This opinion will be unpublished and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

A04-632

 

State of Minnesota,

Respondent,

 

vs.

 

Norland Patino,

Appellant.

 

Filed June 28, 2005

Affirmed

Willis, Judge

 

Kandiyohi County District Court

File No. K0-03-1102

 

 

Mike Hatch, Attorney General, Lisa A. Crum, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

Boyd Beccue, Kandiyohi County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN  56201 (for respondent)

 

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

 

            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, 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 second-degree sale of a controlled substance, in violation of Minn. Stat. § 152.022, subd. 1(1) (2002).  He argues that the district court made a number of evidentiary errors, that the prosecutor committed prejudicial misconduct, and that the evidence was insufficient to support the jury’s guilty verdict.  Because we find no error or abuse of discretion and because the evidence was sufficient to support the jury’s verdict, we affirm.

FACTS

On February 4, 2003, confidential informant Robert Moore purchased cocaine from Ernesto Barco under police supervision.  Barco is appellant Norland Patino’s former stepfather.  Moore was equipped with an audio-transmitting device and provided with marked money.  Moore and Agent Adam Christopher of the CEE-VI Drug Task Force drove to Barco’s mobile home in Willmar.  Agent Todd Neumann, also of the drug task force, waited outside the mobile-home park, listening to the transaction.  Barco was not at home, but a gray Honda Accord drove up, and Moore recognized the driver and went to talk to him.  Moore told the driver, “What’s up, man?  I need an eight ball.”  The driver told Moore that he had to find his “dad.” 

Moore returned to the van where Christopher was waiting and told Christopher that the Honda’s driver was Patino, Barco’s son.  Moore testified that when the Honda returned, Barco was sitting in the front passenger seat.  Moore got out of the van and sat in the Honda as he, Barco, and Patino negotiated a price for the cocaine.  Barco went into the mobile home and came out with a package.  Moore handed the money to Barco; Barco gave him the package and handed the money to Patino. 

Moore returned to the van and gave Agent Christopher the package and the balance of the money.  The substance in the package was later confirmed to be cocaine. 

Patino was charged with second-degree sale of a controlled substance, in violation of Minn. Stat. § 152.022, subd. 1(1) (2002), and a jury trial was held in November 2003.  On the first day of the trial, an amended complaint was filed, charging Patino also with conspiracy to commit a controlled-substance crime in the second degree, in violation of Minn. Stat. §§ 152.096, subd. 2 (2002); .022, subds. (1), 3(a) (2002). 

At trial, Patino and his witnesses told the jury that Patino was in Texas on February 4, 2003, and that he did not arrive in Minnesota until a few days before Valentine’s Day.  But Moore and Agent Christopher testified, and they identified Patino as the third person involved in the drug sale.  The jury convicted Patino of both charges.  The district court dismissed the conspiracy charge and sentenced Patino to the custody of the Commissioner of Corrections for 54 months.  This appeal follows. 

D E C I S I O N

I.

Patino first argues that the district court made a number of evidentiary errors and abused its discretion by (a) admitting Agent Neumann’s testimony identifying Patino’s voice on the audiotape of the controlled buy; (b) admitting testimony that Barco attempted to influence a state’s witness during trial; and (c) admitting Agent Christopher’s testimony regarding the information used to identify Patino.

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). 

a.         Agent Neumann’s testimony

 

At trial, Agent Neumann introduced the audiotape of the controlled buy; he explained what the jury was about to hear before each segment of the tape was played.  Before the first segment was played, Agent Neumann told the jury that they would hear the voices of Agent Christopher, Moore, a female, Patino, and Barco.  Patino argues that this testimony was inadmissible because Agent Neumann was not present at the time of the controlled buy, and, therefore, there was “no basis” for Agent Neumann to tell the jury that they would hear Patino’s voice on the tape. 

The state argues that Patino failed to make a timely objection to Agent Neumann’s testimony describing whose voices would be heard on the tape.  A party seeking to prevent the admission of evidence must make a timely objection and state the specific ground of the objection if the specific ground was not apparent from the context.  Minn. R. Evid. 103(a)(1).  A party fails to make a timely objection when he does not object during the witness’s testimony.  State v. Bauer, 598 N.W.2d 352, 359, 363 (Minn. 1999) (noting that the defendant failed to make a timely objection when he did not object after the disputed statement or at any time during the witness’s testimony); State v. Peterson, 533 N.W.2d 87, 91 (Minn. App. 1995) (noting that the defendant did not timely object to the use of photos at trial when he failed to object during the witnesses’ testimony).  Here, Patino objected during Agent Neumann’s testimony, and he challenged Neumann’s personal knowledge of the events being described.  We conclude that Patino made a timely and sufficient objection to Agent Neumann’s testimony, and we review its admission for an abuse of discretion. 

