This opinion will be unpublished and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

A04-1855

 

State of Minnesota,

Respondent,

 

vs.

 

Laurence Levelle Davis,

Appellant.

 

Filed July 26, 2005

Affirmed

Worke, Judge

 

St. Louis County District Court

District Court File No. K8-02-601268

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

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

 

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

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from his conviction of controlled-substance crime in the third degree, appellant contends that the evidence presented was insufficient to establish proof beyond a reasonable doubt, and appellant did not personally consent to the no-adverse-inference jury instruction on the record.  Because we find no reversible error, we affirm. 

FACTS

Ernest Moss was a paid informant used by the Duluth police department to gather information on drug dealings and assist the department in making controlled drug buys.  On May 28, 2002, Moss met with Commander James Wright with the Duluth police department to set up a drug purchase.  Commander Wright and Moss met in an undercover police van outside a restaurant that was located next door to the motel where Moss was staying.  While in the vehicle, Moss called appellant Laurence Davis to set up a meeting to purchase drugs.  During the call, which was recorded by the police, Moss learned that Davis was already outside of the motel, and Davis instructed Moss to meet him. 

Before leaving the vehicle, Commander Wright searched Moss and found no drugs or money on him.   He then gave Moss $500 for the drug purchase and fitted him with a wireless transmitter.  Due to time constraints, Commander Wright could not fit Moss with a digital recorder.  Moss then called Davis to meet him at the restaurant. 

After meeting at the restaurant, Moss and Davis left together in a vehicle.  The police kept the vehicle that Davis drove under surveillance at all times and videotaped most of the trip.  When they arrived at the location where Davis planned to get the drugs, Moss gave Davis the money.  Davis then got out of the vehicle, walked between two houses, and returned the same way approximately ten minutes later.  When Davis returned to the vehicle, he handed Moss the drugs, which Moss believed to be approximately an eight-ball – one eighth of an ounce or 3.5 grams – of cocaine. 

Davis eventually returned Moss to the motel where the plan was for Moss to meet again with the police.  When Moss got out of the vehicle, however, a female occupant also exited and remained outside the motel while Moss went to his room to contact the police.  Moss then returned and talked to the female for approximately 20 minutes.  Moss went up to his room a second time to call the police to make new arrangements to meet them and call a cab to take him to the new location.  Upon meeting the police at a separate location, Moss turned over the remaining $300 and a package later determined to contain 1.6 grams of cocaine.  The police searched Moss and his motel room and found no further money or drugs. 

Davis was later arrested and charged with controlled-substance crime in the third degree, in violation of Minn. Stat. § 152.023, subd. 1(1) (2002).  At trial, Davis did not testify and his attorney requested that the court instruct the jury that no adverse inference should be drawn from his failure to testify.  After a two-day trial, the jury found appellant guilty.

D E C I S I O N

Sufficiency of the Evidence

 

Appellant contends that the evidence is insufficient to support the conviction because the only evidence came from a paid informant with a criminal past, the safeguards for a controlled buy were bypassed, and there was no corroboration of the informant’s claims.[1]  When considering a claim of insufficient evidence, this court’s review is limited to a careful assessment of the record to determine whether “a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000).  When reviewing the record, this court must view the evidence in the light most favorable to a conviction.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  Determining the weight and credibility of witness testimony is a matter for the jury.  Id.  Here, we must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  Id.

Appellant argues that this situation is analogous to that of accomplice testimony, which requires corroboration to sustain a conviction.  Minn. Stat. § 634.04 (2002); State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989) (noting that section 634.04 “embodies the common law’s long-standing mistrust of the testimony of the accomplice.  The accomplice may testify against another in the hope of or upon a promise of immunity or clemency or to satisfy other self-serving or malicious motives.”).  Accordingly, appellant requests that this court extend the corroboration rule that applies to accomplice testimony to that of police informants as well. 

            In support of his argument for this extension, appellant cites caselaw from other jurisdictions.  See United States v. Wiseman, 25 F.3d 862 (9th Cir. 1994); People v. Bazemore, 182 N.E.2d 649 (Ill. 1962); State v. Johnson, 627 N.W.2d 753 (Neb. 2001).  Minnesota, however, has not adopted such a requirement with respect to informant testimony.  Implementing such a requirement is a task most appropriately reserved for the supreme court.  See Northfield Ins. Co. v. St. Paul Surplus Lines Ins. Co., 545 N.W.2d 57, 62 (Minn. App. 1996) (noting that “[t]he Minnesota Supreme Court is the appropriate forum to address a question regarding the extension of existing law”), review denied (Minn. June 19, 1996).  Consequently, as this court did in Robinson, 2003 WL 42175, and Docken, 2005 WL 468328, we decline to adopt the rule proposed by appellant.

