This opinion will be unpublished and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

A04-1103

 

 

State of Minnesota,

Respondent,

 

vs.

 

Patrick James Melvin,

Appellant.

 

 

Filed June 28, 2005

Affirmed
Forsberg, Judge*

 

Clay County District Court

File No. K4-03-2091

 

Mike Hatch, Attorney General, Omar A. Syed, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN  56560 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

On appeal from conviction of first-degree controlled substance offense, appellant argues that (1) the district court committed plain error in failing to give an accomplice testimony instruction because the three primary witnesses against appellant were, or could have been, charged for the same incident; (2) he was denied the effective assistance of counsel when his attorney failed to request the instruction; and (3) police testimony that methamphetamine (meth) was manufactured at two of appellant’s temporary residences was insufficient to corroborate the accomplice testimony.  We affirm.

FACTS

            Appellant Patrick Melvin was charged with first-degree manufacture of meth, first-degree possession of 25 grams or more of meth, and two counts of first-degree conspiracy to manufacture meth.  Appellant pleaded not guilty, and a jury trial was held on February 19 and 20, 2004.

            At trial, Officer Toby Krone testified that at about 3:00 p.m. on November 12, 2003, he observed appellant and his girlfriend, Cynthia Forster, enter Timothy Molstad’s residence.  A few hours later, Officer Krone observed Molstad driving his pickup truck west on Interstate 94 toward Fargo, North Dakota.  As Officer Krone followed Molstad through Fargo, he called Molstad’s cell phone to confirm that appellant was the passenger in Molstad’s truck.  Officer Krone identified himself and asked if appellant would speak with him at the Moorhead police station.  Appellant declined, stating that he was just outside of town.

            Officer Krone continued to follow Molstad’s vehicle for about a half-hour, but stopped when Molstad exited the interstate because he did not want to raise appellant’s suspicions.  Because Forster, Molstad, and appellant were suspected meth users, Officer Krone assumed that Molstad and appellant were looking for anhydrous ammonia tanks in the area.  Officer Krone knew that Molstad was driving without a valid license, so he asked the local police to stop him.  Molstad was subsequently stopped by local police, and appellant was arrested and charged with a fifth-degree controlled substance offense when a search revealed meth on his person.[1]      

            After appellant’s arrest, Officer Krone went to Molstad’s apartment to question Molstad.  Molstad admitted that earlier that evening he and appellant had been searching for anhydrous ammonia, an important ingredient in the manufacture of meth.  Molstad consented to searches of his vehicle and apartment, but no evidence of meth was found, so he was not taken into custody. 

            The next day, November 13, Officer Krone spoke with Anna Wright.  According to Wright, Molstad and appellant had stopped by the day before looking for anhydrous ammonia.  She told them that she did not know where they could obtain anhydrous ammonia, but believed they wanted the chemical in order to manufacture meth.  Later that afternoon, Molstad contacted Officer Krone and informed him that he had discovered a bag in his apartment building’s storage area that allegedly belonged to appellant.  Officer Krone and Clay County Deputy Sheriff Chuck Anderson arrived at Molstad’s apartment and were directed to storage lockers in the basement of the apartment complex.  In a storage closet assigned to one of the vacant apartments, the officers found a red bag and a plastic bag partially covered by a blanket that belonged to Molstad.  The red bag contained numerous items associated with meth production.

            At trial, Molstad testified that Forster contacted him and told him to move the red bag from the basement storage locker to the home of Roger Wetzel.  Because he knew what was in the bag, Molstad refused, prompting Forster to become extremely angry.  Molstad testified that he then called Officer Krone to tell him about the bag.  Although Forster admitted that she placed the bag in the storage locker and that she believed the bag contained materials for making meth, she testified that she did not call Molstad to ask him to move the bag to Wetzel’s home.

            After seizing the red bag, Officer Krone interviewed Roger Wetzel and Diane Smith.  According to Wetzel, who has a history of drug abuse, appellant moved in with him in August 2002, and Forster followed in October or November 2003.  Shortly thereafter, Wetzel asked Forster to leave for various reasons, including her drug usage.  Forster and appellant then moved into Molstad’s apartment.  

            While talking to Wetzel, Officer Krone showed him a photo of the red bag found in Molstad’s apartment.  Wetzel told Officer Krone that he recognized the bag as a Marlboro bag that belonged to appellant.  In addition, both Forster and Smith also identified the red bag as belonging to appellant.  Although everyone Officer Krone talked to identified the bag as belonging to appellant, Wetzel clarified at trial that he had seen a bag similar to the one in the photograph, “but not exactly that one.” 

