This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-968

 

State of Minnesota,

Respondent,

 

vs.

 

Douglas Edward Scheer,

Appellant.

 

Filed ­­­June 26, 2007

Affirmed

Dietzen, Judge

 

Redwood County District Court

File No. K4-05-331

 

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

 

Michelle A. Dietrich, Redwood County Attorney, P.O. Box 130, 250 South Jefferson, Redwood Falls, MN 56283 (for respondent)

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, 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

 

DIETZEN, Judge

 

            Appellant challenges his conviction and sentence for first- and second-degree controlled substance offense, arguing that the district court erred in (1) failing to instruct the jury that a witness’s prior convictions could be used to determine whether the witness rather than appellant committed the offense; (2) the evidence is not sufficient to support the conviction; and (3) not granting a downward departure from his presumptive sentence.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

In June 2005, two officers of the Redwood Falls police department contacted Stacy Vierkamp to assist them in arranging a “controlled buy” of drugs in their area.  Vierkamp was facing prison time and was promised a lighter sentence in exchange for his cooperation.  Vierkamp contacted appellant Douglas Scheer, who he had known for about seven to eight years and who lived in an apartment in the area. 

Vierkamp talked to appellant about buying two “eight-balls” (3.5 grams each) of cocaine.  The police officers equipped Vierkamp with an audio recorder, gave him $400 to buy the drugs, and followed him to appellant’s residence.  Vierkamp met with appellant in his apartment, concluded the transaction, and drove back to the law enforcement center.  Vierkamp gave the officers the two “eight-balls” of cocaine he purchased from appellant, which weighed a total of 6.5 grams.  Several days later, Vierkamp again met with appellant at his apartment, and purchased two additional “eight-balls” of cocaine for $400.  In both cases, Vierkamp and his vehicle were searched before he met appellant and again searched when he returned to the law enforcement center.

            Subsequently, the police officers obtained and executed a search warrant for appellant’s apartment.  When law enforcement entered the apartment, they found appellant in the living room near a coffee table that had drug paraphernalia, including two containers, a metal scale, and “one-hitters”—pipes smelling of marijuana—on it.  In the dining area by the kitchen, the police found a white Styrofoam cooler containing a plastic baggie of cocaine and a small digital scale.  The baggie contained 25.1 grams of cocaine and the scale had traces of cocaine.  On the kitchen table were little sandwich baggies, a calculator, and a sheet of paper with figures on it. 

Appellant was charged with two counts of second-degree controlled substance crime under Minn. Stat. § 152.022, subd. 1 (2004) for selling three or more grams of cocaine on June 13 and June 18, 2005; and two counts of first-degree controlled substance crime under Minn. Stat. § 152.021, subds. 1, 2 (2004) for possessing 25 or more grams of cocaine with intent to sell on June 20, 2005.  Prior to trial, defense counsel advised the district court that he intended to use evidence of Vierkamp’s prior convictions for impeachment purposes and as evidence of motive to frame appellant. The district court informed counsel that if Vierkamp testified, evidence of Vierkamp’s prior convictions would be allowed into evidence.

At trial, Vierkamp testified that he bought cocaine on both occasions from appellant.  Vierkamp testified that when he arrived at appellant’s home on June 13, he spoke to appellant and appellant then went upstairs.  Appellant returned and Vierkamp bought drugs from appellant and told him that he would return for more on Saturday, June 18.  Vierkamp testified that when he returned to appellant’s home on June 18, he met appellant upstairs, purchased the cocaine, and left. 

            During cross-examination, appellant’s counsel questioned Vierkamp about his prior convictions for theft.  Defense counsel described each of Vierkamp’s convictions, his unkept promises not to offend again, and his deal with the police reducing his sentence for the latest offense.  Vierkamp admitted that the transcripts of recordings of his encounter with appellant did not contain language reflecting a drug transaction. 

