This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-458

 

State of Minnesota,

Respondent,

 

vs.

 

Gilberto Garcia Benitez,

Appellant.

 

Filed March 4, 2003

Affirmed in part, reversed in part, vacated in part, and remanded

Halbrooks, Judge

 

 

St. Louis County District Court

File No. K301300946

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North 5th Avenue West, Suite 501, Duluth, MN 55802 (for respondent)

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Gilberto Benitez challenges his convictions of first-degree sale of cocaine, first-degree possession of cocaine, and first-degree conspiracy to sell cocaine on the grounds that the trial court abused its discretion in admitting Spreigl evidence and the evidence was insufficient to support his convictions.  Appellant also challenges his sentence, asserting that the trial court abused its discretion in finding aggravating circumstances sufficient to justify an upward durational sentencing departure and that the trial court erred by sentencing appellant on all three counts.  We conclude that the evidence was sufficient to support appellant’s convictions and that the trial court was within its discretion in admitting the Spreigl evidence and in departing upward in sentencing appellant.  But because we conclude that the trial court erred by sentencing appellant on all three counts, we affirm in part, reverse in part, vacate in part, and remand.

FACTS

            On June 28, 2001, police officers searched David Powell’s home in Hibbing and found various types of illegal drugs, including approximately 59 grams of cocaine.  Powell was arrested and questioned by Hibbing Police Officer Ryan Riley.  Powell admitted to owning and selling the drugs and disclosed to Officer Riley that his primary source of cocaine was a man known as “Gilbert” from Minneapolis.  Powell told Officer Riley that he had purchased cocaine from Gilbert approximately 16-20 times over the past year in amounts ranging from 2-3 ounces to a pound and that Gilbert had told him that he could get him any amount of cocaine or other drugs that he needed.  After Powell gave his statement, he agreed to work with the police in an investigation of Gilbert.[1] 

            In coordination with the Hibbing Police Department, Powell contacted appellant to purchase one and one-half kilograms of cocaine for $40,000.  Appellant agreed to deliver the cocaine to Powell at the Wal-Mart parking lot in Hibbing at 1:00 p.m. on August 4, 2001.  Powell received a phone call from appellant at noon that day telling him that he was waiting in the Wal-Mart lot.  Powell relayed this information to Officer Riley, who was coordinating the police surveillance team.  Powell proceeded to the parking lot but was unable to find appellant.  When Powell called appellant on his cell phone, appellant stated that there were too many people in the parking lot and that he was driving back to Minneapolis.  Powell tried to convince him to return or to meet somewhere along the road.  In response, appellant said that he would turn around, that Powell should drive in the direction of Minneapolis, and that they would meet somewhere in between.  When the two failed to connect, Powell returned to Hibbing.  Later that day, appellant called Powell and said that he would return the following day.  As a result, police surveillance was called off for the day.

            At about 8:00 p.m., Powell was surprised by a knock on the front door of his mobile home.  Powell looked through the peephole and saw appellant standing outside.  Powell asked his wife to answer the door and tell appellant that he was in the bathroom.  Powell then called Officer Riley.  Powell was instructed to tell appellant that he no longer had the investors’ money and that they would have to meet with the investors to make the exchange.  Powell told appellant a story consistent with Riley’s instructions, and appellant produced a three and one-half ounce sample of cocaine for Powell’s inspection.  Powell and appellant then left the mobile-home park in Powell’s car to meet the investors.  Before they had gone very far, appellant told Powell to pull over.  Appellant then got out of the car, walked over to a telephone pole, and picked up a blue plastic bag that contained three one-half pound bricks of cocaine.[2]  Appellant got back in Powell’s car and put the cocaine behind the front seat.  Appellant told Powell to drop him off at the entrance to the mobile-home park and to go get the money from the investors and return.  When appellant got out, he left the cocaine in Powell’s car. 

