A04-1653

State of Minnesota,

Respondent,

vs.

Charlotte Dee Johnson, n/k/a

Charlotte Dee Myers,

Appellant.

Filed September 27, 2005

Affirmed in part and reversed in part

Willis, Judge

Otter Tail County District Court

File No. K9-03-774

Mike Hatch, Attorney General, Thomas R. Ragatz, Jennifer Dekarske, Assistant Attorneys General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and

David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, Otter Tail County Courthouse, 121 West Junius Avenue, Fergus Falls, MN 56537 (for respondent)

John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)

Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Forsberg, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

In this appeal from convictions of conspiracy to commit first-degree murder and attempt to commit first-degree murder, appellant argues that the evidence is insufficient to support her convictions, that the prosecution committed prejudicial error, and that the district court violated her Sixth Amendment rights by denying her request for a downward departure and imposing the presumptive guidelines sentence. We affirm in part and reverse in part.

FACTS

In February 2003, an informant told agents at the Minnesota Bureau of Criminal Apprehension that appellant Charlotte Dee Johnson, n/k/a Charlotte Dee Myers, (Myers) had offered the informant a Harley Davidson motorcycle if he would kill her former boyfriend, G.S. The informant agreed to call Myers to see if she was still interested in having G.S. killed. He subsequently told Myers that he had a friend interested in a Harley Davidson and “the same other things that [they] were interested in.” Myers told the informant that he should have his friend call her.

On March 3, 2003, Agent Todd Taylor, posing as the informant’s friend “Brian,” called Myers and mentioned that he was interested in a Harley. Myers indicated that she understood what Agent Taylor was talking about, and they agreed to meet to discuss the details. At a meeting two days later, Myers reaffirmed her interest in having Agent Taylor kill G.S., and she gave Agent Taylor directions and a map to G.S.’s house. She also gave Agent Taylor a photograph of G.S. so that Agent Taylor could identify him. They also discussed whether Myers would pay Agent Taylor with a motorcycle or with cash. Myers told Agent Taylor of her plan to have the murder look like a “bad dope deal.”

Agent Taylor called Myers several times in March and April 2003 to confirm that she was still interested in having G.S. killed and to work out the payment details. On April 22, 2003, Myers gave Agent Taylor the title and a key to a motorcycle as payment for the murder. One week later, Agent Taylor called Myers and told her that everything “went good.” Myers was arrested later that day and charged with conspiracy to commit first-degree murder. The state later amended the complaint, adding a charge of attempt to commit first-degree murder.

Myers testified at her jury trial. After the defense rested, the state recalled Myers in its rebuttal case. Myers’s attorney objected and requested a bench conference. The jury was dismissed, and the prosecutor explained that she wanted to conduct further cross-examination so that she could impeach Myers with testimony elicited from other defense witnesses who testified after Myers took the stand. But the prosecutor withdrew her request, and Myers did not take the stand on rebuttal.

The jury found Myers guilty of both charges. The district court denied Myers’s request for a downward durational departure and imposed the presumptive 220-month sentence for the conspiracy conviction. The district court did not impose an additional sentence for the attempt conviction because it determined that the attempt conviction stemmed “from essentially the same behavior conduct and is not subject to double punishment.” Myers challenges her convictions and her sentence on appeal.

D E C I S I O N

Myers argues that her convictions for conspiracy to commit first-degree murder and attempt to commit first-degree murder are unsupported by the record. When an appellant challenges the sufficiency of the evidence, our review is limited to a thorough analysis of the record to determine “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt.” Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted). We assume that the jury, which has the exclusive function of judging credibility, believed the evidence supporting the state’s case and disbelieved contrary evidence. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).

A. Conspiracy to commit first-degree murder

A conspiracy occurs when one “conspires with another to commit a crime” and requires proof that “in furtherance of the conspiracy one or more of the parties does some overt act.” Minn. Stat. § 609.175, subd. 2 (2002). The state need not prove that the alleged conspirators entered into a formal agreement to commit a crime. State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). Evidence of a subjective meeting of the minds is not required, but the agreement “must be shown by evidence that objectively indicates an agreement.” Id. And the agreement may be inferred from the circumstances. State v. Vereb, 643 N.W.2d 342, 348 (Minn. App. 2002) (citing Hatfield, 639 N.W.2d at 376). A defendant may be convicted of conspiracy even when “the person with whom the defendant conspired feigned agreement and at no time intended to go through with the plan.” State v. Bird, 285 N.W.2d 481, 482–83 (Minn. 1979) (citing State v. St. Christopher, 305 Minn. 226, 234–35, 232 N.W.2d 798, 803 (1975)). The “slightest action on the part of a conspirator” in furtherance of the conspiracy can satisfy the overt-act element of the crime. State v. Stewart, 643 N.W.2d 281, 297 (Minn. 2002).

