may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed February 17, 1998
File No. K2-96-3797
A. Demetrius Clemons, McGlennen & Clemons, 425 South Third Street, Minneapolis, MN 55415 (for appellant)
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 County Attorney, Ramsey County Courthouse, 50 West Kellogg Blvd, Ste. 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and Klaphake, Judge.
Jeffrey Clemons appeals his convictions and sentences for fourth degree possession with intent to sell methamphetamine and fifth degree possession with intent to sell marijuana, arguing that there was insufficient evidence of his intent to sell and that a previous controlled substance conviction was improperly used to enhance his sentences. We affirm.
On June 20, 1996, police stopped Jeffrey Clemons outside his house pursuant to a search warrant that was based on information that Clemons had been selling drugs from his house. When questioned, Clemons admitted that the police would find marijuana and methamphetamine in his house. Clemons claimed, however, that only the marijuana was his and that the methamphetamine belonged to his roommate. Police found no signs of a roommate when they searched the house; the existence of a roommate was never substantiated.
Officers testified that Clemons also admitted that he had methamphetamine in his underwear. The officers eventually recovered a small bag of methamphetamine from Clemons' underwear. Officers also testified that Clemons told them that he was not a big-time drug dealer and that he mostly sold drugs only to close friends to supplement his income when he was not working.
In a search of Clemons' house, police recovered nearly a pound of marijuana from the freezer and another bag of marijuana, 2.5 grams of amphetamine, and a small scale suitable for weighing drugs from Clemons' bedroom. Elsewhere in the house they found a bottle of Inositol (a substance commonly mixed with drugs such as methamphetamine to create more bulk for sale) and two packages of plastic bags commonly used to package drugs for sale. Clemons' house was equipped with a security camera, which enabled the occupant to see persons who were approaching the house.
Clemons was charged and convicted on four controlled substance counts: (I) fourth degree possession with intent to sell methamphetamine; (II) fifth degree possession with intent to sell marijuana; (III) fifth degree possession of methamphetamine; and (IV) fifth degree possession of marijuana. Clemons was sentenced only on counts I and II. He appeals the sufficiency of the evidence for his Count I conviction and sentencing enhancement on both Counts I and II.
1. Sufficiency of Evidence
When the sufficiency of evidence to support the jury's verdict is challenged, our review 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). If the verdict is based on circumstantial evidence, it will be upheld only if the reasonable inferences from the evidence are consistent with defendant's guilt and inconsistent with any other rational hypothesis. Id. Circumstantial evidence, however, is entitled to as much weight as other kinds of evidence. Id. Furthermore, the verdict is entitled to due deference, because a jury is normally in the best position to evaluate circumstantial evidence. Id.
Clemons does not dispute that the police recovered methamphetamine from his person, only that he intended to sell it.
Intent to sell or distribute is usually proved circumstantially. Evidence tending to show such intent includes evidence as to the large quantity of drugs possessed, evidence as to the manner of packaging, and other evidence.
State v. White, 332 N.W.2d 910, 912 (Minn. 1983).
Although the amount of methamphetamine recovered was small and was consistent with possession by either a drug user or drug dealer, other factors supported the jury's belief beyond a reasonable doubt that Clemons possessed the requisite intent to sell methamphetamine. Physical evidence, such as the security camera and the drug paraphernalia, particularly the scale and the Inositol, strongly indicated drug dealing, as did the significant amount of marijuana recovered.
Moreover, we must assume on appeal that the jurors believed the officers' testimony that Clemons admitted selling drugs to friends and that this admission was not limited to selling just marijuana. See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (weight and credibility of witnesses' testimony for jury to determine and appellate courts must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary"). Accordingly, we conclude that the jury's verdict was amply supported by the evidence.
2. Sentencing Enhancement
Clemons focuses his sentencing appeal on his Count I conviction for felony possession with intent to sell methamphetamine. The following legal analysis, however, also applies to sentencing on Clemons' Count II conviction for felony possession with intent to sell marijuana.
