STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2447

State of Minnesota,
Respondent,

vs.

Esef Beganovic,
Appellant.

Filed December 27, 2005

Affirmed

Minge, Judge

Clay County District Court

File No. K7-04-751

Mike Hatch, Attorney General, Thomas R. Ragatz and Ann E. Cohen, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Lisa Borgen, Clay County Attorney, Courthouse, 807 North 11th Street, Moorhead, MN 56560 (for respondent)

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

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

MINGE, Judge

Appellant Esef Beganovic challenges his conviction for conspiracy to commit first-degree controlled substance crime on the grounds that the evidence is not sufficient and that the district court abused its discretion in refusing to reinstruct the jury on the burden of proof. We affirm.

D E C I S I O N

The first issue is whether the evidence introduced at trial was sufficient to convict appellant. In considering a claim of insufficient evidence, “our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The verdict should not be disturbed if the jury, duly regarding the requirement of proof beyond a reasonable doubt and the presumption of innocence, could reasonably conclude that appellant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

The elements of conspiracy to commit a controlled substance crime are “(1) an agreement between two or more people to commit a crime and (2) an overt act in furtherance of the conspiracy.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). A conspiracy conviction does not require proof of a formal agreement to commit a crime. State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). Also, “a subjective meeting of the minds” is not necessary, but there must be “evidence that objectively indicates an agreement.” Id. “Conspiracy need not be established by direct evidence, but may be inferred from the circumstances.” State v. Watson, 433 N.W.2d 110, 114-15 (Minn. App. 1988), review denied (Minn. Feb. 10, 1989). “Although an agreement may be inferred, mere association with a person engaged in illegal activity does not make a person a conspirator.” State v. Pinkerton, 628 N.W.2d 159, 164 (Minn. App. 2001), review denied (Minn. July 24, 2001).

Here, confidential informant Jimmy Calloway arranged to buy methamphetamines (“meth”) from appellant’s cousin, Namik Beganovic. Appellant accompanied Namik to the agreed-upon meeting place in Moorhead. Appellant did not speak during this first meeting. Namik told Calloway that he did not have enough meth to fill Calloway’s request, but that Namik could drive to Fargo to get more. Namik, with appellant as a passenger, drove to Fargo. When they returned to the meeting place, appellant was driving. Appellant and Namik got into Calloway’s car, with appellant in the back seat and Namik in the passenger seat.

Appellant, Namik and Calloway completed the transaction. At times, Namik and appellant spoke in a foreign language, which Calloway assumed was Bosnian, and at other times the conversation was inaudible. At trial, a police detective testified that there was no translation of the portions of the tape-recording where appellant and Namik spoke in a foreign language. Calloway testified that Namik looked to appellant for a “head nod” before approving the price for the meth. Calloway also testified that “[w]ithout a doubt” appellant helped barter for the price.

Appellant made several comments in English. Calloway suggested a price and appellant said, “[Inaudible] grams you know.” Namik offered to get more meth for Calloway, and appellant interjected, “Half pound.” Calloway indicated that he hoped the meth was good quality, and appellant responded, “Yah, yah, it’s bad.” Appellant commented further on the quality of the meth: “[Inaudible] tried the first time nobody was complain.” Finally, Namik asked Calloway to give them back some of the meth, and appellant added, “[inaudible] it’s like we just make like five hundred dollars. You know enough [inaudible]. [inaudible] you know. Do a favor you can do all sorts of [inaudible]. [inaudible].”

Appellant testified at trial that he thought he and Namik were meeting Calloway to buy drugs for their own use. Appellant testified that once he realized what was going on, he told Namik that he wanted to leave and that what Namik was doing was wrong, but he did not get out of the car because he was scared.

Although the full conversation was not translated, there is sufficient evidence to support appellant’s conviction.[1] Appellant’s taped statements in English are consistent with the theory that he and Namik agreed to sell drugs to Calloway. They show that he participated in the discussion of the price and responded to a question about the quality of the drugs. Although appellant’s testimony at trial attempts to negate an intention to sell drugs, the jury apparently did not believe appellant’s testimony. “[T]he jury is in the best position to evaluate the witnesses’ credibility . . . .” State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001). Viewed in the light most favorable to the conviction, the evidence is sufficient to sustain the jury’s verdict.

Appellant argues that the evidence is insufficient under Hatfield, 639 N.W.2d at 376-77. In that case, the appellant delivered a tank of materials used to make drugs to another party, the appellant and the dealing party were “involved,” and police found drugs and drug paraphernalia on appellant. Id. Because “there was no evidence of a common plan, concerted conduct, or prior involvement with the alleged co-conspirator,” his conviction was reversed. Id. Hatfield is fact specific and distinguishable. Hatfield is distinguishable because here appellant actively participated in the sale of the drugs by being present during the transactions, making various statements during the negotiations, and driving Namik to the second meeting.

Appellant also argues that the evidence supports a theory that he accompanied Namik for the purpose of buying drugs for personal use, not selling drugs. Appellant identifies facts supporting this theory, including that appellant and his friends rented a hotel room and used drugs in the room the night before the sale and that appellant thought he was going out to buy drugs to bring back to the room. But appellant does not explain how his participation in conversations with Calloway is consistent with this theory, so this theory is not sufficiently supported by the evidence.

II.

