Filed August 5, 2005

Affirmed

Toussaint, Chief Judge

Hennepin County District Court

File No. 04006269

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

Amy Klobuchar, Hennepin County Attorney, Jean Elizabeth Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Melissa Victoria Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve #320, Eagan, MN 55121; and

Lawrence Hammerling, Deputy 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

TOUSSAINT, Chief Judge

On appeal from his conviction of and sentence for controlled substance offenses, appellant argues that the trial court (1) abused its discretion in denying his motion to disclose the identity of the informant and in admitting evidence of a gun found in his home and expert testimony that the gun was evidence of the intent to sell cocaine; and (2) erred in imposing separate sentences for his possession of crack and powder cocaine. Because the trial court did not abuse its discretion and did not err, we affirm.

D E C I S I O N

Confidential Reliable Informant

Appellant John Wesley Buchanan, IV argues that the trial court abused its discretion by denying his motion for disclosure of the identity of the confidential reliable informant (CRI).

Disclosure of an informant’s identity rests within the trial court’s discretion. State v. Martinez, 270 N.W.2d 121, 122 (Minn. 1978). There is a presumption of validity with respect to the affidavit supporting a search warrant. Franks v. Delaware, 438 U.S.154, 171, 98 S. Ct. 2674, 2684 (1978). But, a defendant may challenge the validity of a facially sufficient search warrant and obtain the identity of a CRI on a prima facie showing that the affidavit relied upon to issue the search warrant contained material false statements. State v. Luciow, 308 Minn. 6, 13-14, 240 N.W.2d 833 (1976). Disclosure of the identity of a CRI may be warranted based on an analysis of the following factors: “whether the informant was a material witness; whether the informer’s testimony will be material to the issue of guilt; whether the state’s evidence is suspect; and whether the informant’s testimony might disclose entrapment.” State v. Ford, 322 N.W.2d 611, 614 (Minn. 1982). The defendant bears the burden of establishing that the informant’s testimony is necessary. Id. The identity of a mere tipster, who conveys information and is not an active participant in or witness to the offense, need not be disclosed. State v. Purdy, 278 Minn. 133, 145, 153 N.W.2d 254, 262 (1967).

Appellant first argues that because the CRI participated in and witnessed an offense that led to appellant’s prosecution, his/her testimony was essential to a fair trial. The record supports the trial court’s findings, however, that the CRI did not participate in the charged possession offenses. Although the CRI took part in a controlled drug buy, the drugs upon which the charges were based were not from the controlled drug buy. The drugs forming the basis of the charged offenses were seized when the warrant was executed, and the CRI did not take part in the execution of the warrant. Because the information supplied by the CRI was only used to obtain the search warrant, the CRI was not a witness and his/her testimony was immaterial to the issue of guilt as to those offenses. See State v. Marshall, 411 N.W.2d 276, 280 (Minn. App. 1987) (concluding trial court did not err in concluding defendant failed to show need for disclosure), review denied (Minn. Oct. 26, 1987).

Second, appellant argues that the officers relied on false information in obtaining the search warrant. On appeal, the only information alleged to be false within the officer’s affidavit is that the appellant’s apartment building and apartment had a buzzer security system. Appellant claims that the building had a buzzer system, but he had not opted to set it up or use it. He submitted two other affidavits stating that, on other occasions, his buzzer did not work. Although in the warrant affidavit, the officer referred to people entering appellant’s apartment building and getting “buzzed up,” the specific means by which people gained entry to appellant’s apartment is an insignificant fact that does not call all of the other facts into question. See State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (stating that misrepresentation must be material, and innocent or negligent misrepresentations will not invalidate warrant).

Third, appellant argues that the CRI was a crack-addicted prostitute. Appellant produced no corroborating evidence to support this allegation; it was mere speculation. The affiant stated that the CRI “had broad knowledge” of narcotics and drug trafficking. Furthermore, the record indicates that the officer tested the CRI’s reliability and confirmed the CRI’s information with his own surveillance. Therefore, even the establishment of the CRI as a crack addict or prostitute would not necessarily impact the informant’s credibility.