As Powell drove to the meeting place, he called Officer Riley to tell him that he had the cocaine but that appellant was not with him.  Officer Riley proceeded to the entrance of the mobile-home park, saw appellant walking along the street, and arrested him.  The police seized the sample bag of cocaine left at Powell’s house and the cocaine in Powell’s car. 

            Appellant was charged with sale of cocaine in the first degree in violation of Minn. Stat. § 152.021, subds. 1(1), 3 (2000), and possession of cocaine in the first degree in violation of Minn. Stat. § 152.021, subds. 2(1), 3 (2000).  The complaint was later amended to add a count of first-degree conspiracy to sell cocaine in violation of Minn. Stat. § 152.096, subd. 1 (2000).

            At the Omnibus hearing, the state moved to allow the admission of Spreiglevidence relating to appellant’s alleged drug transactions with other individuals.  The trial court ruled that evidence of appellant’s past attempted transactions with Sergeant Mark Stehlik and Powell was admissible as Spreigl evidence.  The court denied the state’s motion with respect to evidence related to another informant from the Twin Cities.

            Sgt. Mark Stehlik testified at trial regarding his past dealings with appellant when he was working undercover in Bloomington.  Sgt. Stehlik stated that he was introduced to a person named Gilbert, whom he identified as appellant, by a confidential informant.  On January 24, 2001, Sgt. Stehlik negotiated the purchase of ten pounds of methamphetamine (meth) from appellant for $80,000.  Appellant told Sgt. Stehlik that it would take a couple of days to put the meth together.  Sgt. Stehlik testified that he and appellant met again on February 13, when appellant showed Sgt. Stehlik a one-pound sample.  Sgt. Stehlik told appellant that he needed to see the other nine pounds before he would produce the money and suggested that they meet at his apartment in Bloomington.  Appellant agreed.  But as they were about to get into their cars to drive to the apartment, appellant told Sgt. Stehlik that, if he wanted to see the rest of the meth, he should follow him.  Sgt. Stehlik felt he had no choice but to do so.  While en route, appellant turned down a quiet residential street and drove very slowly, an act that likely revealed the surveillance vehicles that were following them.  Thereafter, appellant left the area at a high rate of speed, and Sgt. Stehlik was unable to contact him again.  As a result, appellant was not arrested or charged with a crime.   

            The jury returned guilty verdicts on all counts.  At the sentencing hearing, the trial court determined that aggravating factors justified an upward durational departure from the presumptive sentence of 86 months and sentenced appellant to 129 months on each count, to be served concurrently.  This appeal follows.

D E C I S I O N

1.         Spreigl Evidence

The admission of Spreigl evidence lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  But when the admissibility of Spreiglevidence is unclear, the defendant should receive the benefit of the doubt and the evidence should be excluded.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  Spreigl evidence shall not be admitted in a criminal prosecution unless the trial court finds:

(1) clear and convincing evidence that the defendant participated in the Spreigl incident; (2) the Spreigl evidence is relevant and material to the state’s case; and (3) the probative value of the Spreigl evidence outweighs its potential for unfair prejudice.

 

State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (citing State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991)). 

            Here, the trial court questioned appellant’s assertion that Powell’s testimony was Spreigl evidence but ultimately found that admission of the Spreigl evidence with respect to appellant’s transactions and attempted transactions with Powell and Sgt. Stehlik was permissible because it was relevant to show motive, opportunity, and intent.  When determining whether Spreigl evidence is relevant and material

the trial court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi.

 

Kennedy, 585 N.W.2d at 390 (quotation omitted).  Every aspect of the Spreigl offense need not be identical to the charged crime, but instead must be sufficiently similar to the charged crime in terms of time, place, or modus operandi.  Id. at 391.  While Bloomington and Hibbing are not geographically close, the two incidents occurred relatively close in time — about six months apart.  See id. (suggesting that six months demonstrates a close relationship).  In both incidents, appellant used similar counter-surveillance techniques.  He changed meeting locations and times at the last minute and drove slowly through quiet residential streets to expose surveillance if he thought he was being followed.  Further, both incidents involved large quantities of drugs that were obtained relatively quickly by a person known as “Gilbert.” 

