STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2505

State of Minnesota,

Respondent,

vs.

Gregory Graton,

Appellant.

Filed May 8, 2007

Affirmed

Ross, Judge

Aitkin County District Court

File No. K5-03-209

Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

James P. Ratz, Aitkin County Attorney, Aitkin County Courthouse, 217 Second Street Northwest, Aitkin, MN 56431 (for respondent)

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

Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

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

ROSS, Judge

Gregory Graton appeals his convictions for conspiring to manufacture and aiding and abetting the manufacture of methamphetamine in his home and a nearby trailer. Graton argues that the district court violated his Sixth Amendment right to confrontation by admitting testimonial statements of an alleged co-conspirator and that the court erred by imposing separate sentences for the two offenses. He also challenges the sufficiency of the evidence to support the convictions. Because we find that the district court’s admission of testimonial statements did not constitute plain error, that sufficient evidence supports the convictions, and that the conduct underlying the convictions was not part of a single behavioral incident, we affirm.

FACTS

The state charged Gregory Graton with three controlled-substance crimes after police discovered methamphetamine and materials to manufacture methamphetamine during a March 2003 search of Graton’s property. Four days before the search, police officers had accompanied Graton’s estranged wife to retrieve her personal property from the home. Graton generally cooperated, but he became nervous when a deputy asked whether any of his wife’s property might be in his “fishing room” inside the home. He adamantly refused to let the officers in the room. The next day a confidential reliable informant told the deputy that Graton was manufacturing methamphetamine in his home. Based on this information and the suspicions raised by the deputy’s earlier observations in the home, the deputy obtained a search warrant. Officers executing the warrant found chemicals associated with manufacturing methamphetamine in Graton’s fishing room. Officers found components of a methamphetamine lab in a camper trailer parked in the backyard of the home. Five jars containing unknown substances were in the trailer. Testing of one indicated that it contained 44.7 grams of methamphetamine. The state charged Graton with three first-degree controlled-substance crimes for conspiring to manufacture methamphetamine, aiding and abetting the manufacture of methamphetamine, and possessing methamphetamine.

Graton spoke to police and testified at trial about methamphetamine in or around his home. When questioned, Graton told a deputy that his wife’s friend, Rob Nelson,hadcooked methamphetamine in his home on three occasions. At trial, Graton testified that his wife used methamphetamine that Nelson made. Although Graton acknowledged using methamphetamine, he testified that he had little knowledge of what was happening in his home regarding it. On cross-examination, however, Graton again admitted that he knew Nelson had manufactured methamphetamine in his fishing room and in his trailer.

The jury found Graton guilty of the three charged offenses. The district court dismissed the possession conviction and sentenced Graton to 86 months’ imprisonment on each of the other offenses, to be served concurrently. Graton appeals, arguing that the district court violated his Sixth Amendment right to confrontation by allowing the deputy to testify to testimonial statements by Nelson and by erroneously imposing two sentences for conduct that arose out of a single behavioral incident. Graton also challenges the sufficiency of the evidence to support his convictions.

D E C I S I O N

We first address Graton’s challenge arising from his right to confront witnesses. The federal and state constitutions provide that, in a criminal prosecution, the defendant has the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI; Minn. Const. art. I, § 6. To protect this right, testimonial statements are inadmissible unless the declarant is unavailable to testify at trial and the defendant had an earlier opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004); State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006). The Supreme Court has stated that the term “testimonial” “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.

Graton challenges the district court’s admission of the deputy’s testimony about statements Nelson made to the deputy. Based on the information gained from the search of Graton’s property and the statements by Graton, the deputy obtained a search warrant for Nelson’s property, where he discovered methamphetamine. The deputy then questioned Nelson, who made the now-challenged statements. At Graton’s trial, the state asked the deputy whether Nelson said he knew Graton, how they met, and how often they saw one another. The deputy testified that Nelson said he was friends with Graton and they were “fishing buddies.” Because these statements were obtained during an interrogation and were not made to assist the police in an emergency, they are testimonial. See Davis v. Washington, 126 S. Ct. 2266, 2273-74, 2276 (2006) (clarifying that Court’s reference to interrogations in Crawford was to interrogations directed at establishing facts of past crime to identify perpetrator, but statements to police are nontestimonial when made to assist in ongoing emergency). The state does not contend that Nelson was unavailable for trial or that Graton had an earlier opportunity to cross-examine Nelson on the statements.

