This opinion will be unpublished and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

A04-1243

State of Minnesota,
Respondent,

vs.

Folashade Oloye,
Appellant.

 

Filed August 9, 2005

Affirmed

Stoneburner, Judge

 

Olmsted County District Court

File No. K4013438

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Folashade Oloye challenges (1) the sufficiency of the evidence to support her convictions of controlled-substance crimes; (2) evidentiary rulings; and (3) separate sentencing for conspiracy to commit first-degree controlled-substance crime and aiding and abetting first-degree controlled-substance crime.  Appellant raises additional issues in a pro se brief.  Because the evidence was sufficient to support appellant’s convictions of first-degree controlled-substance crime and aiding and abetting first-degree controlled-substance crime, any evidentiary errors were harmless, the convictions did not arise from the same behavioral incidents, and appellant’s pro se arguments are without merit, we affirm.

FACTS

 

A confidential informant (CI) working with Olmsted County law-enforcement officers participated in drug buys monitored by law-enforcement officers on August 21, 30, September 7, 13, 26, and 27, 2001.  Search warrants executed on October 3, 2001, and January 2, 2002, at appellant’s two residences resulted in the recovery of crack cocaine.  Appellant was alleged to have been involved in all of the sales either by aiding the sale or as part of a conspiracy to sell drugs.  Based on the combined weight of crack cocaine involved, appellant was charged in count one with aiding and abetting controlled-substance crime in the first degree-sale, in violation of Minn. Stat. §§ 152.021, subds. 1(1), 3(b), 609.05, subds. 1, 2 (2000), and in count two with conspiracy to commit controlled-substance crime in the first degree.  In counts three through thirteen, appellant was charged with aiding and abetting the lesser-included offenses underlying counts one and two.

            The matter was tried to the district court without a jury.  The district court dismissed count 13, found appellant not guilty of count six, and found appellant guilty of all the remaining counts.  Appellant was convicted of only counts one and two.  Adjudication was stayed on the remaining, lesser-included offenses.  Appellant was sentenced to 134 months in prison for count one and a concurrent 158 months in prison for count two.  This appeal followed.

D E C I S I O N

 

I.          Challenges to sufficiency of evidence

            When the sufficiency of the evidence is raised on appeal, this court’s standard of review is the same for bench trials as it is for jury trials.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979).  We perform a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the factfinder to reach the decision that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that the factfinder believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The possibility that a defendant is innocent does not require reversal of a verdict, as long as the evidence on the whole makes the possibility of innocence seem unreasonable.  State v. Gates, 615 N.W.2d 331, 338 (Minn. 2000).

            a.         Count Three: August 21, 2001 “park zone” sale

            Selling drugs in a park zone is a second-degree offense.  Minn. Stat. § 152.022, subd. 1(6) (2000).  Appellant asserts that the district court erred by finding that she aided and abetted the sale of drugs in a park zone, as charged in count three of the complaint, because the sale did not occur in a park zone.  But “sell” as defined in the statute includes offering to sell.  Minn. Stat. § 152.01, subd. 15a(2) (2000).  And it is undisputed that the initial contact between the CI and appellant that led to the exchange of money for drugs on August 21, 2001 occurred at appellant’s home, which is in a park zone.  Within the park zone, appellant told the CI, who was looking for drugs to buy, to “go over to mamma’s house.”  The actual exchange of money for drugs occurred at appellant’s mother’s residence, which is not in a park zone.  Appellant argues that telling the CI to “go to mamma’s house” is insufficient to prove that the sale of drugs occurred in a park zone.

            The state argues that this issue is “moot” because appellant was not adjudicated on count three.  A defendant may appeal as of right from any adverse final judgment, and a judgment is final within the meaning of the rules when there is a judgment of conviction and sentence is imposed or the imposition of sentence is stayed.  Minn. R. Crim. P. 28.02, subd. 2(1).  Because appellant has not been convicted of count three, the finding of guilty is not appealable.