“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”  Minn. R. Evid. 602.  At trial, Agent Neumann explained what he heard during the transmission and what he heard when he reviewed the tape.  His narration provided no other details and did not specifically identify Patino’s voice.  Because Agent Neumann heard the audiotape, on which Moore identifies Patino, and Agent Neumann testified about what he heard, we conclude that the district court did not abuse its discretion by admitting his testimony.

b.         Testimony regarding Barco

 

Patino next argues that the district court committed prejudicial error by admitting Moore’s testimony that Barco had attempted to influence Moore during the trial.  At the end of Moore’s direct examination, the prosecutor asked Moore whether he had seen Barco in the courtroom the day before and whether Barco had attempted to communicate with him.  Over the defense’s objection, the district court allowed Moore to testify, stating that testimony regarding “any attempt to influence a witness one way or the other is certainly allowable.” 

Moore testified that he saw Barco in the courtroom and that Barco made signs with his hands to Moore:  “[H]e motioned his hands to me.  He just told me to be quiet.”  He also testified that Barco motioned again and that the motion could have meant: “Keep your mouth shut, or you can get busted open.  Or keep your mouth shut, you can get paid.” 

We review the admission of this testimony for an abuse of discretion.  Amos, 658 N.W.2d at 203.  Relevant evidence may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice.  Minn. R. Evid. 403.  Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  Barco’s attempt to influence Moore’s testimony suggests that Moore had knowledge that Barco did not want him to reveal.  This could reflect Barco’s awareness that Patino was guilty.  Consciousness of a defendant’s guilt or innocence is relevant.  SeeState v. Harris, 521 N.W.2d 348, 353 (Minn. 1994) (noting that evidence of threats made to witnesses may be relevant because it demonstrates a consciousness of guilt).  Moore’s testimony was short; it was not greatly emphasized; and significant other evidence existed regarding Patino’s involvement in the controlled buy.  Therefore, the probative value of this statement was not outweighed by the danger of unfair prejudice.  We conclude that the district court did not abuse its discretion by admitting this testimony.

c.         Agent Christopher’s testimony

 

Patino next argues that the district court erred by allowing Agent Christopher to testify that he used booking photos to identify Patino.  At trial, the prosecutor asked Agent Christopher how he identified the driver of the Honda.  Agent Christopher testified that he compared the person whom he saw with photos available through Minnesota driver’s-license records and with booking photos from the Kandiyohi County jail.  The defense did not object to this testimony.  “[R]eview of unobjected-to errors is discretionary” and is limited to review for plain error.  State v. Griller, 583 N.W.2d 736, 740, 742 (Minn. 1998).  “The plain error standard requires that the defendant show:  (1) error; (2) that was plain; and (3) that affected substantial rights.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997))).  “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id. (quotations omitted). 

On appeal, Patino cites the plain-error standard, but he has not argued that Christopher’s testimony affected Patino’s substantial rights or affected the fairness, integrity, or public reputation of the judicial proceedings.  Because Patino has not adequately briefed plain error here, we choose not to review the issue he raises regarding Agent Christopher’s testimony. 

II.

Patino next argues that the prosecutor committed prejudicial error by stating (a) that Barco was “toast” and that “he’s going to go anyway” for his involvement in Patino’s charged offenses; and (b) that Patino had not produced any documents showing that he was in Texas the day of the charged offenses.  Prosecutorial misconduct warrants reversal only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). 

a.         Statements regarding Barco

 

During the state’s limited rebuttal after final arguments, the prosecutor made the following comments: 

If [Patino’s witnesses] were so concerned as relatives about protecting Norland, why did they all bail out on what he called Papi, which is Ernesto Barco?  That’s real, real easy.  Ernesto Barco is toast in this, on these facts.  He’s dead.  He’s going to go away.  Okay.  They are not giving up anything by saying it’s Ernesto Barco.  He’s already gone.  He’s identified on the tapes already . . . .

 

The defense objected to this comment and asked for a cautionary instruction.  The court then cautioned, “The jury should not conclude that Mr. Barco has been convicted of any crime or wrongdoing.  That would be an erroneous conclusion. . . .  [T]here should be no conclusion that any criminal wrongdoing has been established or that there’s been any type of adjudication or conviction of any type.”

            Patino argues that the prosecutor improperly suggested that Patino was guilty because Barco was guilty and improperly expressed his personal opinions about the credibility of Patino’s witnesses.  It is misconduct for a prosecutor to express a personal opinion about the credibility of a witness.  State v. Buggs, 581 N.W.2d 329, 343 (Minn. 1998).  But the supreme court has noted that the standard prohibiting prosecutors from expressing their personal opinions regarding a witness’s credibility was “not designed to prevent the prosecutor from arguing that particular witnesses were or were not credible.”  State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991).  In fact, a prosecutor “may present to the jury all legitimate arguments on the evidence, analyze and explain the evidence, and present all proper inferences to be drawn from the evidence.”  State v. Roman Nose, 667 N.W.2d 386, 402 (Minn. 2003). 