On April 24, 1997, Clemons appeared in district court for sentencing. The district court formally adjudicated Clemons guilty of Count I and, in accordance with the sentencing guidelines, sentenced him to 15 months' imprisonment, but stayed execution of the sentence for 15 years on various conditions. One condition is that Clemons serve a mandatory minimum one year in jail under the enhancement provisions of Minn. Stat. § 152.024, subd. 3(b) (1996):
If the conviction is a subsequent controlled substance conviction, a person convicted under subdivision 1 or 2 shall be committed to the commissioner of corrections or to a local correctional authority for not less than one year nor more than 30 years and, in addition, may be sentenced to payment of a fine of not more than $100,000.
In 1988, Clemons had a felony controlled substance conviction for possession of marijuana. The district court stayed imposition of sentence for three years and placed Clemons on probation. In 1991, having successfully completed his probationary term, Clemons was discharged without imposition of sentence.
Clemons appeals his current sentence, claiming that the district court erred by imposing the mandatory minimum one-year enhanced jail term under subdivision 3(b) as a condition of probation. He argues that because the enhancement provision applies only to a conviction that is "a subsequent controlled substance conviction," his current conviction is excluded by operation of law because at all times material to the current offense he no longer had an earlier controlled substance conviction to which the current offense could be considered subsequent.
In support of his claim that the current offense cannot be a subsequent controlled substance conviction, Clemons cites Minn. Stat. § 609.13, subd. 1(2) (1996), which provides that
[t]he conviction is deemed to be for a misdemeanor if the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.
Seizing upon the above statutory provisions, Clemons argues that because there are no misdemeanor controlled substance crimes in Minnesota, the misdemeanor designation imposed by operation of section 609.13 on his 1988 conviction effectively prevents it from being considered a prior controlled substance conviction.
The district court rejected Clemons' section 609.13 argument, stating:
[T]he point I was making [referring to Clemons' 1988 conviction] was that once there's a plea of guilty that's made to the charge, which is accepted by the court and recorded, that then becomes a conviction regardless of the sentencing that follows, unless the judge after that plea imposes a misdemeanor or gross misdemeanor sentence. Then I think you got a different story.
Clemons' sentencing is accommodated by either the enhancement provisions of section 152.024, subd. 3(b), or the sentencing guidelines (the district court articulated its sentence as being "in accordance with the sentencing guidelines"). Were the sentence based on the guidelines alone, Clemons' claim must be rejected because for a level IV offense with one criminal history point, "up to a year in jail and/or other non-jail sanctions can be imposed as conditions of probation." See Minn. Sent. Guidelines IV. On the other hand, if the district court applied the section 152.04 enhancement independent of the sentencing guidelines, Clemons' enhancement issue is presented.
In State v. Clipper, 429 N.W.2d 698 (Minn. App. 1988), we held that for purposes of computing criminal history score under sentencing guidelines, a defendant could receive criminal history points for a felony conviction for which imposition of sentence was stayed, notwithstanding Minn. Stat. § 609.13. We found no conflict between the sentencing guidelines and section 609.13:
There is no conflict between the Guidelines and Minn. Stat. § 609.13. The statute concerns the treatment afforded the offender's record. Because imposition of sentence was stayed, the felony conviction for burglary should appear on Clipper's record as a misdemeanor. The statute, however, is silent on the treatment to be afforded the felony conviction for purposes of calculating criminal history points under the Sentencing Guidelines, and evidences no intent to extend its reach to the calculation of criminal history scores under the Guidelines. Thus, the Guidelines may, consistent with the statute, assign a criminal history point for a felony conviction for which imposition of sentence is stayed.
Id. at 701. This rationale also applies to Clemons' interpretation of the interaction of sections 609.13 and 152.024 in the instant case. Both statutes are silent as to interaction. Section 609.13 evidences no intent to extend its reach to controlled substance convictions used for statutory enhancement. We agree with the district court that Clemons' 1988 felony controlled substance conviction can be used for enhancement despite subsequent application of section 609.13 following a successful three-year probationary period under a stay of imposition.
 The presumptive sentence under the sentencing guidelines for a level IV offense with one criminal history point is 15 months stayed. Clemons admits that he was properly assessed one-half criminal history point for the 1988 felony conviction. Minn. Sent. Guidelines II.B.1. The calculation of sentencing guidelines points is not at issue in this appeal.
 While most controlled substance offenses are felonies, chapter 152 also contains gross misdemeanor and petty misdemeanor categories.