State of Minnesota, Respondent, vs. Raymond Michael Bodick, Appellant. A05-1123, Court of Appeals Unpublished, June 27, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ง 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1123

State of Minnesota,

Respondent,

vs.

Raymond Michael Bodick,

Appellant.

Filed June 27, 2006

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge

Aitkin County District Court

File No. T2-04-22423

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

Thomas Murtha, Aitkin County Attorney, 217 Second Street Northwest, Room 231, Aitkin, MN 56431 (for respondent)

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

Considered and decided by Kalitowski, Presiding Judge; Hudson, Judge; and Worke, Judge.

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

KALITOWSKI, Judge

Appellant Raymond Michael Bodick challenges his convictions and sentences for first-degree controlled substance crime, manufacture of methamphetamine, and conspiracy to manufacture methamphetamine. He contends that (1) the search warrant that authorized a search of the residence where he was staying was not supported by probable cause; (2) the evidence was insufficient to support his convictions; and (3) the district court erred by sentencing him for convictions that arose from the same behavioral incident. In a pro se supplemental brief, appellant also argues that the district court erred by failing to give a jury instruction on circumstantial evidence and that he received ineffective assistance from trial counsel. We affirm appellant’s convictions but reverse his sentences and remand for resentencing.

D E C I S I O N

Appellant argues that the search warrant that authorized a search of the residence where he was staying was not supported by probable cause. He asserts that the affidavit supporting the warrant improperly relied on information supplied by an informant without establishing the informant’s veracity and did not contain sufficient corroborating information. We disagree.

In determining whether a warrant is supported by probable cause, we do not review the district court’s decision de novo. State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). Rather, we give great deference to the issuing court’s probable-cause determination. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001); State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).

The United States and Minnesota Constitutions provide that a search warrant may not issue unless supported by probable cause. U.S. Const. amend. IV; Minn. Const. art. I, ง 10. The principal question when reviewing a determination of probable cause is “whether the issuing judge had a substantial basis for concluding that probable cause existed.” State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005) (quotation omitted). A “substantial basis” means there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). Because a determination of probable cause relies on the totality of the circumstances, “a collection of pieces of information that would not be substantial alone can combine to create sufficient probable cause.” State v. Jones, 678 N.W.2d 1, 11 (Minn. 2004). When examining the totality of the circumstances, the court looks only at the information presented in the affidavit supporting the application for the warrant. State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). Under the “totality of the circumstances” test,

[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates, 462 U.S. at 238, 103 S. Ct. at 2332. “[C]ourts must be careful not to review each component of the affidavit in isolation.” State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).

Here, on September 18, 2003, a deputy with the Aitkin County Sheriff’s Department met with a confidential first-time informant (CI) to discuss an ongoing clandestine methamphetamine lab operating at a house in the area. The CI had been in the house three to four times per week for several months and had seen methamphetamine produced there roughly 15 to 20 times. The CI described the house’s location and features, including the fact that the garage windows were painted black and the house’s windows were covered. The CI stated that the occupants of the house were Brad Kath, Kim Kath, and appellant, who went by the nickname “Moses.” According to the CI, each of them participated in producing and consuming methamphetamine and that production and sale of the drug was the primary source of income for each resident. The CI also explained, in considerable detail, the process by which appellant and his housemates produced methamphetamine.

Subsequently, the deputy applied for a warrant to search the house and its surrounding property. In his affidavit supporting the warrant application, the deputy relayed the information provided by the CI and stated that he had gone to the house to arrest appellant on a previous occasion. As a result of that arrest, the deputy could confirm that appellant stayed with the Kaths, that appellant’s nickname was “Moses,” that the garage windows were painted black, and that all the house’s windows were covered with blankets and sheets. The deputy also stated that Brad and Kim Kath both had prior and current charges against them for drug-related offenses. The district court judge signed the search warrant. The next day, officers searched the house and found numerous items and materials used to manufacture methamphetamine.

Appellant was charged with five counts of first-degree controlled substance crime. He moved to suppress the evidence obtained during the search of the house because the underlying search warrant was not supported by probable cause, but the district court denied his motion. The jury found appellant guilty of manufacturing methamphetamine, in violation of Minn. Stat. ง 152.021, subd. 2a (2002); conspiracy to manufacture methamphetamine, in violation of Minn. Stat. งง 152.021, subd. 2a(a), 152.096 (2002); and the lesser-included offense of possession of methamphetamine in the fifth degree, in violation of Minn. Stat. ง 152.025 (2002).

