STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Emilio Florez, Jr.,
Filed July 28, 1998
Kandiyohi County District Court
File No. K996946
Boyd Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)
Melissa Sheridan, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)
Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Shumaker, Judge.
On appeal from convictions for conspiracy to commit first- and second-degree controlled substance crimes, appellant Emilio Florez, Jr., contends that the evidence was insufficient to support his convictions and that the trial court erred in instructing the jury. We affirm.
Police then followed the Camaro to Florez's residence, a house located at 1305 Southeast Dana Drive. Lucio testified that the Riveras had told him that they were going to Dana Heights to get the cocaine. A green Chevrolet pickup truck was parked in the driveway. Michael Rivera got out of the car and was gone for several minutes. Lucio testified that when Michael Rivera returned to the car, he said that the guy did not have the stuff there and that they were going to meet him somewhere else.
Police followed the Camaro to a Cash Wise parking lot. Michael Rivera got out of the car and walked towards the front door of Cash Wise. A minute or so later, Markkanen saw Florez by the Camaro's passenger door. After losing sight of Florez briefly, Markkanen observed Michael Rivera walking alongside a green pickup truck. Florez was at the truck's tailgate. Markkanen testified that Michael Rivera reached into his pocket as he got right next to Florez and that the two leaned in real close together and conversed for less than ten seconds. Michael Rivera then returned to the Camaro, and Florez got into his truck and drove away. Lucio testified that when Michael Rivera returned to the Camaro, he gave Lucio the cocaine. Lucio turned over 3.1 grams of cocaine to Markkanen.
The second controlled buy occurred on May 7, 1996. Lucio told Markkanen that the Riveras were going to sell him cocaine in room 114 of a motel in Willmar. Markkanen gave Lucio $570 to buy two eight-balls of cocaine and followed him to the motel. About a minute after Lucio arrived at the motel, Michael and Rene Rivera and a third person, identified to Lucio as the Riveras' cousin Petey, arrived there. The Riveras, Petey, and Lucio went inside room 114 for a couple of minutes. Lucio testified that Michael Rivera said someone would be bringing the cocaine to the motel in a few minutes and directed Lucio to move his car to the back of the motel and hide in the bathroom because the supplier did not want to know anybody.
Rene and Michael Rivera went somewhere in their car. They returned to the motel a few minutes later and went back inside room 114. Lucio testified that Michael Rivera said that the cocaine supplier would be arriving in about 15 minutes and that Lucio, Rene Rivera, and Petey should hide in the bathroom until after the supplier had come and gone. A few minutes after that, Florez's green pickup truck arrived at the motel. Police observed Michael Rivera meet with the truck's driver but did not identify the driver. Michael Rivera returned to room 114, and Florez's truck left the parking lot. Lucio testified that Michael Rivera then gave him the cocaine. Lucio turned over 5.1 grams of cocaine to Markkanen.
The third controlled buy occurred on May 9, 1996. Markkanen gave Lucio $570 to buy two eight-balls of cocaine and followed him to 701 Southeast Second Street, the residence of one of Rene Rivera's sons. Lucio went inside the residence. A few minutes later, Lucio and Petey came outside and left in Lucio's car. They parked the car about a block away and returned on foot to 701 Southeast Second Street. Lucio testified that Michael Rivera had directed him to hide his car and then had Lucio, Petey, and Rene Rivera hide upstairs because the cocaine supplier did not want to know anyone.
While Lucio was moving his car, Michael Rivera left the residence at 701 Southeast Second Street and went across the street. Michael Rivera returned to the residence a few minutes later. A short time after that, narcotics agent Joseph Poll observed Florez's truck traveling north on Second Street. Poll testified that the truck drove extremely slowly past the residence and drifted back and forth across the street in a manner indicating that the driver was checking the area for surveillance. Poll observed Florez's truck go past the residence, make a very slow and deliberate u-turn at the next intersection, and then park on the left side of the street in front of the residence. Michael Rivera came running out of the residence and went to the truck's driver's door. Poll testified that Michael Rivera reached into his right pants pocket with his right hand, appeared to take something out of his pocket and hand it through the driver's window, removed his arm from the truck, and then appeared to put something in his right pants pocket. After a short period of time, Michael Rivera went back into the residence, and Florez's truck drove away. Police did not identify the truck's driver. Lucio testified that after the supplier left, Michael Rivera called Rene Rivera, Petey, and Lucio to come downstairs and then gave Lucio the cocaine. Lucio turned over 6.0 grams of cocaine to Markkanen.
