This opinion will be unpublished and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

C4-00-541

 

State of Minnesota,

Respondent,

 

vs.

 

Odis Trehorn Jones,

Appellant.

 

Filed December 19, 2000

Affirmed

Willis, Judge

 

St. Louis County District Court

File No. K399600355

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN  55802 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Mulally, Judge.^*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of possession of cocaine with intent to sell,  arguing that the district court abused its discretion in concluding that (1) an eyewitness’s identification of appellant was sufficient to support his conviction and (2) the state had established the chain of custody of the cocaine.  Because we conclude that the district court did not abuse its discretion, we affirm.

FACTS

            In the early afternoon of April 12, 1999, Duluth police officers were dispatched to a home on the 1400 block of East 3rd Street.  Upon arriving, they saw a group of people gathered in the street in front of the house.  As Officer James Lesar was getting out of his squad car, he heard someone from the group shout, “There he is, he’s running.”  Lesar observed a thin African-American man wearing dark blue clothing fleeing toward the No. 3 Alley, which runs behind the house.  Lesar pursued in his squad car while his partner, Officer Joel Olejnicak, followed on foot.  Both officers lost sight of the suspect for a short time.

            St. Louis County Deputy Sheriff James Woods, who was a block away on East 2nd Street on an unrelated matter,^[1] heard a report on his police radio that there was a fleeing suspect in the area.  He then saw an individual running toward him from between two houses that abut the No. 3 Alley, and Woods observed him discard something in front of a duplex located at 1425-27 East 2nd Street.  Woods shouted, “Police, stop.”  The individual paused for a moment, looked at Woods, then continued up East 2nd Street and turned north on 15th Avenue East, where Woods lost sight of him as he ran behind a house. 

Officer Olejnicak, who was pursuing on foot, was flagged down by a motorist who informed him that she had seen someone running north on 15th Avenue East.  Olejnicak ran up 15th Avenue East, where another motorist told him that he had seen someone run into the No. 3 Alley.  Officer Lesar met Olejnicak in the alley.  A passerby told them that he had heard rustling noises coming from the vicinity of cars parked in the alley.  The officers located appellant Odis Trehorn Jones hiding under one of the parked cars. Lesar recognized Jones as the individual he had seen fleeing from the 1400 block of East 3rd Street.

Meanwhile, Deputy Woods met with Officer Gayle Holton, who had arrived at the scene as backup, and Woods told Holton what he had seen.  They went to the location where Woods had seen the item discarded and found a clear bag filled with smaller, individually wrapped packets of a tan-colored, rock-like substance.  Officer Lesar then met with Holton, who gave him the bag, and then took Jones to see Woods.  Woods identified Jones as the individual he had seen throw the bag.

            Upon returning to the station house, Officer Lesar gave the bag to Officer Donald MacMillan of the drug unit.  MacMillan weighed the bag and tested the contents of one of the small packets; the test was positive for cocaine.  The bag was sent by certified mail to the Minnesota Bureau of Criminal Apprehension (BCA), where it was found to hold 89 individual packets, each containing crack cocaine.  The total weight of the cocaine in the bag was 10.8 grams.

            At Jones’s bench trial, the defense presented testimony of Renita Bright, who claimed that the bag of cocaine was hers and that she had thrown it near houses located between 1422 and 1427 East 3rd Street.  The district court found that Bright’s testimony was not credible because it placed the bag a block away from where it was found on East 2nd Street.  The court concluded that the state proved its case beyond a reasonable doubt and that there was no break in the chain of custody of the bag of cocaine.

The court found Jones guilty of violating Minn. Stat. § 152.021, subd. 1(1) (1998), first-degree possession of a controlled substance with intent to sell, and Minn. Stat. § 152.022, subd. 2(1) (1998), second-degree possession of a controlled substance.  Jones was sentenced on the first-degree possession charge to 134 months in prison, the presumptive sentence for a severity-level-eight offense by an individual with a criminal history score of four, and ordered to pay $100 in fines.  This appeal followed.

D E C I S I O N

I.          Sufficiency of Evidence

Jones argues that his identification by Deputy Woods as the person who discarded the bag of cocaine was not a sufficient basis for conviction because (1) Woods was not credible, (2) he was the only eyewitness, and (3) his identification was based on a fleeting observation.  When the sufficiency of evidence is challenged, an appellate court’s review is limited to analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Jones argues that because Deputy Woods’s testimony was not credible, it was not sufficient to support his conviction when weighed against Renita Bright’s conflicting testimony.  “The credibility of witnesses and the weight to be given their testimony are determinations to be made by the factfinder,” which a reviewing court will reverse only if there is an abuse of discretion.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (quotation omitted).  Here, although Woods offered differing accounts of what he was doing in the area, his testimony regarding his observation of Jones was consistent.  The district court found that testimony to be credible.  On the other hand, it did not find Bright’s testimony, which placed the bag one block away from where it was found, to be credible.

