This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-95-1808

State of Minnesota,

Respondent,

vs.

Bobby Lynn Terrell,

Appellant.

Filed June 18, 1996

Affirmed

Short, Judge

Concurring in part and dissenting in part, Lansing, Judge

Olmsted County District Court

File No. K49451

Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Raymond F. Schmitz, Olmsted County Attorney, 3rd Floor Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904 (for Respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

SHORT, Judge

A jury convicted Bobby Lynn Terrell on one count of conspiracy to sell ten or more grams of cocaine in a 90-day period in violation of Minn Stat. '' 152.021, subd. 1(1) (underlying offense), 152.096, subd. 1 (conspiracy), one count of possessing any amount of cocaine in a park zone in violation of Minn. Stat. ' 152.023, subd. 2(4), and five counts of selling cocaine in a park zone in violation of Minn. Stat. ' 152.022, subd. 1(6)(i). On appeal, Terrell argues: (1) the evidence is insufficient to support his convictions for the conspiracy and possession offenses; and (2) ambiguity in the term "city block" renders the statutory definition of a "park zone" unconstitutionally vague and compels the reduction of his sales and possession convictions to lesser included offenses. In his reply brief, Terrell suggests the state's vigorous prosecution of this case reflects a systemic bias against people of color. The state moves to strike this argument as a matter not properly before the court. We affirm.

D E C I S I O N

A party may not use its reply brief to raise new matters for the first time or to introduce materials not presented to the trial court. See Minn. R. Civ. App. P. 128.02, subd. 3 (limiting reply briefs to a discussion of new matters raised by the respondent's brief); Falco Lime, Inc. v. Tide Towing Co., 29 F.3d 362, 367 n.6 (8th Cir. 1994) (noting a party may not use its reply brief to raise issues that it neglected to address in its opening brief); see also Thayer v. American Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982) (restricting appellate review to issues presented to, and decided by, the trial court); cf. Minn. R. Crim. P. 28.02, subd. 8 (defining the record on appeal to include papers filed in the trial court). Because Terrell acknowledges the defects in his presentation of the bias issue, we grant the state's motion to strike.

I.

When evaluating the sufficiency of the evidence to support a conviction, our review is generally limited to whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Even if an element of the state's proof rests on circumstantial evidence, we cannot reverse based on a speculative possibility of innocence, but must affirm unless the defendant sets forth a reasonable hypothesis of innocence and points to evidence in the record that is consistent with his or her theory. State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995). Because Terrell advances no specific hypothesis of innocence, we must determine only whether the state presented evidence that would reasonably allow a jury to find him guilty of the possession and conspiracy charges. See id. at 924 & n.10 (applying this standard because the defendant neither proposed a reasonable hypothesis of innocence nor identified specific facts to support such a theory).

The legislature has enacted a statutory regime that punishes cocaine traffickers with great severity. The sale of 10 or more grams in a 90-day period carries a maximum sentence of 30 years, and even a first offense carries an 86-month presumptive sentence. See Minn. Stat. ' 152.021, subds. 1(1) (1992) (offense), 3(a) (Supp. 1993) (maximum penalty); Minn. Sent. Guidelines IV, V (collectively determining the presumptive sentence). Moreover, a defendant is guilty of selling cocaine if he or she possesses the cocaine with intent to distribute. Minn. Stat. ' 152.01, subd. 15a (1992). And, a person who conspires to commit this offense is subject to an identical penalty. See Minn. Stat. ' 152.096, subd. 1 (1992) (providing the same maximum sentence for drug conspiracies and the underlying offenses); Minn. Sent. Guidelines II.G (authorizing identical presumptive sentences for controlled substance conspiracies and their underlying offenses).

To prevail on a conspiracy theory, the state must prove (1) the defendant agreed with another to commit the underlying crime, and (2) one of the conspirators performed an overt act in furtherance of the goal. See State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980) (requiring proof of an agreement and an overt act to sustain a conspiracy conviction), cert. denied, 449 U.S. 1132 (1981); see also United States v. Francisco, 410 F.2d 1283, 1288 (8th Cir. 1969) (noting a defendant may be convicted of conspiracy even though a co-conspirator committed the overt act). The state may rely on circumstantial evidence to demonstrate the existence of an agreement and can establish the overt act element with evidence of preparatory activity. See State v. Kahner, 217 Minn. 574, 581, 15 N.W.2d 105, 109, cert. denied, 323 U.S. 768 (1944) (recognizing the state need not rely on direct evidence); see also State v. St. Christopher, 305 Minn. 226, 235, 232 N.W.2d 798, 804 (1975) (noting that courts generally discover an overt act in the slightest action of a conspirator, and distinguishing this from an attempt's higher threshold requirement of something beyond preparation).

