may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Edwin Dell Greenwood,
Filed August 4, 1998
Hubbard County District Court
File No. K996683
John M. Stuart, State Public Defender, Theodora Gaitas, Asst. Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Asst. Attorney General, Debra Weiss, Certified Student Attorney, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Gregory D. Larson, Hubbard County Attorney, P. O. Box 486, Park Rapids, MN 56470 (for respondent)
Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Schultz, Judge.[*]
Appellant challenges his conviction, arguing that the uncorroborated testimony of a witness was not sufficient evidence, and his sentence, arguing that mitigating factors mandated a downward dispositional departure. Because we conclude that a jury could reasonably have found appellant guilty and that the trial court did not abuse its discretion in refusing to depart from the sentencing guidelines, we affirm.
After finding drugs in the car of Troy Eischens, the police agreed not to prosecute if Eischens would name and assist in prosecuting 15 drug dealers by buying from them. The name of appellant Edwin Greenwood was among the names Eischens gave the police.
Before each of three drug purchases Eischens made from appellant, Eischens met with police officers who searched him and his car for money and illegal drugs. The officers then provided Eischens with concealed recording or transmitting devices and with marked bills for the purchase.
On the first occasion, the officers watched Eischens enter appellant's residence and listened to one conversation in which Eischens arranged to purchase marijuana for $60 half an hour later and to a subsequent conversation in which he made the purchase. Immediately afterwards, Eischens turned 7.9 grams of marijuana over to the police.
On the second occasion, the officers again met with Eischens and searched him and his vehicle. After watching Eischens enter appellant's residence and listening to his conversation with appellant, the officers saw someone whom they believed to be appellant leave the building and then return. After the transaction, the officers collected 18 grams of marijuana from Eischens.
On the third occasion, Eischens met with one of the previous officers and a different officer, who searched him as before and gave him money to buy methamphetamine. Officers saw Eischens enter appellant's residence but could not hear the conversation between Eischens and appellant because the transmitter malfunctioned. Eischens gave the officers 0.2 grams of methamphetamine after the sale.
At trial, Eischens testified that he purchased marijuana from appellant on the first and second occasions and methamphetamine on the third occasion. The defense presented no witnesses. The jury convicted appellant on counts I and II, violation of Minn. Stat. § 152.025, subd. 1(1) (1996) (sale of one or more mixtures containing marijuana), and count III, violation of Minn. Stat. § 152.024, subd. 1(1) (1996) (sale of one or more mixtures containing a controlled substance, e.g., methamphetamine).
Following a hearing, appellant was given stayed sentences of 15 months for counts I and II and an executed sentence of 24 months for count III. At appellant's request, the sentences on the first two counts were executed to run concurrently with the sentence on count III.
Appellant challenges both the verdict and the sentence.
This court will not disturb a verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). A conviction may rest upon the uncorroborated testimony of a single, credible witness. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).
Appellant relies on State v. Kemp, 272 Minn. 447, 138 N.W.2d 610 (1965). In Kemp, the defendant was granted a new trial because the evidence to overcome the presumption of his innocence was completely dependent on a single witness whose testimony was "of dubious veracity." Id. at 450, 138 N.W.2d at 612. Kemp is factually distinguishable on several counts, however. In Kemp, the jury was deprived of both the victim's prior inconsistent statements about the crime made at a preliminary hearing and the affidavit of a disinterested third party as to defendant's presence elsewhere at the time of the crime, and the defendant testified at trial and also provided lengthy affidavits supporting his account of his activities on the day of the crime. Id. at 449-50, 138 N.W.2d at 611-12. Here, there is no indication that the jury was deprived of any evidence. Appellant's reliance on Kemp is misplaced.
Appellant argues that Eischens had a motive to testify falsely but does not identify the motive. Because Eischens had already received the benefit for which he had bargained with the police, he stood to gain nothing by testifying falsely against appellant. Appellant's argument that Eischens was capable of framing appellant because Eischens had access to drugs is unsupported: appellant produced no evidence that Eischens framed him. The argument that Eischens was not a credible witness because he was a twice-convicted felon and therefore inherently untrustworthy is similarly unsupported. The jury was aware of Eischens's criminal record and nevertheless believed him. "[A] jury normally is in the best position to evaluate circumstantial evidence * * *." State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
Appellant argues that Eischens's evidence is uncorroborated because the tape recordings the state offered as evidence of the marijuana sales did not identify appellant as a party to the transactions and other people lived at the residence where the sales occurred. The assumption that the voice on the tape was appellant's was unrefuted, however. Moreover, even if Eischens's testimony is uncorroborated, it can be sufficient to support a guilty verdict. See Bliss, 457 N.W.2d at 390. The jury could have concluded from the evidence offered that appellant was guilty of the offenses with which he was charged. See Alton, 432 N.W.2d at 756.
2. Refusal to make a downward dispositional departure
The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Only in a rare case will the reviewing court reverse a trial court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Appellant cites State v. Bauerly, 520 N.W.2d 760 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994), to argue for a downward dispositional departure because the amounts of methamphetamine and marijuana were small. Bauerly is distinguishable both procedurally and substantively, however. Appellant seeks to have this court reverse a trial court's refusal to make a downward dispositional departure; Bauerly affirmed a trial court that had granted a downward durational departure. Bauerly found no abuse of discretion in the downward departure because the amount stolen was more than $500 below the mid-range for a severity level III theft and the defendant showed remorse. Id. at 763. Bauerly does not support reversal of a refusal to make a downward dispositional departure.
Appellant argues that he was not selling to the public because Eischens was buying at the request of the government. However, appellant did not know of the connection between Eischens and the government when he made the sale. His argument that he is entitled to a downward dispositional departure because he was a low-level dealer who was not operating a sophisticated, money-making venture ignores the fact that he was charged with level IV and V offenses, which are those committed by small dealers: sellers with a higher volume would be charged under levels I, II, or III. There was no abuse of discretion in the trial court's refusal to recognize the mitigating factors presented by appellant as a basis for a downward dispositional departure.
Finally, appellant challenges the use of the method set forth in State v. Hernandez, 311 N.W.2d 478 (Minn. 1981), to calculate his criminal score, arguing that this method exaggerated his criminal history. Hernandez holds that when a defendant is sentenced on the same day for three convictions based on different offenses, the trial court may consider the first two in computing the criminal history score for the third. Id. at 481. See also State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). Here, the trial court considered appellant's first sale of marijuana in computing his criminal history score as three and one-half for the second marijuana sale, and considered both marijuana sales in computing his criminal history score as four for the methamphetamine sale. There was no manipulation; appellant was sentenced on each count in the same sequence as the offenses occurred. See Soto, 562 N.W.2d at 304-05. There was no abuse of discretion in refusing a downward dispositional departure.
The jury reasonably could have concluded that appellant was guilty of the offenses of which they convicted him, and the trial court did not abuse its discretion in refusing a downward dispositional departure.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.