            Furthermore, as the state notes, appellant has not challenged the finding that she was guilty of count four, involving the same transaction without reference to a “park zone.”[1]  Therefore, reversing the finding of guilty on count three would not have any effect on appellant’s convictions of counts one and two, for which the amount of drugs from the separate sales were aggregated.

            Even if we were to reach the merits of appellant’s claim, we note that the district court specifically found that the offer to sell occurred in a park zone, bringing the transaction within the ambit of Minn. Stat. § 152.022, subd. 1(6).  Because there is circumstantial evidence in the record sufficient to support this finding, the district court did not err in finding appellant guilty of aiding and abetting a sale of drugs in a park zone.

b.                  Count One: Controlled-Substance Crime in the First Degree - Sale

 

            The district court found that appellant was involved in sales of 11.1 grams of a mixture containing crack cocaine within a 90-day period.  Appellant argues that because she should not have been found guilty of count nine, which involved the sale of five grams of crack cocaine at JJ’s Bar, the aggregate amount of crack cocaine she was involved in selling was less than the ten grams required for a conviction under Minn. Stat. § 152.021, subd. 1(1), as charged in count one.

            The CI testified that on September 26, 2001, he talked to appellant by telephone about buying drugs.  Appellant would not discuss drugs with him on the telephone, but told him to go to the Super America gas station by her house and call her from there.  Appellant called the CI back when he was at the SA station and told him to go to JJ’s Bar, where Gilbert Jordan (appellant’s husband) and another man (Denolius James) would meet him.  The meeting occurred, and the CI exchanged money for drugs with Jordan and James in the parking lot at JJ’s Bar. 

            Appellant contends that she was merely telling the CI where to find her husband and that the evidence is insufficient to support the finding that she is guilty of aiding and abetting the sale of drugs at JJ’s Bar.  Based on the CI’s testimony, which was corroborated by officers who were monitoring him, we conclude that the evidence is sufficient to support appellant’s conviction of aiding and abetting this sale.

c.                  Count Two: Conspiracy to Commit Controlled-Substance Crime in the First Degree

 

            “To prove the crime of conspiracy, the state must show (1) an agreement between two or more people to commit a crime, and (2) an overt act in furtherance of the conspiracy.”  State v. DeShay, 645 N.W.2d 185, 190 (Minn. App. 2002) (quotation omitted), aff’d (669 N.W.2d 878 (Minn. 2003); Minn. Stat. § 609.175, subd. 2 (2000).  Appellant asserts that the prosecution failed to present evidence that she had an agreement with Jordan, James, or others to sell controlled substances.  Appellant argues that at most the evidence “may suggest that appellant had knowledge of Jordan’s dealings, or even assisted him in one transaction,” but the state presented no indicia of her knowledge and specific intent to participate in a conspiracy to sell drugs.  We disagree.

            “No formal agreement to commit the acts charged need be shown.  The existence of the combination or conspiracy may be inferred from other facts proved.”  State v. Kahner, 217 Minn. 574, 581, 15 N.W.2d 105, 109 (1944).  The record shows that the CI negotiated the August 21, 2001 sale of drugs with appellant, but Jordan did not find the deal acceptable and had appellant renegotiate the deal.  The state argues that Jordan’s involvement is circumstantial evidence that appellant and Jordan had an agreement to sell drugs.  On September 26, appellant directed the CI to meet with Jordan at JJ’s Bar to complete a drug sale.  The state argues that this is further evidence of the agreement between appellant and Jordan to sell drugs.  We conclude that the circumstantial evidence in the record is sufficient to support the district court’s finding that appellant had an agreement with Jordan or others to sell drugs.  The evidence of overt acts in furtherance of the conspiracy is overwhelming.