Terrell argues the state could not prove the existence of a conspiracy between him and Faulkner on the basis of Faulkner's presence in the kitchen during the second sale to the informant. See United States v. Brown, 584 F.2d 252, 263 (8th Cir. 1978) (stating mere presence does not constitute adequate proof of participation in a conspiracy), cert. denied, 440 U.S. 910 (1979). However, the record also establishes: (1) Terrell gave the informant a piece of paper bearing Faulkner's name and telephone number; (2) Faulkner set up the second controlled sale by taking the informant's message and relaying it to Terrell; (3) Terrell referred the informant to Faulkner when he inquired about purchasing a larger amount of cocaine in powder form; and (4) Terrell and Faulkner wired large sums of money to the same woman in Chicago. These facts collectively establish the existence of a conspiracy. See United States v. Mancillas, 580 F.2d 1301, 1308 (7th Cir.) (holding the state may show participation by a single act if it was intended to further the conspiracy), cert. denied, 439 U.S. 958 (1978); see also United States v. Singer, 970 F.2d 1414, 1419 (5th Cir. 1992) (upholding a conspiracy conviction, based in part on moneygrams, checks, and shipping receipts, which established a link between the conspirators).

Terrell also argues the state's evidence does not sustain the conspiracy conviction because there was no scientific proof of the weight of the cocaine that formed the subject matter of the parties' agreement. See State v. Robinson, 517 N.W.2d 336, 339-40 (Minn. 1994) (requiring scientific evidence of weight and content to prove the amount involved in a sale offense). We disagree. Terrell's counsel implies that a signed contract for the delivery of ten grams on a single day would be insufficient to sustain a conspiracy conviction unless the state also produced ten grams of cocaine, demonstrated Terrell as its source, and scientifically established its weight. Such a regime would radically change the nature of conspiracy by collapsing it into possession with intent to sell, erasing the legislative distinction between those two crimes, and injecting a requirement that the state prove conspiracies by direct evidence. See United States v. Admon, 940 F.2d 1121, 1122-24 (8th Cir. 1991) (upholding a conviction for conspiracy to distribute five or more kilograms of cocaine under circumstances in which the defendant "made numerous sales of cocaine in amounts of one ounce or less" during a two-month period and was apprehended with over $30,000 in cash); United States v. Esparsen, 930 F.2d 1461, 1472 (10th Cir. 1991) (rejecting the defendants' argument that the government had to demonstrate they possessed over 500 grams of cocaine in order to convict them of conspiracy to distribute that amount), cert. denied, 502 U.S. 1036 (1992); see also Minn. Stat. '' 152.01, subd. 15a (defining "sell" to include possession with intent to distribute), 152.021, subd. 1(1) (prohibiting the sale of ten or more grams of cocaine in 90 days), 152.096, subd. 1 (separately discussing criminal liability for drug conspiracies); cf. United States v. Redwine, 715 F.2d 315, 319 (7th Cir. 1983) (explaining the secretive nature of a conspiracy renders direct evidence elusive and generally leaves circumstantial evidence as the only means of establishing the offense), cert. denied, 467 U.S. 1216 (1984). We would reach the same conclusion even if we were able to construe Terrell's proposed scientific evidence standard to apply only in the absence of a written agreement or witness testimony regarding specific negotiations because that approach, while not blurring the line between substantive crimes, would force the state to produce direct evidence in conspiracy prosecutions.

Although we may disagree with the legislature's decision to punish conspiracy as severely as actual sale offenses, our function is to enforce the legislature's will and not to redefine the law of conspiracy in order to mitigate the effect of legislative choices. See Minn. Stat. ' 645.16 (1994) (obliging courts to effectuate the legislature's intent). Terrell's arguments are more appropriately directed to the body having authority for the definition of criminal behavior and the formulation of appropriate sentences. See State v. Anderson, 280 Minn. 461, 462, 159 N.W.2d 892, 894 (1968) (recognizing the definition of crimes and penalties lies within the province of the legislature).