The fourth controlled buy occurred on May 22, 1996. Markkanen gave Lucio $540 to buy two eight-balls of cocaine and followed him to a trailer park. Michael and Rene Rivera and Lucio left the trailer park in the Riveras' Camaro. Police followed the Camaro to the Cash Wise parking lot. Narcotics agent Todd Neumann observed Florez's truck drive into the Cash Wise parking lot. Neumann testified that Michael Rivera met with the truck's driver for about 30 seconds and that Michael Rivera and the truck's driver stood very close together very near the truck's tailgate and looked around quite a bit. Michael Rivera then got back in the Camaro, and the truck left the parking lot. Neumann described the truck's driver as a Hispanic male who was about 5'8" tall, had medium-length, dark black hair, and weighed about 170 pounds. Lucio testified that after Michael Rivera got back into the car, he gave Lucio cocaine. Lucio turned over 5.4 grams of cocaine to Markkanen.
The fifth controlled buy occurred on May 31, 1996. Markkanen gave Lucio $810 to buy cocaine and followed Lucio to the motel in Willmar where the second buy had taken place. The Riveras were not there, so Lucio left. As Lucio was driving away, he saw the Camaro driving towards the motel, so he returned. Lucio and Rene and Michael Rivera went into room 115 of the motel. Video surveillance established the time as 7:04 p.m. Phone records showed that at 7:06 p.m., a call was made from room 115 to Florez's residence. A few minutes after entering room 115, Lucio and Rene and Michael Rivera exited and drove away in the Camaro.
The Camaro stopped in a parking lot located a block or two from Florez's house. Michael Rivera got out of the Camaro and walked in the direction of Florez's house. Lucio testified that Michael Rivera said he was going to see "the man." Lucio testified that when Michael Rivera returned to the Camaro, he gave Lucio the cocaine. Lucio turned over 8.1 grams of cocaine to Markkanen.
The final controlled buy occurred on June 17, 1996. Markkanen gave Lucio $810 to buy three eight-balls of cocaine and followed him to a motel. Lucio went into room 34. A few minutes later, Rene and Michael Rivera exited from the room and drove away in a red Chevette. Lucio testified that he had given the Riveras the money, and they were going to get the cocaine. The Riveras went to Florez's residence. The green truck was parked in the driveway.
Michael Rivera approached Florez's house and knocked on the door. Poll observed Florez answer the door and step outside to meet with Michael Rivera. Poll testified that he saw Florez and Michael Rivera shake hands and then Michael Rivera returned to the Chevette, which drove away, and Florez went back inside his house. A few minutes later, Florez came out of his house, walked to his truck, raised the truck's hood, and went back inside his residence. A few minutes after that, the Riveras returned to Florez's neighborhood and parked some distance away from his house. Poll observed Michael Rivera approach Florez's house and walk up to the door. Florez came out of his house, and he and Michael Rivera walked to the truck. Florez closed the hood, and he and Michael Rivera got inside the truck and sat in it for about three or four minutes. As Michael Rivera got out of the truck, Poll saw him put his hand into his right pants pocket. Michael Rivera and Florez walked to the front of the truck, where Poll saw them shake hands. Michael Rivera returned to the Chevette, and he and Rene Rivera went to the motel where Lucio was waiting. Lucio testified that when the Riveras returned to the motel, they gave him the cocaine. Lucio turned over 7.7 grams of cocaine to Markkanen.