            Here, the prosecutor attempted to explain why Patino’s witnesses would have protected him but not Barco.  Arguably, by suggesting that Barco was “toast” and “dead,” the prosecutor did not choose his words well.  See Buggs, 581 N.W.2d at 342 (noting that the prosecutor’s references to the defendant as a “coward” with a “twisted” thought process were improper but did not require a new trial given the other evidence in that case).  But the prosecutor did not use these words to describe Patino; the district court addressed the implication of this word choice to the jury; and the district court warned the jury not to infer that Barco had been convicted of a crime.  The prosecutor presented an inference that could properly be drawn from the evidence, and his comments were not misconduct.

b.         Statements regarding the lack of corroborating evidence

 

Patino also argues that the prosecutor committed prejudicial error when he stated in his limited rebuttal after closing arguments:

Tessa Patino said, “I know that he was in Texas, because just before Valentine’s Day when he was down in Texas, I wired him money by Western Union.”  . . . We have no documents.  In fact, we have absolutely nothing at all other than their testimony.  We have nothing with regard to the tintings, we have nothing with regard to any wired funds sent down to him, we have nothing from people in Texas, we have nothing like that at all.

 

            While a prosecutor may not comment on a defendant’s failure to call witnesses because it impermissibly shifts the burden of proof to the defendant, “a remark by a prosecutor on the lack of evidence regarding the defense’s theory [does] not shift the burden of proof to the defense.”  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (citing State v. Race, 383 N.W.2d 656, 664 (Minn. 1986)).  Here, the defense’s theory was that Patino was not the third person involved in the controlled buy because he was in Texas on February 4, 2003.  The prosecutor made a short, isolated remark here about the lack of corroborating evidence for Patino’s theory.  This comment did not shift the burden of proof to Patino and was not misconduct.

III.

Finally, Patino argues that the evidence was not sufficient to support the jury’s verdict.  When considering a claim of insufficient 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, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing 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 is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing 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 reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Patino was convicted of a controlled-substance crime in the second degree, in violation of Minn. Stat. § 152.022, subd. 1(1) (2002).  “A person is guilty of controlled substance crime in the second degree if . . . on one or more occasions within a 90-day period the person unlawfully sells one of more mixtures of a total weight of three grams or more containing cocaine, heroin, or methamphetamine.”  Minn. Stat. § 152.022, subd. 1(1). 

Patino argues that the evidence is insufficient to prove beyond a reasonable doubt that he was involved in the sale of cocaine on February 4, 2003.  Patino challenges Agent Christopher’s ability to identify him, and he attacks the credibility of Moore’s testimony.

Agent Christopher testified that the gray Honda was parked approximately 20 feet from his van and that he could see the driver’s features.  Agent Christopher also testified that he later identified Patino by comparing the person whom he saw with photos.  And when asked at trial to identify the driver, Agent Christopher pointed to Patino. 

Moore testified that the driver of the gray Honda Accord was Norland Patino.  It is clear that Moore and Patino knew each other.  Patino testified that he considered Moore a friend.  In the courtroom, Moore identified Patino as the person who drove the Honda Accord and who negotiated the price of the cocaine.

Patino, his sisters, his mother, and Barco’s girlfriend all testified that Patino was in Texas until the week or so before Valentine’s Day.  They also all testified that Patino’s voice was not on the audiotape of the controlled buy and that the Honda’s windows were darkly tinted.

The jury determines the weight and credibility given to the testimony of individual witnesses.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  An identification can be sufficient to support a conviction “if a witness testifies that in his belief, opinion, and judgment the defendant is the one he saw commit the crime.”  State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985).  The fact that a person has a criminal history and might be cooperating with the police for personal gain does not invalidate the witness’s testimony.  See id. (noting that the verdict rested on the jury’s assessment of the credibility of the witnesses and that the jury had been “fully appraised of the witnesses’ criminal records and plea bargains”).

Patino points to no specific evidence, except for Moore’s criminal background, that would make Moore’s testimony not credible.  The jury was made aware of Moore’s criminal history.  Moore testified that Patino was wearing a coat, and the jury heard other witnesses testify that Patino never wore a coat.  The jury also heard Patino and other witnesses testify that Patino was in Texas on February 4, 2003.  But the jury obviously found Moore’s testimony and Agent Christopher’s testimony credible.  Moore positively identified Patino as the Honda Accord’s driver, the person who negotiated the price of the cocaine, and the person who received the drug money from Barco.  Agent Christopher also identified Patino as the person he saw during the controlled buy.  And the evidence showed that Moore bought more than three grams of cocaine at the controlled buy.

We will not disturb the jury’s credibility determinations, and we conclude that the evidence is sufficient to support the jury’s verdict.

Finally, we have considered the arguments raised by Patino in his pro se supplemental brief and conclude that they do not provide a basis for relief.

Affirmed.