Because we reject Terrell's proposed requirement of scientific proof of the weight of cocaine involved in a drug conspiracy, we review the evidence to determine whether a jury could reasonably decide that Terrell agreed with Faulkner to sell more than 10 grams of cocaine within a 90-day period. On this question, the record demonstrates: (1) police became interested in Terrell's dwelling as a result of complaints regarding a large number of visitors; (2) Terrell sold a total of 4.3 grams of crack to one of those visitors (the informant) for $1,200 over the 20 days preceding his arrest; (3) at the time of Terrell's arrest, police found $3,000 hidden in plastic bags; (4) the police could trace only $600 of this money to the informant's purchases; and (5) Terrell and Faulkner wired nearly $7,000 to a woman in Chicago over the course of nine days even though Terrell was unemployed. [1] Given these facts, the jury might reasonably conclude that Terrell and Faulkner planned to sell 10 or more grams of cocaine within a 90-day period.

Terrell further argues the evidence does not support his conviction for possession of the 0.1 gram of crack because nothing suggests he occupied the bedroom leading to the attic, where the crack was found. We disagree. When the state cannot prove a defendant's physical possession of a controlled substance at the time of arrest, it may rely on the doctrine of constructive possession, which requires a strong inference that the defendant recently enjoyed actual possession of the substance and did not surrender his or her right of dominion. State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975). To prevail on such a theory, the state must show that either (1) the police found the drugs in a place under the defendant's control, to which others normally did not have access, or (2) the defendant was knowingly exercising dominion and control over the drugs. See Robinson, 517 N.W.2d at 340 (quoting and approving the language of 10A Minnesota Practice, CRIMJIG 20.04 (1990)). In addition, constructive possession may be exclusive or shared. State v. LaBarre, 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972).

While the record suggests the crack may not have been in an area under Terrell's exclusive control, it is undisputed Terrell used the premises to make five sales of the same substance to a police informant. These facts provide a sufficient basis for the jury to conclude that Terrell recently possessed the contraband, either singly or jointly, and had not relinquished his authority to control its disposition. See People v. Torres, 43 P.2d 374, 374 (Cal. Dist. Ct. App. 1935) (describing a case in which the police found marijuana in several rooms of a boarding house and upholding the landlord's conviction for possession based on testimony that she had made recent sales of the drug); Shell v. State, 436 S.E.2d 12, 14 (Ga. Ct. App. 1993) (upholding a conviction based on constructive possession because the defendant had recently participated in an aborted sale of cocaine to a police officer at the home in which the drugs were found), cert. denied (Ga. Jan. 6, 1994). Under these circumstances, the evidence is sufficient to support conviction for the conspiracy and possession offenses.

II.

A statute's constitutionality presents a question of law, which we review de novo. Estate of Jones v. Kvamme, 529 N.W.2d 335, 337 (Minn. 1995). We will uphold the statute unless the challenging party demonstrates a constitutional infirmity beyond a reasonable doubt. Id. The vagueness doctrine protects a defendant's right to due process. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S. Ct. 1186, 1193 (1982). In applying this doctrine, our function is to ensure fair warning and the nondiscriminatory enforcement of penal laws by determining whether a law is so vague as to force people of common intelligence to guess at its meaning and to differ with regard to its application. Geiger v. City of Eagan, 618 F.2d 26, 28 (8th Cir. 1980) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127 (1926)).

If a penal statute implicates no constitutionally protected conduct, the defendant may not challenge it by hypothesizing a single unconstitutional application, but must show either that the statute is unconstitutionally vague in all its applications or as applied to the facts of the particular case. See Hoffman Estates, 455 U.S. at 497, 102 S. Ct. at 1193 (requiring a facial due process challenge to establish the law's unconstitutionality in all its applications); see also Chapman v. United States, 500 U.S. 453, 467, 111 S. Ct. 1919, 1929 (1991) (testing a constitutional vagueness claim as applied to the facts of the case because the situation raised no First Amendment considerations). When the "debate * * * center[s] around the appropriate sentence and not the criminality of the conduct," we are particularly disinclined to grant a vagueness challenge. Chapman, 500 U.S. at 467-68, 111 S. Ct. at 1929.