            Appellant argues that Sgt. Stehlik’s testimony was improper character evidence that was used to demonstrate that appellant acted in conformity with the previous incident.  We disagree.  Sgt. Stehlik’s testimony was admissible to demonstrate appellant’s modus operandi and was not admitted for an impermissible purpose.  

Appellant also asserts that Sgt. Stehlik’s testimony did not represent clear and convincing evidence that appellant was the “Gilbert” involved in that transaction.  In order for evidence to be clear and convincing, there must be “more than a preponderance of the evidence but less than proof beyond a reasonable doubt.”  Kennedy, 585 N.W.2d at 389 (quotation omitted).  This court has said that “[c]lear and convincing evidence may be established by the testimony of a single witness.”  State v. Oates, 611 N.W.2d 580, 585 (Minn. App. 2000) (citation omitted).  Sgt. Stehlik testified that, while undercover in January and February of 2001, he negotiated and attempted to purchase ten pounds of meth from a person known as Gilbert.  The sergeant identified appellant as the person he knew as Gilbert.  Based on this evidence, the trial court was within its discretion in finding that Sgt. Stehlik’s testimony constituted clear and convincing evidence that appellant was involved in the undercover transaction. 

Finally, appellant argues that the probative value of Sgt. Stehlik’s testimony was outweighed by its potential for unfair prejudice.  Even if Spreigl evidence is relevant, it may still be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.”  Kennedy, 585 N.W.2d at 391 (citing Minn. R. Evid. 403).  The Minnesota Supreme Court explained:

[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the state’s case.  Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state’s burden of proof, should the trial court admit the Spreigl evidence.

 

Berry, 484 N.W.2d at 17 (internal citations omitted).  While Sgt. Stehlik’s testimony may have been prejudicial to appellant, there was sufficient evidence that appellant was involved in the transaction with him.  Further, the admission of Sgt. Stehlik’s testimony was not unduly cumulative and the jury was given specific limiting instructions prior to the admission of the Spreigl evidence and at the close of evidence.  See Kennedy, 585 N.W.2d at 392 (stating that the use of a cautionary instruction reduces the likelihood of unfair prejudice).  We, therefore, conclude that the probative value of Sgt. Stehlik’s testimony was not outweighed by the potential for unfair prejudice and that the trial court was within its discretion in admitting the Spreigl evidence.

2.         Sufficiency of the Evidence

Appellant argues that the evidence was insufficient to support his conviction for the sale of cocaine in the first degree.  In considering a claim of the sufficiency of the evidence, 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, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  In considering an appeal based on a claim of insufficiency of the evidence, this court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  

Minn. Stat. § 152.021, subd. 1(1), states:

A person is guilty of a controlled substance crime in the first degree if:

(1) on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight or ten grams or more containing cocaine, heroin, or methamphetamine.

 

Minn. Stat. § 152.01, subd. 15a (2000), defines the term “sell” as

 

            (1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or

            (2) to offer or agree to perform an act listed in clause (1); or

            (3) to possess with intent to perform an act listed in clause (1).

 

Appellant argues that his identity as “Gilbert” was not proven and that Powell was not credible because he was facing very serious drug charges and would have said and done anything to benefit himself.  But it is the exclusive role of the jury to determine witness credibility.  Folkers, 581 N.W.2d at 326.  The jury credited Powell’s testimony that appellant was Gilbert, and Powell’s identification of appellant was corroborated by the testimony of Sgt. Stehlik.  Under the circumstances, there was sufficient evidence for the jury to find that appellant was the person known as Gilbert.

Second, appellant argues that Powell’s testimony was the only evidence demonstrating that appellant had drugs in his possession.  This is incorrect.  The jury heard both Powell and his wife testify that appellant unexpectedly arrived at Powell’s home on the evening of August 4 and gave him a small sample bag of cocaine.  The jury also heard Powell testify that appellant placed in his car a plastic bag containing three one-half pound bricks of cocaine that appellant retrieved from the side of the road.  That evidence was later confiscated by the police.

