State of Minnesota, Respondent, vs. Ricky Dean Reed, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-1325

 

State of Minnesota,
Respondent,
 
vs.
 
Ricky Dean Reed,
Appellant.

 

Filed July 15, 2003

Affirmed

Wright, Judge

 

Wadena County District Court

File No. KX01435

 

 

John Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, Tom R. Ragatz, Carmen Chittick Dierking, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Jonathan Edin, Wadena County Attorney, 415 South Jefferson Street, Wadena, MN  56482 (for respondent)

 

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal from convictions for first-degree controlled-substance crime, conspiracy to commit first-degree controlled-substance crime, and solicitation of a juvenile to commit first-degree controlled-substance crime, appellant Ricky Reed argues that the evidence was not sufficient to support his convictions.   He also argues that the imposition of a consecutive 36-month sentence for solicitation of a juvenile unfairly exaggerates the criminality of his conduct.  We affirm.

FACTS

 

On June 16, 2001, the manager of a hardware store in Wadena notified police that individuals had purchased tolulene, a solvent that the manager knew to be used to manufacture methamphetamine.  He gave a physical description of one of the individuals later identified as Michael Volpe.  Wadena Police Officer Gary Kuhn responded to the call and went to the hardware store where the manager provided him with a description of the car in which the individuals were riding.  Kuhn had seen a car matching that description just prior to arriving at the hardware store.  Kuhn recognized the driver of the car as Jeremy Reed, appellant Ricky Reed's 17-year-old son, and concluded that the passenger matched the description of Volpe, the purchaser.  Kuhn eventually found the car parked in front of Randy Oothoudt's home, and a short time later observed the car parked in front of appellant's home. 

            On July 14, police obtained a search warrant for appellant's home.  Items associated with the manufacture of methamphetamine were recovered during the search.  Drug paraphernalia also were seized and tested positive for trace amounts of methamphetamine.

            Later that day, police arrested appellant as he was riding in his girlfriend's car.  The resulting search of the car produced items that can be used to manufacture methamphetamine.  During a search of Oothoudt's home and Jeremy Eckman's farm, officers also recovered items used to manufacture methamphetamine. 

            On July 17, appellant was charged with first-degree controlled-substance crime, in violation of Minn. Stat. § 152.021, subds. 2a, 3 (2000) (manufacturing methamphetamine); conspiracy to commit first-degree controlled-substance crime, in violation of Minn. Stat. §§ 609.175, subd. 2(3) (2000) and 152.021, subd. 2a; and fifth-degree controlled-substance crime, in violation of Minn. Stat. § 152.025, subd. 2(1) (2000).  On September 25, the state amended the complaint to add one count of solicitation of a juvenile to commit first-degree controlled-substance crime, in violation of Minn. Stat. §§ 609.494 (2000), 609.05 (2000), and 152.021, subd. 2a.

            Also arrested in connection with the investigation were Oothoudt and Volpe, who both pleaded guilty to conspiracy to manufacture methamphetamine.  Pursuant to their plea agreements, Oothoudt and Volpe each testified for the state at appellant's jury trial, and, in exchange, received a recommendation from the state for a reduced sentence.  Oothoudt and Volpe testified that appellant was present at Eckman's farm when methamphetamine was successfully manufactured.  According to Oothoudt, appellant contributed money to purchase ephedrine pills used to make methamphetamine.  Volpe testified that appellant and his girlfriend drove appellant's son, Jeremy, and Volpe to a farm to steal anhydrous ammonia, a substance used to manufacture methamphetamine.  During the theft, the anhydrous ammonia burned Jeremy's arm.  Don Burns, a narcotics investigator for the Todd County Sheriff's Office, testified that the items seized during the search of appellant, his home, and his girlfriend's car can be used to manufacture methamphetamine.

            The jury found appellant guilty on all counts, and the district court imposed concurrent sentences of 98 months' imprisonment for conspiracy to commit first-degree controlled-substance crime and 19 months' imprisonment for fifth-degree controlled-substance crime and a consecutive sentence of 36 months' imprisonment for solicitation of a juvenile to commit first-degree controlled-substance crime.  This appeal followed.

