Richard M. Arney, Washington County Attorney, Peter J. Orput, Asssistant County Attorney, 14900 61st Street North, Stillwater, MN 55082 (for Respondent)

John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

This appeal is from a judgment of conviction and sentence for second- and fourth-degree controlled substance offenses. See Minn. Stat. §§ 152.022, subds. 1(1) (sale of three grams or more of cocaine), 1(6)(i) (sale of controlled substance in park zone), 152.024, subd. 1(4) (sale of marijuana in park zone) (1994). Appellant Chad William Bjorkman argues that there was an abuse of discretion in admitting prior testimony and in sentencing. We affirm.

The jury found Bjorkman guilty on all four counts. The trial court sentenced him to concurrent sentences of 68, 21, 88, and 98 months, all presumptive durations, rejecting a defense request for a dispositional departure or a downward durational departure.

Trevor Bjorkman testified at his own trial that he had never opened the strongbox before, had never been involved with drugs, and had been told by his brother what police were looking for when they came to execute the search warrant. He had further testified that he lied to police in claiming responsibility for the drugs.

Bjorkman called his brother Trevor to testify at trial. Defense counsel questioned Trevor about what he told police, trying to get before the jury Trevor's statement to police in which he admitted responsibility for the cocaine. When the prosecutor began cross-examining Trevor about his prior testimony, Bjorkman did not object to having a transcript of Trevor's testimony marked as an exhibit and admitted into evidence. His counsel specifically stated he had no objection to its admission. A defendant generally forfeits a challenge to the admission of evidence if he fails to object at trial. State v. Knight, 295 N.W.2d 592, 594 (Minn. 1980).

The admission of Trevor Bjorkman's prior testimony was certainly not plain error. The supreme court has held that under Minn. R. Evid. 801(d)(1)(A), prior inconsistent statements given under oath are not hearsay if the declarant testifies and is subject to cross-examination. State v. Brown, 348 N.W.2d 743, 746 (Minn. 1984). Because the statements are not hearsay in this situation, they may be used as substantive evidence. See id. (noting that statements not under oath were "not admissible substantively" under Rule 801(d)(1)(A)); John W. Strong, McCormick on Evidence § 251, at 120 (4th ed. 1992) (noting advantages of allowing prior inconsistent testimony as substantive evidence).

Bjorkman argues that the trial court abused its discretion in allowing the prosecutor to question Trevor about the testimony offered in his trial by a handwriting expert, Nancy Runion, concerning the handwriting of the "drug notes." Defense counsel did object to this testimony as hearsay. But the court overruled this objection, and Trevor testified that Runion's opinion was that the handwriting was not his.

Runion did not testify at Chad Bjorkman's trial. Her opinion as to the identity of the person who wrote the "drug notes," introduced through Trevor's testimony, was plainly hearsay. Moreover, Bjorkman did not "open the door" to admission of this evidence.

The erroneous admission of hearsay evidence in violation of the Confrontation Clause is harmless if it can be said to be harmless beyond a reasonable doubt, in that the evidence is otherwise overwhelming. State v. Washington, 521 N.W.2d 35, 42 (Minn. 1994).

The state presented evidence of three controlled buys in which the CI met with a man he identified as Chad Bjorkman. The CI, who testified that he had met Bjorkman five or six times before the first buy, positively identified Bjorkman in court. Bjorkman admitted selling marijuana in one of the three controlled buys. All of the circumstantial evidence pointed to Bjorkman, not his brother Trevor, as the possessor of the cocaine. The evidence of Bjorkman's guilt was overwhelming, making the admission of hearsay evidence of Runion's opinion harmless error.

2. Bjorkman argues that the trial court abused its discretion in refusing to depart downward, or alternatively that Hernandez sentencing was inappropriate.

Bjorkman contends that his offense only technically falls within the statutory element of sales in a park zone because he lived across the street from a park. The trial court has broad discretion in considering whether to depart from the presumptive sentence, and this court will reverse a refusal to depart only in a "rare case." State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Based on the number of controlled buys, and the amount of cocaine and cash found in Bjorkman's apartment, this is not the "rare case" in which a downward departure was mandated.

Bjorkman also contends that Hernandez sentencing was inappropriate because the severity level of his offenses already assumes he was a drug dealer, and hence assumes multiple counts, and because the state engaged in "sentencing entrapment" by not arresting him until after the third sale.

The Hernandez method allows the court, in sentencing on multiple counts, to use the convictions on the counts sentenced first to increase the criminal history score for the counts sentenced later. State v. Hernandez, 311 N.W.2d 478, 480 (Minn. 1981).

The state adequately justified its delay in arresting Bjorkman by its desire to get to a higher level in the drug hierarchy, and by the CI's medical condition following the second buy, which required postponement of the investigation. Although the issue of sentencing entrapment is currently under review by the supreme court, we adhere to this court's expressed view that the defense of entrapment is not applicable to the determination of an offender's sentence. State v. Soto, No. C3-95-577 (Minn. App. filed Feb. 6, 1996), review granted (Minn. Apr. 16, 1996).

Affirmed.