A04-2255

State of Minnesota,

Respondent,

vs.

Brenda Lou Datwyler,

Appellant.

Filed January 24, 2006

Affirmed

Worke, Judge

Redwood County District Court

File No. K2-03-565

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

Michelle A. Dietrich, Redwood County Attorney, Michael G. Moesenthin, Assistant County Attorney, Redwood County Courthouse, P. O. Box 130, 250 South Jefferson, Redwood Falls, MN 56283 (for respondent)

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Minge, Judge.

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

WORKE, Judge

In this appeal from a conviction for conspiracy to manufacture methamphetamine, appellant argues that the district court abused its discretion in admitting Spreigl evidence of appellant’s prior conviction for manufacturing methamphetamine, that the evidence was insufficient to prove a conspiracy, and that her sentence, based on a judicial finding of a custody-status point, violated her right to a jury trial under Blakely. We affirm.

FACTS

On September 4, 2003, appellant Brenda Lou Datwyler was shopping with a friend, B.S. At one store, appellant purchased two boxes of ephedrine, hydrogen peroxide, a whistle, and distilled water. B.S. purchased a tent light, three boxes of ephedrine, Icy Hot, batteries, and Imodium. At a second store, appellant purchased wick holders and B.S. purchased Iso-Heet, antihistabs, and acetone solvent. On September 5, 2003, appellant and B.S. went to a third store. Appellant purchased a hobby-knife set and a brass-torch set, and B.S. purchased a buffet range, acetone, a micro-torch kit, butane, WD-40, refinishing gloves, solvent gloves, and muriatic acid. Following each transaction, store employees contacted either the Drug Task Force or detectives with information that two female customers had purchased items known to be used in the manufacture of methamphetamine.

Upon viewing a surveillance video from the first store, a deputy identified the customers as appellant and B.S. The deputy then recalled a report he received of a noxious odor emitting from B.S.’s residence. Based on his belief that a methamphetamine lab was probably in operation, the deputy applied for a search warrant for B.S.’s residence. B.S. claimed that she purchased pseudoephedrine pills because of an allergy or sinus infection, but no boxes of pills, empty boxes or empty wrappers were found. The officers searched for every item detailed on appellant’s and B.S.’s receipts, but the only items found were dish soap and Icy Hot patches. In B.S.’s van the officers discovered a receipt dated September 6, 2003, from a fourth store; however, none of the items on that receipt, including several bottles of hydrogen peroxide, were found.

The officers then went to appellant’s residence. When told that she was suspected of cooking methamphetamine, appellant responded: “give me an hour and I’ll get rid of it, it will be gone. I’ll never do it again.” Appellant was arrested and a search of her home revealed numerous items necessary to manufacture methamphetamine. Officers found a methamphetamine lab in appellant’s basement and recovered many of the items detailed on appellant’s and B.S.’s receipts. Appellant claimed that she did not purchase any of the items found in her basement and that B.S. purchased the hotplate. Appellant explained that B.S. was getting “ripped off” by the people she was getting methamphetamine and appellant told her that “maybe [appellant] could do it better.” Appellant stated: “I got that stuff cuz [sic] I was gonna [sic] make it, do a thing I been told about in prison. I’s [sic] just tryin [sic] an experiment. . . . It didn’t work. To make crystals and it don’t [sic] work.” Appellant agreed that B.S. knew that the pills were purchased to make methamphetamine, but that B.S. did not know “how to do any of that” and was just a “user.” Appellant conceded that she did not want to say more about B.S. because she did not want to be a “rat.”

Appellant was charged with conspiracy to manufacture methamphetamine—first-degree controlled-substance crime, in violation of Minn. Stat. § 152.021, subd. 2a (2002). During trial, the state moved to introduce evidence of appellant’s 2000 conviction for methamphetamine manufacture to prove that appellant had knowledge of the manufacturing process. The district court determined that the evidence was relevant and material, and because the state’s case was weak on the intent to manufacture methamphetamine, and the 2000 conviction related specifically to knowledge of the process, it was admissible for that limited purpose. A limiting instruction was read to the jury before the evidence was offered and in final instructions that appellant was not to be convicted solely on the basis of the 2000 conviction. Appellant was found guilty and sentenced to the presumptive sentence of 122 months in prison. This appeal follows.