Appellant argues that the warrant did not establish probable cause because the deputy’s affidavit did not establish the informant’s veracity. Appellant correctly asserts that the CI was not a presumptively reliable citizen informant because the deputy did not specifically aver in his affidavit that the CI was not involved in criminal activity. State v. Siegfried, 274 N.W.2d 113, 115 (Minn. 1978). But the fact that an informant does not qualify as a citizen informant does not mean that the informant was of doubtful reliability. McCloskey, 453 N.W.2d at 703. Where the informant is not presumed reliable, a court should examine the informant’s tip in light of the totality of the circumstances, including other details surrounding the informant’s tip, corroboration of the informant’s tip, and other information in the affidavit. See id. at 703-04.

Here, the deputy independently corroborated the CI’s information relating to the location of the house, the identity of others living in the house, appellant’s nickname, and the black paint on the garage windows and the coverings over the house’s windows. Appellant contends that this corroborative information was not meaningful because the details were easily obtained. Easily corroborated facts are not, by themselves, sufficient to establish probable cause. Albrecht, 465 N.W.2d at 109. But corroboration of minor details can be considered when making a probable-cause assessment based on the totality of the circumstances. McCloskey, 453 N.W.2d at 704; see also State v. Kessler, 470 N.W.2d 536, 539-40 (Minn. App. 1991) (stating that while the information conveyed in the affidavit by the informant failed to establish probable cause on its own because of failure to establish reliability or past performance, the affiant corroborated the information by making a “flyover” of the premises).

In addition to the content of the CI’s tip and the deputy’s corroboration, the fact that the CI met with the deputy personally and provided a detailed description of the methamphetamine-manufacturing process also supports the district court’s probable-cause determination. An informant’s face-to-face meeting with an officer is significant when considering the informant’s credibility and the totality of the circumstances supporting a probable cause determination. See McCloskey, 453 N.W.2d at 704; see also State v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1973) (stating that an informant who does not remain anonymous is more likely to be telling the truth because she could be arrested for making false statements). And the detailed nature of an informant’s tip, when the information described was witnessed firsthand, is a relevant factor when analyzing the totality of the circumstances. Gates, 462 U.S. at 234, 103 S. Ct. at 2330. Considering the totality of the circumstances and the preference accorded to warrants in marginal cases, we conclude that the warrant was supported by probable cause.

II.

Appellant argues that the state’s evidence was insufficient to convict him of manufacturing methamphetamine and conspiracy to manufacture methamphetamine. We disagree.

In assessing a claim attacking the sufficiency of evidence, the evidence is viewed in the light most favorable to the verdict to determine whether the facts in the record and any other legitimate inferences would permit a jury to conclude that a defendant was guilty beyond a reasonable doubt. Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999). The reviewing court assumes the court believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

“When weighing the sufficiency of circumstantial evidence, [this court] give[s] 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. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). A conviction may stand where the circumstances 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.” State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (quotation omitted). The jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

1. Manufacture

Under Minnesota law, a person is guilty of a controlled substance crime in the first degree if the person manufactures any amount of methamphetamine. Minn. Stat. ง 152.021, subd. 2a (2002). “Manufacture” is defined to include “the production, cultivation, quality control, and standardization by mechanical, physical, chemical, or pharmaceutical means, packing, repacking, tableting, encapsulating, labeling, relabeling, filling, or by other process, of drugs.” Minn. Stat. ง 152.01, subd. 7 (2002).

Here, the deputy testified that when the officers searched the house where appellant was staying, they recovered every material necessary to manufacture methamphetamine. And photo exhibits supported the deputy’s claim. Officers recovered a propane cylinder holding anhydrous ammonia, a blender and coffee grinder that tested positive for ephedrine, toluene, acetone, isopropyl alcohol, muriatic acid, an empty aluminum foil box, lithium batteries, tubing, numerous canning jars, a heat-resistant gas plate that tested positive for methamphetamine, and a coffee filter that tested positive for methamphetamine. Additionally, the officers found appellant sleeping in his bedroom and discovered 142 pills hidden between his mattress and box spring. The pills tested positive for pseudoephedrine. They also found in appellant’s bedroom a packet of aluminum foil containing .1 grams of methamphetamine concealed underneath the drawer of his nightstand and the top of an isopropyl-alcohol bottle.

Appellant argues that the evidence was insufficient to support his conviction because the evidence failed to exclude the alternative theory that he was merely renting a room from the Kaths and was uninvolved with the methamphetamine operation. “[T]o succeed in a challenge to a verdict based on circumstantial evidence, a convicted person must point to evidence in the record that is consistent with a rational theory other than guilty.” State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995). Evidence submitted at trial indicated that appellant was not only renting a room from the Kaths, he was also friends with them. Further, a document handwritten by Brad Kath suggested that the person renting from him was involved in the methamphetamine operation. And appellant was found with the primary precursor ingredient, pseudoephedrine, and the completed methamphetamine product in his bedroom. Thus, the evidence did not support appellant’s alternative theory that he merely rented a room from the Kaths.

