This opinion will be unpublished and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
C2-99-160

State of Minnesota,
Respondent,

vs.

Timothy Warren Kuhnau,
Appellant.

Filed December 28, 1999
Affirmed
Shumaker, Judge

Todd County District Court

File No. K797755

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131; and

Gaylord Saetre, Todd County Attorney, 221 First Avenue South, Long Prairie, MN 56347 (for respondent)

John M. Stuart, State Public Defender, Bryan J. Leary, Special Assistant State Public Defender, 10 Second Street N.E., Suite 114, Minneapolis, MN 55413 (for appellant)

 

Considered and decided by Toussaint, Presiding Judge, Shumaker, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant Timothy Warren Kuhnau challenges the trial court's denial of his motion for a new trial, arguing that the jury instructions were deficient, he was denied effective assistance of counsel, the prosecutor committed misconduct, and the evidence is insufficient to support his conviction for conspiracy to commit a first-degree controlled substance crime. We affirm.

FACTS

In his trial on four drug charges, appellant Warren Kuhnau testified that he and Joseph Ferrian had been roommates. Kuhnau stated that he initially suspected, and later learned firsthand, that Ferrian was a drug dealer. Ferrian used, cut, sold, and delivered methamphetamine. He also sometimes sold bogus drugs that he represented to be methamphetamine. Kuhnau himself used methamphetamine that he obtained from Ferrian.

Kuhnau testified that, on November 5, 1997, he made three separate sales to Charles Sherbrooke of substances he represented to be methamphetamine. Kuhnau was allowed to testify without a hearsay objection that Ferrian persuaded him to make the latter two sales after telling Kuhnau that the substances were bogus. Kuhnau stated that he could not distinguish real from phony methamphetamine.

During the third sale, Sherbrooke announced that he was a police officer and arrested Kuhnau. Laboratory analyses of the substances Kuhnau sold to Sherbrooke showed that they contained methamphetamine weighing a total of more than 50 grams.

One of the charges on which Kuhnau was tried was conspiracy to commit a first-degree sale of a controlled substance. In its final charge to the jury, the trial court defined "conspiracy" and listed the elements that had to be proved before Kuhnau could be found guilty of the conspiracy offense. One essential element was that Kuhnau conspired to "commit the crime of sale of a controlled substance in the first degree * * *." The court gave the statutory definition of that crime:

Whoever unlawfully sells on one or more occasions within a 90 day period of time one or more mixtures of methamphetamine having a total weight of 50 grams or more is guilty of the crime of sale of a controlled substance in the first degree.

The court also instructed that the co-conspirators' "actions must be the result of preconceived and mutual intention to commit a crime." However, the court did not instruct that it had to be proved that Kuhnau knew or believed the substances sold were methamphetamine. The court did give that instruction as to the other three charges.

Kuhnau's defense to the conspiracy charge was that he could not conspire to commit a sale of methamphetamine because he believed the substances to be bogus drugs. He argued that proposition in his final argument. The trial court allowed the prosecutor to argue in rebuttal that the state was not required to prove that Kuhnau knew or believed the substances were methamphetamine.

The jury found Kuhnau guilty only of the conspiracy charge. Kuhnau moved for a judgment of acquittal or, in the alternative, a new trial, arguing that the trial court erred by failing to give an "intent" instruction on the conspiracy charge. The court denied the motion, and Kuhnau appealed.

D E C I S I O N

I.

Although a party has a right to jury instructions on his theory of the case, the trial court has considerable latitude in determining the text of instructions and need not give the exact instructions the party requests. Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 81, 220 N.W.2d 281, 286 (1974); Smith v. Kahler Corp., 297 Minn. 272, 282, 211 N.W.2d 146, 153 (1973). On appeal, we review the trial court's charge in its entirety, and from a practical and commonsense point of view. We will not reverse unless the instructions constituted an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986); Kalsbeck v. Westview Clinic, P.A., 375 N.W.2d 861, 867 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).

Kuhnau argues that the trial court should have given an "intent" instruction as to the substantive offense that was the subject of the conspiracy. He states that

to prove conspiracy to violate a substantive statute, the State must establish beyond a reasonable doubt that the defendant had the specific intent to violate the substantive statute at issue.

