This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-1201

State of Minnesota,

Respondent,

vs.

James Lee Burnett,

Appellant.

Filed May 11, 1999

Affirmed

Kalitowski, Judge

Concurring in part, Dissenting in part, Klaphake, Judge

Brown County District Court

File No. K697139

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James R. Olson, Brown County Attorney, 519 Center Street, P.O. Box 428, New Ulm, MN 56073 (for respondent)

Mark D. Nyvold, 1030 Minnesota Building, 46 East 4th Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Short, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

James Lee Burnett challenges his conviction of a first-degree controlled substance offense under Minn. Stat. 152.021, subd. 1(1) (1996). Burnett: (1) challenges the rejection of his entrapment defense; (2) alleges denial of his right to present a defense; (3) argues he was entitled to a downward durational and dispositional sentencing departure; (4) contends the court erred in determining his criminal history score; and (5) alleges sentencing entrapment and sentencing manipulation. We affirm.

D E C I S I O N

I.

To raise an entrapment defense, a defendant initially must establish by a fair preponderance of the evidence that a government actor initiated the crime. State v. Ford, 276 N.W.2d 178, 182 (Minn. 1979). The burden of proof then shifts to the state to show beyond a reasonable doubt that the defendant was predisposed to commit the crime. State v. Charlton, 338 N.W.2d 26, 29 (Minn. 1983).

Burnett contends an undercover officer improperly induced him to commit a crime when she approached him, introduced the idea of helping her buy drugs, and convinced him she needed his financial help. Burnett further argues the state failed to meet its burden of proving predisposition because at the time the officer approached him, he was a recovering substance abuser who was working, attending school, and no longer in the drug culture. We reject appellant's arguments.

The jury was not required to accept Burnett's version of the facts, and the following evidence reasonably supports the jury's rejection of Burnett's entrapment defense: (1) when the officer first asked another potential target about drugs, he referred her to Burnett; (2) although Burnett initially declined to assist the officer, within weeks he approached her and asked whether she was still interested in purchasing drugs; (3) Burnett, not the officer, controlled the time and place of the transactions and the amounts sold; (4) when the officer asked about dealing directly with Burnett's source, Burnett insisted on staying involved and remaining in control; (5) Burnett initiated at least two of the three transactions by calling the officer; (6) Burnett continued to call the officer after the last transaction to ask if she was still interested in purchasing drugs; (7) Burnett's telephone records indicated he made about 40 calls to the officer between October 25 and December 1; (8) Burnett discussed his relationship with the officer in terms of a partnership; (9) in a tape-recorded telephone call to the officer, Burnett told her he was "about making money" and referred to himself as a middle man; (10) Burnett had contacts active in the drug culture, including two sources that he identified through his transactions with the agent; and (11) Burnett acknowledged that between 1983 and 1993, he had abused alcohol and drugs, primarily cocaine and marijuana.

This evidence indicates Burnett was not badgered or unduly pressured by the government. See State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980) (something in nature of persuasion, badgering, or pressure by government must occur before inducement element is satisfied), cert. denied, 449 U.S. 1132, 101 S. Ct. 954 (1981); State v. Johnson, 511 N.W.2d 753, 755 (Minn. App. 1994) (government's actions in inducing crime must go beyond "mere solicitation"), review denied (Minn. Apr. 19, 1994). The evidence also establishes Burnett's predisposition to commit the crime because he actively solicited sales to the officer, was involved in relatively recent drug use, and "readily responded" to the officer's inquiries. See Olkon, 299 N.W.2d at 107-08 (active solicitation and prior criminal activity are evidence of a predisposition); State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985) (prosecutor may prove disposition with evidence that the accused "readily responded to the solicitation of a crime by the state." (citation omitted)).

II.

Burnett contends the district court denied his right to present a defense by precluding evidence Burnett claimed would show the state asked him to cooperate and become an undercover drug agent after his arrest. We disagree.

Burnett's offer of proof at trial was that an attorney who represented him at the time would testify that he had "attempted to negotiate either a plea agreement or a deal" in which Burnett "would help the authorities make drug buys in return for a State recommendation for a substantially reduced sentence." Although Burnett claims this evidence would have shown the state "came to him [after his arrest] and offered him a deal if he would cooperate," the offer of proof fails to establish the state approached him and initiated discussions. Moreover, Burnett was allowed to present other evidence and to argue that he had been targeted because he had refused to cooperate.

We conclude the district court did not abuse its discretion in excluding Burnett's offered evidence. See State v. Richards, 495 N.W.2d 187, 195 (Minn. 1992) ("if witnesses are offered for the purpose of testifying about collateral matters or to impede the judicial process, the trial court is justified in placing limitations on their number"); State v. Svoboda, 331 N.W.2d 772, 775 (Minn. 1983) (right to present defense is limited by rules of evidence and there is no right to present irrelevant evidence).