Moreover, circumstantial evidence can provide the requisite corroboration in accomplice-testimony cases.  State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995).  Circumstantial evidence corroborating an accomplice’s testimony is reviewed in the light most favorable to the verdict.  Id.  Here, the officers testified regarding their observations, there was a videotape of the surveillance, and an audiotape of Moss’s initial telephone call to appellant.  Evidence thus exists to corroborate Moss’s testimony. 

Appellant asserts that the failure to follow the essential safeguards of the controlled-buy procedure and the lack of corroboration lead to the conclusion that the informant’s testimony is not credible and is unreliable.  In support of his argument, appellant maintains that the police failed to complete a sufficient search of the informant prior to the drug purchase.  Also, the informant went to his motel room two times before meeting with the police rather than following the appropriate procedure, which would have been to meet with the police immediately after the drug purchase.  Further, there was a discrepancy between the informant’s testimony regarding the approximate amount of drugs he believed the appellant gave him and the amount actually given to the police by the informant after the purchase.  The weight and credibility of Moss’s testimony, however, was for the jury to determine.  Moore, 438 N.W.2d at 108.  Under the applicable standard of review, we must assume that the jury believed Moss’s testimony.  Id.  Thus, appellant has not demonstrated that the evidence was insufficient to support his conviction.

Finally, appellant implies that the Duluth police department was holding an unfiled criminal complaint against Moss and that Moss was working as a paid informant so the police would not file the complaint.  Appellant also claims that the female with whom Moss was dropped off at his motel after the drug buy was Moss’s married lover.  Neither of these factual allegations appears in the record and, therefore, cannot be considered here.  See State v. Morrow, 492 N.W.2d 539, 549 (Minn. App. 1992) (noting that appellate court may not base its decision on matters outside the record on appeal).

No-Adverse-Inference Jury Instruction

            Appellant argues that the district court abused its discretion by giving the no-adverse-inference jury instruction without his personal consent.  Ordinarily, a district court should obtain a criminal defendant’s permission before giving 10 Minnesota Practice, CRIMJIG 3.17 (1999), the no-adverse-inference instruction.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  Appellate courts generally do not consider jury instruction issues if they were not objected to at trial.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  But appellate courts may review jury instructions if they contain plain error affecting substantial rights.  Id.  To establish plain error, the challenger must show: (1) error, (2) that is plain, and (3) that affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The defendant bears a heavy burden on the third prong.  Id. at 741.

            In light of Thompson, respondent concedes that appellant has satisfied the first two prongs of the test; the district court plainly erred by failing to ask appellant personally whether he wanted the no-adverse-inference instruction.  But appellant must also show prejudice.   Plain error is prejudicial when there is a reasonable likelihood that giving the instruction would have had a significant effect on the jury’s verdict.  Griller, 583 N.W.2d at 741.

In support of his argument that he has met the heavy burden of proof on the third Griller prong, appellant cites State v. Duncan, 608 N.W.2d 551 (Minn. App. 2000), and State v. DeLaCruz, No. C4-02-155 (Minn. App. Feb. 5, 2003).  These cases, however, were reversed based on cumulative errors at trial rather than solely on the failure to place appellant’s personal request for the instruction on the record.  With or without the instruction, there was overwhelming evidence to convict appellant of third-degree sale of cocaine and so it is unlikely that appellant suffered prejudice.  While the court’s failure to obtain the personal consent from the defendant was an error, it does not rise to the level of prejudice required to justify a new trial.  Therefore, appellant fails the third prong of the plain-error test.

            Further, in Thompson, which was decided prior to the plain-error test articulated in Griller and Baird, the supreme court noted that “[i]t does not follow . . . that the defendant is entitled to a new trial simply because the record on appeal is silent as to whether the defendant and his attorney wanted the instruction . . . .”  Thompson, 430 N.W.2d at 153.  The record in this case does not reflect whether appellant and his trial attorney discussed the instruction.  Appellant is not entitled to a new trial solely because the record is silent as to his wishes regarding the no-adverse-inference instruction.  Because appellant has not shown that the verdict likely would have been different if the district court did not give the instruction, appellant has not shown prejudice to justify reversal.

            Affirmed.