D E C I S I O N             Appellant first argues that the evidence is insufficient to support his convictions.  In considering a claim of insufficient evidence, our 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, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  And we will not disturb the verdict if the jury, 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.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). A.         First-degree controlled-substance crime

               Appellant argues that his conviction for manufacturing methamphetamine must be reversed because the testimony of accomplices and his mere possession of methamphetamine and paraphernalia constitute insufficient evidence to support his conviction. "[A] person is guilty of controlled substance crime in the first degree if the person manufactures any amount of methamphetamine."  Minn. Stat. § 152.021, subd. 2a (2000).  Under Minnesota law, "[a] conviction cannot be had upon the testimony of an  accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense,  and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."  Minn. Stat. § 634.04 (2000).  Because "accomplice testimony is ‘inherently untrustworthy and must be supported by independent evidence[,]' * * * a conviction cannot rest on the uncorroborated testimony of an accomplice."  State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000)(quotation and citation omitted).  Physical evidence associated with the crime can provide sufficient corroboration of accomplice testimony.  Pederson, 614 N.W.2d at 732(concluding physical evidence of murder sufficient to corroborate accomplice testimony).  "Corroborative evidence supporting the testimony of an accomplice must be ‘weighty enough to restore confidence in the accomplice's testimony, confirming its truth and pointing to the defendant's guilt in some substantial way.'"  State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000) (quotation omitted) (concluding physical evidence of murder sufficient to corroborate accomplice testimony).

               Here, accomplices Volpe and Oothoudt testified that appellant participated in manufacturing methamphetamine.  Their testimony was corroborated by physical evidence of the crime discovered in appellant's home, his girlfriend's car, and the residences of the individuals with whom he associated.  In searches of appellant's home and the car in which he was riding, police found receipts for pseudoephedrine pills, a respirator mask, 15-inch filters, a gram scale, an altered propane tank, an electric pan, miscellaneous glassware, and aluminum foil with trace amounts of methamphetamine.  Burns testified that these items are used to manufacture methamphetamine.  Similar items were found at Oothoudt's home and at Eckman's farm. 

               Appellant argues that, because there was no evidence that he purchased the pseudoephedrine pills and because he testified that he purchased the filters to filter gasoline, his conviction for first-degree controlled-substance crime should be reversed.  We disagree.  The existence of corroborative physical evidence reduces appellant's argument regarding accomplice testimony to a test of credibility.  Likewise, appellant's argument regarding his explanation for the filter purchase is one of credibility.  It is the province of the jury, not an appellate court, to determine the credibility and weight afforded the testimony of any individual witness.  State v. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994).  Here, the jury found the accomplice testimony credible and rejected appellant's testimony.  In the absence of any legal authority to disturb the jury's credibility determinations, we conclude that the evidence is sufficient to support appellant's conviction for first-degree controlled-substance crime.

B.         Conspiracy to commit first-degree controlled-substance crime

Appellant also asserts that the testimony of his accomplices is not sufficient to sustain his conviction for conspiracy to manufacture methamphetamine.  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) there was an overt act committed by the defendant or another party to the conspiracy with the purpose of furthering the conspiracy.  Minn. Stat. §§ 152.096, subd. 1, 152.021, subd. 2a, 609.175, subd. 2 (2000); State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980); 10 Minnesota Practice, CRIMJIG 5.07 (1999) (setting out elements of crime of conspiracy).  "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.  "[T]he agreement required for a conspiracy need not be proved through evidence of a subjective meeting of the minds, but must be shown by evidence that objectively indicates an agreement."  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002) (citation omitted).  It is not

necessary to show a formal agreement to commit the crime charged.  Where the evidence permits an inference of concert of action to accomplish a given unlawful result, as where several persons commit separate acts which form parts of a connected whole, an inference of conspiracy--that there was concert in both planning and execution--is permissible. 

 

State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943).

Citing Hatfield, appellant correctly argues that his possession of drug paraphernalia is not sufficient to show that he had an agreement with others to manufacture methamphetamine.  See Hatfield, 639 N.W.2d at 377-78.  In Hatfield, the Minnesota Supreme Court concluded that without evidence to show an agreement between co-conspirators, Hatfield's mere possession of drug paraphernalia was not sufficient to support his conviction for conspiracy to manufacture methamphetamine.  Id.  But, in the instant case, the evidence of a conspiracy includes a great deal more than appellant's possession of drug paraphernalia. 

