This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



John Edward Yort,


Filed September 9, 1997
Norton, Judge

Hennepin County District Court

File No. 95096173

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

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Phillip S. Resnick, Resnick & Seiler, P.L.L.P., 1925 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.



Appellant argues that the trial court: (1) erred in refusing to suppress evidence obtained during a search of his home; (2) abused its discretion by admitting the testimony of two of the state's witnesses; (3) abused its discretion by refusing to dispositionally depart from the presumptive guideline sentence; and (4) erred in interpreting Minn. Stat. § 152.024, subd. 1(4) (1996) (sale of marijuana in a school zone) as not requiring proof of an actual sale. Appellant also contends: (1) that the evidence was not sufficient to support the jury's verdict, and (2) that he was erroneously convicted and sentenced for two offenses based on the same conduct. The trial court acted within its discretion in upholding the search warrant, admitting the testimony of the witnesses, and refusing to depart from appellant's presumptive sentence. We agree with the trial court's interpretation of Minn. Stat. § 152.024, subd. 1(4). Finally, because appellant was convicted of both the possession and sale of marijuana based on the same conduct, we vacate appellant's fifth-degree possession of marijuana conviction. We affirm as modified.


Sometime in early September 1995, S.W., P.H., and John Dahl went to appellant John Edward Yort's home to steal drugs and drug money. Appellant and his brother, Jason Yort, were in the home during the incident. S.W., P.H., and Dahl successfully stole approximately $3,000 in cash, a large quantity of marijuana, and stereo equipment from the home. Soon after the robbery, appellant purchased a pistol grip .12-gauge Mossberg pump action shotgun.

On October 28, 1995, Dahl decided to rob appellant's home again, this time accompanied by J.K. When Dahl and J.K. arrived, no one answered the door, so they kicked it in. Appellant was in the home and shot Dahl in the stomach. Appellant called 911 to report the shooting. Shortly thereafter, police arrived and found Dahl lying on the dining room floor in a pool of blood with an expended shell and several shotgun pellets next to his body.

During the protective sweep of the home, police found appellant standing in his bedroom with a shotgun on his bed. Police also found several firearms lying in plain view on the basement floor. The police sealed the home and applied for a search warrant before conducting any further investigation of the home. A search warrant was issued authorizing police to search the home and all storage areas, outbuildings, and curtilage for firearms, ammunition and cartridges, blood samples, physical evidence, and any document necessary to prove occupancy or residence.

While executing the search warrant, police found: two bags of marijuana, 15 LSD sugar cubes, psilocybin mushrooms, several scales, new and used plastic baggies, approximately $5,000-6,000 in U.S. currency in the basement of the home in an open cardboard box on top of a furnace duct, a bag containing 222 grams of marijuana in a cooler on the basement floor, LSD on top of the basement rafters, a marijuana grower's guide book on a shelf above a bed in the basement, a Cooper High School yearbook with inscriptions regarding the growing of marijuana, drug paraphernalia in two bedrooms, a .12-gauge shotgun with a pistol grip on it on the kitchen table, several pieces of identification belonging to appellant, an empty gun box, drug residue, a marijuana pipe, and long guns, shotguns, and rifles in the area behind the basement stairs.

Appellant was charged with: Count I, controlled substance crime in the second degree, sale of LSD or aiding in the sale of LSD in a school zone while using or possessing a firearm, in violation of Minn. Stat. § 152.022, subd. 1(6) (1996); Count II, controlled substance crime in the fourth degree, sale of marijuana or aiding in the sale of marijuana in a school zone while using or possessing a firearm, in violation of Minn. Stat. § 152.024, subd. 1(4) (1996); Count III, controlled substance crime in the third degree, possession of LSD or aiding and advising in the possession of LSD in a school zone while using or possessing a firearm, in violation of Minn. Stat. § 152.023, subd. 2(4) (1996); Count IV, controlled substance crime in the fifth degree, possession of marijuana or aiding in the possession of marijuana while using or possessing a firearm, in violation of Minn. Stat. § 152.025, subd. 2(1) (1996). Following a trial, the jury returned a verdict finding appellant guilty only of Count II and Count IV. Appellant filed a motion for judgment of acquittal or a new trial. The trial court denied both motions.