III.

Burnett claims the district court abused its discretion by refusing to grant his request for a downward durational departure. We disagree. Evidence that Burnett's offense was not committed in a manner less serious than the typical first-degree controlled substance offense includes: (1) Burnett sold cocaine to the undercover officer on three separate occasions; (2) he continued to contact the officer to ask if she was interested in purchasing more cocaine; (3) the officer gave Burnett the money and did not know whether he gave any or all of it to the third-party suppliers; (4) the officer received less cocaine than she was told she was purchasing, suggesting that Burnett may have been keeping some of the drugs for himself; and (5) Burnett explained to the officer how he made money as a middle man, suggesting his familiarity with the drug business.

Burnett also requested a dispositional departure, claiming he is particularly amenable to probation. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (factors bearing on amenability include defendant's age, prior record, remorse, cooperation, attitude while in court, and support of family and friends). However, the evidence supporting the district court's determination that the presumptive sentence was best for Burnett and society includes the fact that Burnett had used drugs and continued to have ready contacts in the drug culture.

We conclude the district court did not abuse its discretion in imposing the presumptive sentence and refusing to depart. See State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996) (departure decision within trial court's discretion and will not be reversed absent abuse of that discretion); State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (only in "rare" case will reviewing court reverse trial court's imposition of presumptive sentence).

IV.

At sentencing, Burnett argued the district court should not consider the four criminal history points he received from prior convictions in Redwood County. See State v. Burnett, C4-98-1168 (Minn. App. Mar. 23, 1999) (rejecting Burnett's claim of prosecutorial misconduct and affirming his Redwood County convictions for aiding and abetting a controlled substance crime and conspiracy to commit a third-degree controlled substance crime). Burnett contends that if the Redwood County and Brown County sales had been combined into a single first-degree count, he would have been sentenced with zero criminal history points and therefore entitled to a presumptive sentence of 86 rather than 134 months.

A defendant may challenge the district court's use of prior convictions to compute criminal history score in a subsequent sentencing under Minn. Stat. 609.035 (1998); see State v. Nordby, 448 N.W.2d 878, 879-80 (Minn. App. 1989) (interpreting Minn. Stat. 609.035 (1988)). In deciding whether two crimes were part of the same course of conduct, the focus is on the time and place of the crimes, with the additional consideration of "whether the segments of conduct involved were motivated by an effort to obtain a single criminal objective." State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983).

Burnett points out the Redwood County offenses occurred in the 30 days preceding the Brown County transactions, involved the same undercover officer, and were part of the same drug task force investigation. Burnett argues that his sales were motivated by a single objective: to help the undercover officer, whom Burnett considered a friend, to buy drugs so that she could survive financially.

Multiple drug sales are generally considered separate and distinct offenses when those sales take place on different days, in different places, and are not motivated by a desire to obtain a single criminal objective. See State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997) (single criminal objective of selling drugs to relieve financial hardship too broad an objective to constitute a single criminal goal within meaning of Minn. Stat. 609.035). Further, Burnett's claim that he was motivated to help a friend is not a criminal objective relevant to our analysis, which examines the separate desire to complete each illegal drug transaction. Because each of the transactions was over once the drugs were exchanged for money, the district court correctly considered them separate and distinct under Minn. Stat. 609.035.

V.

Burnett contends the state's efforts to induce him to commit additional crimes to enhance his penalty constituted sentencing entrapment or sentencing manipulation. We disagree. Sentencing entrapment may occur when "`outrageous official conduct * * * overcomes the will of an individual predisposed only to deal in small quantities'" in order to entice him into dealing with a large quantity and thus receive a longer sentence. Soto, 562 N.W.2d at 305 (quoting United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993)). Sentencing manipulation may occur when "outrageous government conduct [is] aimed only at increasing a person's sentence." Id. Under either doctrine, the defendant bears the burden of proof. Id.

The only evidence cited by Burnett to meet his burden of establishing sentencing entrapment is the undercover officer's statement at trial that before she went ahead with the last buy on December 1, she contacted her superior officer to determine if there was enough evidence to charge Burnett with a first-degree offense. The evidence does not establish outrageous government conduct nor do the facts meet the definition of sentencing entrapment, which requires a defendant to show he was predisposed only to sell smaller amounts of drugs and that he had neither the intent nor the resources to sell the larger amount he was entrapped into selling. The record indicates Burnett either dictated the amount available for purchase or gave the undercover officer a choice of amounts; there is no evidence that the officer ever asked for a larger amount or pressured Burnett into selling larger amounts to her. Further, the officer testified that after the last buy Burnett continued to call her and ask if she was interested in buying more cocaine. We conclude this evidence is insufficient to establish sentencing entrapment.