Although the court did not give it in the manner and order Kuhnau would have preferred, the court did instruct on substantive intent. The court told the jury that, before Kuhnau could be found guilty of conspiracy, the state had to prove that he conspired with others to sell a controlled substance in the first degree, and that the state had to prove that Kuhnau or a co-conspirator did an overt act to further the conspiracy. The court told the jury that the first-degree controlled substance crime required one or more sales within 90 days of methamphetamine weighing a total of 50 grams or more. Then the court instructed that the co-conspirators' actions had to be proved to be "the result of preconceived and mutual intention to commit a crime." The only crime at issue in the conspiracy charge was the first-degree sale of methamphetamine.

The trial court told the jury that the instructions were to be considered as a whole and that the order of the instructions was of no significance. Viewing the instructions as a whole, the jury necessarily would be left with the impression that Kuhnau could be convicted of the conspiracy charge only if he and others engaged in a preconceived plan and did an overt act with the intention to sell methamphetamine. The instructions as a whole accurately stated the laws of conspiracy and first-degree controlled substance crime. See State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (jury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case). See also State v. Gray, 456 N.W.2d 251, 258 (Minn 1990) (trial courts are allowed considerable latitude in the selection of language in the jury charge). The instructions also permitted Kuhnau to argue his theory of defense. He could argue that the co-conspirators' intention was not to sell methamphetamine but a bogus drug. Because Kuhnau was not charged with the sale of a noncontrolled substance, a failure of proof of intent to sell methamphetamine would be a failure to prove an essential element of the conspiracy charge.

The true issue underlying Kuhnau's argument is one of credibility. His argument is premised on the notion that the jury had to believe that Kuhnau was telling the truth when he said Ferrian told him the substances were bogus. There was evidence that all of the substances Kuhnau sold contained methamphetamine. That created a credibility issue to be resolved by the jury. See State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985) (jury is to determine both weight and credibility of witnesses); see State v. Pieschke, 295 N.W.2d 580, 585 (Minn. 1980) (noting that even though both parties' stories were incredible, question of credibility is for jury). See also Seidl v. Trollhaugen, Inc., 305 Minn. 506, 508, 232 N.W.2d 236, 239 (1975) (stating where resolution is based on assessment of credibility of witnesses whose demeanor can only be observed by jury and where trial court approved jury verdict, appellate court is obliged to affirm).

II.

In pro se supplemental and reply briefs, Kuhnau raises several additional issues. He contends that the prosecutor committed misconduct by eliciting irrelevant testimony; the judge erroneously charged the jury; the judge improperly allowed the prosecutor to make a rebuttal final argument; the police lost the substances Kuhnau sold and thus prevented the defense from testing them; and the evidence does not support the conviction. We have examined these issues and find that there occurred no reversible error.

Kuhnau also contends that his trial attorney was ineffective. He complains that his attorney elicited irrelevant evidence from witnesses, misstated facts in his final argument, failed to investigate the case, failed to seek pretrial discovery, and failed to request a lesser-included offense instruction.

To succeed on a claim of ineffective assistance of counsel, Kuhnau must affirmatively show that his attorney's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

In determining whether an attorney's representation fell below the standard, we must first decide if the representation was "reasonable in the light of all the circumstances." Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989) (citation omitted). There is a strong presumption that an attorney's performance falls within the range of reasonableness. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). In reviewing an attorney's performance at trial, this court recognizes that counsel must have discretion to determine trial strategy and must have the flexibility to represent a client to the fullest extent possible. Id.

Furthermore, even if there were errors in an attorney's performance, this court will not find ineffective assistance of counsel unless the defendant was prejudiced as a result of the errors. Id. at 236. On review, this court considers whether, under the totality of the circumstances, the result of the proceedings would have been different if counsel had not erred. See id. at 236-37.

Kuhnau fails to demonstrate that, but for these alleged errors by his attorney, the outcome of the trial would have been different. Moreover, he sometimes misunderstands the law. For example, he argues that his attorney should have requested an instruction on the lesser-included offense of conspiracy to sell a simulated substance under Minn. Stat.  152.097 (1998). The sale of a noncontrolled substance is not a lesser-included offense of a sale of a controlled substance. See State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983) (under statutory definition, one offense must necessarily be included in another offense to be considered lesser-included offense).

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.