Appellant also argues that the trial court should have ordered an in camera review of the CRI to determine reliability. A defendant must make a “’minimal showing of a basis for inquiry’ that is ‘more than mere speculation’” to obtain an in camera review. State v. Smith, 448 N.W.2d 550, 556 (Minn. App. 1989) (noting that state’s interest in protecting informants in drug world is strong) (citation omitted), review denied (Minn. Dec. 29, 1989). Because appellant’s request is based on speculation and appellant’s erroneous claim that the CRI was the only witness, appellant has not satisfied the minimal showing.

Admission of Gun and Expert Testimony

Appellant argues that the trial court abused its discretion in admitting evidence that a gun was found in appellant’s home and expert testimony that the gun was evidence of possession with intent to sell cocaine. The court denied the pretrial motion to exclude the gun and testimony, but cautioned that references to the gun should be minimal. At trial, the court admitted the gun, which was found during the execution of the search warrant, and expert testimony that such a gun is “an indicator . . . of a [drug] distributor.”

The expert opined that the larger the quantity of drugs, the more likely that a firearm will be present for self-protection and protection of one’s investment. He inferred from the items seized execution of the warrant, including the large amount of cocaine, that appellant possessed the firearm for those reasons. But he clarified that, in this case, the firearm is not a necessary factor to show intent to sell due to all of the other items found.

“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) (citations omitted). Even if the trial court erred in admitting the evidence, the reviewing court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

Appellant argues that the gun did not make his possession of drugs with intent to sell any more or less probable. See Minn. R. Evid. 402. The gun, however, was found by the officers in appellant’s studio apartment in close proximity to the drugs, money, and safe. Surveillance had shown that the small apartment was the place of distribution. Intent to sell narcotics may be proved by circumstantial evidence, including expert testimony on the characteristic signs of drug dealing. See State v. White, 332 N.W.2d 910, 912 (Minn. 1983) (holding intent to sell or distribute is usually proved circumstantially). Therefore, the gun was relevant evidence.

Appellant argues that the expert testimony was inadmissible because there was no connection between the gun and the charged offenses. See Minn. R. Evid. 702. The presence of a handgun and ammunition on the premises where drugs were sold raises a reasonable inference that an armed possessor has something more in mind than personal use. State v. Love, 301 Minn. 484, 485, 221 N.W.2d 131, 132 (1974). Therefore, the trial court did not abuse its discretion in admitting the expert testimony because it was relevant and helpful to the jurors unfamiliar with indicia of drug sale operations.

Sentencing

Appellant argues that his possession of crack and powder cocaine at the same time was part of the same behavioral incident and no separate sentence could be imposed for the fifth-degree controlled substance offense under Minn. Stat. § 609.035, subd. 1 (2004).

“If a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses . . . .” Minn. Stat. § 609.035, subd. 1 (2004). The defendant may not be sentenced for two or more offenses that were committed as part of the same behavioral incident. State v. Norregaard, 384 N.W.2d 449, 449 (Minn. 1986). Whether multiple offenses arose out of the same behavioral incident depends on the facts of each case. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). The factors to be considered in determining if two offenses are part of a single behavioral incident are time, place, and whether the offenses were motivated by a single criminal objective. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). The trial court’s decision will not be reversed unless clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1989).

Appellant was sentenced concurrently for (1) first-degree possession with intent to sell 402.16 grams of powder cocaine and (2) fifth-degree possession of 2.43 grams of crack cocaine. The record reflects that the substances were distinct drugs. The powder was found in appellant’s safe; the crack was found on his person. The powder was found in a large quantity in close proximity to paraphernalia characteristic of drug sales; the small amount of crack was not found with other paraphernalia indicating the intent to sell.

Appellant argues that the motive for possession of the two types of drugs should be considered the same because the state did not specifically argue a different motive for possessing the crack. State v. Reese, 446 N.W.2d 173, 180 (Minn. App. 1989), review denied (Minn. Nov. 15, 1989) (possession of two different controlled substances at same time and place with no discernible criminal objective other than personal use constitutes one behavioral incident). Here, however, the record does not support the conclusion that appellant possessed the small amount of crack with the intent to sell it. Because the record indicates differences in criminal objective the trial court did not err in considering the two offenses as separate and distinct.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.