D E C I S I O N

Spreigl Evidence

Evidence of other crimes or misconduct is not admissible to show bad character. State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). It may be allowed, however, if offered for the limited purpose of showing “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b). This court will not reverse the district court’s admission of Spreigl evidence unless an abuse of discretion is clearly shown. State v. Spaeth,552 N.W.2d 187, 193 (Minn. 1996). A defendant who claims the district court erred in admitting evidence bears the burden of showing the error and any resulting prejudice. See State v. Steinbuch,514 N.W.2d 793, 799 (Minn. 1994).

A district court may admit Spreigl evidence if it finds that “(1) the evidence is clear and convincing that the defendant participated in the Spreigl incident, (2) the Spreigl evidence is relevant and material to the state’s case, and (3) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.” Pierson v. State,637 N.W.2d 571, 580 (Minn. 2002). Here, the district court admitted evidence of appellant’s 2000 conviction for manufacturing methamphetamine to show that appellant had knowledge of the manufacturing process. While appellant’s conviction provides clear and convincing proof that appellant committed the prior act, appellant argues that the two remaining prongs of the Spreigl-admissibility test have not been met.

Appellant argues that the evidence of her prior conviction was not relevant or material to show that she knew how to manufacture methamphetamine because she did not contest that fact. “To be ‘relevant and material,’ the other crime must be sufficiently similar to the charged crime in terms of time, place or modus operandi.” State v. Greenleaf,591 N.W.2d 488, 505 (Minn. 1999). The level of similarity need not be absolute, but the greater the similarity between the Spreigl incident and the crime charged, the greater the likelihood that the incident will be relevant. Id.During trial, a deputy was asked, “[h]ow do you know [appellant] knew how to manufacture methamphetamine?” The deputy testified: “In the year 2000 . . . an additional meth lab had been discovered, and [appellant] and [appellant’s then-husband] were convicted of that—manufacturing of methamphetamine at that time.” The evidence of appellant’s 2000 conviction was sufficiently similar to the charged crime to be relevant.

Even if evidence is relevant, it “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403. “In weighing the probative value against the prejudicial effect, the [district] court must consider the extent to which the Spreigl evidence is crucial to the state’s case.” State v. DeWald,464 N.W.2d 500, 504 (Minn. 1991). “Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state’s burden of proof, should the [district] court admit the Spreigl evidence.” State v. Berry,484 N.W.2d 14, 17 (Minn. 1992). The final determination of the strength of the state’s case should be made by the district court after the state has presented all of its non-Spreigl evidence. See DeWald,464 N.W.2d at 504.

Appellant argues that the state’s case was not weak on the issue of whether she had knowledge of how to manufacture methamphetamine. Appellant contends that the state’s case was weak on whether she and B.S. conspired to manufacture methamphetamine and the evidence had no connection to the conspiracy charge. However, the state’s case was weak as to the conspiracy, and the evidence did relate to that charge because the state needed the evidence to show that either appellant or B.S. knew what to do with the items they purchased. Without the admitted evidence, the state only showed that appellant and B.S. purchased items that can be used in the manufacture of methamphetamine. Further, the district court made a determination regarding the necessity of the evidence to the state’s case near the end of the state’s case-in-chief. The only witness that testified after the admission of the evidence of appellant’s prior conviction was a deputy who dismantled the lab found in appellant’s basement.

Finally, appellant argues that the evidence was prejudicial because it undermined the presumption of innocence. Appellant contends that the jury found her guilty because they believed she was a bad person worthy of punishment and that the district court compounded the prejudicial effect by failing to instruct the jury on the purpose of the evidence. However, to limit any prejudicial effect, the district court gave the jury a cautionary instruction regarding the limited purpose of the evidence prior to the introduction of the evidence and again in final instructions. The district court did not abuse its discretion in admitting evidence of appellant’s 2000 conviction.