II.        Evidentiary rulings

            Evidentiary rulings are generally left to the sound discretion of the trial court.  State v. Horing, 535 N.W.2d 296, 298 (Minn. 1995).  A party claiming error has the burden of showing both the error and resulting prejudice.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).

            a.         Evidence from James’s motel room

            Prior to trial, appellant moved in limine to exclude evidence found in an October 3, 2001 search of a motel room rented by James, who was involved in the September 26, 2001 sale of drugs.  Appellant argued that James’s participation in the alleged conspiracy had ended as of September 26, so that evidence found in his motel room on October 3 was irrelevant to any issues involving appellant.  The district court denied the motion and admitted: (1) evidence that James made numerous cash payments for the room from August through October 2001; (2) digital scales and baggie corners; (3) a bus ticket from Detroit to Rochester, paid for in cash; (4) an empty box of baking soda; and (5) an ATM receipt for a deposit of $1,500. 

            Acts of a conspirator occurring after a conspiracy has ended are admissible against former co-conspirators only when they are relevant to show the previous existence of the conspiracy or the attainment of its illegal ends.  Lutwak v. United States, 344 U.S. 604, 617-18, 73 S. Ct. 481, 490 (1953); State v. Walker, 306 Minn. 105, 115-16, 235 N.W.2d 810, 817 (1975).  Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  Minn. R. Evid. 403. 

            The state argues that the conspiracy was ongoing and had not ended as of October 3, but admits that the evidence, which it asserts proved that James was a drug dealer and part of the conspiracy, was of little importance.  The district court made no reference to this evidence in its findings, and appellant has not explained how the admission of evidence was prejudicial.  Because this was a court trial, we conclude that if there was any error in admission of this evidence, the error was harmless.

b.         Evidence of appellant’s welfare filing

            Appellant argues that the district court abused its discretion by allowing Spreigl evidence from an Olmsted County fraud investigator that appellant failed to disclose at least $3,700 during the time that she and Jordan were receiving public assistance.  The state counters that the evidence was not presented as evidence of other bad acts under Spreigl,but was presented to show that appellant was personally depositing and withdrawing thousands of dollars every month at a time when she claimed to have less than $1,000 per month in income.  The state also argues that these transfers of money are circumstantial evidence that appellant had an agreement with Jordan to sell drugs and was deriving money from drug deals.  In addition, this evidence showed that Jordan was not sharing a home with appellant at the time drugs were found in appellant’s home.  We conclude that the district court did not abuse its discretion in admitting this evidence.

            c.         Other circumstantial evidence

            Appellant also challenges the admission of evidence recovered from the searches of her two residences consisting of eight cell phones, a police scanner, and caller-ID evidence showing a high number of calls from pay phones.  Officer Daryl Seidel testified about the use of cell phones and police scanners by drug traffickers and testified that it is not uncommon for drug dealers to receive calls from pay phones.  Appellant asserts that this evidence was improperly admitted as “profile” evidence, citing State v. Williams, 525 N.W.2d 538, 545-48 (Minn. 1994) (holding inadmissible testimony that defendant fit the profile of a drug courier), and State v. Litzau, 650 N.W.2d 177, 185 (Minn. 2002) (noting that testimony that drug dealers often purchase vehicles without transferring title, sometimes use a second older vehicle to transport drugs and often hide drugs in obscure places such as the air cleaner was drug-profile evidence, akin to character evidence “plainly inadmissible” under Williams).  But the evidence admitted in this case is distinguishable from the evidence in Williams, which invited the jury to infer that because a defendant’s conduct fit a “drug courier profile,” she must have known that her luggage contained crack cocaine.  525 N.W.2d at 548.  The evidence in Litzau is also distinguishable, because it similarly implied that because drug dealers were known to behave in a certain way, Litzau must have known drugs were hidden in the air cleaner of his car.  650 N.W.2d at 184.  In this case, Siedel’s testimony explained why certain evidence found in appellant’s possession was considered by the state to be circumstantial evidence of appellant’s involvement in drug sales.  Williams recognized that not “all testimony by police officers as to techniques employed by known drug dealers or couriers is always inadmissible at trial.”  Williams, 525 N.W.2d at 548.  We conclude that the evidence in this case was properly admitted as circumstantial evidence of appellant’s involvement with drug sales.  See State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987) (allowing testimony of officer that entries on a receipt were indicative of drug sales and names in a booklet were names of known drug dealers), review denied (Minn. Jan. 15, 1988). 

