This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Douglas Edward Scheer,
Filed June 26, 2007
Redwood County District Court
File No. K4-05-331
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michelle A. Dietrich, Redwood County Attorney,
John M. Stuart, State Public Defender, Sharon E. Jacks,
Assistant Public Defender,
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.
Appellant challenges his conviction and sentence for first- and second-degree controlled substance offense, arguing that the district court erred in (1) failing to instruct the jury that a witness’s prior convictions could be used to determine whether the witness rather than appellant committed the offense; (2) the evidence is not sufficient to support the conviction; and (3) not granting a downward departure from his presumptive sentence. Because the district court properly applied the law and did not abuse its discretion, we affirm.
In June 2005, two
officers of the
Vierkamp talked to appellant about buying two “eight-balls” (3.5 grams each) of cocaine. The police officers equipped Vierkamp with an audio recorder, gave him $400 to buy the drugs, and followed him to appellant’s residence. Vierkamp met with appellant in his apartment, concluded the transaction, and drove back to the law enforcement center. Vierkamp gave the officers the two “eight-balls” of cocaine he purchased from appellant, which weighed a total of 6.5 grams. Several days later, Vierkamp again met with appellant at his apartment, and purchased two additional “eight-balls” of cocaine for $400. In both cases, Vierkamp and his vehicle were searched before he met appellant and again searched when he returned to the law enforcement center.
Subsequently, the police officers obtained and executed a search warrant for appellant’s apartment. When law enforcement entered the apartment, they found appellant in the living room near a coffee table that had drug paraphernalia, including two containers, a metal scale, and “one-hitters”—pipes smelling of marijuana—on it. In the dining area by the kitchen, the police found a white Styrofoam cooler containing a plastic baggie of cocaine and a small digital scale. The baggie contained 25.1 grams of cocaine and the scale had traces of cocaine. On the kitchen table were little sandwich baggies, a calculator, and a sheet of paper with figures on it.
Appellant was charged with two counts of second-degree controlled substance crime under Minn. Stat. § 152.022, subd. 1 (2004) for selling three or more grams of cocaine on June 13 and June 18, 2005; and two counts of first-degree controlled substance crime under Minn. Stat. § 152.021, subds. 1, 2 (2004) for possessing 25 or more grams of cocaine with intent to sell on June 20, 2005. Prior to trial, defense counsel advised the district court that he intended to use evidence of Vierkamp’s prior convictions for impeachment purposes and as evidence of motive to frame appellant. The district court informed counsel that if Vierkamp testified, evidence of Vierkamp’s prior convictions would be allowed into evidence.
At trial, Vierkamp testified that he bought cocaine on both occasions from appellant. Vierkamp testified that when he arrived at appellant’s home on June 13, he spoke to appellant and appellant then went upstairs. Appellant returned and Vierkamp bought drugs from appellant and told him that he would return for more on Saturday, June 18. Vierkamp testified that when he returned to appellant’s home on June 18, he met appellant upstairs, purchased the cocaine, and left.
During cross-examination, appellant’s counsel questioned Vierkamp about his prior convictions for theft. Defense counsel described each of Vierkamp’s convictions, his unkept promises not to offend again, and his deal with the police reducing his sentence for the latest offense. Vierkamp admitted that the transcripts of recordings of his encounter with appellant did not contain language reflecting a drug transaction.
Appellant denied that he sold cocaine to Vierkamp, and denied ownership or knowledge of the cocaine in the cooler. The defense theorized that Vierkamp had a strong motive to set up appellant and that it was Vierkamp who produced the cocaine. During trial and closing argument, appellant attacked Vierkamp’s credibility and argued that Vierkamp was motivated to fabricate a sale to avoid prison.
Following the trial, the jury found appellant guilty of all four counts. The district court denied appellant’s motion for a downward departure and sentenced appellant to a 127-month term on Count I, a 48-month term on Count III, and a 58-month term on Count IV—all concurrent, presumptive sentences under the Minnesota Sentencing Guidelines. This appeal followed.
D E C I S I O N
that the district court erred in failing to instruct the jury that a witness’s
prior convictions could be used to determine whether the witness, rather than
appellant, committed the offense. “A
defendant’s failure to propose specific jury instructions or to object to
instructions before they are given to the jury generally constitutes a waiver
of the right to appeal.” State v. White, 684 N.W.2d 500, 508 (
review, a defendant may obtain relief if he was denied a fair trial. State
v. Litzau, 650 N.W.2d 177, 182 (
opportunity to defend against criminal charges is a right guaranteed by
constitutional due process. Chambers v.
Here, the district court allowed the introduction of Vierkamp’s prior theft and burglary convictions as impeachment and reverse-Spreigl evidence. The district court gave the standard instruction on impeachment of a witness as follows.
Impeachment. In deciding the believability and weight to be given the testimony of a witness you may consider:
1. Evidence that the witness has been convicted of a crime. You may consider whether the kind of crime committed indicates the likelihood the witness is telling or not telling the truth.
Here, appellant, as the proponent of the evidence, is not seeking a limiting instruction, but rather an affirmative instruction directing that the jury draw an inference from the evidence that Vierkamp may be responsible for the offense. And the purpose of reverse-Spreigl evidence is not to prove the guilt of the third person, but rather to cast doubt upon the identification of defendant as the person who committed the charged offense. Gutierrez, 667 N.W.2d at 437. Thus, we see no basis for giving the proposed instruction. See State v. Broulik, 606 N.W.2d 64, 71 (Minn. 2000); see also CRIMJIGs 2.01, 3.16 Cmt. (indicating that district court’s jury instructions should not discuss possible inferences to be drawn from the evidence, which should be left to the argument of the attorneys).
