This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1555

 

Barbara Lynne Alle,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 5, 2005

Affirmed

Klaphake, Judge

 

Kanabec County District Court

File No. K7-02-610

 

 

Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN  55121 (for appellant)

 

Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Norman Loren, Kanabec County Attorney, 18 N. Vine Street, Suite 202, Mora, MN  55051 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Barbara Lynn Alle challenges the denial of her petition for postconviction relief, arguing that the evidence was insufficient and that the district court erred when it allowed her to be impeached with a stale conviction for wrongfully obtaining food stamps.  Because overwhelming evidence was presented to support appellant’s 2002 convictions and because admission of the stale evidence, while error, did not prejudice appellant so as to entitle her to postconviction relief, we affirm.

ANALYSIS

            An appellate court reviews a postconviction court’s findings to “determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  We “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.

I.

            When reviewing the sufficiency of the evidence, this court is “limited to ascertaining whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, [the fact finder] could reasonably find that the defendant was guilty of the charged offense.”  State v. Asfeld, 662 N.W.2d 534, 544 (Minn. 2003) (quotation omitted).  We must “view the evidence in a light most favorable to the verdict, and assume that the [fact finder] disbelieved any evidence in conflict with that result.”  State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).

            Conspiracy

            Appellant was convicted of a first-degree controlled substance crime, which makes it a crime to conspire to manufacture any amount of methamphetamine (meth).  Minn. Stat. §§ 152.021, subd. 2a, 152.096, subd. 1 (2002).  To constitute a conspiracy, the state must prove:  (1) the defendant entered into an agreement with another person to manufacture meth; and (2) one or more of these individuals performed an overt act in furtherance of the conspiracy.  Id., Minn. Stat. § 609.175, subd. 2 (2002); State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).  Proof of an explicit, formal agreement is not required; rather, it is sufficient to show a tacit agreement through a joint purpose.  State v. Townley, 149 Minn. 5, 8, 182 N.W. 773, 775 (1921) (“No formal agreement to do the acts charged need be shown” and “[c]oncurrence of sentiment and cooperative conduct, and not formality of speech, are the essential ingredients of conspiracy.”).

            Here, two deputy sheriffs conducted surveillance of a residence on the evening of September 11, 2002, and executed a search warrant there the next morning.  The deputies testified at trial that during their surveillance, they (1) noticed the unmistakable and telltale smells of meth manufacturing emanating from the house, both before and during appellant’s presence there;  (2) witnessed equipment typically used to manufacture meth being carried into the house, including a hose or tubing taken from appellant’s vehicle, and what sounded like glassware taken from a hiding place in the backyard; (3) observed shadows of people pouring and mixing through the covered windows and heard the sounds of clanking glassware, which they testified were activities consistent with the manufacture of meth; (4) saw appellant and others walking around the grounds in a manner that suggested that they were patrolling or concerned about intruders; and (5) observed a man emerge from the house coughing and gasping in a manner consistent with the creation of toxic vapors during the manufacturing process.  The deputies also testified that when they searched the property the next morning, they observed and seized various items throughout the house, which they identified as ingredients and equipment typically used to manufacture meth.  The deputies further testified that some of these items were still wet, indicating recent use, and that some contained residues that tested positive for meth.

            From this evidence, the district court could reasonably infer that meth was being manufactured in the house on the evening of September 11, 2002, that appellant and the others were engaged in this process and were trying to conceal their illegal activities, and that the group had a tacit agreement to commit this unlawful act.  We therefore conclude that the evidence was sufficient to support appellant’s conviction for conspiracy to manufacture meth.

            Appellant nevertheless argues that the evidence merely supports an inference that meth was manufactured at the residence “at some point,” but not necessarily when she was there.  But, given the deputies’ observations during their surveillance and given the sheer amount of incriminating evidence found during the search the next morning, any inference that the materials were brought there after appellant left the residence at 11 p.m. the night before is incredible and unworthy of belief.

            Appellant also claims that there was no evidence that she was any part of an agreement or that she participated in the manufacturing of meth.  But appellant had a connection to the house because she was present at the time the meth was manufactured, she had been there before, and a copy of a criminal complaint filed in Pine County against her for a prior meth manufacturing offense was found inside the residence during the search.[1]  See United States v. Askew, 958 F.2d 806, 811 (8th Cir. 1992) (noting that even single visit to meth lab sufficient, together with little additional evidence, to support conspiracy conviction).  In addition, appellant brought equipment to the residence transported by Mike Urman, a person known to manufacture meth, and acted as a lookout during part of the manufacturing process.  Finally, as an experienced “cook” herself, it was reasonable for the district court to infer that she contributed her knowledge of the process to the conspiratorial agreement.