“It is well established that a conviction can rest upon the testimony of a single credible witness.”  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).  But eyewitness identification made upon “fleeting or limited observation” is “not reliable and in the absence of corroboration should not be the basis for conviction.”  State v. Spann, 287 N.W.2d 406, 407-08 (Minn. 1979).  Nevertheless, this court has concluded that a police officer’s identification was sufficiently reliable when the officer viewed the defendant for only two to three seconds from a moving vehicle 25 to 30 feet away.  State v. Myers, 413 N.W.2d 122, 126 (Minn. App. 1987).  The Myers court listed the following factors in support of its conclusion that, despite the short duration of the officer’s observation, his identification was sufficient: (1) he was a police officer and therefore accustomed to close observation; (2) he was under no stress such as that experienced by the typical victim of a crime; (3) he maintained his description of the defendant in a consistent manner throughout the proceeding; and (4) he was sufficiently positive of the identification when he made it.  Id.  Here, Woods testified that Jones was in his unobstructed view for 20 seconds, facing him directly for seven or eight seconds.  He also testified that he is a certified peace officer with more than 14 years of service.  Upon seeing Jones in Officer Lesar’s custody, all it took was “one look” to identify him, and Woods was “positive” about his identification.^[2]  Furthermore, Woods’s identification of Jones as the individual who discarded the bag was corroborated by the testimony of Officer Lesar, who saw Jones flee the 1400 block of East 3rd Street.  See State v. Bias, 419 N.W.2d 480, 485 (Minn. 1988) (noting that “evidence of flight suggests consciousness of guilt”).  The evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the district court to reach the verdict that it did.

II.        Chain of Custody

Jones also argues that because the state did not establish the chain of custody, the district court erred in admitting the bag of cocaine into evidence.  A district court’s admission of physical evidence will be affirmed unless it constitutes an abuse of discretion.  State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985).

The “chain of custody” rule, requiring the prosecution to account for the whereabouts of physical evidence connected with a crime from the time of its seizure to its offer at trial, serves the dual purpose of demonstrating that (1) the evidence offered is the same as that seized, and (2) it is in substantially the same condition.  It insures that the items seized have not been exchanged for others more incriminating, and that they have not been contaminated or altered.       

 

State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976).  Jones bases his argument on the state’s failure to account for the bag’s whereabouts (1) when it was tested for fingerprints, (2) from the time it arrived in the mail at the BCA until Steven Banning took possession of it, and (3) from the time it was returned to the Duluth Police Department by mail until the time of trial.  Admissibility does not depend on the state “negativing all possibility of tampering or substitution”; it need only show that it is “reasonably probable that tampering or substitution did not occur.”  Id. at 505, 239 N.W.2d at 242.  While contrary speculation may affect the weight that a fact-finder accords the evidence, it does not affect its admissibility.  Id. 

Officer MacMillan testified that before he put the bag in the evidence locker, he requested that it be tested for fingerprints.  Although Officer McKenna, the individual who performed the fingerprint tests, was not called to testify, Officers Holton and Lesar both testified that the bag was in substantially the same condition at trial as it was on April 12, 1999.  

Officer MacMillan placed the bag in an evidence pouch, which he labeled and initialed.  The pouch was sent to the BCA by certified mail.  There was no testimony regarding what happened to the pouch between the time it arrived at the BCA and the time Banning received it.  But Banning testified that when he opened the envelope, the pouch was still properly sealed and initialed.  He also testified that before sending it back to the Duluth Police Department by certified mail, he resealed the pouch and initialed it.  When viewing the exhibit on the stand, he noted that it still had his seal and initials on it. Based on this evidence, the trial court did not abuse its discretion in determining that the state demonstrated a reasonable probability that tampering or substitution did not occur.

III.       Pro Se Supplemental Brief

Jones’s pro se supplemental brief raises three additional claims, all of which are without merit. 

First, he argues the district court improperly departed from the sentencing guidelines.  But the district court did not depart from the guidelines; it imposed the presumptive sentence. 

Second, he claims that the district court erred in calculating his criminal-history score.  The district court’s determination of a defendant’s criminal-history score will not be reversed absent an abuse of discretion.  Bolstad v. State, 439 N.W.2d 50, 53 (Minn. App. 1989).  In considering whether an out-of-state conviction is equivalent to a Minnesota felony, courts should compare the elements of the offenses, their natures, and the sentences imposed.  Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992).  In calculating Jones’s criminal-history score, the district court treated his 1997 Illinois conviction of aggravated battery as equivalent to a Minnesota conviction of first-degree assault, assigning it two points.  Jones argues that, because the Illinois battery did not involve “great bodily harm,” an element of first-degree assault in Minnesota, the district court erred in calculating his score.  See Minn. Stat. § 609.221 (1998). But at the sentencing hearing, the district court had a certified copy of Jones’s Illinois conviction, which stated that he had been found guilty of “aggravated battery, great bodily harm.”  Jones also argues his Illinois conviction is not equivalent to a Minnesota first-degree assault because he received only a five-year sentence, compared with the presumptive 86-month sentence for first-degree assault in Minnesota.  The record does not reflect how the Illinois court arrived at a five-year sentence.  But in light of the identical “great bodily harm” elements of both offenses, the difference in sentences alone does not support the conclusion that the district court abused its discretion in assigning the Illinois conviction two criminal-history points.

Finally, Jones claims he was denied due process and his right to a fair trial.  But he bases this argument on the district court’s determination that Bright was not a credible witness.  As discussed above, this court will not overturn the district court’s credibility determinations absent an abuse of discretion. Dickerson, 481 N.W.2d at 843.  Here, although Bright testified that the bag of cocaine was hers, she also stated that she threw it between two houses located on the 1400 block of East 3rd Street, one block from where Deputy Woods saw Jones discard the bag and where he and Officer Holton eventually found it.

            Affirmed.