            Appellant denied that he sold cocaine to Vierkamp, and denied ownership or knowledge of the cocaine in the cooler.  The defense theorized that Vierkamp had a strong motive to set up appellant and that it was Vierkamp who produced the cocaine.  During trial and closing argument, appellant attacked Vierkamp’s credibility and argued that Vierkamp was motivated to fabricate a sale to avoid prison. 

            Following the trial, the jury found appellant guilty of all four counts.  The district court denied appellant’s motion for a downward departure and sentenced appellant to a 127-month term on Count I,[1] a 48-month term on Count III, and a 58-month term on Count IV—all concurrent, presumptive sentences under the Minnesota Sentencing Guidelines.  This appeal followed.

D E C I S I O N

I.

Appellant argues that the district court erred in failing to instruct the jury that a witness’s prior convictions could be used to determine whether the witness, rather than appellant, committed the offense.  “A defendant’s failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.”  State v. White, 684 N.W.2d 500, 508 (Minn. 2004); see also Minn. R. Crim. P. 26.03, subd. 18(3) (“No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict).  Because appellant did not object to the jury instructions at trial, we review for plain error.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 

Under plain-error review, a defendant may obtain relief if he was denied a fair trial.  State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002).  Plain error requires that (1) there was error, (2) that was plain, and (3) that affected substantial rights. Griller, 583 N.W.2d at 740.  An error affects substantial rights when it is reasonably likely that the error had a significant effect on the jury’s verdict.  Id.at 741.  “If these three factors are met, we may correct the error only if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected.”  State v. Jones, 678 N.W.2d 1, 18 (Minn. 2004). 

The fair opportunity to defend against criminal charges is a right guaranteed by constitutional due process.  Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045 (1973); Jones, 678 N.W.2d at 15-16 (holding that exclusion of reverse-Spreigl evidence affected appellant’s substantial rights).  In that regard, it is permissible for a defendant to present evidence of other crimes, wrongs, or bad acts committed by an alleged alternative perpetrator in order to cast reasonable doubt upon the identification of the defendant as the person who committed the charged crime.  State v. Gutierrez, 667 N.W.2d 426, 436-37 (Minn. 2003); see also Minn. R. Evid. 404(b) (allowing evidence of prior crimes to show motive).  Courts have sometimes labeled this type of proffered alternative-perpetrator evidence as “reverse-Spreigl” evidence.  See Woodruff v. State, 608 N.W.2d 881, 885 (Minn. 2000).

Here, the district court allowed the introduction of Vierkamp’s prior theft and burglary convictions as impeachment and reverse-Spreigl evidence.  The district court gave the standard instruction on impeachment of a witness as follows. 

Impeachment.  In deciding the believability and weight to be given the testimony of a witness you may consider:

 

1. Evidence that the witness has been convicted of a crime.  You may consider whether the kind of crime committed indicates the likelihood the witness is telling or not telling the truth. 

 

See 10 Minnesota Practice, CRIMJIG 3.15 (2006).

Here, appellant, as the proponent of the evidence, is not seeking a limiting instruction, but rather an affirmative instruction directing that the jury draw an inference from the evidence that Vierkamp may be responsible for the offense.  And the purpose of reverse-Spreigl evidence is not to prove the guilt of the third person, but rather to cast doubt upon the identification of defendant as the person who committed the charged offense.  Gutierrez, 667 N.W.2d at 437.  Thus, we see no basis for giving the proposed instruction.  See State v. Broulik, 606 N.W.2d 64, 71 (Minn. 2000); see also CRIMJIGs 2.01, 3.16 Cmt. (indicating that district court’s jury instructions should not discuss possible inferences to be drawn from the evidence, which should be left to the argument of the attorneys).

Further, appellant was able to present Vierkamp’s prior convictions, arguing that Vierkamp lacked credibility and had a potential motive to frame appellant.  Thus, we conclude that the district court did not commit plain error by not instructing the jury that Vierkamp’s prior convictions could be used to determine that he, rather than appellant, committed the offense.