            During the interview, Wetzel allowed Officer Krone to enter his garage, which was generally locked and to which only Wetzel and appellant had keys.  After Wetzel identified his belongings and those of appellant, Officer Krone obtained a search warrant for the garage.  A search of the items that Wetzel claimed belonged to appellant revealed many items that are commonly used to manufacture and distribute meth.  Some of these items were contained in a cooler belonging to Wetzel, but which, according to him, he had given to appellant in 2002.  Wetzel also denied ownership of any of the meth-related items and any knowledge of appellant’s suspected meth production.  Samples of the items found in the bag and in Wetzel’s garage were sent to the Bureau of Criminal Apprehension; the items tested positive for meth and ephedrine, which is the precursor of meth.  Appellant was subsequently charged with the first-degree controlled substance offenses. 

            While in jail, appellant communicated several times with Wetzel and Smith.  In a November 14 phone call, Smith told appellant that the police had gotten “the Marlboro bag” and would return with a warrant to search the garage.  Appellant responded by stating that there was nothing in the garage, but also added that “[Officer Krone] didn’t say [the bag] was mine, did he?”  Similarly, in a conversation with Wetzel the next day, appellant told Wetzel that the red Marlboro bag was not his.  But later, when appellant heard what items were found in the bag, he admonished Wetzel by stating “you should have gotten rid of that stuff.”  Appellant further corresponded with Wetzel via mail.  In a letter written to Wetzel shortly after he was arrested, appellant instructed Wetzel not to cooperate with authorities and to not “mess with any of my stuff.”    

            At trial, appellant stipulated that the components found in the red bag and later in Wetzel’s garage constituted a fully functioning meth laboratory.  Molstad also testified at trial that appellant provided him with meth and that he sometimes observed appellant manufacturing meth.  Molstad further testified that he would go on “anhydrous ammonia runs” with appellant and that both were on an “ammonia run” the night of November 12, 2003.  Although Molstad was charged with aiding and abetting manufacturing meth, and Forster was charged with attempted manufacture of meth, both Forster and Molstad entered into plea agreements in exchange for their testimony.

            The jury found appellant guilty as charged, and appellant was sentenced to the presumptive sentence of 129 months.  This appeal followed.                   

D E C I S I O N

I.  Accomplice Testimony Instruction

            Appellant argues that the district court erred by failing to instruct the jury that accomplice testimony must be corroborated.[2]  District courts are allowed “considerable latitude” in the selection of the language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).

            Here, appellant did not object to the district court’s failure to provide the accomplice testimony instruction.  Failure to request specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  But a reviewing court can reverse if the instructions constituted plain error or were misleading or confusing on fundamental points of law.  Baird, 654 N.W.2d at 113.  Plain error is:  (1) error; (2) that is plain; and (3) that affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  An appellant bears the “heavy burden” of showing that the error affects substantial rights, which is satisfied if the appellant shows that the error was prejudicial and affected the outcome of the case.  Id. at 741.

            Under Minnesota law, an accused may not be convicted on the uncorroborated testimony of an accomplice.  Minn. Stat. § 634.04 (2004).  However, accomplice testimony need not be corroborated on every point or element of the crime.  State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982).  Rather, corroborative evidence must restore confidence in an accomplice’s testimony, confirming its veracity and indicating the defendant’s guilt in a substantial way.  State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000). 

            The state concedes that the district court should have issued an accomplice instruction regarding the testimony of Molstad and Forster because both were appellant’s accomplices.  But the state contends that appellant was not prejudiced by the district court’s failure to give the instruction.

            For plain error to be reversible error, it must affect substantial rights.  Griller, 583 N.W.2d at 740.  The accomplice testimony instruction states that “[a jury] cannot find the defendant guilty of a crime on the testimony of a person who could be charged with that crime, unless that testimony is corroborated by other evidence that tends to convict the defendant of the crime.”  10 Minnesota Practice, CRIMJIG 3.18 (1999).  Accomplice testimony cannot be corroborated solely by the testimony of another accomplice.  State v. Harris, 405 N.W.2d 224, 227 (Minn. 1987).

            Appellant argues that he was prejudiced because the outcome of the trial would have been different if the accomplice instruction had been provided.  We disagree.  At trial, appellant stipulated that the components found in the red bag and later, in Wetzel’s garage, constituted a fully functioning meth lab.  Thus, the only issue was the ownership of the bag.  Molstad and Forster testified that the bag belonged to appellant, which was corroborated by Smith’s testimony that she had seen appellant with a red Marlboro bag similar to the one that contained the meth lab.  Moreover, Wetzel testified that the bag belonged to appellant.  The district court did not consider Wetzel to be an accomplice.  Because Wetzel was not an accomplice, his testimony is further corroborating evidence.

            Molstad also testified that on the evening of November 12, 2003, he was with appellant looking for anhydrous ammonia.  This testimony is corroborated by Wright who testified that Molstad and appellant stopped by her residence on November 12 to inquire about where they could obtain anhydrous ammonia for manufacturing meth.  Moreover, appellant’s suspicious conduct and the statements to Wetzel and Smith while he was in jail tend to establish appellant’s guilt.  The district court specifically instructed the jury that

such matters as the witness’s interest or lack of interest in the outcome of the case, their relationship to the parties, their ability and opportunity to know, remember and tell the facts, their manner, age, experience, frankness and sincerity or the lack thereof, the reasonableness or unreasonableness of their testimony in light of all of the other evidence and any other factors that bear on the question of believability and credibility.