Viewing the evidence in a light most favorable to the verdict, we cannot conclude that no jury could determine that appellant was guilty of manufacturing methamphetamine. Therefore, the evidence produced at trial was sufficient to support his conviction for manufacture of methamphetamine.

2. Conspiracy

To convict a defendant of conspiracy to manufacture methamphetamine, the state must prove beyond a reasonable doubt that (1) the defendant entered into an agreement with another to manufacture methamphetamine; and (2) the defendant or another party to the conspiracy committed an overt act with the purpose of furthering the conspiracy. Minn. Stat. งง 609.175, subd. 2, 152.096, subd. 1, .021, subd. 2a (2002).

“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) (citation omitted), review denied (Minn. Feb. 10, 1989). Thus, a jury may infer from the evidence presented that a defendant acted with another to accomplish the agreed-upon criminal objective. Id. at 114. The agreement required for a conspiracy must be shown by evidence that objectively indicates an agreement. Hatfield, 639 N.W.2d at 376-77 (concluding that appellant’s possession of drug paraphernalia was insufficient to support his conviction for conspiracy to manufacture methamphetamine). Where the evidence permits an inference of concert of action to accomplish an unlawful result, as where several individuals commit separate acts that form parts of a connected whole, an inference of conspiracy is permissible. State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943).

Appellant argues that the evidence was insufficient to establish that he was guilty of conspiracy to manufacture methamphetamine. Specifically, he argues that the state failed to prove that appellant entered into an agreement to manufacture the drug.

Here, testimony and evidence established that all of the materials needed to manufacture methamphetamine were present at the home where appellant lived and that methamphetamine had been made there in the past because many items were covered with methamphetamine residue. Further, the deputy testified that groups of people commonly participate in methamphetamine manufacture because they believe that if each person is responsible for procuring some precursor ingredients, they will avoid the suspicions of law enforcement. Other evidence presented at trial established that (1) the first step of methamphetamine manufacture entails procuring ephedrine or pseudoephedrine, most commonly found in cold pills, and soaking it in a solvent such as isopropyl alcohol; (2) officers recovered 142 pills containing pseudoephedrine from the space between the mattress and box spring of appellant’s bed; (3) the pills had been removed from their blister pack and were stored in a sandwich bag; (4) officers also found the cap of an isopropyl alcohol container in appellant’s room; and (5) officers discovered other ingredients needed to complete the methamphetamine-manufacturing process in the Kath’s bedroom, in the home’s common areas, and on the property surrounding the house.

Appellant argues that the evidence is insufficient to demonstrate a conspiratorial agreement under the Minnesota Supreme Court’s decision in Hatfield, 639 N.W.2d at 376-78. In Hatfield, a party delivered to the appellant a cooler and propane tank, the appellant and the party were “involved,” and police found drugs and drug paraphernalia on appellant. Id. at 374. Because “there was no evidence of a common plan, concerted conduct, or prior involvement with the alleged co-conspirator” and the evidence was consistent with a rational hypothesis other than guilt, the appellant’s conspiracy conviction was reversed. Id. at 377-78.

Appellant’s reliance on Hatfield is misplaced because that case is fact-specific and distinguishable. Here, appellant was involved with his alleged co-conspirators; they were his friends and roommates. And the rational hypothesis that appellant simply delivered to a friend a product that he did not know would be used in methamphetamine production does not apply as easily here as it did in Hatfield. Under the state’s theory of the case, appellant was not the recipient of the precursor material, as the appellant was in Hatfield, but he was the deliverer. Moreover, the manner in which he stored the pills was inconsistent with personal use.

The fact that appellant had some of the precursor material hidden in his bed, while the Kaths had precursor material in their bedroom and most of the other ingredients were stored in the house’s common areas or outside, suggested a common scheme between appellant and the Kaths. Thus, a jury could reasonably infer that several individuals committed separate acts which formed parts of a connected whole. See Burns, 215 Minn. at 189, 9 N.W.2d at 522. Because the evidence permitted an inference of concert of action between appellant and his roommates to accomplish the unlawful manufacture of methamphetamine, the jury could have concluded that appellant was guilty of conspiring to manufacture methamphetamine. See id. Therefore, we cannot conclude that the evidence was insufficient to convict appellant of conspiracy to manufacture methamphetamine.

III.

Appellant argues that the district court erred by sentencing him for both his conviction of manufacturing methamphetamine and his conviction of conspiracy to manufacture methamphetamine because the convictions arose from the same behavioral incident. We agree.

Minnesota law provides that “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.” Minn. Stat. ง 609.035, subd. 1 (2002). A court may only sentence a defendant once for crimes resulting from a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000). “The primary purpose of section 609.035 is to protect a defendant convicted of multiple offenses from unfair exaggeration of the criminality of the conduct and to ensure that punishment is commensurate with culpability.” State v. Gould, 562 N.W.2d 518, 520 (Minn. 1997). Punishment “refers not to multiple convictions but multiple sentences and any multiple sentences, including concurrent sentences, are barred if section 609.035 applies.” State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980).