d.         Admission of Lionell Davis’s Guilty Plea

            Over appellant’s objection, the state was permitted to introduce portions of a guilty plea entered by Lionell Davis as past recollection recorded and portions of the complaint against Davis as an adoptive admission.  At the time of appellant’s trial, Davis could not remember selling drugs to the CI on September 27, 2001.  At the time of her plea of guilty to involvement in this transaction however, Davis acknowledged that she sold crack cocaine to the CI on at least six occasions and had no factual disputes about the information contained in the complaint against her.  The admitted portion of the complaint stated that an officer listened to the conversation between Davis and the CI during one transaction, and Davis indicated that she obtained the cocaine from appellant and that she only deals with appellant.

            Appellant argues that because Davis never claimed to have remembered the sale to the CI, the portion of the complaint admitted did not constitute an adoptive admission.  But because appellant did not object on these grounds at the time the evidence was offered, she has waived this argument on appeal.  Roby v. State, 463 N.W.2d 506, 508 (Minn. 1990) (stating that this court will generally not consider matters not addressed by district court and which are raised for first time on appeal).

III.       Sentencing

            Appellant argues that the district court erred by sentencing her both for the conspiracy conviction and for the aiding-and-abetting conviction because the offenses arose from the same course of conduct.  We disagree.

            Under Minn. Stat. § 609.035, subd. 1 (2000), to protect against exaggerating the criminality of a person’s conduct, “[t]he trial court may impose only one sentence if a person’s conduct constitutes more than one offense but is part of the same behavioral incident.”  State v. Heath, 685 N.W.2d 48, 61 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004), pet. for cert. filed, ___ U.S.L.W. ___ (U.S. Feb. 15, 2005) (No. 05-5082).  “If multiple sentencing is barred under the statute, even concurrent sentencing is barred.”  Id.

            The facts and circumstances of the particular case determine whether offenses arose out of the same behavioral incident.  Id. (citing State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995)).  Whether multiple offenses constitute a single behavioral incident is a fact question, reviewed under a clearly erroneous standard.  Id.  “Among the factors to be considered in determining whether two offenses arose out of a single behavioral incident are ‘the singleness of purpose of the defendant and the unity of time and of place of the behavior.’”  Bookwalter, 541 N.W.2d at 294 (quoting Minn. Stat. Ann. § 609.035, cmt. by Maynard E. Pirsig (West 1987)). 

            In Heath, we held that the record supported the district court’s determination that conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to sell were not a single behavioral incident.  Heath, 685 N.W.2d at 61.  We reasoned that the conspiracy occurred when there was an agreement to manufacture the drug and the conspirators committed the first overt act in furtherance of the agreement and preceded the second behavioral incident in which methamphetamine was in their possession, making the two offenses divisible.  Id.  Similarly, we conclude that the district court did not err in the case before us by concluding that appellant’s agreement with others to sell crack cocaine and acquisition by the conspirators of crack cocaine to sell preceded the actual acts of sale, making the conspiracy and sales separate crimes that do not have a unity of time and place.  Although the crimes may have arisen out of a single plan to make money, “the criminal plan of obtaining as much money as possible” does not constitute a single criminal objective.  State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997) (referencing prior cases holding that “the criminal plan of obtaining as much money as possible is too broad an objective to constitute a single criminal goal within the meaning of section 609.035”) (citation omitted).

IV.       Pro se arguments

            Appellant raises several arguments in her pro se brief, some of which duplicate issues addressed above and none of which merit reversal or a new trial.  Appellant argues ineffective assistance of counsel, but all of her arguments pertain to trial tactics, which do not support such a claim.  From our review of the record, we find no merit in appellant’s assertions of prosecutorial misconduct or judicial bias.

            Affirmed.