Terrell argues the term "city block" in the statutory definition of a park zone is so inherently vague as to compel the reduction of his convictions for drug sales and possession to lesser included offenses. See Minn. Stat. ' 152.01, subd. 12a (1992) (defining a park zone to include the greater of the area within 300 feet, or one city block, of a park boundary). He supports this theory by noting that city blocks lack uniformity of size and illustrates the point by hypothesizing a suburban block extending for half a mile. We find this line of reasoning unpersuasive. Because Terrell alleges neither an infringement on his First Amendment rights nor the statute's unconstitutionality in every application, he must establish the statute's unconstitutionality as applied to the facts of his own case. Moreover, we would reach the same conclusion even if this case involved Terrell's hypothetical block because the crux of his argument rests not on an inherent uncertainty in the definition of a city block, but on the fact that a casual glance at one's surroundings might not disclose the park's physical proximity. See Black's Law Dictionary 171-72 (6th ed. 1990) (generally defining a block as a part of a city or town that is surrounded by streets or avenues on at least three sides). While due process requires the legislature to draft penal statutes that prescribe reasonably ascertainable standards of conduct, it remains the obligation of individual citizens to ensure their conduct falls within the range of permissible behavior. United States v. Powell, 423 U.S. 87, 92, 96 S. Ct. 316, 320 (1975). Thus, the government may require carriers to transport oversized or heavy loads by the "shortest practicable route," even though this may logically force them to consult a map when planning deliveries. See id. (quoting Sproles v. Binford, 286 U.S. 374, 393, 52 S. Ct. 581, 587 (1932)). Similarly, a drug trafficker who wishes to avoid the enhanced penalties associated with doing business within one city block of a park may be required to refer to a map to determine the boundaries of this area.

Affirmed.

LANSING, Judge (concurring in part and dissenting in part).

The evidence amply supports Bobby Terrell's conviction for five counts of selling crack (totalling 4.3 grams) in a park zone and also supports his conviction for constructive possession of crack (0.1 gram) retrieved from the attic of his house. But the evidence is insufficient to support a conviction for conspiracy to sell ten or more grams of crack in a ninety-day period, and requires reversal.

The elements of Terrell's first degree controlled-substance crime require proof of a conspiracy to sell a minimum of ten grams of crack within ninety days. The state has not shown or attempted to show either possession or sale of ten grams by Terrell or his co-conspirators and has provided no evidence of such possession or sale within ninety days. Direct evidence is not the only way to satisfy the elements of proof, but when evidence is circumstantial or indirect, it too must be sufficient to allow a jury to reasonably convict.

The charge could be proved indirectly by an express agreement to sell the required amount within the required period, or an implicit agreement, confirmed by the actual sales, the actual amounts possessed, or by other circumstantial evidence. See, e.g., United States v. Admon, 940 F.2d 1121, 1122-24 (8th Cir. 1991) (upholding a conviction for conspiracy to distribute five kilograms of cocaine when defendant made numerous small sales over several months, possessed over $30,000 in cash, kept drug processing and packaging equipment at her home, and arranged drug-revenue transfers in wiretapped telephone calls); United States v. Duke, 940 F.2d 1115 (8th Cir. 1991) (companion case); United States v. Esparsen, 930 F.2d 1461, 1473 (10th Cir. 1991) (relying on evidence of a negotiated sale for 500 grams of cocaine), cert. denied, 502 U.S. 1036 (1992). In charges involving conspiracy, the agreement is the "'essence'" or "'gist'" of the offense. 2 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law ' 6.4(d) at 71 (1986) (citing cases). An agreement can be implied. Id. (tacit understanding may suffice). But we must keep in mind that the state has alleged an implicit agreement as to very explicit terms C to sell ten grams or more of crack within ninety days.

The "agreement" evidence is apparently the informant's inquiry on whether Terrell could sell him approximately 3.5 grams of crack and Terrell's response that the informant would have to speak with Faulkner. The majority aggregates this evidence with Terrell's providing the informant with Faulkner's name and telephone number in a controlled buy two weeks earlier, Faulkner's presence in the house and relaying information during an earlier sale, the money found in the house during the search, and Terrell and Faulkner wiring substantial amounts of money to the same woman in Chicago two months earlier. The evidence demonstrates joint activity between Faulkner and Terrell, but what evidence shows an explicit or implicit agreement to sell ten grams of crack within ninety days? See State v. Buchanan, 431 N.W.2d 542, 547 (Minn. 1988) (reviewing court must determine whether jury could reasonably find defendant guilty beyond a reasonable doubt of the elements of the offense).

The state has tried through intermittent sales or suspicion of sales to tie Terrell, by incremental amounts, to a conspiracy reaching the statutory minimum of ten grams. The state's power to charge a conspiracy crime is an important tool in apprehending and punishing drug traffickers. But the crime of conspiracy cannot be used to make up for a deficiency in the state's proof of the substantive criminal act. Terrell should be held fully accountable and subject to punishment for the documented sales totalling 4.3 grams and the 0.1 grams found in the attic of the residence he shared with Faulkner. But the evidence is insufficient to show a conspiracy to sell ten grams within ninety days. Using conspiracy theories to shore up deficiencies in substantive elements of a crime will only undermine their availability for legitimate purposes.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1]The nine-day period falls within the 90 days leading up to Terrell's arrest.