Whether multiple offenses arose out of a single behavior incident depends on the facts and circumstances of the particular case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). “Among the factors to be considered in determining whether two offenses arose out of a single behavioral incident are the singleness of purpose of the defendant and the unity of time and of place of the behavior.” State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (quotation omitted). “[T]he essential ingredient of any test is whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.” State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 525 (1966) (emphasis omitted). Protection against double punishment in Minn. Stat. ง 609.035 cannot be waived; appellant may raise this issue on appeal without having contested the issue at sentencing. State v. Mendoza, 297 N.W.2d 286, 288 (Minn. 1980); State v. White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (1974).

Here, appellant was convicted of both manufacture of methamphetamine and conspiracy to manufacture methamphetamine. The district court sentenced him to concurrent sentences of 134 months in prison.

Consideration of the relevant factors demonstrates that appellant’s convictions were based on a single behavioral incident. First, the conduct underlying both of appellant’s convictions occurred “[o]n or about September 23, 2003.” Second, the relevant conduct for both convictions occurred at the house in which appellant was renting a room. Third, the conspiracy and manufacture offenses were motivated by a single criminal objective, to produce methamphetamine. Thus, the record demonstrates that the conduct underlying appellant’s two convictions stemmed from activity on the same day, at the same place, and with a common criminal goal. Because we conclude that the district court erred by imposing separate sentences for the manufacture-of-methamphetamine and conspiracy-to-manufacture-methamphetamine convictions, we remand to the district court for resentencing.

IV.

Appellant argues in a supplemental pro se brief that the district court failed to adequately instruct the jury on circumstantial evidence and that he received ineffective assistance of counsel at trial. We disagree.

1. Jury instruction

Appellant argues that the district court should have instructed the jury that to convict based on circumstantial evidence, the evidence must exclude every reasonable hypothesis but guilt. District courts are allowed considerable latitude in selecting the language in jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).

Appellant did not object to the absence of the jury instruction at trial. Generally, when a defendant fails to object to instructions before they are given to the jury, the right to appeal is waived. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). But this court may grant relief when the defendant fails to object to an error that constitutes plain error affecting substantial rights or is one of fundamental law. Id. The supreme court has adopted a three-part test for plain-error review. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). This court may review an unobjected-to error if there is “(1) error; (2) that is plain; and (3) the error must affect substantial rights.” Id. (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997)).

Appellant does not analyze whether the district court’s failure to submit the instruction was plain error. Thus, we decline to consider whether the absence of the instruction constituted plain error. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating that issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997). We note, however, that Minnesota courts have held that instructions similar to that which appellant requests on appeal are not mandatory. See State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993) (holding that a similar instruction was not required and noting that the “rational hypothesis” language does not apply to jury instructions); State v. Beard, 574 N.W.2d 87, 92 (Minn. App. 1998) (“Detailed instructions on circumstantial evidence, such as the ‘reasonable hypothesis other than guilt’ language, although applied to appellate review of the sufficiency of the evidence, need not be given as part of the jury instructions.”), review denied (Minn. Apr. 14, 1998).

2. Ineffective assistance of counsel

Appellant contends that his trial counsel provided him ineffective assistance because counsel admitted appellant’s guilt during his closing argument without appellant’s consent.

Under the United States and Minnesota Constitutions, a defendant is entitled to receive effective assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. I ง 6; Gassler, 505 N.W.2d at 70. To prevail on a claim of ineffective assistance of counsel, the defendant must affirmatively prove “that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Generally, this court must indulge a strong presumption that counsel’s performance falls within “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

Appellant contends that during closing argument, his trial counsel admitted his guilt without appellant’s consent. This claim is not supported by the record. During closing argument, defense counsel stated:

[Appellant] did not manufacture anything. And, in fact, I think one of the last things that [deputy] confirmed is that the items that were found in [appellant’s] room, within his possession and control, again, assuming that they were within his possession or control, but they were certainly in his room, he couldn’t manufacture anything with that.

Although appellant interprets this statement as admitting that he was guilty of possession, it appears that counsel was challenging the manufacture charge by arguing that even if appellant had possession or control of the items in his room, he could not use those items alone to manufacture methamphetamine. Appellant’s claim that counsel admitted his guilt is further negated by the fact that counsel asserted during closing argument that reasonable doubt existed as to whether appellant had control over the methamphetamine found in his nightstand. Because appellant’s claim that his counsel admitted his guilt without his consent is not supported by the record, we conclude that appellant has not met his burden of proving that he received ineffective assistance of counsel at trial.

Affirmed in part, reversed in part, and remanded.