may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Raymond Martin Varner,
Filed June 17, 1997
Ramsey County District Court
File No. K1-96-406
Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102, (for Respondent)
Clayton M. Robinson, Jr., First National Bank Bldg., 332 Minnesota Street, Suite E-1401, St. Paul, MN 55101 (for Appellant)
Considered and decided by Parker, Presiding Judge, Harten, Judge, and Holtan, Judge.[*]
Appellant Raymond Varner appeals from his conviction for controlled substance crime in the first degree (sale of cocaine), arguing that the district court erroneously excluded his entrapment testimony and that the jury verdicts were legally inconsistent. We affirm.
The deputies followed appellant, eventually blocking his car. The deputies identified themselves, but appellant ran and they pursued him on foot. A deputy observed appellant throw a plastic bag over his head onto the roof of a building before being apprehended. The plastic bag was recovered and subsequent tests indicated that it contained over 10 grams of cocaine.
Following appellant's arrest, deputies executed the search warrant at his residence. There they seized another plastic bag of cocaine, a plastic bag of marijuana, two loaded semi-automatic handguns with holsters, a scale, large sums of money, and two safety deposit box keys. Later, deputies obtained search warrants for the safety deposit boxes and recovered approximately $12,000 cash, including some of the marked "buy money" used in the previous controlled buy involving the informant.
At trial, appellant attempted to present an entrapment defense. In an "offer of proof" made before appellant testified, appellant's counsel stated his client would testify that: (1) two individuals delivered cocaine to appellant's residence at the behest of a government agent; (2) appellant received the cocaine for the purpose of transferring it to a person he later believed to be the informant; and (3) while acting as a government agent, the informant had badgered appellant into becoming involved in the drug transaction. The district court allowed appellant to testify to his own state of mind, but on hearsay grounds prevented him from testifying to what other people told him.
At the close of evidence, the district court ruled that appellant failed to make a prima facie showing of entrapment by a preponderance of the evidence and declined to provide a jury instruction on entrapment. The jury returned a guilty verdict on one count of first-degree controlled substance crime (sale of cocaine), but acquitted appellant of the other two counts involving possession of cocaine.
A court cannot assume the materiality of evidence not included in the record nor in any way disclosed, and in the absence of any showing of the nature and substance of such evidence, this court cannot determine whether it was erroneously excluded or if [the party seeking admission of the evidence] was prejudiced by such exclusion.
State v. Anderson, 395 N.W.2d 83, 85 (Minn. App. 1986) (quoting State v. Wolkoff, 250 Minn. 504, 519-20, 85 N.W.2d 401, 412 (1957) (footnote omitted)). Without the specific statements allegedly made by the informant, we cannot effectively review the district court's evidentiary ruling.
2. Appellant contends that he made a prima facie showing of entrapment, which entitled him to a jury instruction on it. We disagree. Minnesota adheres to the two-part subjective approach to entrapment. State v. Grilli, 304 Minn. 80, 89-92, 230 N.W.2d 445, 452-53 (1975). Initially, the defendant must establish by a fair preponderance of the evidence that a government actor induced the crime. State v. Ford, 276 N.W.2d 178, 182 (Minn. 1979). Then the burden shifts to the government to show beyond a reasonable doubt that the defendant was predisposed to commit the crime. Grilli, 304 Minn. at 96, 230 N.W.2d at 456. For the defendant successfully to establish inducement, the government's action must go beyond mere solicitation. State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980). Inducement requires "something in the nature of persuasion, badgering, or pressure by the state." Id.
Here, appellant made an insufficient showing of inducement. He presented no witnesses, other than himself, to establish that a government actor or any other person initiated the criminal act. There is no evidence beyond speculation that the person appellant claims was the informant was really the informant. Appellant presented no evidence that the two people who dropped off the cocaine were associated in any way with law enforcement. Moreover, appellant failed to present any evidence that he was pressured into delivering the cocaine. In fact, appellant admitted that he was a "willing" participant in the transaction. On this record, we cannot say that the district court erred when it concluded that appellant failed to make a prima facie showing of entrapment. Accordingly, the district court correctly declined to submit the entrapment issue to the jury.
3. Appellant claims that the jury verdicts were legally inconsistent because the jury found him guilty of selling 10 grams or more of cocaine, but at the same time not guilty of possessing more than 6 grams of cocaine. Rather than being legally inconsistent, however, the jury's verdicts were merely logically inconsistent.
The general rule is that a defendant who is found guilty of one count of a two count indictment or complaint is not entitled to a new trial or a dismissal simply because the jury found him not guilty of the other count, even if the guilty and not guilty verdicts may be said to be logically inconsistent.
State v. Juelfs, 270 N.W.2d 873, 873-94 (Minn. 1978) (citation omitted); see also State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995) (defendant not entitled to relief simply because guilty verdict of one offense and not guilty verdict of similar offense are logically inconsistent). Verdicts are deemed legally inconsistent only when a jury returns two or more guilty verdicts and a necessary element of each offense is subject to conflicting findings. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Here, because the jury only returned one guilty verdict, the jury's verdicts cannot be deemed legally inconsistent.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.