            Finally, the district court was entirely free to reject appellant’s claim that she and her friends were merely socializing at the residence and drinking wine coolers that evening.  The district court found appellant’s claims regarding her activities that night to be “wholly incredible” and not worthy of belief.  See State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998) (concluding that in making credibility determinations, factfinder “need not credit a defendant’s exculpatory testimony”).

            Aiding and Abetting

            To find appellant guilty of aiding and abetting, the state must prove that she intentionally aided, advised, hired, counseled, or conspired with another to manufacture meth.  Minn. Stat. §§ 152.021, subd. 2a, 609.05, subd. 1 (2002).  A defendant is criminally liable for aiding and abetting if he or she played a knowing role in the crime and took no steps to thwart its completion.  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995).  While active participation is not required, “a person’s presence, companionship, and conduct before and after an offense are circumstances from which a person’s criminal intent may be inferred.”  Id.

            Again, appellant’s claim that she had no knowledge that meth was being manufactured at the house while she was there is simply not credible.  Given the evidence presented at trial, including the deputies’ observations that appellant was present while meth was being manufactured, patrolled the property, provided necessary equipment, and transported a known meth manufacturer to the residence, the district court could reasonably conclude that she aided and abetted in the manufacturing of meth.  See In re Welfare of DKK, 410 N.W.2d 76, 77 (Minn. App. 1987) (holding that defendant’s presence as lookout while another commits crime supports aiding and abetting conviction).

II.

            Appellant argues that the district court committed reversible error by allowing the state to impeach her testimony with her prior conviction for wrongfully obtaining food stamps because the conviction was stale and not admissible under Minn. R. Evid. 609(b) (evidence of conviction not admissible if more than 10 years has elapsed since date of conviction).  While we agree that this 1990 conviction is stale and that its admission was error, we nevertheless conclude that the error was harmless and not prejudicial.  See State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (stating that error in admitting evidence is harmless unless “there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict [or] that the verdict might have been more favorable to the defendant if the evidence had not been admitted”) (quotation omitted)).

            Appellant insists that admission of this evidence was prejudicial because the district court explicitly relied on the 1990 conviction when it evaluated her credibility and ultimately decided to give “no credence” to her trial testimony at trial.  When the district court’s conclusion is read in its entirety, however, it is clear that the court found appellant not credible for a number of reasons, only one of which was related to her 1990 conviction:

The court concludes that [appellant’s] testimony was wholly incredible.  She consistently denied facts which had been persuasively proven by the state.  For example, both deputies smelled such a strong odor of solvent and acid that it was apparent from the road, and from their position of surveillance 100 feet from the house.  [Appellant] testified that she was familiar with the smell of solvents such as toluene, and with the smell of acid, but noticed no such smells during the one hour and twenty minutes she was at the residence.  This is not possible.  Further, [appellant] was in and out of the residence several times that evening, but claims to have seen no one mixing or stirring or gassing anything.  One of the males came out of the residence gagging and gasping, and [appellant] would have the court believe she saw nothing unusual – just some buddies hanging around drinking wine coolers.  On cross examination by the state, [appellant] equivocated, denied, or tried to talk her way around almost every question, even when the question was based on her own prior statements to law enforcement.  The court also notes that [appellant] was impeached with evidence of a prior conviction in Ramsey County for wrongfully obtaining food stamps, which the court deems to be a crime of dishonesty or false statement.  The court gives no credence to [appellant’s] testimony at trial.

 

In its order denying appellant’s petition for postconviction relief, the district court again explained why it found appellant’s testimony to be “wholly incredible” and why it determined that the admission of the impeachment evidence was not prejudicial:

Regardless of whether or not the impeachment evidence should have been admitted at trial, the outcome was not affected by admitting the conviction.  The court found [appellant’s] testimony to be wholly incredible.  As [the court found, appellant] equivocated, denied or tried to talk her way around almost every question and the court did not believe anything [appellant] testified to at trial.  The court gave no weight or credence to [appellant’s] testimony and would continue to do so even without the impeachment evidence.

 

From this, it is clear that the district court found appellant’s testimony to be not credible or worthy of belief for a variety of reasons, only one of which was related to the stale and erroneously admitted 1990 conviction.

            We therefore affirm the district court’s order denying appellant’s petition for postconviction relief.

            Affirmed.