II.       

Appellant argues that the evidence is not sufficient to support the convictions for selling cocaine on June 13, and possessing over 25 grams of cocaine on June 20.  When 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 the light most favorable to the conviction, was sufficient to allow the jurors to reach a guilty verdict.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s evidence and did not believe evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The “assumption that the jury believed the state’s witnesses is particularly appropriate when resolution of the case depends on conflicting testimony.”  State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002).  Additionally, circumstantial evidence is entitled to as much weight as any other kind of evidence, so long as the circumstances are consistent with the hypothesis that the defendant is guilty and inconsistent with any other rational hypothesis.  State v. McBride, 666 N.W.2d 351, 364 (Minn. 2003).  An appellate court will not overturn a conviction based on circumstantial evidence on the basis of mere conjecture.  State v. Asfeld, 662 N.W.2d 534, 544 (Minn. 2003).

A.        June 13 Cocaine Sale

Appellant argues that the transcript of the incident is inconclusive and Vierkamp had a motive to fabricate a sale to avoid prison.  Essentially, appellant argues that Vierkamp’s testimony required independent corroboration.  But “[i]t is well settled that a conviction can rest on the uncorroborated testimony of a single credible witness.”  State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969). 

Here, Vierkamp testified that he called appellant to arrange the purchase of cocaine and that when he arrived at appellant’s apartment, appellant went upstairs to fulfill his drug request.  Meanwhile, Vierkamp carried on a conversation with Dean Scheer and a few other individuals present in the house.  When appellant returned with the drugs, Vierkamp gave him the money and stated that he would return the following Saturday.  The transcript from the sale is consistent with Vierkamp’s testimony and, if believed, is sufficient to support a conviction.  See id. at 518, 172 N.W.2d at 407. 

Appellant urges this court to extend existing law to require that Vierkamp’s testimony be corroborated, and points to Minn. Stat. § 634.04 (2006), which provides that a conviction cannot be upheld upon the testimony of an accomplice “unless it is corroborated by such other evidence as tends to convict the defendant” of the offense.  Appellant concedes that his position is contrary to the holding in Hill, but suggests that we revisit Hill.   But it is not the role of this court to review decisions of the supreme court.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (“The function of the court of appeals is limited to identifying errors and then correcting them.”).  Thus, we conclude that Hill is good law and decline to review it. 

B.        Possession of 25 Grams of Cocaine

Appellant argues that the record does not show he “consciously” exercised “dominion and control” over the cooler containing the cocaine, and thus, he did not “constructively possess” it.  The elements of a crime of possession of a controlled substance require: (1) knowledge; (2) possession of the requisite weight and substance; and (3) the act took place at the time and place set forth in the complaint; all three elements must be proven beyond a reasonable doubt for a defendant to be found guilty.  State v. Papadakis, 643 N.W.2d 349, 354 (Minn. App. 2002).  The possession requirement can be satisfied if defendant “constructively” possessed[2] the controlled substance.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  To demonstrate constructive possession, the state has the burden of showing: (a) that the police found it in a place under his exclusive control and to which others did not normally have access; or, (b) that, if police found it in a place to which others had access, a strong probability (inferable from other evidence) exists that, at the time, he was consciously exercising dominion and control over it.  Id.at 105, 226 N.W.2d at 611 (holding that defendant had constructive possession of drugs found in car that he had borrowed and later abandoned).

