
property, and he admitted that he had used methamphetamine made by Nelson. The jury had an opportunity to evaluate
Graton’s credibility, and we will not second-guess the jury’s credibility
determination on appeal. See State v. Colbert, 716 N.W.2d 647,
Graton contends that the
district court erred by imposing separate sentences on each count because the
conduct underlying his convictions for conspiring to manufacture and aiding and
abetting the manufacture of methamphetamine occurred in a single behavioral
incident. A defendant may not receive multiple sentences when convicted of multiple
offenses committed as part of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (2004); State v. Norregaard, 384 N.W.2d 449, 449-50
A conspiracy requires an
agreement to commit a crime and an overt act in furtherance of the conspiracy
by one of the parties to the agreement. State v. Pinkerton, 628 N.W.2d 159,
Graton contends that the
date of the offenses was the same, March 11, 2003, the date officers executed
the search warrant. But the state has
never contended that all of the offenses occurred on March 11. The complaint states that the offenses
occurred “[o]n or about March 11.” The supreme court has recognized that “it
is not always possible to know with certainty when an offense or offenses
occurred.” State v. Waukazo, 269 N.W.2d 373, 375 (
Graton also highlights that the goal of each act was the same: making methamphetamine. But a general, continuing goal of manufacturing more methamphetamine is too broad to constitute a single behavioral incident. See State v. Soto, 562 N.W.2d 299, 303 (Minn. 1997) (rejecting argument that multiple sales of controlled substance were part of single course of conduct); Eaton, 292 N.W.2d at 266-67 (holding that claimed plan to swindle as much as possible was too broad to be single criminal goal within meaning of section 609.035). The district court did not abuse its discretion by sentencing Graton separately for each count.