Further, appellant was able to present Vierkamp’s prior convictions, arguing that Vierkamp lacked credibility and had a potential motive to frame appellant. Thus, we conclude that the district court did not commit plain error by not instructing the jury that Vierkamp’s prior convictions could be used to determine that he, rather than appellant, committed the offense.
that the evidence is not sufficient to support the convictions for selling
cocaine on June 13, and possessing over 25 grams of cocaine on June 20. When considering a claim of insufficient
evidence, this court’s review “is limited to a painstaking analysis of the
record to determine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient to allow the jurors to reach a
guilty verdict.” State v. Webb, 440 N.W.2d 426, 430 (
A. June 13 Cocaine
that the transcript of the incident is inconclusive and Vierkamp had a motive
to fabricate a sale to avoid prison.
Essentially, appellant argues that Vierkamp’s testimony required independent
corroboration. But “[i]t is well settled
that a conviction can rest on the uncorroborated testimony of a single credible
witness.” State v. Hill, 285
Here, Vierkamp testified that he called appellant to arrange the purchase of cocaine and that when he arrived at appellant’s apartment, appellant went upstairs to fulfill his drug request. Meanwhile, Vierkamp carried on a conversation with Dean Scheer and a few other individuals present in the house. When appellant returned with the drugs, Vierkamp gave him the money and stated that he would return the following Saturday. The transcript from the sale is consistent with Vierkamp’s testimony and, if believed, is sufficient to support a conviction. See id. at 518, 172 N.W.2d at 407.
Appellant urges this
court to extend existing law to require that Vierkamp’s testimony be corroborated,
and points to Minn. Stat. § 634.04 (2006), which provides that a conviction
cannot be upheld upon the testimony of an accomplice “unless it is corroborated
by such other evidence as tends to convict the defendant” of the offense. Appellant concedes that his position is
contrary to the holding in Hill, but
suggests that we revisit Hill. But
it is not the role of this court to review decisions of the supreme court. See
Sefkow v. Sefkow, 427 N.W.2d 203, 210 (
B. Possession of 25 Grams of Cocaine
that the record does not show he “consciously” exercised “dominion and control”
over the cooler containing the cocaine, and thus, he did not “constructively
possess” it. The elements of a crime of
possession of a controlled substance require: (1) knowledge; (2) possession of
the requisite weight and substance; and (3) the act took place at the time and
place set forth in the complaint; all three elements must be proven beyond a
reasonable doubt for a defendant to be found guilty. State
v. Papadakis, 643 N.W.2d 349, 354 (
that the drugs seized by law enforcement could have belonged to his daughter’s
boyfriend who was in the apartment at the time.
Here, appellant’s daughter initially testified that her boyfriend ran
through the kitchen at the time the warrant was executed, but later stated that
she wasn’t certain he ran through the kitchen.
Thus, the jury was free to disregard that testimony. On the other hand, it was undisputed that the
apartment belonged exclusively to appellant.
Specifically, police found a large amount of cocaine together with a
scale in a cooler, a calculator and distribution sheet in appellant’s kitchen,
and a scale and other paraphernalia near appellant in the living room. This evidence is sufficient to infer
defendant had “knowledge” of the drugs in his home. See id. Also, Vierkamp testified that he had
purchased the same drug from appellant on two occasions within the same week. This evidence is sufficient to show “a strong
probability” that appellant was “consciously exercising dominion and control”
over the cocaine under the constructive possession doctrine.
Appellant argues the district court erred in denying his motion for a downward sentencing departure to his presumptive sentence. Specifically, appellant contends the district court abused its discretion by using the Hernandez method in calculating his criminal history score which resulted in a presumptive sentence of a 127-month executed sentence for the first-degree controlled substance conviction. Appellant further argues that his conduct was “less serious” than in a “typical drug case.”
When the district
court imposes a presumptive sentence, our standard of review is narrow. State
v. Williams, 337 N.W.2d 387, 391 (
guidelines provide that “the judge shall pronounce a sentence within the applicable
range unless there exist identifiable, substantial, and compelling
circumstances to support a sentence outside the range on the grids.”
The district court found no mitigating factors permitting it to depart from the presumptive sentence because selling cocaine is a very serious offense and appellant showed little remorse for his crimes. It calculated a presumptive sentence of 48 months for the June 13 second-degree controlled-substance conviction, calculated a presumptive sentence of 58 months for the June 18 second-degree controlled-substance conviction based on a criminal history score of one, and calculated a presumptive sentence of 127 months for the June 20 first-degree controlled-substance conviction based on a criminal history score of three (1.5 points from each of the two sale convictions).
the district court abused its discretion by using the Hernandez method. Essentially,
appellant argues that law enforcement had sufficient evidence to arrest him for
the June 13 offense and should not have arranged a second sale on June 18, or searched
his apartment on June 20, which greatly increased his sentence. We disagree.
In State v. Hernandez, the
supreme court was confronted with a situation in which the defendant was
sentenced on one day for three separate convictions that were not part of a
single behavioral incident. 311 N.W.2d
at 479. The court affirmed the district
court’s decision to count the first two convictions of attempted burglary and
theft in calculating the criminal history score and sentence for the third
conviction for escape.
Count II was deemed to be part of the same behavior/incident as Count I, and,
therefore, appellant was only sentenced for one offense. See
purpose of the constructive-possession doctrine is to include within the
possession statute those cases where the state cannot prove actual or physical
possession at the time of arrest but where the inference is strong that the
defendant at one time physically possessed the substance and did not abandon
his possessory interest in the substance but rather continued to exercise
dominion and control over it up to the time of the arrest.” Florine,
 The offense is ranked severity level VIII by the sentencing guidelines.
 The offense is ranked severity level IX by the sentencing guidelines.