Appellant argues that the drugs seized by law enforcement could have belonged to his daughter’s boyfriend who was in the apartment at the time.  Here, appellant’s daughter initially testified that her boyfriend ran through the kitchen at the time the warrant was executed, but later stated that she wasn’t certain he ran through the kitchen.  Thus, the jury was free to disregard that testimony.  On the other hand, it was undisputed that the apartment belonged exclusively to appellant.  Specifically, police found a large amount of cocaine together with a scale in a cooler, a calculator and distribution sheet in appellant’s kitchen, and a scale and other paraphernalia near appellant in the living room.  This evidence is sufficient to infer defendant had “knowledge” of the drugs in his home.  See id.  Also, Vierkamp testified that he had purchased the same drug from appellant on two occasions within the same week.  This evidence is sufficient to show “a strong probability” that appellant was “consciously exercising dominion and control” over the cocaine under the constructive possession doctrine.  Id.  On this record, there was sufficient evidence to convict appellant of possession of over 25 grams of cocaine under Minn. Stat. § 152.021, subd. 2. 

III.

 

Appellant argues the district court erred in denying his motion for a downward sentencing departure to his presumptive sentence.  Specifically, appellant contends the district court abused its discretion by using the Hernandez method[3] in calculating his criminal history score which resulted in a presumptive sentence of a 127-month executed sentence for the first-degree controlled substance conviction.  Appellant further argues that his conduct was “less serious” than in a “typical drug case.” 

When the district court imposes a presumptive sentence, our standard of review is narrow.  State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983); State v. Witucki, 420 N.W.2d 217, 423 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988).  Only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive offense.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  A reviewing court has the authority to determine whether a sentence is “inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.”  Minn. Stat. § 244.11, subd. 2(b) (2006). 

The sentencing guidelines provide that “the judge shall pronounce a sentence within the applicable range unless there exist identifiable, substantial, and compelling circumstances to support a sentence outside the range on the grids.”  Minn. Sent. Guidelines II.D.; Kindem, 313 N.W.2d at 7.  The presence of a mitigating factor does not require the district court to depart from the presumptive sentence.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984); see also State v. Back, 341 N.W.2d 273, 275 (Minn. 1983) (holding that a reviewing court will not ordinarily interfere with sentence in the presumptive range even when there are grounds to justify departure). 

The district court found no mitigating factors permitting it to depart from the presumptive sentence because selling cocaine is a very serious offense and appellant showed little remorse for his crimes.  It calculated a presumptive sentence of 48 months for the June 13 second-degree controlled-substance conviction,[4] calculated a presumptive sentence of 58 months for the June 18 second-degree controlled-substance conviction based on a criminal history score of one, and calculated a presumptive sentence of 127 months for the June 20 first-degree controlled-substance conviction[5] based on a criminal history score of three (1.5 points from each of the two sale convictions). 

Appellant argues the district court abused its discretion by using the Hernandez method.  Essentially, appellant argues that law enforcement had sufficient evidence to arrest him for the June 13 offense and should not have arranged a second sale on June 18, or searched his apartment on June 20, which greatly increased his sentence.  We disagree.  In State v. Hernandez, the supreme court was confronted with a situation in which the defendant was sentenced on one day for three separate convictions that were not part of a single behavioral incident.  311 N.W.2d at 479.  The court affirmed the district court’s decision to count the first two convictions of attempted burglary and theft in calculating the criminal history score and sentence for the third conviction for escape.  Id. at 481.  The court held that the addition of two points to the defendant’s criminal history score before sentencing defendant for the third conviction was proper, although the first two sentences were not imposed before the date of sentencing for the current offense.  Id. at 479-81.  In a later case our supreme court acknowledged that the Hernandez method may encourage law enforcement to work with prosecutors in orchestrating the amount of drugs and number of sales in order to separate the drug sales into multiple charges.  State v. Soto, 562 N.W.2d 299, 304-05 (Minn. 1997).  But the Soto court. “decline[d] to adopt the doctrines of sentencing entrapment and sentencing manipulation in the absence of egregious police conduct which goes beyond legitimate investigative purposes.”  Id.at 305.  Here, there is no evidence of “egregious police conduct” or that police used the separate buys to increase appellant’s sentence.  On this record, we see no abuse of discretion. 

            Affirmed.