This opinion will be unpublished and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

A04-2301

 

State of Minnesota,
Respondent,

vs.

Tamara Nicole Frazee,
Appellant.

 

Filed March 28, 2006

Affirmed

Stoneburner, Judge

 

Carver County District Court

File No. CR03771

 

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

 

Michael A. Fahey, Carver County Attorney, Michael D. Wentzell, Assistant County Attorney, 604 East Fourth Street, Chaska, MN 55318 (for respondent)

 

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

 

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

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges her conviction of conspiracy to possess and sell controlled substances, arguing that the search-warrant application did not provide probable cause for a search warrant, the evidence was insufficient to support the conviction, and the district court abused its discretion in evidentiary rulings.[1]  We affirm.

FACTS

 

            Doug Schmidtke, a Carver County Sheriff’s Deputy and member of the Southwest Metro Drug Task Force, applied for a search warrant for appellant Tamara Nicole Frazee’s residence.  The application was based on information obtained from a cooperating arrested individual (CAI), who had observed appellant selling methamphetamine from her home in the past two weeks, and on information from a concerned citizen (CC), who had observed a quantity of methamphetamine at appellant’s home within the last 72 hours, had observed appellant packaging methamphetamine into small baggies in the past few weeks, and had observed appellant selling gram baggies of methamphetamine at that time.  The informants had provided accurate drug-related information to Schmidtke in the past, and they wished to remain anonymous due to safety concerns.  The application was also based on confirmation that appellant rented and lived at the address given by the CAI, and on Schmidtke’s observation of two or three people visiting in a short period of time during surveillance at appellant’s home.

Based on the application, a search warrant was issued.  At the time officers executed the warrant, they found appellant in her basement with Michael Donner, standing over a counter.  What officers later determined to be 32.6 grams of methamphetamine was on the counter next to appellant.  The methamphetamine was in eight plastic baggies, on a portable gram scale, and on a glass plate.  A box for the scale was in an upstairs hutch along with receipts and two other items that contained appellant’s name.  Officers found empty baggies throughout the area, along with numerous cylindrical plastic containers, two of which contained methamphetamine.  A book on the counter near appellant and Donner contained appellant’s name and telephone number along with the names and telephone numbers of people whom Schmidtke had investigated for drug crimes.  Next to these names were codes representing drug amounts and pricing.  Appellant had more than $970 in her pockets.  Donner had a scale, plastic baggies, four cigarette lighters, and $1,174 in his pockets.

            Appellant and Donner were arrested.  Appellant was charged with two counts of controlled-substance crime in the first degree, in violation of Minn. Stat. § 152.021, subd. 1(1) (sale), and subd. 2(1) (possession) (2002).  Before trial, the complaint was amended to make both counts conspiracy charges in violation of Minn. Stat. § 609.175, subd. 2 (2002). 

            Appellant challenged the issuance of the search warrant, and at an omnibus hearing, questioned Schmidtke about the relationship between the CAI and the CC.  The state objected on the ground that the answer might violate an earlier order protecting the identity of the informants.  The district court sustained the state’s objection and stated that even without information from the CC, the district court would find the warrant valid.  The district court subsequently denied appellant’s motion to suppress evidence and dismiss the charges, stating in its memorandum: “With respect to the sufficiency of the application for the search warrant, the Court is also convinced that in considering the totality of the circumstances, [the issuing judge] had a substantial basis for concluding that probable cause existed.”

            At a settlement conference held in the presence of the district court, the court informed appellant that it saw nothing in the file to justify a downward departure and cautioned that a conviction would likely result in the 86-month presumptive guideline sentence.  Appellant testified that she understood this, but refused the state’s offer to support a reduced sentence in exchange for a plea.

            At trial, witnesses for appellant testified about conversations in which Donner admitted the drugs were his.  Schmidtke testified that to identify a sale crime he considers the quantity of drugs found, the presence of large amounts of cash, any ledgers or notes, and the presence of packaging equipment such as small baggies or portable gram scales.  The court sustained an objection to a question asking Schmidtke’s opinion about what was occurring at appellant’s home, but allowed the state to ask Schmidtke what charges were brought against appellant.  The state also asked, without objection from appellant, whether Schmidtke recommended the charges, and Schmidtke testified that he did.