1. Search and seizure

First, appellant argues that the court erred in issuing a search warrant because there was not probable cause justifying a search of the entire house. When reviewing a magistrate's determination of probable cause, a reviewing court must give deference to the magistrate's decision and uphold the determination if there is "substantial basis" for the determination in the light of the "totality of the circumstances." State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332-33 (1983)). The pertinent inquiry is whether, based on all the facts presented in the affidavit, the magistrate had sufficient grounds to believe that a search of appellant's home would result in discovery of evidence pertinent to the crime. Id.

Appellant reasons that the warrant should not have been issued for the entire home because the officers found the weapon used in the shooting during the protective sweep. Furthermore, appellant alleges that the police knew that appellant shot Dahl because J.K. told them so. Thus, contends appellant, there was no need to search the entire home. We disagree.

Generally, search warrants are issued only on the basis of probable cause. State v. Mitchell, 282 Minn. 113, 123, 163 N.W.2d 310, 317 (1968); see also Minn. Stat. § 626.08 (1996) (providing that "[a] search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property or thing to be seized, and particularly describing the place to be searched"). The test of whether probable cause exists for issuance of a search warrant is whether the affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe there is a basis for the search. State v. Bagley, 286 Minn. 180, 192, 175 N.W.2d 448, 456 (1970) (quoting State v. Suess, 280 Minn. 308, 312, 159 N.W.2d 180, 182 (1968)). Furthermore, the determination of probable cause is based on the totality of the circumstances. In re Welfare of G., 542 N.W.2d 54, 58 (Minn. App. 1996).

The court properly concluded that probable cause justified searching the entire house. As the search warrant affidavit shows, in order to conduct a thorough investigation of the crime, police had to identify the body, identify the shooter, identify the murder weapon, establish ownership of the murder weapon and spent ammunition and cartridges, and obtain information regarding a motive for the shooting. A reasonably prudent person would not believe that all of these items could be found in the room in which the murder occurred. See Bagley, 286 Minn. at 270, 175 N.W.2d at 456. Furthermore, the police were not sure the shotgun they found was indeed the murder weapon. Further complicating matters was that the victim was deceased and unable to tell his version of the story. Therefore, considering the totality of the circumstances, the court had a substantial basis for believing that a search of the entire home would result in pertinent evidence. McCloskey, 453 N.W.2d at 703.

Second, appellant argues that, even if the issuance of the warrant was valid, the police exceeded the scope of the warrant by looking in places which could not contain items sought in the search warrant affidavit. In particular, appellant alleges that Detective Bordwell's standing on a paint can to run his hand over the top of the heating duct in the basement was unreasonable given that Bordwell claimed he was looking for ammunition and guns. Where material facts are not disputed, this court need not defer to the trial court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). Generally, a search is limited in scope to those areas where one could reasonably expect to find items identified in the search warrant. State v. Wills, 524 N.W.2d 507, 509 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). In order to determine whether the execution of a search warrant was reasonable, the totality of the circumstances of the particular case must be examined. Wills, 524 N.W.2d at 509.

In this case, the officers were looking for guns that could have been used in the shooting, ammunition, cartridges, and any other evidence related to the incident. When the officers entered the basement, they found a bag of marijuana in an uncovered cardboard box sitting on top of the heating duct and another bag of marijuana in a cooler. The cardboard box and cooler could have contained a gun or ammunition. Likewise, it was reasonable for the officers to believe that weapons could have been hidden in the basement rafters. Therefore, the trial court properly concluded that the search did not exceed the scope of the warrant.

2. Admission of testimony regarding prior sale and possession of marijuana

Appellant argues that the trial court abused its discretion in allowing B.A. to testify that he had seen appellant with controlled substances on prior occasions, and in allowing New Hope police officers to testify that they found marijuana in appellant's car when they stopped appellant for a fogged taillight. Whether to admit or exclude evidence rests within the broad discretion of the trial court, and its ruling will not be disturbed unless there has been an abuse of discretion or the ruling is based on an erroneous view of the law. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Furthermore, to obtain a new trial based on alleged erroneous evidentiary rulings, the complaining party must demonstrate prejudicial error. Id.