Myers argues that the overt act in furtherance of the conspiracy must occur after the agreement to commit the crime and that she and Agent Taylor did not agree that Agent Taylor would kill G.S. until April 22, 2003, when she gave Agent Taylor title and a key to a motorcycle. Because there is no evidence of an overt act occurring after April 22, 2003, Myers argues that the state failed to prove that she committed an overt act in furtherance of the conspiracy.

The record shows that throughout the course of Myers and Agent Taylor’s discussions, Myers wanted Agent Taylor to kill G.S. and that Agent Taylor led her to believe that he would. The two discussed killing G.S. during their first telephone conversation on March 3, 2003. Throughout March and April 2003, Myers repeated her intentions to have Agent Taylor kill G.S. The record shows that, other than working out the amount and method of payment, Myers and Agent Taylor were in agreement that Agent Taylor would kill G.S. We conclude that their conversations objectively indicate that Myers and Agent Taylor agreed that Agent Taylor would kill G.S. for Myers and that Myers would pay Agent Taylor with either a motorcycle or $4,000 cash.

The evidence also shows that Myers committed an overt act in furtherance of the conspiracy. Myers provided Agent Taylor with directions, a map, and a picture so that he could kill G.S. She also gave Agent Taylor the title and a key to a motorcycle as payment for the murder. We conclude that Myers’s conduct constitutes an overt act in furtherance of the conspiracy to kill G.S.

Because the facts in the record and the legitimate inferences drawn from them would allow the jury to conclude beyond a reasonable doubt that Myers and Agent Taylor agreed that Agent Taylor would kill G.S. and that Myers committed an overt act in furtherance of the conspiracy, we conclude that the evidence is sufficient to support Myers’s conviction of conspiracy to commit first-degree murder.

B. Attempt to commit first-degree murder

A person is guilty of the crime of attempt if that person has intent to commit a crime and takes a substantial step toward the crime’s commission. Minn. Stat. § 609.17, subd. 1 (2002); State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980). The substantial step toward commission of the crime must entail something more than preparation. Minn. Stat. § 609.17, subd. 1.

Myers argues that because she only agreed that Agent Taylor should kill G.S., she committed no substantial step toward the commission of the murder. She argues that “[i]f there was no overt act after the agreement was reached between Ms. Myers and Agent Taylor, a fortiori there was no ‘substantial step toward, and more than preparation for the crime.’” But as explained above, there were overt acts in furtherance of the conspiracy: Myers’s tendering of the directions, the map, the photo of G.S., and the motorcycle title and key.

Myers also argues that there was no substantial step toward the crime’s commission because Agent Taylor did not and never intended to carry out G.S.’s murder. But the statute defining attempt precludes impossibility as a defense to attempt. Minn. Stat. § 609.17, subd. 2 (2002); State v. Saybolt, 461 N.W.2d 729, 734 (Minn. App. 1990) (noting that “under Minn. Stat. § 609.17, subd. 2, impossibility of success is no defense to an attempt”), review denied (Minn. Dec. 17, 1990). That Agent Taylor never intended to kill G.S. is not a defense to the attempt charge.

But solicitation of a crime is not enough to sustain a conviction for attempt. See State v. Lowrie, 237 Minn. 240, 242–43, 54 N.W.2d 265, 266 (1952). In Lowrie, the Minnesota Supreme Court noted that an attempt to commit a crime requires “something more than the mere solicitation of another to commit” the crime and “that mere acts of preparation remote from the time and place of the intended crime, unaccompanied by other overt acts performed pursuant to the attempt, are insufficient to constitute such an attempt.” Id. The court went on to note that “no definite rule applicable to all cases can be laid down as to what constitutes an overt act or acts tending to accomplish a particular crime . . . and that each case must depend largely upon its particular facts and the inferences which the jury may reasonably draw therefrom.” Id. at 243, 54 N.W.2d 266-67 (citation omitted).