But Graton did not object to the testimony he now contests. When a defendant fails to object to the district court, we review the challenged testimony for plain error. State v. Martin, 695 N.W.2d 578, 582-83 (Minn. 2005). The appellant must show that an error occurred, that the error was plain, and that the error affected the defendant’s substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). Even if the appellant meets this burden, however, the court may correct the error “only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation omitted). Whether the admission of evidence violated a defendant’s Sixth Amendment rights is a question of law, which we review de novo. Caulfield, 722 N.W.2d at 308.

The state asserts that we need not apply a plain-error analysis because Graton waived his Sixth Amendment right to confrontation both by opening the door to the state’s questions and by later addressing Nelson’s statements in Graton’s testimony. A defendant may waive his right to confrontation either knowingly, intelligently, and voluntarily, or by his own wrongdoing. See Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970) (discussing waiver of constitutional rights); Caulfield, 722 N.W.2d at 311 (discussing wrongful conduct resulting in waiver of confrontation rights). The court may infer a waiver from a defendant’s conduct. State v. Lasnetski, 696 N.W.2d 387, 393-94 (Minn. App. 2005) (holding that even if witness’s testimony about defendant’s spouse included testimonial statements, defendant waived confrontation objection by later calling his spouse to testify and cross-examining her). We find that Graton neither opened the door to the challenged questioning nor waived his Sixth Amendment right by addressing the testimonial statements.

When a defendant opens the door, the state may introduce rebuttal evidence to explain, contradict, or refute the evidence that the defendant elicited. State v. Gutierrez, 667 N.W.2d 426, 435 (Minn. 2003). Rebuttal evidence may include otherwise inadmissible evidence. Id. On cross-examination, Graton’s counsel asked the deputy, “During your execution of the search warrant at [Nelson’s residence], did you have an opportunity to speak to [Nelson]?” When the deputy responded, “Yes,” Graton asked him, “Did Mr. Nelson ever say that he cooked at the Graton residence?” and “Did he ever tell you that he had Mr. Graton’s permission to do any cooking there?” The deputy answered each question in the negative. Without knowing the questions that the deputy asked Nelson, the deputy’s responses are somewhat ambiguous. It is unclear whether Nelson affirmatively denied making methamphetamine or having permission, or whether he never made any statement on these subjects. At most, the questions by Graton’s counsel may have opened the door to questions on Nelson’s use of methamphetamine or on any interaction between Graton and Nelson on Graton’s property, such as the frequency of Nelson’s visits, or whether Nelson saw Graton on the property. But during its redirect examination, the state elicited testimony about their relationship unrelated to methamphetamine manufacturing. Graton did not open the door to questions about the strength of Nelson and Graton’s friendship.

We also conclude that no waiver occurred by Graton’s testimony. Graton directly addressed Nelson’s statements when Graton testified. He testified that he knew Nelson only through his wife, that he had never seen Nelson outside of Nelson’s visits to his wife, and that he would not characterize Nelson as a friend. He stated that the deputy’s testimony of a friendship with Nelson was inaccurate. Graton’s decision to rebut the testimonial statements in his own testimony did not constitute a waiver. Although Graton responded to the damaging testimony, he had no opportunity to confront Nelson through cross-examination. This is unlike cases suggesting that a waiver resulted from the defendant’s later response to the statements, because in those cases the defendant had the opportunity to cross-examine the declarant. See Lasnetski, 696 N.W.2d at 394 (rejecting argument that defendant was forced to call witness to respond to allegedly testimonial statements).