At the omnibus hearing, B.A., a friend of Dahl, testified at the request of Dahl's mother and his girlfriend, M.B. B.A. stated that he had seen appellant sell drugs in the summer of 1995 and that he had purchased LSD from appellant. B.A. testified that he thought appellant should go to prison for selling drugs and unjustly killing Dahl. The trial court admitted B.A.'s testimony. The court found that, although B.A.'s testimony was vague and possibly biased, these deficiencies were overcome by the clear and convincing evidence that he bought drugs from appellant and saw others buy drugs from appellant. Appellant contends that the trial court abused its discretion by admitting B.A.'s testimony. Appellant also observes that, at trial, B.A.'s testimony was less definite than at the omnibus hearing. At trial, B.A. was unable to recall when or where he allegedly bought marijuana and if he bought the marijuana from appellant or appellant's brother.

First, we observe that bias is not a competency requirement, but an issue with respect to impeachment under Minn. R. Evid. 616. Even if this is a concern for competency, however, appellant has failed to show that B.A. was sufficiently biased to disqualify him from testifying. Merely being a friend of Dahl's does not render him biased. Moreover, B.A.'s testimony was based on personal knowledge and was not so vague as to render it inadmissible. As the trial court observed, Anderson was a chronic drug user who could not possibly remember the individual dates and times of his purchases. Furthermore, the testimony was only being elicited to show that appellant had sold marijuana before; the various dates were not critical. Moreover, appellant was convicted of aiding in the sale and possession of marijuana; therefore, B.A.'s inability to distinguish between appellant and his brother is not critical.

Second, appellant argues that the trial court abused its discretion by allowing an officer of the New Hope Police Department to testify regarding a stop of a vehicle that appellant was riding in on April 14, 1996, due to a smoked taillight cover. During this stop, the officer found that the vehicle's owner had a suspended license. A search of the car revealed marijuana under the front seat and a handgun in the door panel. The police did not issue a ticket for the taillight, but charged appellant with a petty misdemeanor for possession of marijuana. Appellant contends that this testimony should have been suppressed because its prejudicial effect outweighed its probative value.

Under Minn. R. Evid. 404(b), character evidence of another crime, wrong, or act is not admissible to prove that a person has acted in conformity with that character. Such evidence is admissible, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b). In deciding whether other crime evidence under rule 404(b) is relevant, the trial court must focus on the closeness of the relationship between the other conduct and the charged crimes. State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992). The closer the relationship, the greater the relevance. Id. B.A.'s testimony and the testimony of the New Hope police officer were relevant to establish both intent to sell and common scheme or plan. The evidence in both instances showed that appellant possessed marijuana in the months before the October robbery and shooting in his home. Moreover, the relationship between offenses is very close, as they both involve possession of marijuana.

Appellant contends that, even if the testimonies of B.A. and the police officer were admissible under rule 404(b), their testimony should have been excluded under Minn. R. Evid. 403 because the unfair prejudice of admitting it outweighed its probative value. Evidence of other distribution of controlled substances or possession of controlled substances may be "highly probative" in establishing intent and common scheme or plan in cases involving the distribution of controlled substances. State v. Forsman, 260 N.W.2d 160, 167 (Minn. 1977). Although appellant may be prejudiced by the evidence offered by Anderson and the evidence of his petty misdemeanor possession of marijuana,

the unfair prejudice spoken of in R. 403 does not mean the damage to the opponent's case that results from the legitimate probative force of the evidence, but refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.

Frisinger, 484 N.W.2d at 32 (quoting State v. Axford, 417 N.W.2d 88, 91-92 (Minn. 1987). In this case, the danger of unfair prejudice was substantially less than the probative value that this testimony offered. Id. Therefore, the trial court did not abuse its discretion in admitting the testimony of B.A. or the testimony of the officer.

3. Sufficiency of the evidence

Appellant contends that the evidence is not sufficient to support his convictions. When there is a challenge to the sufficiency of the evidence, review on appeal is limited to "a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did." State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). If the jury could reasonably have concluded that appellant was guilty of the offenses charged, then this court should not disturb the verdict. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

First, appellant argues that, because the evidence in this case was circumstantial, it is insufficient to support the jury's verdict. The fact that the evidence is circumstantial, however, does not render it any less probative. See State v. Lozar, 458 N.W.2d 434, 441 (Minn. App. 1990) (observing that jury is entitled to draw legitimate inferences from testimony), review denied (Minn. Sept. 28, 1990).