The second issue is whether the district court erred by not reinstructing the jury on the burden of proof. The jury deliberated for a short period of time, and then submitted the following question: “What was the reason for not getting the foreign language conversation in the C.I.’s car translated to English?” The district court indicated that it would respond by advising the jury to rely on their own recollections of the evidence. Appellant objected and requested the court to reinstruct the jury on the burden of proof. Appellant argued that the question showed that the jury was improperly shifting the responsibility of translating the tape to him. The court denied appellant’s request and returned the following instruction to the jury in writing: “You must rely on the evidence presented and the instructions you’ve been given.”

The district court “has the discretion to decide whether to give additional instructions in response to a jury’s question on any point of law.” State v. Harwell, 515 N.W.2d 105, 108 (Minn. App. 1994), review denied (Minn. June 15, 1994). Minn. R. Crim. P. 26.03, subd. 19, addresses this situation as follows:

(3) Additional Instructions After Jury Retires.

1. If the jury, after retiring for deliberation, desires to be informed on any point of law, the jurors, after notice to the prosecutor and defense counsel, shall be conducted to the courtroom. The court shall give appropriate additional instructions in response to the jury’s request unless: (a) the jury may be adequately informed by directing their attention to some portion of the original instructions; (b) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or (c) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.

2. The court need not give additional instructions beyond those specifically requested by the jury, but in its discretion the court may also give or repeat other instructions to avoid giving undue prominence to the requested instructions.

3. The court after notice to the prosecutor and defense counsel may recall the jury after it has retired and give any additional instructions as the court deems appropriate.

The Minnesota Supreme Court applied rule 26.03, subd. 19(3), in State v. Murphy, 380 N.W.2d 766, 772-73 (Minn. 1986). During deliberations in that case, the jury asked for the definition of a term in the statute defining the crime, and the district court defined the term. Id. at 772. The supreme court noted that the district court had the discretion to give additional instructions, and could “amplify previous instructions, reread previous instructions, or give no response at all.” Id. The court held that the district court’s instruction was not an abuse of discretion, reasoning that “it is preferable that the court deliver a complete and concise original charge, but if a jury is confused, additional instructions clarifying those previously given may be appropriate . . . .” Id.

Here, the jury asked the court a factual question: Why wasn’t the tape translated? This does not appear to be a question about a point of law, requiring a response under subdivision 19(3)1. The jury’s request fits under the exceptions noted in subdivision 19(3)1(b) and (c) for requests that ask the judge to express an opinion on factual matters and, to the extent that the question was not fully answered in the trial, requests which seek information about matters that are not in evidence. Thus, the district court’s instructions do not violate subdivision 19(3). Cf. State v. Daby, 293 Minn. 179, 181, 197 N.W.2d 670, 672 (1972) (noting that the district court’s refusal to answer the jury’s question of “[w]as there an indication of semen in the smears taken from (the victim) . . . ?” could “easily be justified” because it “merely asked the judge to recall and repeat his recollection of the testimony”).

Appellant also claims that the district court abused its discretion in not giving an instruction that he requested. Subdivision 19(3)2 discusses the giving of supplemental instructions not specifically requested by the jury.

This court applied rule 26.03, subd. 19(3), to an appellant’s request for instructions on the burden of proof in State v. McBroom, 394 N.W.2d 806, 811 (Minn. App. 1986), review denied (Minn. Jan. 16, 1987). In McBroom, the jury began deliberating and then submitted several questions to the court, including, “What is the definition of reasonable effort.” Id. The court responded, “That is a fact question for the jury to determine.” Id. The appellant requested an additional instruction that the burden of proving the lack of reasonable effort belonged to the state, but the court denied appellant’s request. Id. This court upheld the district court’s decision, noting that rule 26.03 leaves the decision to give additional instructions to the discretion of the district court and that the jury’s question was not about the burden of proof. Id.

The facts of this case are analogous to those in McBroom. Appellant requested an instruction to make sure the jury knew that the state had the burden of proof, but the jury’s question did not directly relate to the burden of proof. Appellant argues that the jury’s question indicates the jury was shifting the burden of proof to the defense, but this argument calls for an interpretation of the import of the question. It is not clear that the jury wanted blame assigned to someone for not translating the tape. The translation of the tape is not itself an element of the crime. The link between this question and the jury’s possible misunderstanding of the burden of proving the crime itself is tenuous. We cannot conclude that the question required the district court to repeat the burden of proof instruction or that failure to reinstruct on the burden of proof was an abuse of discretion.

Appellant accurately notes that diluting or obscuring the state’s burden of proof is error. See State v. Peterson, 673 N.W.2d 482, 487 (Minn. 2004). But he does not show how refusing to repeat the burden of proof instruction in response to the question asked dilutes or obscures this standard. Appellant concedes that “[t]he district court’s initial instruction was proper and did not dilute the state’s burden of proof or shift it to the defense.” The district court responded to the jury’s question by referring it to the instructions already given. This response was within the district court’s discretion.

Appellant also cites a case where this court upheld a district court’s decision to discuss the reasonable doubt standard in response to jury questions. See State v. Brown, 368 N.W.2d 12, 13 (Minn. App. 1985), review denied (Minn. July 11, 1985). Brown did not hold that failing to repeat the burden of proof instruction was an abuse of discretion, but rather held that it was not abuse of discretion to repeat the instruction.

The district court did not abuse its discretion by not reinstructing the jury on the burden of proof.

Affirmed.

[1] We do not reach the issue of whether the state has an obligation to translate a conversation because in this case the evidence is sufficient to convict even without the untranslated portions of the recording.