Although we find that Graton did not waive his right to confrontation, the district court did not commit plain error that requires a new trial by allowing the deputy’s testimony. Graton asserts that Nelson’s statements were prejudicial because they established a relationship between Graton and Nelson. But the state’s trial strategy did not rest on the strength of the relationship between Nelson and Graton. The state instead focused mainly on the evidence discovered in Graton’s home and Graton’s own testimony. Conspiring and aiding and abetting convictions do not hinge on the depth of the relationship between the actors; they require, respectively, proof of a conspiracy and proof of aiding another to manufacture methamphetamine. See Minn. Stat. §§ 152.021, subd. 2a, .096, 609.05, subd. 1 (2002) (stating elements of conspiring to manufacture and aiding and abetting manufacture of methamphetamine). The deputy testified that finding in one location the many chemicals and materials discovered in Graton’s home and trailer would be highly unusual unless the home is a methamphetamine lab. Tests confirmed that at least 44 grams of methamphetamine were on Graton’s property.

Graton testified that he knew Nelson cooked methamphetamine and that he was aware of at least three times that Nelson had manufactured methamphetamine in either his fishing room or trailer. Graton admitted both that he had used methamphetamine on multiple occasions and that Nelson was the source of the methamphetamine he used. We also note that the challenged testimony regarding their relationship essentially consists of four statements: “[Nelson] gave a statement that he was friends with [Graton]”; “I think [Nelson] said something to the fact that he . . . goes fishing with [Graton] or something like that”; “I had documented that [Nelson] says that they were fishing buddies”; and “In my report I documented that it was quite frequently, but I don’t have a quantitative number. I don’t know how often they went fishing.” These statements comprise only about seven lines of transcript in a three-day trial with approximately 215 transcript pages of testimony. On balance, with the significant evidence of guilt, the four statements do not establish prejudice.

Graton also challenges the deputy’s testimony that Nelson implied that Graton’s wife was “emotionally unstable” and that Graton’s statements to the officer were inconsistent with Nelson’s statements. We reject Graton’s suggestion that Nelson’s opinion of Graton’s wife bears on Graton’s guilt or affected his trial theme that his wife and Nelson were the only conspirators. And the deputy’s testimony to Graton’s own statements is admissible as nonhearsay. See Minn. R. Evid. 801(d)(2)(A) (stating that party’s own statement offered against the party is not hearsay). Further, the deputy’s observation of the inconsistency between the statements of the two men could be readily inferred from other evidence. The jury heard audio tapes of Graton’s two police statements and it heard Graton’s testimony. Graton was consistently inconsistent with Nelson, and Graton has not challenged the admissibility of the audio tapes.

Because the state based its case primarily on Graton’s admitted association with Nelson and knowledge that Nelson manufactured methamphetamine on his property on multiple occasions, and not on the strength of his personal relationship with Nelson, and because the evidence of Graton’s guilt was weighty, a new trial is not required. See Caulfield, 722 N.W.2d at 317 (requiring new trial when state relied mainly on erroneously admitted testimonial evidence); State v. Bradford, 618 N.W.2d 782, 794 (Minn. 2000) (holding erroneous admission of testimonial statements harmless when statements were “insignificant and cumulative compared to the weight of the other evidence of [the defendant’s] guilt”).

In a pro se supplemental brief, Graton challenges the sufficiency of the evidence to support the jury verdicts. When reviewing a claim of insufficient evidence, we carefully review the record to determine whether the evidence, viewed in the light most favorable to the jury verdict, is sufficient to support the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume that the jury believed evidence supporting the verdict and disbelieved contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Graton asks the court to review the credibility of his now ex-wife. But she did not testify at trial and the documents to which he refers are not part of the record. See Minn. R. Crim. P. 28.02, subd. 8 (defining record on appeal as papers filed with district court, offered exhibits, and transcripts of proceedings). The record provides sufficient evidence to support the jury’s verdicts. Police found ample evidence of a methamphetamine laboratory on Graton’s property, Graton admitted that he knew Nelson had been making methamphetamine on his property, and he admitted that he had used methamphetamine made by Nelson. The jury had an opportunity to evaluate Graton’s credibility, and we will not second-guess the jury’s credibility determination on appeal. See State v. Colbert, 716 N.W.2d 647, 653 (Minn. 2006) (stating that determinations of witness credibility and amount of weight to give witness’s testimony are exclusive province of jury).