On August 3, 1996, police searched Florez's residence and vehicles and seized several documents from the green pickup truck. Some of the documents showed that Florez bought gas for the truck, paid its insurance, bought trailers for the truck and paid registration fees for the trailers, and obtained a damage estimate for the truck. In the residence, police found a scale capable of weighing only up to about four ounces, a type of scale typically found during searches in conjunction with narcotics investigations.
Several witnesses testified that they often drove Florez's truck. Florez's daughter, Melinda Florez, testified that she could have been driving the truck when it arrived on the scene during some of the controlled buys. She testified that she often visited Michael Rivera, her former boyfriend, who lived with his father at the motel where one of the controlled buys occurred. She also testified that she could have been driving the truck on May 22, the date the fourth controlled buy occurred. Melinda Florez, and her fiancé, Jose Lopez, testified that Florez used the scale found in Florez's residence for weighing scrap metal and Lopez used it for weighing jewelry.
Florez admitted meeting with Michael Rivera twice during May and June 1996, although he did not recall the exact dates. He testified that on one occasion, Rivera came to his residence to discuss buying a microwave. According to Florez, by coincidence, he ran into Michael Rivera a short time later in the Cash Wise parking lot and showed him the microwave. Florez testified that during the other meeting, Michael Rivera stopped by when Florez was working on his truck's air conditioning, and the two of them got inside the truck to test the air conditioning.
Michael Rivera denied that Florez was involved in the cocaine sales to Lucio. Michael Rivera claimed that he timed legitimate business with the Florezes to coincide with the cocaine sales because he wanted Lucio to believe a major drug lord was involved in the transactions.
[A] conviction based on circumstantial evidence will be upheld and such evidence is entitled to as much weight as any other kind of evidence, so long as a detailed review of the record indicates that the reasonable inferences from such evidence are consistent only with the defendant's guilt and inconsistent with any rational hypothesis except that of guilt.
State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).
Florez argues that the evidence was insufficient to prove that he supplied the cocaine that the Riveras sold to Lucio. The state presented evidence that during each of the controlled buys, Michael Rivera told Lucio that he was going to get the cocaine from a supplier, whom Michael Rivera referred to as "the guy" or "the man." Police positively identified Florez during the first and sixth controlled buys. During the first controlled buy, after stopping at Florez's residence, Michael Rivera told Lucio that the guy did not have the stuff there and that they were going to meet him somewhere else. A short time later, Michael Rivera met Florez, and the two of them acted in a manner consistent with an exchange being conducted. During the sixth controlled buy, the Riveras went to Florez's residence, where Michael Rivera met with Florez briefly. The Riveras left and returned a short time later, this time parking some distance away from Florez's residence. Michael Rivera then walked to Florez's residence and met with Florez again. As they had during the first buy, Michael Rivera and Florez acted in a manner consistent with an exchange being conducted.
Florez's truck arrived on the scene during the second, third, and fourth controlled buys. Each time, police observed Michael Rivera meet with the driver. During the third buy, agent Poll observed Florez's truck approach the scene in a manner indicating that the driver was checking the area for surveillance. Also, Poll's testimony indicated that the driver and Michael Rivera conducted an exchange. Poll testified that Michael Rivera reached into his right pants pocket with his right hand, appeared to take something out of his pocket and hand it through the driver's window, removed his arm from the truck, and then appeared to put something in his right pants pocket. During the fourth controlled buy, an officer observed that the driver of Florez's truck was a male fitting Florez's description. During the fifth controlled buy, while Lucio and the Riveras were in the motel room, someone called Florez's residence. The Riveras then left the motel and parked a block or two away from Florez's residence. Police observed Michael Rivera get out of the Camaro and walk in the direction of Florez's residence. Finally, when searching Florez's residence, police found a scale capable of weighing only about four ounces, a type of scale typically found during searches in conjunction with narcotics investigations.
Florez argues that the evidence supports rational theories consistent with his innocence. "In cases involving circumstantial evidence, `[a]s in all cases, the jury determines the credibility and weight given to the testimony of individual witnesses.'" State v. Coleman, 560 N.W.2d 717, 722 (Minn. App. 1997) (quoting State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988)). "[W]e must view the evidence in the light most favorable to the verdict and assume the jury believed the state's witnesses and disbelieved contrary evidence." State v. Orfi, 511 N.W.2d 464, 471 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994).