 

The district court later reminded the jury that “[y]ou are the sole judges of the truthfulness and the credibility of the witnesses.”  Accordingly, there is enough corroborating evidence that the omission of the accomplice instruction did not affect appellant’s substantial rights.    

II.  Ineffective Assistance of Counsel

            Appellant argues that he was denied effective assistance of counsel because trial counsel failed to request the accomplice testimony instruction.  An appeal from a judgment of conviction is generally not the proper method of raising an issue concerning the effectiveness of defense counsel.  See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (stating that an ineffective assistance of counsel claim should be raised in a petition for postconviction relief).  On direct appeal, however, when the record provides a sufficient basis to review an ineffective assistance of counsel claim and the claim requires no additional facts to explain counsel’s decision, this court may review the matter as the interests of justice may require.  Black v. State, 560 N.W.2d 83, 85, n.1 (Minn. 1997).

            To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s representation “‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).  “[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.”  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted).  A strong presumption exists that counsel’s performance “falls within the wide range of reasonable professional assistance.”  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).

            Appellant argues that because the accomplice testimony instruction is mandated by law to ensure that the jury does not convict on inherently unreliable accomplice testimony, a reasonably competent attorney would have requested the instruction.  But the court should instruct on accomplice testimony regardless of whether counsel asks for the instruction, and, therefore, failure to request an instruction the court is already obligated to give is not ineffective assistance of counsel.  See State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002) (noting trial court’s duty to give instruction even absent request).  Further, as discussed above, appellant was unable to show that, but for counsel’s failure to request the instruction, the result of the proceeding would have been different.  Appellant was not denied effective assistance of counsel. 

III.  Sufficiency of Evidence

            In 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 jury to reach the verdict that it 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).  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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant argues that (1) the nonaccomplice testimony was insufficient to sustain his conviction, and (2) the state failed to prove that he had constructive possession of the meth labs.

            A.       Nonaccomplice Testimony

            As stated above, an accused may not be convicted on the uncorroborated testimony of an accomplice.  Minn. Stat. § 634.04.  But as discussed above, the nonaccomplice testimony was sufficient to sustain appellant’s conviction.  Molstad testified extensively at trial about appellant’s involvement with meth; that appellant both used and manufactured meth.  Both Wetzel and Smith corroborated Molstad and Forster’s testimony that the meth labs belonged to appellant.  In addition, Officer Krone testified that he interviewed several witnesses who all affirmatively connected the red bag to appellant.  Moreover, Wright testified that on the evening of November 12, 2003, appellant and Molstad visited her house to inquire about obtaining anhydrous ammonia.  Finally, evidence was presented at trial concerning appellant’s suspicious communications with Wetzel and Smith while he was in jail.  The jury apparently believed the state’s witnesses and disbelieved any evidence to the contrary.  See State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998) (stating that this court defers to the jury’s determinations regarding the weight and credibility of individual witnesses).  Thus, when viewed in the light most favorable to the conviction, the nonaccomplice testimony was sufficient to sustain appellant’s conviction.

            B.         Constructive Possession

            Appellant argues that the state failed to prove that he had constructive possession of the meth labs found in Molstad’s apartment and in Wetzel’s garage.  A person may constructively possess a controlled substance alone or with others.  Comm’r of Revenue v. Fort, 479 N.W.2d 43, 46 (Minn. 1992).  Constructive possession may be proved by showing either that (1) the controlled substance was found in an area under the defendant’s control and to which others normally had no access; or (2) if others had access to the location of the controlled substance, the evidence indicates a strong probability that the defendant exercised dominion and control over the area.  State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).  This court looks to the totality of the circumstances in assessing whether or not constructive possession has been proven.  State v. Munoz, 385 N.W.2d 373, 377-78 (Minn. App. 1986). 

            Here, the meth labs were found in Molstad’s apartment and in Wetzel’s garage.  Thus, in order to show that appellant constructively possessed the meth labs, the state must show that there was a strong probability that he exercised dominion and control over the area.  See Florine, 303 Minn. at 105, 226 N.W.2d at 611.  The record reflects that appellant was living with Molstad at the time of the arrest.  The record also reflects that although he was no longer living with Wetzel, appellant had a key to Wetzel’s garage.  Therefore, appellant had easy access to both places where the meth labs were discovered.  Moreover, Molstad testified that on the night of November 12, appellant contacted Forster and instructed her to hide the bag in the basement of Molstad’s apartment.  This testimony makes it probable that appellant exercised dominion and control over the bag.  Finally, appellant’s conversations with Wetzel and Smith while he was in jail further demonstrate that he exercised control over the bag.  Accordingly, the state proved that appellant had constructive possession of the meth labs.

            Affirmed.