This opinion will be unpublished and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
C9-95-2236

State of Minnesota,
Respondent,

vs.

Kemberlynn Marie Schostag,
Appellant.

Filed July 30, 1996
Affirmed
Stone, Judge
*

Ramsey County District Court
File No. K995689

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

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Stone, Judge.

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

STONE, Judge

This appeal is from a judgment of conviction for first-degree controlled substance offense. See Minn. Stat. ' 152.021, subd. 1(1) (1994). Appellant Kemberlynn Schostag challenges the admission of Spreigl evidence and expert opinion testimony and argues that the evidence does not support the conviction and that it was an abuse of discretion to impose the presumptive sentence. We affirm.

FACTS

Schostag and her husband John Schostag were charged with possessing cocaine. The couple's rented car was stopped shortly after midnight by a police officer who saw the car's two occupants make "furtive" movements and lean forward in their seats after passing him.

Under the front passenger seat of the car, police found a fanny pack containing a baggie with approximately 9 grams of marijuana, a pipe, 15 small bags with white powder that later tests showed was 13.27 grams of cocaine, and a proof of insurance card for appellant's mother. Police also found a bag containing a bottle of what was later tested as 1.75 grams of cocaine, some plastic baggies, a razor blade, a spoon, and an electronic scale. An address book with dollar amounts listed beside names of persons was also found under the passenger seat. Finally, police found a semi-automatic weapon and 13 rounds of ammunition in the trunk.

At trial, the court granted, over a defense objection, the state's motion to introduce Spreigl evidence in the form of two stipulated summaries of separate drug possession incidents involving appellant, one approximately three weeks before the charged offense, the other two-and-one half weeks after the charged offense. The state also presented expert testimony from Sergeant Jung, a narcotics officer, regarding the characteristic methods of selling cocaine and the significance of some of the items seized from the rented car.

The jury found appellant guilty of "possession with intent to sell in the first degree" and "possession of a controlled substance in the second degree." The trial court sentenced appellant to the presumptive sentence for the first-degree controlled substance offense, an executed term of 86 months.

D E C I S I O N

I.

Schostag argues that the trial court abused its discretion in admitting Spreigl evidence. Admission of Spreigl evidence lies in the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993).

The trial court admitted the Spreigl evidence to show absence of mistake or accident, not to prove identity. The state had to prove that Schostag knowingly possessed cocaine. If the state had needed the Spreigl evidence to prove, through a modus operandi, the identity of the person possessing the cocaine, a greater similarity might be required between the Spreigl offenses and the charged offense. See, e.g., State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991) (evidence offered to establish identity must be similar to the charged offense either in time, location, or modus operandi). But the Spreigl incidents, presented to show absence of mistake or accident, were close in time, involved drug possession, and certainly bore "some" other similarities to the charged offense. See State v. Rainer, 411 N.W.2d 490, 497 (Minn. 1987) (in order to show absence of mistake or accident, there must be some relationship in time, location, or modus operandi between the charged crime and the other acts).

Schostag argues that the supreme court established the outer limits of Spreigl admissibility in State v. Cogshell, 538 N.W.2d 120 (Minn. 1995). But in Cogshell, the Spreigl evidence was presented to show identity. Id. at 122. The Spreigl incidents in this case, moreover, are much closer in time than the 15-month-old incident in Cogshell. We conclude that Cogshell does not compel a finding of error in this case.

II.

Schostag argues that the trial court abused its discretion in admitting expert opinion evidence that she argues constituted a "drug dealer profile." The admission of expert testimony rests within the discretion of the trial court. State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984).

Sergeant Jung testified as an expert witness about various characteristic practices of those engaged in dealing drugs. In State v. Williams, 525 N.W.2d 538, 548 (Minn. 1994), the supreme court held that it was error to admit a drug courier profile in order to show that the defendant likely knew of the presence of crack cocaine in her luggage. In Williams, the state sought to prove an inference of knowing possession of cocaine from facts of an essentially innocent nature--the manner of buying a train ticket, the city of departure, the use of certain areas on the train. Id. Here, the state is trying to prove an inference of intent to sell from acts that are largely illegal in themselves, or at least not innocent in nature--possession of cocaine, possession of a weapon in a vehicle, possession of "cutting" tools and other paraphernalia in proximity to cocaine. The supreme court in Williams noted that "testimony by police officers as to techniques employed by other drug dealers or couriers" is sometimes admissible. Id.; see, e.g., State v. Collard, 414 N.W.2d 733 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988). Sergeant Jung's opinion testimony was at times stated more strongly in conclusive terms than the evidence warranted. But its admission did not violate Williams and was not reversible error, particularly since Schostag challenged the state's proof of knowing possession, not its proof of intent to sell. Whatever might be the merit of so-called "profile" evidence, it was not prejudicial error in this case.

III.

Schostag argues that there is insufficient evidence that she possessed the cocaine, even under an "aiding and abetting" theory. She argues that proof of some "active participation" is required to prove aiding and abetting possession with intent to sell. See State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991) (aiding and abetting the sale or manufacture of a controlled substance requires some active participation to reach the requisite intent).

In reviewing a claim of insufficiency of the evidence, this court must view the evidence in the light most favorable to the jury's verdict, assuming the jury believed the state's evidence and disbelieved contrary evidence. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). If a reasonable jury, considering the state's burden of proving guilt beyond a reasonable doubt, could reasonably have found the defendant guilty, the conviction must be affirmed. Id.

In Kessler, this court held that some evidence of "active participation" is necessary for an accomplice to be guilty as an aider or abettor of an "active" crime. Kessler, 470 N.W.2d at 542. The court went on to find the evidence lacking that the husband had taken any active role in the growing of the marijuana found in and around the couple's home. Id. The husband in that case was charged with aiding and abetting several "sale" crimes, because "sale" is defined, in part, in terms of "manufacture," including cultivation. Id. at 541. He was not charged with possession with intent to sell. See id. at 538.

Possession with intent to sell requires a specific intent that mere possession does not. But it is not an "active" crime in the sense discussed in Kessler because it requires no further act beyond the possession itself.

Schostag and her husband were both found in close proximity to the cocaine and related paraphernalia. If anything, Schostag was found in closer proximity because some of the cocaine, at least, was found under the passenger seat where she was sitting. Thus, there was ample evidence to prove that Schostag aided and abetted the possession of cocaine with intent to sell.

IV.

Schostag argues that, as a matter of sentencing equity, her sentence should be reduced to that later imposed on her husband for the offense of second-degree controlled substance offense. The trial court has broad discretion in imposing the appropriate sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Only the "rare case" warrants a reversal of a presumptive sentence. Id.

The sentence received by a co-defendant is sometimes a relevant consideration in sentencing. State v. Vazquez, 330 N.W.2d 110, 112-13 (Minn. 1983). But the supreme court has noted that the logical remedy for sentencing disparity between co-defendants is not necessarily to reduce the sentence of one defendant, but may be to increase the sentence of the other. Id. at 112. In this case, Schostag's husband may have received an overly lenient sentence. The evidence at trial indicated he was guilty of first-degree controlled substance crime, a greater offense than the mere possession offense on which he was sentenced. But that does not give Schostag a right to a reduction in her own sentence.

Schostag's husband accepted the plea offer that she rejected and pleaded guilty to a lesser offense. Although Schostag argues that she is, in effect, being penalized for exercising her right to trial, the United States Supreme Court has rejected that argument. Bordenkircher v. Hayes, 434 U.S. 357, 362-64, 98 S. Ct. 663, 667-68 (1978). There are equities here, but this is not a "rare case" warranting reversal of the refusal to depart.

Affirmed.


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.