Sufficiency of the Evidence

When considering a claim of insufficient evidence, this court’s review 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). Recognizing that the jury is in the best position to determine witness credibility, this court assumes that the jury believed testimony supporting the verdict and disbelieved evidence to the contrary. State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001). “This is especially true where resolution of the case depends on conflicting testimony, because weighing the credibility of witnesses is the exclusive function of the jury.” State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). This court “will not disturb the verdict if the jury, acting with due regard for the presumption of innocence” and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Appellant argues that the evidence was insufficient for the jury to find her guilty of conspiracy to manufacture methamphetamine because the evidence was circumstantial and the state failed to prove that appellant and B.S. had an agreement. A person is guilty of conspiracy when he or she “conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy[.]” Minn. Stat. § 609.175, subd. 2 (2002). Although a formal agreement is not required, the agreement to commit a crime must be shown by objective evidence. State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). However, a conspiracy need not be established by direct evidence, but can be inferred from the circumstances. Id. When weighing the sufficiency of circumstantial evidence, this court gives it as much weight as any other kind of evidence, as long as the circumstances are both consistent with the hypothesis that the defendant is guilty and inconsistent with any rational hypothesis except that of guilt. State v. Walen,563 N.W.2d 742, 750 (Minn. 1997). If “several persons commit separate acts which form parts of a connected whole, an inference of conspiracy—that there was concert in both planning and execution—is permissible.” State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 522 (1943).

Appellant contends that the evidence merely shows that B.S. provided her with items she requested and that all of the items had legitimate and reasonable household uses. Appellant argues that her case is similar to Hatfield. In Hatfield, the appellant challenged a conspiracy-to-manufacture-methamphetamine charge because the alleged co-conspirator merely complied with a request to pick up and deliver a cooler and a propane tank. Hatfield, 639 N.W.2d at 374. The Minnesota Supreme Court emphasized that the focus is whether there was “objective evidence that Hatfield agreed with another to produce methamphetamine.” Id. at 377. The court concluded that the courier’s mere knowledge of what was in the propane tank and the cooler did not “form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” Id.

Here, B.S. did more than serve as a courier with mere knowledge of what she was purchasing. Appellant stated that B.S. told her that she was getting the short end of the deal from the people who had been supplying her with methamphetamine. Appellant further stated that she did not purchase any of the items found in her basement and that B.S. knew that the pills were purchased to make methamphetamine. Further, B.S.’s receipts show that she purchased most of the necessary items. Despite B.S.’s testimony that she used many of the products in her art and that she needed the pseudoephedrine pills because of an allergy or sinus infection, none of these items were found in her home or vehicle; a search produced only two of the items the women purchased together. While B.S. testified that she merely purchased items for appellant because she loved her and that she never asked appellant to explain the manufacturing process, it was up to the jury to determine witness credibility, and the jury apparently did not find B.S.’s testimony to be credible. See Henderson, 620 N.W.2d at 705.

To support a conspiracy conviction, the evidence must objectively indicate that at least one person conspired with another to commit a crime and that one or more of those persons performed an overt act in furtherance of the agreement. See Minn. Stat. § 609.175, subd. 2. Viewing the evidence in a light most favorable to the conviction, the jury could have reasonably concluded that appellant and B.S. conspired to manufacture methamphetamine.

Sentence

Appellant was convicted of first-degree conspiracy to manufacture methamphetamine in violation of Minn. Stat. § 152.021 (2002). This is a severity-level-nine offense. Appellant had three criminal-history points—two felony points for a prior conviction and one custody-status point because the current offense was committed while appellant was on parole. The district court imposed the presumptive sentence of 122 months in prison. Appellant argues that her sentence must be reduced because the use of the custody-status point in the calculation of her presumptive sentence violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Appellant argues that the district court made a factual finding that appellant was on parole and that finding violated appellant’s right to have a jury determine every fact—other than a prior conviction—that is relevant to her sentence. Appellant did not raise this issue with the district court. Ordinarily, this court will not decide issues that are raised for the first time on appeal, even constitutional questions of criminal procedure. State v. Sorenson,441 N.W.2d 455, 457 (Minn. 1989). Regardless of appellant’s bar from raising this issue, the district court did not err in using a custody-status point in calculating appellant’s presumptive sentence. The Minnesota Supreme Court recently decided this issue in State v. Allen, 706 N.W.2d 40 (Minn. 2005). The supreme court determined that probationary status flows directly from the sentence for a prior conviction and the fact that the current offense is committed while the defendant is on probation for a prior offense is “so essentially analogous to, the fact of a prior conviction, that constitutional considerations do not require it to be determined by a jury.” Allen, 706 N.W.2d at 48. The supreme court held that assigning a custody-status point to calculate a criminal-history score does not violate the Sixth Amendment. Id. The district court here did not violate appellant’s Sixth Amendment right under Blakely by using a custody-status point to calculate her presumptive sentence.

Affirmed.