A06-711

State of Minnesota,

Respondent,

vs.

Rodolfo Rodriguez,

Appellant.

Filed May 15, 2007

Affirmed

Worke, Judge

Hennepin County District Court

File No. 05045195

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

Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

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

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

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

WORKE, Judge

On appeal from a conviction of second-degree manslaughter, appellant argues that (1) his conduct did not constitute culpable negligence and did not cause the victim’s death; (2) his failure to refuse the victim heroin did not constitute a conscious disregard of a substantial risk; and (3) Minn. Stat. § 609.195(b) (2004) covers criminal liability for drug-overdose deaths, including the appropriate level of criminal liability, but does not include the mutual sharing of drugs. Because we conclude that the evidence was sufficient to support his conviction, we affirm.

D E C I S I O N

Appellant Rodolfo Rodriquez argues that the evidence was insufficient to sustain the second-degree manslaughter conviction. In 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 [fact-finder] to reach the verdict which [it] did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume the fact-finder 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 matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). We will not disturb the verdict if the fact-finder, 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. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

A person is guilty of second-degree manslaughter if that person “causes the death of another . . . (1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” Minn. Stat. § 609.205(1) (2004). Appellant argues that he did not cause the victim’s death because his acts did not constitute culpable negligence. In order to establish the objective element of negligence the state must prove “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” State v. Zupetz, 322 N.W.2d 730, 733 (Minn. 1982). In order to establish the subjective element of recklessness the state must establish “an actual conscious disregard of the risk created by the conduct.” State v. Frost, 342 N.W.2d 317, 320 (Minn. 1983).

The undisputed facts here show that the victim and appellant were smoking crack cocaine. Around midnight, the victim asked appellant for some heroin, which appellant had taken control of in order to “cook” it. Appellant initially refused the victim’s repeated requests because the victim was already quite high, and appellant was concerned that the victim would overdose. Appellant was also aware that the victim was inexperienced with heroin use. Eventually, however, appellant “cooked” a dose of heroin for the victim, and claimed to have “watered” it down. Immediately after injecting the heroin, the victim began exhibiting strange behaviors which appellant knew indicated that the victim had overdosed. The autopsy results showed that the victim died as a result of a lethal overdose of a combination of heroin and cocaine. The evidence shows that appellant consciously disregarded the risk created by giving the victim heroin. Also, despite his claimed precautions, appellant’s conduct constituted a gross deviation from the standard of care that a reasonable person would undertake in appellant’s situation. The evidence is sufficient to support the district court’s finding that appellant was culpably negligent and that such negligence was the direct cause of the victim’s death, which justifies a conviction for second-degree manslaughter.

Finally, appellant argues that because Minn. Stat. § 609.195(b) (2004) holds individuals who commercially distribute controlled substances liable for deaths, he should be absolved of responsibility.

Generally speaking, the same set of facts may constitute more than one offense if the statutes so provide. A defendant may then be charged under whichever law or statute [the prosecutor] sees fit, so long as the prosecutor does not discriminate against a particular class of defendants. But when two criminal statutes, one general and one specific, conflict because they have the same elements but differing penalties, the more specific statute governs over the more general statute, unless the legislature manifestly intends for the general statute to control.

State v. Craven, 628 N.W.2d 632, 634-35 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001) (quotation and citations omitted). Here, appellant was charged with the more specific statute—second-degree manslaughter. Additionally, Minn. Stat. § 609.195(b) does not govern this type of conduct. See State v. Carithers, 490 N.W.2d 620, 624 (Minn. 1992) (stating the statute does not apply to situations “dealing with the joint acquisition and possession of drugs under circumstances where neither defendant’s conduct can be fairly characterized as involving a sale or transfer or delivery to the person who died”).

Affirmed.