This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




State of Minnesota,



Joyce Johnson,


Filed December 4, 2007


Minge, Judge


Olmsted County District Court

File No. K1-01-3445


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge.


U N P U B L I S H E D   O P I N I O N

Minge, Judge

            Appellant appeals from convictions under Minn. Stat. § 152.022, subd. 1(6)(i) (2000), and Minn. Stat. § 152.023 (2000) for selling cocaine to a police informant within a park zone.  She argues that her convictions impermissibly rely on the admission of hearsay evidence, and that under a “plain error” analysis, her convictions must therefore be overturned.  She also claims that the evidence properly before the district court was not sufficient to support her convictions, and that the district court abused its discretion in failing to grant her motion for a downward dispositional departure.  Because we find that appellant’s substantial rights were not prejudiced by the admission of hearsay evidence; that the district court’s findings were based on sufficient evidence; and that the district court did not abuse its discretion in declining to grant appellant’s motion for a downward dispositional departure, we affirm. 


On September 25, 2001, a confidential police informant approached appellant Joyce Johnson at her home in Rochester, which is 206.7 feet from a city park.  The informant was equipped with a recording device and buy money that had been photocopied.  The informant asked the appellant for an “8-ball” of cocaine.  Apparently having none to sell, appellant agreed to call “Crystal Henry” to procure the cocaine.  Crystal Henry arrived in a minivan, and appellant got into the vehicle with her.  They parked a couple of blocks away and exchanged the informant’s money for drugs.  Appellant contributed $50 toward the cocaine purchase for a share of the drugs and delivered the rest to the informant. 

Appellant was subsequently convicted under Minn. Stat. § 152.022, subd. 1(6)(i) (2000), and Minn. Stat. § 152.023 (2000).  She was sentenced to 64 months pursuant to the Minnesota Sentencing Guidelines.  At sentencing, appellant moved for a downward dispositional departure.  The state argued for the presumptive sentence, emphasizing that appellant had been a fugitive for three years between the date the complaint was issued and the date of her arrest and had failed to attend her trial dates.  The district court did not consider her to be amenable to probation, did not find substantial and compelling reasons for a downward dispositional departure in her case, and imposed the presumptive sentence.  This appeal follows. 



            Appellant first argues that she should be granted a new trial on the ground that the district court’s admission of a Bureau of Criminal Apprehension Report (BCA report), without the testimony of the individual who prepared it, constituted “plain error” because it was testimonial hearsay.  Appellant did not object to the admission of the BCA report at trial.

            In general, the failure to object to the admission of evidence constitutes a waiver of the issue on appeal.  State v. Vick, 632 N.W.2d 676, 684 (Minn. 2001).  Despite the foregoing, the Minnesota Rules of Criminal Procedure state that “[p]lain errors or defects affecting substantial rights may be considered by the court . . . on appeal although they were not brought to the attention of the trial court.”  Minn. R. Crim. P. 31.02; see also State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing Griller, 583 N.W.2d at 740).  “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id. (quotation omitted) (citing State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001)).  Appellant carries the burden of proving that the district court committed plain error.  United States v. Olano, 507 U.S. 725, 734-35, 113 S. Ct. 1770, 1778 (1993).

The admission of the BCA report without supporting testimony was an erroneous admission of hearsay evidence, thus satisfying the first plain-error prong.[1]  State v. Caulfield, 722 N.W.2d 304, 309 (Minn. 2006) (finding that “[t]he report functioned as the equivalent of testimony on the identification of the substance seized from Caulfield.”).  Appellant contends that this error was “plain” because Caulfield was pending at the time of the hearing and concluded that the admission of a BCA report in this manner constituted hearsay.  This is sufficient to satisfy prong two.  See State v. Dobbins, 725 N.W.2d 492, 513 (Minn. 2006) (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549 (1997) (“An error is plain if it is ‘clearly contrary to the law at the time of appeal.’”)).  However, plain error is not sufficient for a reversal unless appellant meets the third prong of the “plain error” test. 

            For plain error to be prejudicial, it must affect the outcome of the case.  Griller, 583 N.W.2d at 741.  Prejudice is shown if there is a reasonable likelihood that the error substantially affected the verdict.  Id. (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990)).  The appellant bears the burden of persuasion with regard to this prong.  Griller, 583 N.W.2d at 741. 

Appellant argues that the error was prejudicial and affected her substantial rights because the district court may have relied on the BCA report to reach the conclusion that the substance involved in the transaction was, in fact, cocaine.  However, the identity of a substance may be proven by circumstantial evidence and lay testimony without scientific testing; therefore, evidence on the record in the absence of the contested report can be adequate to prove its identity.  State v. Olhausen, 681 N.W.2d 21, 28-29 (Minn. 2004).  Appellant testified that the substance at issue was powder cocaine.  Crystal Henry testified that she delivered powder cocaine. The substance tested positive as cocaine in a field test.  Although there is a risk, articulated in Caulfield, 722 N.W.2d at 315, that a lab report may be seen as conclusive proof of the identity of a substance, the report in this case is cumulative evidence; therefore, the substantial rights of appellant were not violated by the erroneous admission of hearsay evidence. 