Next, appellant argues that there was insufficient evidence to support his conviction for sale or aiding in the sale of marijuana. Generally, the intent to sell or distribute a controlled substance is proved circumstantially. Lozar, 458 N.W.2d at 441. "Evidence tending to show such intent usually includes evidence as to the large quantity of drugs or of other evidence as to the manner of packaging." See id. (sufficiently large amount of marijuana as well as scales, packaging materials, and large amount of cash in area where appellant exercised control); Cf. State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991) (evidence was not sufficient to convict defendant's husband of aiding in sale of marijuana because there was no evidence showing he had intent to sell). There was sufficient circumstantial evidence in this case to establish appellant's intent to sell. Detective Bordwell told the jury that in his opinion as a narcotics officer, the combination of the substantial quantity of marijuana, the electronic scales, the packaging materials found around the house, and the large amounts of cash indicated that the marijuana was possessed with an intent to sell. Neighbors of appellant also testified that there was heavy short-term traffic in and out of the house in the weeks and months before October 28th. In addition, the jury learned that appellant had marijuana in his blood shortly after his arrest. And as discussed before, the jury heard from B.A. who testified that he had bought marijuana from appellant or his brother and from the New Hope police officer who stopped appellant and his brother in a car which contained marijuana and a gun. This evidence, viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach their verdict. Webb, 440 N.W.2d at 430.

Due to our vacation of appellant's conviction for possession of marijuana, we decline to address its alleged evidentiary insufficiency.

4. Sentencing

Appellant contends that the trial court abused its discretion in refusing to grant him a dispositional departure from his presumptive sentence and in ordering him to pay a $30,000 fine. Under the Minnesota Sentencing Guidelines, appellant's presumptive sentence was 36 months.

The Minnesota Sentencing Guidelines provide that "[t]he judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D. "'Substantial and compelling circumstances' are those circumstances that make the facts of a particular case different from a typical case." State v. Robinson, 388 N.W.2d 43, 46 (Minn. App. 1986), review denied (Minn. July 31, 1986). The decision whether substantial and compelling circumstances exist sufficient to depart from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent an abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

Appellant argues that the trial court erred by not dispositionally departing because he is amenable to probation and has never been charged or convicted of any other criminal offense. See State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994) (stating that court may dispositionally depart if defendant is particularly amenable to probation or if offense-related mitigating circumstances are present), review denied (Minn. Apr. 21, 1994); State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984) (stating that issue regarding dispositional departure is whether defendant's conduct was significantly more or less serious than in typical crime). Appellant urges the court to consider the fact that he is only 20 years old and has emotional problems and learning disabilities that make him unamenable to imprisonment. Additionally, appellant argues that grounds for departure exist because he was only a passive participant in the crimes. See Minn. Sent. Guidelines II.D.2(a)(2) (if offender played minor or passive role in crime, this may be grounds for departure).

The evidence supports the trial court's order that appellant serve the presumptive guideline sentence. The trial court specifically found that this crime did not differ from other crimes of its type and therefore, under the Minnesota Sentencing Guidelines, was not appropriate for departure. Cox, 343 N.W.2d at 643. Ordinarily, if the trial court decides not to depart, this court will not interfere. State v. Olson, 459 N.W.2d 711, 716 (Minn. App. 1990), review denied (Minn. Oct. 25, 1990). This is not such "a rare case which would warrant reversal of the refusal to depart." State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).[1]

Finally, appellant alleges that the trial court abused its discretion by ordering him to pay a $30,000 fine. Minn. Stat. § 609.101, subd. 3 (1996), provides that "when a court sentences a person convicted of a controlled substance crime under sections 152.021-152.025, it must impose a fine of not less than 30% of the maximum fine authorized by law nor more than the maximum fine authorized by law." Appellant provides no authority for the claim that imposition of the fine is cruel and unusual punishment under the United States or Minnesota Constitution. Minn. Stat. § 609.101, subd. 5, allows a trial court to reduce the minimum fine in its discretion if the court makes "written findings on the record that the convicted person is indigent or that immediate payment of the fine, surcharge, or assessment would create undue hardship for the convicted person or that person's immediate family." Appellant offered the trial court no evidence to support a written finding. Therefore, the trial court did not abuse its discretion in imposing the minimum statutory fine.

