This opinion will be unpublished and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

A05-314

 

State of Minnesota,

Respondent,

 

vs.

 

Richard A. McFee,

Appellant.

 

Filed March 28, 2006

Affirmed

Shumaker, Judge

 

Ramsey County District Court

File No. K6-04-1095

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (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 Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

On appeal from a conviction of sale of marijuana, appellant contends that, because the police did not find the money he allegedly received in the sale on his person, the evidence was insufficient to support the conviction.  We affirm.

FACTS

In response to complaints about drug dealing at city bus stops, St. Paul police and Metro Transit police conducted a surveillance of a bus stop at Fifth and Minnesota Streets in downtown St. Paul.  A St. Paul officer watched the bus stop through binoculars from a skyway above the street and 35 yards away.  He maintained telephone contact with Metro Transit officers in the area.

The St. Paul officer testified that, at about 3:00 p.m., he saw appellant Richard McFee leaning against a fence next to the bus stop.  A man approached and spoke to McFee, who took two small bags of marijuana out of his pocket and showed them to the man.  The man gave McFee a $5 bill, and McFee then opened one of the bags and poured some of the marijuana into the man’s hand.  The officer had a clear and unobstructed view of the transaction and knew that McFee received a $5 bill because “[w]ith binoculars it was plain as day.”  He did not see what McFee did with the money.

The St. Paul officer notified the Metro Transit officers, who drove to the scene and arrested McFee.  McFee admitted that he had two bags of marijuana and the officers seized them.  The officers did not find the “buy” money.

Ultimately, a jury found McFee guilty of one count of controlled substance sale in the fifth degree.  McFee appealed.

D E C I S I O N

The charge of which McFee was convicted is the sale of a small amount of marijuana for remuneration.  Minn. Stat. § 152.025, subd. 1(1) (2002).  McFee concedes that he possessed a small amount of marijuana at the time of the incident in question and that he transferred approximately 0.4 grams, also a small amount, to another.  But he contends that he did not “sell” marijuana and that the evidence did not show that he received any remuneration for the marijuana he gave to another.  The transfer of a small amount of marijuana for no remuneration is a petty misdemeanor, Minn. Stat. § 152.027, subd. 4 (2002), whereas a “sale” for remuneration is a felony.  Minn. Stat. § 152.025, subds. 1(1), 3(a) (2002). 

When considering a claim that the evidence presented at trial was insufficient to support a criminal conviction, the reviewing court must assess the record to determine whether “a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).  The reviewing court views the evidence in a light most favorable to the conviction.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  But it is not the province of the appellate court to evaluate the credibility of witnesses who testified at trial.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  Rather, the jury determines the credibility of witnesses.  Moore, 438 N.W.2d at 108.  “As a general matter, judging the credibility of witnesses is the exclusive function of the jury.”  Dale, 535 N.W.2d at 623.  The appellate court must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  Moore, 438 N.W.2d at 108.  Furthermore, a conviction may be based on the testimony of a single credible eyewitness.  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).

The St. Paul police officer testified that he saw McFee transfer marijuana to another man in exchange for a $5 bill, and that he watched the arrest process.  The arresting officers did not find a $5 bill in McFee’s possession, and neither they nor the St. Paul officer saw McFee drop the bill.  Because no $5 bill was located, McFee contends that the evidence was insufficient to show that the transfer of marijuana involved remuneration.

However, the St. Paul police officer testified that, in his experience, it is not unusual for the police to fail to find money on the person of a suspected drug seller because the suspect often discards the money to avoid being in possession of incriminating evidence.

The circumstantial evidence of the absence of the $5 bill competes with the direct evidence of the St. Paul officer’s observation of the transfer of marijuana in exchange for that bill.  Conflicts in the evidence are for the jury to resolve.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The direct evidence of the exchange of drugs for money was sufficient to support the verdict if the jury believed it.  The jury obviously did so, and we do not find its conclusion unreasonable on this record.

Affirmed.