            Appellant next argues that the evidence on the record is insufficient to sustain a conviction under Minn. Stat. § 152.022, subd. 1(6)(i) (2000) and Minn. Stat. § 152.023 (2000).  On a sufficiency-of-the-evidence claim, the district court need only inquire whether a fact-finder could reasonably conclude that the defendant was guilty of the offense charged.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  The determination must be made under the assumption that the fact-finder believed the state’s witnesses and disbelieved any contrary evidence, and must be made in the light most favorable to conviction.  Id.  Despite the foregoing, the fact-finder must have acted with due regard for the presumption of innocence and the necessity of overcoming that presumption by proof beyond a reasonable doubt.  State v. Combs, 292 Minn. 317, 320, 195 N.W.2d 176, 178 (1972). 

            When reviewing circumstantial evidence, this court applies a more stringent standard.  Under this standard, “evidence is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.”  Bias, 419 N.W.2d at 484; State v. Whalen, 563 N.W.2d 742, 750 (Minn. App. 1997).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). 

            Under Minnesota law, to “sell” means: “(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or (2) to offer or agree to perform an act listed in clause (1); or (3) to possess with intent to perform an act listed in clause (1).”  Minn. Stat. § 152.01, subd. 15a (2000).  Appellant contends that she merely “possessed” illicit drugs; however, there is evidence on the record that, in response to the informant’s request, appellant called several individuals who she knew could supply the informant with cocaine; that she met with and procured drugs from one of these individuals; and that she delivered drugs to the informant.  Supplying, procuring, and delivering drugs are acts satisfying the statutory definition of “sell[ing].”

            Appellant also contends that she was not in a park zone when she “sold” drugs to the informant.  “Park zone” includes the area within 300 feet or one city block, whichever distance is greater, of the park boundary.  Minn. Stat. § 152.01 subd. 12a (2000).  Testimony of an officer places her home at 206.7 feet from a city park.  When appellant was in her home, she both agreed to sell cocaine to the informant and, even under appellant’s version of events, possessed cocaine that she intended to deliver to the informant.  Thus, she was within the park zone when she committed the offense.

            Because the findings of the district court are supported by sufficient evidence on the record, appellant’s convictions are affirmed. 


            Finally, appellant argues that the district court abused its discretion in dismissing her motion for a downward dispositional departure from the sentencing guidelines.  On appeal, rejection of a request for a departure from the sentencing guidelines is reviewed for abuse of discretion.  See State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  A district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive sentence.  Id.

            The Minnesota Sentencing Guidelines provide a list of non-exclusive factors that a district court may use as reasons for granting a downward departure. Minn. Sent. Guidelines II.D.2.  Although “amenability to probation” is not listed in the comments to the guidelines, a district court may impose probation “in lieu of an executed sentence when the defendant is particularly amenable to probation.”  State v. Gebeck, 635 N.W.2d 385, 389 (Minn. App. 2001).  In determining a defendant’s amenability to probation, the district court may consider the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).   The district court should focus on the defendant as an individual and determine whether the presumptive sentence would be best for the defendant and society.  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  Employment factors such as employment history and impact of sentence on employment are not appropriate reasons for departure.  Minn. Sent. Guidelines. II.D.1.

            The appellant was 56 years old at the time of sentencing.  Her prior record of felonies included wrongfully obtaining public assistance in 1982 and third-degree assault in 1997.  Some of appellant’s statements, as reflected in the presentencing report, indicated a remorseful attitude.  However, appellant had been a fugitive for three years after the arrest warrant in this case was issued in 2001.  The state pointed out during the sentencing hearing that the appellant must have known that she was wanted because her son had been convicted of charges related to the same events.   Appellant also missed her trial dates after her arrest.  

            Although appellant has a modest criminal history and was able to show that her family and friends were extremely supportive of her, the district court was presented with evidence that appellant had avoided responsibility by remaining a fugitive; that she had refused to appear in court on her trial date and had to be incarcerated throughout the proceedings; and that she had failed to attend a drug-treatment program until after her arrest.  Based on this record, we conclude that the district court did not abuse its discretion by finding that there were no substantial and compelling reasons for a downward dispositional departure.




[1] Respondent argues that because the hearsay evidence admitted at trial was not objected to, its admission was not error under State v. Hamilton, 268 N.W.2d 56, 63 (1978).  Hamilton holds that where an objection to evidence is not made, hearsay evidence will be admitted as substantive evidence.  Id.  Hamilton does not state that no error was committed because no objection was raised, but rather that any error that might have been made in the admission of hearsay testimony was waived.  Id.