Inconsistencies in the state's case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.
Ostrem, 535 N.W.2d at 923.
Florez offered evidence providing an explanation of the circumstances proved by the state that was consistent with Florez's innocence. To accept Florez's theory of innocence, the jury would have had to believe that the Riveras had the cocaine each time they met with Lucio but went through a ruse to make him think that they were dealing with someone else; the Riveras selected Florez as the person who they wanted to make it appear they were dealing with, or the Riveras just happened to do something each time that made it appear that Florez was the person they were dealing with; Florez's truck just happened to appear on the scene three times when the cocaine sales were occurring even though the sales did not take a lot of time, a huge coincidence if Florez was not participating in the cocaine sales; during the final controlled buy, Florez was working on his truck's air conditioner even though all he had done was open the truck's hood; and Florez had a scale that would not weigh more than four ounces, and he used it for weighing scrap metal and for jewelry projects.
Considering the evidence as a whole, Florez's theory of innocence was unreasonable. The verdict shows that the jury disbelieved the evidence presented by Florez. The jury was not required to find that evidence credible. See State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) ("The jury has no obligation to believe a defendant's story."). Viewing the evidence in the light most favorable to the verdict, as we must, the only reasonable inference was that Florez supplied the cocaine the Riveras sold to Lucio. The evidence was sufficient to support Florez's convictions.
The refusal to give a requested jury instruction lies within the discretion of the trial court and no error results if no abuse of discretion is shown.
State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). This court must review jury instructions "in their entirety to determine whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).
In State v. Turnipseed, 297 N.W.2d 308 (Minn. 1980), the trial court denied appellant's request to instruct the jury that when a conviction is based solely on circumstantial evidence, the circumstances proved must be inconsistent with any rational hypothesis other than guilt. Id. at 312. The trial court did explain the differences between direct and circumstantial evidence and the degree of proof necessary to find a defendant guilty. Id. The supreme court concluded that the trial court properly instructed the jury on circumstantial evidence. Id. at 313.
Florez contends that Turnipseed does not control this case because, in Turnipseed, the defendant did not offer an alternative explanation for the state's evidence. In State v. Jones, 516 N.W.2d 545 (Minn. 1994), the defendant did offer alternative explanations for the state's evidence. See State v. Jones, 498 N.W.2d 44, 46 (Minn. App. 1993) (discussing defendant's explanations), rev'd on other grounds 516 N.W.2d 545 (Minn. 1994). The supreme court did not reach the issue of whether the trial court erred by declining to instruct the jury that it could not base its verdict solely on circumstantial evidence unless the evidence was such as to exclude any reasonable hypothesis except guilt. But the court did note:
We believe that Turnipseed would control here and that the trial court did not abuse its discretion in failing to give the requested jury instruction.
Jones, 516 N.W.2d at 548 n.4.
In light of Jones, we conclude that Turnipseed controls this case. The trial court instructed the jury on the presumption of innocence, the standard of proof beyond a reasonable doubt, and the difference between direct and circumstantial evidence. The instructions fairly and adequately explained the law. The trial court did not abuse its discretion in declining to give the instruction on circumstantial evidence requested by Florez.
 Although the truck was registered to Jose Hernandez, Hernandez lived in Texas, and he testified that he had given the truck to Florez and his family to use.
 The jury convicted Florez of multiple counts of first- and second-degree controlled substance crimes. Minn. Stat. § 152.021, subd. 1(1) (1994) (first-degree controlled substance crime; selling one or more mixtures of a total weight of 10 grams or more containing cocaine within a 90-day period); Minn. Stat. § 152.022, subd. 1(1) (1994) (second-degree controlled substance crime; selling one or more mixtures of a total weight of three grams or more containing cocaine within a 90-day period); see also Minn. Stat. § 152.096, subd. 1 (1994) (any person who conspires to commit a controlled substance crime is guilty of a felony and can be sentenced as authorized by law for the act the person conspired to commit).