            Appellant moved twice for judgment of acquittal, arguing that the state failed to show that she owned or exercised control over the drugs, and that, because of the testimony that the drugs belonged to Donner, a reasonable person could not find appellant guilty.  The district court denied the motions, and the jury found appellant guilty of both counts.

            At sentencing, appellant argued that the court could consider a downward departure under the sentencing guidelines and that a departure was appropriate because Donner admitted that he brought the drugs to appellant’s home.  The state requested the presumptive guideline sentence.  The district court expressed its dislike of the sentencing guidelines but nonetheless imposed the presumptive sentence.  This appeal followed. 

D E C I S I O N

 

I.          Validity of search warrant

 

Appellant argues that the search-warrant application did not support issuance of a search warrant and therefore the evidence seized in the search should have been suppressed, and her convictions should be reversed.  When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Appellate review of a district court’s determination of probable cause to issue a search warrant is limited to ensuring that there was a substantial basis to conclude that probable cause existed.  State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999).  Substantial basis in this context means a “fair probability,” given the totality of the circumstances, “that contraband or evidence of a crime will be found in a particular place.”  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted).  When considering an application under the totality-of-the-circumstances standard, courts view all components of the application together to determine whether, as a whole, the application merits a finding of probable cause.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).  Appellate courts give great deference to the issuing court’s determination of probable cause.  Id.  On review, appellate courts resolve marginal cases in favor of issuance of the warrant.  State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).

Appellant asserts that the district court excluded the CC’s information from the affidavit in the warrant application and that, without this information, the affidavit was insufficient to support the warrant.  But the district court did not exclude the CC’s information from the affidavit, it only stated that it would find probable cause even without the CC’s information.  Because the CC’s information was not excluded by the district court, we need not determine if the affidavit was sufficient without the CC’s information, and appellant’s argument that the application was deficient is without merit.

II.        Sufficiency of evidence

Appellant argues that the district court erred by denying her motion for a judgment of acquittal because the state’s evidence was insufficient to establish an agreement between appellant and Donner.  In considering a claim of insufficient evidence, our 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).  A reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  “This is especially true when resolution of the case depends on conflicting testimony . . . .”  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court will not disturb the verdict “if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude” the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted). 

A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  “While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must “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.”  Jones, 516 N.W.2d at 549 (quotation omitted).  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

Appellant sought a judgment of acquittal on charges of conspiracy to commit a controlled substance crime in the first degree.  “After the evidence on either side is closed, the court . . . shall order the entry of a judgment of acquittal of one or more offenses charged in the . . . complaint if the evidence is insufficient to sustain a conviction of such offense or offenses.”  Minn. R. Crim. P. 26.03, subd. 17(1).  Under Minnesota law, “[a]ny person who conspires to commit any act prohibited by [chapter 152] . . . is guilty of a felony . . . .”  Minn. Stat. § 152.096, subd. 1 (2002).  A “[c]onspiracy requires a collective criminal agreement to commit a crime and an overt act in furtherance of the agreement.”  In re Welfare of D.W.O., 594 N.W.2d 207, 210 (Minn. App. 1999) (quotation omitted).  A formal agreement is not required for a conspiracy; the agreement may be inferred from “the evidence of the action taken in concert by the parties to it.”  Am. Tobacco Co. v. United States, 328 U.S. 781, 809, 66 S. Ct. 1125, 1139 (1946).  A person is guilty of controlled-substance crime in the first degree if on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of 10 grams or more containing methamphetamine.  Minn. Stat.             § 152.021, subd. 1(1) (2002).  A person is also guilty of controlled-substance crime in the first degree if the person unlawfully possesses one or more mixtures of a total weight of 25 grams or more containing methamphetamine.  Minn. Stat. § 152.021, subd. 2(1). 