5. Interpretation of Minn. Stat. § 152.024, subd. 1(4)

Appellant contends the trial court erred by finding that the general definition of "sell" under Minn. Stat. § 152.01, subd. 15(a) (1996) applied to Minn. Stat. § 152.024, subd. 1(4) (1996). The construction of a statute is clearly a question of law and fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Emp. Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Appellant was convicted of controlled substance crime in the fourth degree, sale or aiding in the sale of marijuana, under Minn. Stat. § 152.024, subd. 1(4). Minn. Stat. § 152.024, subd. 1(4), provides that:

A person is guilty of controlled substance crime in the fourth degree if:

(4) the person unlawfully sells any amount of marijuana or Tetrahydrocannabinols in a school zone, a park zone, or a public housing zone, except a small amount for no remuneration.

Appellant argues that fourth-degree sale of marijuana under Minn. Stat. § 152.024, subd. 1(4), requires proof of an actual sale based on the wording of Minn. Stat. § 152.024, subd. 2(2) (1996), defining a fourth-degree possession. Subdivision 2(2) provides that a person is guilty of fourth degree possession if "the person unlawfully possesses one or more mixtures containing a controlled substance classified in schedule I, II, or III, except marijuana or Tetrahydrocannabinols, with the intent to sell it." (Emphasis added). Appellant argues that, because Minn. Stat. § 152.024, subd. 2(2), provides that a person is guilty of possession if they have an intent to sell, a conviction under Minn. Stat. § 152. 024, subd. 1(4), for sale of marijuana, must require more than an intent to sell, i.e. proof of an actual sale.

The trial court found that Minn. Stat. § 152.024, subd. 1(4), applied to sale crimes and Minn. Stat. § 152.024, subd. 2(2), applied to possession crimes and that neither provision impacted the other. Therefore, the trial court found that the statutory definition of "sell" in Minn. Stat. § 152.01, subd. 15(a), applied to Minn. Stat. § 152.024, subd. 1(4). Minn. Stat. § 152. 01, subd. 15(a), defines "sell" as possessing with the intent to sell.

Importantly, the statutory definition of "sell" in Minn. Stat. § 152.01, subd. 1 (1996), provides that "unless the language or context clearly indicates that a different meaning is intended, the following words, terms, and phrases, for the purposes of this chapter, shall be given the meanings subjoined to them." Contrary to this provision, appellant asks us to assign the definition of the word "sells" in Minn. Stat. § 152.024, subd. 1(4), based on the wording of Minn. Stat. § 152.024, subd. 2(2). The language and context of these provisions do not indicate that the word "sells" in Minn. Stat. § 152.024, subd. 1(4), is to be given a different meaning. Therefore, the trial court properly concluded that the word "sells" in Minn. Stat. § 152.024, subd. 1(4), means possession with the intent to sell as provided in section 152. 01, subd. 15(a).

Finally, appellant argues that Minn. Stat. § 152.024, subd. 1(4), violates due process due to the inclusion of the exemption for small amounts of marijuana traded for no remuneration. As the state observes, because appellant is not affected by this exemption, he may not raise the constitutional challenge. See State v. Gray, 413 N.W.2d 107, 112 (Minn. 1987) (noting that a party lacks standing to raise constitutional claims for the causes of those not before the court).

6. Both convictions arising out of same conduct

Appellant contends that it was error to charge and convict him for the possession and the sale of marijuana based on the same conduct. Under Minn. Stat. § 609.035 (1996), "if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses." Similarly, under Minn. Stat. § 609.04, subd. 1 (1996), "[u]pon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both." The state and this court agree. Therefore, because appellant's conviction for controlled substance crime in the fifth degree, possession of marijuana, is a lesser-included offense of controlled substance crime in the fourth degree, sale of marijuana, the conviction for controlled substance crime of the fifth degree must be vacated. See State v. Kemp, 305 N.W.2d 322, 326 (Minn. 1981) (statute regarding selling and possessing drugs is aimed at same basic conduct, thus only one conviction for these offenses may stand).

Affirmed as modified.

[1] Appellant also argues that the trial court refused to dispositionally depart due to the testimony of the victim's family at the sentencing hearing. It does appear inappropriate that the trial court allowed the victim's family to testify because appellant was not charged with murder, but aiding and abetting the sale and possession of marijuana. Notwithstanding this possible indiscretion, however, the record establishes that appellant's crime was not sufficiently different from other crimes of its nature; thus the trial court properly declined to depart from the presumptive sentence.