Third, appellant argues that the record of calls made on the cell phone the police recovered from him was not evidence of his involvement because the phone is registered to Ismael Torres.  The evidence showed that the address appellant provided to his employer was the same as the billing address for the cell phone in his possession.  In addition, the police found appellant’s clothing and paperwork at that address.  The phone records in evidence reflected calls made from the cell phone to Powell and the jury credited Powell’s testimony that he and appellant communicated by cell phone.  On this record, we conclude that the evidence was sufficient for the jury to find that appellant was guilty of each of the charged counts.

3.         Sentencing

Appellant argues that the trial court abused its discretion by finding sufficient aggravating circumstances to justify an upward durational sentencing departure.  The decision to depart from the 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).  “[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted).  In determining whether to depart in sentencing, a trial court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  “When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure.”  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted). 

            The trial court found that there were aggravating factors justifying an upward sentencing departure in this case because of the large quantity of drugs involved, appellant’s high position in the drug-distribution hierarchy, the high degree of planning and sophistication, and the broad geographical area involved in the offense.  Appellant concedes that the amount of drugs involved in this case was a quantity larger than for personal use.  But he asserts that the only reason there was such a large quantity was because the police requested that amount and that all prior transactions between Powell and appellant had been for much smaller amounts. 

While it is true that the police had instructed Powell to request a large quantity of cocaine from appellant, the record shows that appellant was under no pressure or obligation to produce the large quantity Powell requested.  The state concedes that the quantity of drugs is not a factor to be used to support a departure when quantity is also an element of the offense.  See State v. McIntosh, 641 N.W.2d 3, 12 (Minn. 2002) (cautioning “courts against using quantity to support a departure under the major controlled substance offense departure criteria when to do so duplicates an element of the offense”).  But while quantity is an element of the offense of sale of cocaine in the first degree, the quantity necessary to be found guilty of the crime is only ten grams.  Here, more than 1,500 grams of cocaine was involved in the transaction.  Appellant’s ease in obtaining such a large quantity of cocaine so quickly is support for the trial court’s conclusion that appellant occupied a high position in the drug-distribution hierarchy. 

            Appellant contends that his actions did not demonstrate a high degree of sophistication or planning.  The evidence that Powell would call appellant on his cell phone to place orders and the parties would meet to make the transaction, does not demonstrate much sophistication or planning.  But, in addition to appellant’s ability to obtain large amounts of cocaine quickly, appellant was also knowledgeable and skilled in the use of counter-surveillance techniques.  To avoid police surveillance, he often changed meeting times and locations or showed up unexpectedly.  When driving, appellant would take detours and drive slowly through residential areas to expose police surveillance. 

            Finally, appellant argues that the distance between Minneapolis and Hibbing does not constitute a broad geographical area of disbursement because most of the drugs in Hibbing come from the Twin Cities.  Appellant’s assertion is unsupported by the record.  Under the circumstances, the trial court acted within its discretion in finding that appellant’s sale of drugs to a dealer 200 miles away in Hibbing constituted a broad geographical area of disbursement.  Because there were sufficient aggravating factors to justify an upward durational sentencing departure, the trial court was within its discretion in sentencing appellant to 129 months. 

4.         Multiple Concurrent Sentences

            Both parties agree that the trial court’s imposition of separate, concurrent sentences for all three offenses was a violation of Minn. Stat. § 609.035, subd. 1 (2000).  The trial court acknowledged that the offenses were all part of the same course of conduct.  Although appellant’s conduct constituted more than one offense, he may only be punished for one of the offenses.  Accordingly, we affirm appellant’s sentence on the first count of sale of cocaine in the first degree and remand to the trial court to vacate appellant’s sentences on the second and third counts.

            Affirmed in part, reversed in part, vacated in part, and remanded.