On appeal, appellant concedes that there is “overwhelming evidence that [she] possessed and intended to sell methamphetamine.”[2]  But she argues that there is no evidence that she entered an agreement to sell or possess methamphetamine and that her convictions must therefore be reversed.  Appellant relies on State v. Hatfield, 639 N.W.2d 372 (Minn. 2002), in which the supreme court affirmed reversal of a conspiracy to manufacture methamphetamine conviction, emphasizing that the proper inquiry was “whether there was objective evidence that Hatfield agreed with another to produce methamphetamine.”  Id.at 377.  The supreme court concluded that evidence establishing only that Hatfield’s friend brought a tank and cooler to Hatfield at his request, and that Hatfield possessed drugs and drug paraphernalia, was insufficient to show an agreement and sustain the conspiracy conviction.  Id. at 378.

Appellant argues that her case is similar to Hatfield because, as in Hatfield, the alleged conspirators were merely present when the police arrived and each had drugs and money on his/her person.  Appellant argues that mere presence at the scene is insufficient to infer an agreement and that reasonable inferences other than guilt could be drawn.  But Hatfield is distinguishable from appellant’s case in many respects, including the fact that both appellant and Donner were aware that unpackaged methamphetamine, packaging materials, and packaged methamphetamine were on the counter before them; and there was evidence that appellant owned the scale being used to weigh the methamphetamine.  Additionally, the evidence showed that Donner was in appellant’s home for more than 30 minutes before officers executed the warrant, much more time than necessary for him to buy or sell methamphetamine; there was no evidence that Donner had been using methamphetamine during that time; and Donner’s possession of a drug scale and numerous baggies is inconsistent with mere use or possession of drugs.  We conclude that the evidence in this case forms “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.”  Jones, 516 N.W.2d at 549.

III.       Evidentiary issue

Appellant requests a new trial, arguing that the district court abused its discretion by allowing Schmidtke to testify as an expert witness that he recommended the charges that were brought against appellant and Donner.  Appellant raises this issue for the first time on appeal, and we review for plain error.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Under the plain error rule, a new trial may be granted if: (1) there is error; (2) that is plain; and (3) the error affects substantial rights.  Id.  “[A]ppellant bears a heavy burden of persuasion to show that the error was prejudicial and affected the outcome of the case.”  Bernhardt, 684 N.W.2d at 475 (quotation omitted).  “The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion.”  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation and citation omitted), cert. denied, 528 U.S. 1165 (2000). 

Appellant argues that although Schmidtke did not discuss conspiracy, his testimony could have confused the jury into believing a conspiracy existed.  The state argues that the purpose of the testimony was to counter appellant’s theory that she was an innocent bystander and that Donner was guilty.  Appellant acknowledges that this was her defense, but argues that Schmidtke’s testimony, combined with the presence of drugs in appellant’s house and on her scale, constitutes circumstantial evidence of a conspiracy to possess and sell drugs together.  Appellant cites State v. Chambers, 507 N.W.2d 237, 238 (Minn. 1993), State v. Provost, 490 N.W.2d 93, 101-02 (Minn. 1992), cert. denied, 507 U.S. 929 (1993), and State v. Saldana, 324 N.W.2d 227, 230-31 (Minn. 1982), for the proposition that an expert may not give an opinion on a mixed question of law and fact such as mens rea because it is the jury’s task to determine intent.  Consistent with this case law, the court sustained appellant’s objection when the state asked Schmidtke for his opinion on what was happening in the basement.  The court then limited Schmidtke’s testimony to whether he recommended charges.  Schmidtke testified to the fact that he recommended charges against appellant and Donner.  Although this testimony might not have been relevant, it was a statement of fact, not opinion testimony about a mixed question of law and fact.  Even if the district court erred by allowing Schmidtke to testify that he recommended the charges, appellant has not demonstrated any prejudice.  Given the amount and nature of the evidence discovered at appellant’s home, the jury could readily have concluded that an agreement existed even without this testimony.  We conclude that appellant’s claim is meritless.

Affirmed.