Similarly, the facts do not establish sentencing manipulation. After the last sale, the undercover officer rejected Burnett's offer of additional sales that could have resulted in Burnett being charged with additional first-degree counts. Moreover, a review of the testimony of the undercover officer indicates it may reasonably be inferred that the officer made multiple buys to gather additional evidence on Burnett and his source and to attempt to uncover other sources that Burnett might have had. We conclude the district court did not err in failing to find sentencing manipulation.

Finally, Burnett has filed a pro se supplemental brief in which he argues: (1) the prosecutor committed misconduct by not allowing him to submit certain exhibits at trial; (2) the drug task force committed misconduct during its January 1997 interview with him; and (3) the court improperly used the "Hernandez" method when it sentenced him. After careful review of the record and consideration of Burnett's arguments, we find those arguments to be without merit.

Affirmed.

KLAPHAKE, Judge (concurring in part, dissenting in part)

I agree with the majority on all but the sentencing manipulation issue; on that issue, I would reverse and remand for resentencing.

The supreme court has recognized the doctrine of sentencing manipulation but has declined to apply it "in the absence of egregious police conduct which goes beyond legitimate investigative purposes." State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997). Although it may be reasonable for police to engage in a chain of transactions with a drug dealer in order to establish that person's guilt or to trace the dealer's supplier, the police may not engage "in continuing undercover or sting transactions for the sole purpose of ratcheting up a sentence under the guidelines." United States v. Shepard, 4 F.3d 647, 649 (8th Cir. 1993), cert. denied, 510 U.S. 1203, 114 S. Ct. 1322 (1994).

While the court in Soto concluded that the record failed to support a finding of sentencing manipulation, this record is not so deficient. Here, the undercover officer frankly admitted that the sole reason she set up the third purchase was to ensure that the total quantity of cocaine obtained equaled at least 10 grams, enough to charge Burnett with a first-degree controlled substance crime. The majority essentially concludes that Burnett failed to meet his burden because an inference may be made from the officer's testimony that she made these multiple buys for legitimate investigative purposes. I disagree. The officer's testimony was uncontradicted on this point and no evidence was offered to suggest that the state needed additional evidence to establish Burnett's guilt or that the state was attempting to uncover or trace other sources Burnett might have had.

The majority reasons that the officer's refusal to deal with Burnett after this last sale illustrates her restraint because she could have continued to buy from Burnett and charge him with additional first-degree counts. Again, I disagree. Rather, the fact that the officer stopped after the last buy further demonstrates that she wanted it for charge enhancement, not for the legitimate purpose of tracing his source or gathering evidence of his guilt.

Finally, the three sales involved in this case must be viewed in context with the prior three sales made in Redwood County. All of these transactions involved the same undercover officer, all were made within a 30-day period; and all were part of the same drug task force investigation. For the Redwood County sales, Burnett was charged and convicted on six counts of third and fourth-degree aiding and abetting and conspiracy to commit controlled substance crimes, for which he received four criminal history points. The three sales involved in this case, however, were combined into one first-degree offense; based on the severity level of this first-degree offense and on Burnett's prior criminal history score of four, Burnett was sentenced to 134 months. The charging of these offenses, albeit not improper, shows conscious manipulation by the state to maximize Burnett's sentence.

Given that Burnett's prior criminal history was obtained solely from the same task force investigation and the frank testimony of the undercover officer in this case, Burnett met his burden of establishing the state acted egregiously by engaging in sentencing manipulation.

Although the trial court in this case essentially reached this conclusion when it stated on the record that "once the State has evidence to prosecute you that's what they should do rather than continuing on attempting to gain more evidence to raise the level of incarceration," the court erroneously refused to grant Burnett relief because it did not believe it had the authority to do so. However, the supreme court in Soto provided the basis for that authority when it noted that in the appropriate case, the doctrine of sentencing manipulation could support a downward departure at sentencing. Soto, 562 N.W.2d at 305 (court voiced its concerns "with the disparities which result between similarly situated defendants because of varying law enforcement investigative methods or because of differing charging practices").

Thus, the defense of sentencing manipulation can be raised in mitigation at the time of sentencing; if found, a sentencing court can depart under the guidelines by simply "`exclud[ing] the tainted transaction'" as violative of a defendant's due process rights. United States v. Cannon, 886 F. Supp. 705, 708 (D.N.D. 1995) (quoting United States v. Barth, 990 F.2d 422, 425 (8th Cir. 1993)). I would therefore reverse Burnett's sentence and remand for resentencing as though his current convictions involved the first two sales only, and as though the last sale on December 1 had not occurred.