This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-1990

 

State of Minnesota,

Respondent,

 

vs.

 

Justin James Monchamp,

Appellant.

 

Filed September 4, 2001

Affirmed

Randall, Judge

 

St. Louis County District Court

File No. K0-99-600264

 

 

Mike Hatch, Attorney General, Brent D. Wartner, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-1298 (for respondent)

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            In this appeal from a conviction of conspiracy to commit a first-degree controlled substance crime, appellant argues that the testimony of his two accomplices, who pleaded guilty and cooperated with the state in exchange for reduced sentences, was not supported by corroborating evidence and therefore there was insufficient evidence to support his conviction.  We affirm.

FACTS

            On June 30, 1997, appellant Justin James Monchamp went to two drug stores in Superior, Wisconsin, and purchased 35 bottles of extra-strength Sudafed, which contain pseudoephedrine.  Each bottle contained 60 to 125 sixty milligram tablets.   On September 2, 1997, Monchamp returned to one of the drug stores and purchased two more bottles of Sudafed.  The pharmacist recognized Monchamp as the man who purchased Sudafed in June 1997 and contacted the police.  The pharmacist provided a description of Monchamp and his vehicle.  The police arrived and questioned Monchamp about his purchase and received permission to search his vehicle.  They found two 125-tablet bottles of 60-milligram pseudoephedrine.  They did not find anything suspicious.  When they asked him about the Sudafed, Monchamp said that he was a University of Minnesota-Duluth (UMD) student and took the drug so he could stay up at night to study.  At trial, he admitted that he had not been a student since 1989 and that he had never attended UMD, but that he takes pseudoephedrine "for work and stuff now."

            Sudafed is commonly used in making methamphetamine because it is a readily available over-the-counter drug and contains the essential ingredient, pseudoephedrine, used in manufacturing methamphetamine.  The other ingredients used in the cold-cook method of methamphetamine manufacturing, which was used in this case, are red phosphorus and iodine crystals.  It is not illegal to purchase any of these ingredients.

            Also, during 1997, on three separate occasions, Monchamp, using the name Justin Hanninen, placed three orders for red phosphorus with a chemical company in Superior.  The chemical company reported the purchases and his final order to the local law enforcement.  On November 17, 1997, the day before Monchamp was scheduled to pick up the second box from the final order, the police visited the company and photographed the box.  The police set up surveillance for the next day and observed Monchamp pick up the box of red phosphorus and deliver it to a truck in Duluth registered to Michael Connor.  A week later, the police executed a valid search warrant on Connor's home.  During the search, the police found the same box of red phosphorus in Connor's truck, five to seven pounds of marijuana, equipment to manufacture methamphetamine, and methamphetamine byproduct.  A forensic scientist estimated that with the amount of pseudoephedrine, red phosphorus, and iodine purchased, they could have produced around 200 grams of methamphetamine.

            During this same time period, Gerald Nacey made three trips to St. Paul to purchase iodine crystals.  The company, Biomedical Engineering Company, keeps records of all chemical purchases and produced records of Nacey's three purchases at trial.

            Before trial, Nacey and Connors entered into plea agreements with the state.  In exchange for reduced charges, they agreed to testify and cooperate with all investigations.  Connor, who had a prior drug offense, pleaded guilty to third-degree conspiracy and was promised a stayed sentence of 21 months.  Nacey, who had no prior offenses, pleaded guilty to fourth-degree conspiracy and was promised a stayed sentence of one year and one day.  Sentencing for both Connor and Nacey was delayed until after Monchamp's trial.

            Following a trial, Monchamp was convicted of one count of conspiracy to commit a first-degree controlled substance crime in violation of Minn. Stat. § 152.021, subd. 1(3) (Supp. 1997), and § 152.096 (1996).  He was sentenced to an 86-month prison term.  This appeal followed.

D E C I S I O N

Monchamp argues that his conviction of conspiracy to manufacture methamphetamine cannot be based solely on Connor's and Nacey's testimony because they are accomplices to the crime.  See Minn. Stat. § 634.04 (1996) (stating conviction cannot stand on uncorroborated accomplice testimony).  Monchamp asserts that there was insufficient evidence to corroborate Connor's and Nacey's testimony, and therefore there is insufficient evidence to support his conviction.

In considering a claim of insufficiency, this court's review "is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction," is sufficient to allow a jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted).

It is the jury's exclusive function to determine the credibility of the witnesses.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  A conviction can rest on the uncorroborated testimony of even a single credible witness.  State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969).  However,

[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

 

Minn. Stat. § 634.04.  The Minnesota Supreme Court has stated that

[c]orroborating evidence is sufficient to convict if it confirms the truth of the accomplice's testimony and points to the defendant's guilt in some substantial degree.  Circumstantial evidence indicating the defendant's participation in the crime is sufficient to corroborate the accomplice's testimony.

 

State v. McKenzie, 532 N.W.2d 210, 223 (Minn. 1995) (citations omitted), cert. denied, 516 U.S. 926, 116 S. Ct. 327 (1995).  It is not necessary that accomplice testimony "be corroborated on every point or element of the crime.  Corroboration does not require the establishment of a prima facie case."  State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982) (citations omitted).  The sufficiency of the circumstantial evidence to corroborate an accomplice's testimony that the defendant participated in the crime is reviewed in the light most favorable to the verdict.  State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995).

            Conspiracy to commit a first-degree controlled substance crime occurs when the individual conspires with another[1]

on one or more occasions within a 90-day period [to] unlawfully [sell] one or more mixtures of a total weight of 50 grams or more containing methamphetamine.