Here, although Myers committed overt acts in furtherance of the conspiracy, those acts were preparation for and remote in time and place from the intended murder of G.S. When Myers provided Agent Taylor with the directions, the map, and the photograph of G.S., Agent Taylor indicated that “it won’t happen for a couple weeks.” At their final meeting when Myers gave Agent Taylor the title and a key to a motorcycle, Agent Taylor told Myers that it would be several days before he could kill G.S. and that he would call her the next week when it was done. This meeting took place in Sebeka, and Agent Taylor was to kill G.S. at G.S.’s home in Walnut Grove, more than 200 miles away. Because Myers’s acts were preparation for and remote in time and place from the intended murder of G.S., we conclude that she did not commit a substantial step toward the commission of the crime and that the evidence, therefore, does not support Myers’s conviction of attempt to commit first-degree murder. We reverse that conviction.

II.

Myers next argues that the prosecutor committed prejudicial error by re-calling her in its rebuttal case in violation of her Fifth Amendment privilege against self-incrimination. When considering a claim of prosecutorial misconduct, this court should “reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). There are two standards for prosecutorial misconduct: serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” and for less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. (quotations omitted). Constitutional error “will be found prejudicial if there is ‘a reasonable possibility’ that the error complained of might have contributed to the conviction.” State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986).

“[T]he fifth amendment protects only against compelled self-incrimination of a communicative or testimonial nature.” State v. Bebel, 383 N.W.2d 724, 726 (Minn. App. 1986), review denied (Minn. May 22, 1986); accord Schmerber v. California, 384 U.S. 757, 761, 86 S. Ct. 1826, 1830 (1966). Although the prosecutor recalled Myers, Myers never actually took the stand, nor was she compelled to testify or to incriminate herself. And as discussed above, the record contains substantial evidence supporting Myers’s conviction of conspiracy to commit first-degree murder. The verdict is “surely unattributable” to the recalling of Myers, and her right to a fair trial was not impaired. We therefore conclude that any misconduct on the part of the prosecutor was harmless beyond a reasonable doubt.

III.

Myers also argues that her sentence must be reversed because the Minnesota Sentencing Guidelines “may not be read as restricting a district court to the guideline range in the absence of a jury finding of facts necessary to make an upward or downward departure.” The district court denied Myers’s request for a downward durational departure and imposed the presumptive guidelines sentence. Myers argues that the guidelines are “unconstitutional on their face.” Myers raises a constitutional issue, which this court reviews de novo. State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

Myers bases her argument on United States v. Booker, in which the United States Supreme Court held that under Blakely v. Washington, the federal sentencing guidelines are unconstitutional. 125 S. Ct. 738, 756 (2005). The Supreme Court noted that “[i]f the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences . . . , their use would not implicate the Sixth Amendment.” Id. at 750. Accordingly, in the remedial portion of the opinion, the Supreme Court excised the language from the guidelines that made them mandatory, rendering the federal guidelines advisory. Id.at 756–57.

Myers argues that her sentence is unconstitutional because the “scheme under which the District Court operated made a sentence of the sort imposed by the trial court judge mandatory,” and therefore the sentence violates her Sixth Amendment rights under Booker. But the Minnesota Supreme Court, when considering Blakely’s effect on the Minnesota guidelines, held that only the provision of the guidelines that allows a district court to impose an upward durational departure on judicially found facts is unconstitutional under Blakely. State v. Shattuck, __ N.W.2d __, __, 2005 WL 1981659, at *9 (Minn. Aug. 18, 2005). The supreme court observed that “[t]o invalidate the Sentencing Guidelines system would . . . be contrary to the express sentencing policy of this state of maintaining uniformity, proportionality, and predictability in sentencing.” Shattuck, 2005 WL 1981659, at *12. It specifically rejected the Booker remedy of rendering the entire guidelines advisory, noting that “Booker was decided on purely federal law grounds [and] does not mandate a similar result here.” Shattuck, 2005 WL 1981659, at *13.

Moreover, the Supreme Court noted that the sentence of one of the defendants in Booker was “authorized by the jury’s verdict” and that the sentence, therefore, did not violate the Sixth Amendment under Blakely. Booker, 125 S. Ct. at 769. Here, the district court sentenced Myers to the presumptive sentence authorized by the jury verdict. We therefore conclude that the district court did not violate Myers’s Sixth Amendment rights by sentencing her to the presumptive guidelines sentence.

Affirmed in part and reversed in part.

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