III

Graton contends that the district court erred by imposing separate sentences on each count because the conduct underlying his convictions for conspiring to manufacture and aiding and abetting the manufacture of methamphetamine occurred in a single behavioral incident. A defendant may not receive multiple sentences when convicted of multiple offenses committed as part of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (2004); State v. Norregaard, 384 N.W.2d 449, 449-50 (Minn. 1986). This principle “protect[s] people convicted of multiple offenses from having the criminality of their conduct exaggerated.” State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). Conduct constitutes a single behavioral incident when the conduct “was motivated by an effort to obtain a single criminal objective.” State v. Eaton, 292 N.W.2d 260, 266 (Minn. 1980). The court should also consider the time and place of the offenses. State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). Appellate courts will not reevaluate a sentence unless the district court abused its discretion or the sentence is not authorized by law. Fritz v. State, 284 N.W.2d 377, 386 (Minn. 1979). Misapplying the law is an abuse of discretion. State v. Babcock, 685 N.W.2d 36, 40 (Minn. App. 2004), review denied (Oct. 19, 2004).

A conspiracy requires an agreement to commit a crime and an overt act in furtherance of the conspiracy by one of the parties to the agreement. State v. Pinkerton, 628 N.W.2d 159, 162-63 (Minn. App. 2001), review denied (Minn. July 24, 2001). Aiding and abetting requires proof that the defendant had a knowing role in the commission of a crime and took no steps to thwart completion of the crime. State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995). The district court appropriately sentenced Graton separately on each count.

Graton contends that the date of the offenses was the same, March 11, 2003, the date officers executed the search warrant. But the state has never contended that all of the offenses occurred on March 11. The complaint states that the offenses occurred “[o]n or about March 11.” The supreme court has recognized that “it is not always possible to know with certainty when an offense or offenses occurred.” State v. Waukazo, 269 N.W.2d 373, 375 (Minn. 1978). Although a complaint must state the essential facts that constitute the charged offense, the complaint need not allege a specific date unless the particular day is a material element of the offense. Minn. Stat. § 628.15 (2002); Minn. R. Crim. P. 2.01. Two days before the state filed the charges, Graton admitted to police that Nelson manufactured methamphetamine on his property on separate occasions and in separate locations in the weeks before the search. Conspiracy to commit a controlled-substance crime was complete when Graton agreed to commit the crime and chemicals to manufacture methamphetamine were purchased, as evidenced by receipts that the state submitted. See State v. Heath, 685 N.W.2d 48, 61 (Minn. App. 2004) (finding that conspiracy to manufacture controlled substance was complete before defendants manufactured methamphetamine and upholding separate sentences for the offenses). And Graton’s voluntarily allowing the use of his property to manufacture drugs and evidence of his use of those drugs support the aiding and abetting conviction. The evidence supports the imposition of separate sentences.

Graton also highlights that the goal of each act was the same: making methamphetamine. But a general, continuing goal of manufacturing more methamphetamine is too broad to constitute a single behavioral incident. See State v. Soto, 562 N.W.2d 299, 303 (Minn. 1997) (rejecting argument that multiple sales of controlled substance were part of single course of conduct); Eaton, 292 N.W.2d at 266-67 (holding that claimed plan to swindle as much as possible was too broad to be single criminal goal within meaning of section 609.035). The district court did not abuse its discretion by sentencing Graton separately for each count.

Affirmed.