 

Minn. Stat. § 152.021, subd. 1(3) (Supp. 1997).  "Mixture" is defined as "a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity."  Minn. Stat. § 152.01, subd. 9a (1996).  To "sell" means "to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture."  Id., subd. 15a(1) (1996).

            In this case, Connor testified that Monchamp taught him and Nacey how to manufacture methamphetamine after Monchamp returned to Minnesota from California.  He stated that he and Monchamp would "go around to stores, buy ephedrine and we'd get the ephedrine out of the pills."  They would make the methamphetamine and sell it for $500 per eighth of an ounce.  He stated that Monchamp put a box of red phosphorus in Connor's truck one day when he was waiting to pick up his girlfriend.  He testified that they made methamphetamine about 30 times or approximately once a week and that they manufactured the methamphetamine at various locations, but primarily at the house where he and Monchamp lived together during the summer of 1997.  He testified that Nacey ran a lot of errands for them to pick up things they needed for the manufacturing, but that Nacey did not pay for the supplies.

            Nacey testified that Monchamp asked him to pick up iodine crystals for him in St. Paul on three separate occasions.  He claimed he did not know what the iodine was used for the first time he picked it up.  He used his driver's license for identification when he made the purchases.  Nacey stated that Monchamp paid for the iodine and paid him to run the errands and that "[o]nce in awhile [he'd] get some of the finished product" in exchange for purchasing the iodine.  Nacey testified that only he, Connor, and Monchamp were present when they made the methamphetamine.  He said that Monchamp got the red phosphorus from Superior and also provided the ephedrine.[2]

            This evidence was corroborated.  A pharmacist in Superior testified that on June 30, 1997, she sold 19 bottles of Sudafed, containing pseudoephedrine, to a man she described to the police and later identified as Monchamp.  Again, on September 2, 1997, the pharmacist contacted the police to inform them of another sale to the same individual.  The police were provided a brief description of the vehicle the customer drove.  The license plate number identified Monchamp as the owner.  Another pharmacist in Superior testified that he sold 16 bottles to Monchamp at roughly the same time.  Both pharmacists identified the drug to be pseudoehedrine, 60-milligram, white tablets in bottles of 60, 100, or 125 count.  Both pharmacists sold pseudoehedrine to Monchamp on several occasions.

            Brenda Wiisanen, an employee at Arrowhead Chemical, renamed Hawkins Water Treatment Group, testified that she sold red phosphorus to Justin Hanninen[3] on April 3, July 21, October 6, and November 18, 1997.[4]  Company procedure required Wiisanen to contact the main office when certain chemicals, one of which is red phosphorus, were purchased.  She did so when Monchamp placed the order and was told to contact Jerry Koneczney with the Minnesota Bureau of Criminal Apprehension (BCA).  Monchamp placed his third order for two boxes of red phosphorus in September 1997.

Testimony from various police officers involved in the surveillance operation set up at Arrowhead Chemical to observe Monchamp pick up the second box of red phosphorus on November 18, 1997, showed that Monchamp picked up the box, drove to Duluth, and dropped it in Connor's truck.  The identified box of red phosphorus was the same one found at Connor's apartment and that Connor testified Monchamp dropped off in his truck.

Testimony also corroborated that Nacey purchased iodine crystals from a company in St. Paul on three occasions.  Nacey's first two purchases were within roughly one week of two of the dates Monchamp purchased red phosphorus.  Nacey's third purchase of iodine was on November 18, 1997, the same date Monchamp picked up the ordered box of red phosphorus and delivered it to Connor's truck.

On November 26, 1997, when the police executed a search warrant on Connor's apartment, the police found all necessary equipment for a methamphetamine lab and a box under the kitchen sink containing methamphetamine toxic byproduct.  Forensic lab results confirmed that the equipment was used for methamphetamine manufacturing and the byproduct was also from the manufacturing.  Fingerprints on nine of the items found, however, did not match fingerprints of any of the four known suspects: Monchamp, Nacey, Connor, and Paul Hanninen.  Mark Uttermark, a crime-scene processor and latent (fingerprint) examiner, testified that

[i]tems  that are used in a clandestine laboratory, particularly meth labs, are not conducive to retaining fingerprints.  There's a lot of chemicals there, there's residue there, fingerprints that are often found on this stuff are often found as smudges.

 

He went on to explain that "people who handle this stuff might possibly be wearing gloves to protect themselves" or they might not have had enough residue on their fingers at any one time to leave a fingerprint.  Also, he testified that the identified fingerprints may have been from anyone who handled the items throughout the manufacturing and purchasing chain of that object.

            Monchamp testified at trial and denied any involvement in the methamphetamine manufacturing with Nacey and Connor.  Monchamp had a difficult time remembering significant dates relating to the period in question but remembered that he was wearing shorts on a particular day in 1997.  He explained that he bought the red phosphorus to clean out cement machines at his brother Paul's construction business.  He explained that he ate the Sudafed pills almost daily to help him stay awake and had done so for years.

Whether to accept Monchamp's alternate theories for the red phosphorus and Sudafed purchases became a credibility determination for the fact-finder, and the jury did not find Monchamp's testimony credible.  Testimony from the two chemical companies and the pharmacists corroborates Nacey's and Connor's testimony and point to Monchamp's guilt.

            Viewing the totality of the record and the sufficiency of the evidence to corroborate the accomplices' testimony, we conclude there is sufficient evidence to support Monchamp's conviction.

            Affirmed.