Many of the facts relevant to our analysis of appellant's conviction for first-degree controlled-substance crime apply here.  Accomplice testimony and corroborative physical evidence establish that appellant and three other individuals were involved in manufacturing methamphetamine.  As the state argues, the jury could reasonably infer that an agreement existed between appellant and his accomplices from appellant's presence at Eckman's farm and involvement in the drug's manufacture.  Evidence of appellant's other actions, including his purchase of filters and his contribution to the purchase of pseudoephedrine pills, also permit a reasonable inference that appellant entered into an agreement with others to manufacture methamphetamine.  Accordingly, we conclude that there is sufficient evidence to support appellant's conviction for conspiracy to commit first-degree controlled-substance crime.

C.        Solicitation of a juvenile to commit first-degree controlled-substance crime

            "A person is guilty of a crime * * * if the person is an adult and solicits or conspires with a minor to commit a crime or delinquent act or is an accomplice to a minor in the commission of a crime or delinquent act."  Minn. Stat. § 609.494, subd. 1 (2000).  "‘Solicit' means commanding, entreating, or attempting to persuade a specific person."  Id., subd. 5.  Appellant argues that, because there is a dearth of evidence in the record that he encouraged, solicited, or conspired with his son to participate in a plan to manufacture methamphetamine, his conviction for solicitation of a juvenile to commit first-degree controlled-substance crime must be reversed.

               Jeremy testified that Volpe and Oothoudt gave him money in exchange for driving them to drug stores and gas stations, but he did not know that he was aiding them in committing a crime.  Jeremy also testified that his father did not try to persuade or direct him to help manufacture methamphetamine.  Rather, appellant hit Jeremy because Jeremy was spending time with Volpe and Oothoudt.  Appellant testified that he told Volpe and Oothoudt to leave his son alone, threatened to beat them up, and punched Jeremy because he disregarded appellant's direction to avoid Volpe and Oothoudt.  Although he knew that Volpe and Oothoudt were paying Jeremy to drive them around, appellant testified that he was unaware that Jeremy was helping Volpe and Oothoudt manufacture methamphetamine and steal anhydrous ammonia.  Appellant also denied directing, persuading, or ordering Jeremy "to go out and buy things to cook meth with." 

               The state does not claim, nor does the record show, that appellant directed or persuaded his son to participate in manufacturing methamphetamine.  Rather, the evidence establishes that approximately two weeks before appellant was arrested, he drove Jeremy to a location where Jeremy stole anhydrous ammonia and, in the process, burned his arm.  In doing so, appellant conspired with and was an accomplice with his son in obtaining a necessary ingredient for manufacturing methamphetamine with Volpe and Oothoudt.  This evidence alone is sufficient to support appellant's conviction for solicitation of a juvenile to commit first-degree controlled-substance crime.

D.        Consecutive sentencing

The district court imposed a consecutive sentence for the solicitation offense, which appellant contends was an abuse of discretion.  In general, Minn. Stat. § 609.035 prohibits multiple sentences for multiple offenses committed as part of the same behavioral incident.  State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988).  One purpose of this statutory prohibition is to prevent exaggeration of the criminality of a single behavioral incident involving multiple offenses.  See State v. Johnson, 273 Minn. 394, 399, 141 N.W.2d 517, 522 (1966).  Section 609.035, however, expressly permits multiple sentencing when there is a conviction for solicitation of a juvenile.  Minn. Stat. § 609.035, subd. 1 (2000) (listing Minn. Stat. § 609.494 as an exception to prohibition of multiple sentences for multiple offenses).  Further, Minn. Stat. § 609.494 expressly permits consecutive sentencing:

Notwithstanding any provision of the sentencing guidelines, the court may provide that a sentence imposed for a violation of [the juvenile solicitation statute] shall run consecutively to any sentence imposed for the intended criminal act.  A decision by the court to impose consecutive sentences under this subdivision is not a departure from the sentencing guidelines.

 

Minn. Stat. § 609.494, subd. 4 (2000). 

Appellant concedes that his sentence is legally permissible.  But he asserts that the district court exaggerated the criminality of his conduct and that his sentence was unfair when compared to the sentences received by Volpe and Oothoudt.  We will not interfere with a district court's broad discretion in sentencing unless there has been a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Appellant cites no caselaw demonstrating that the criminality of his conduct has been exaggerated, and the facts do not support such a conclusion.  Given that appellant's son was the juvenile involved in the solicitation and that his son was injured during the course of the criminal activity, appellant's claim of exaggerated criminality is unpersuasive. 

Appellant's argument that his sentence is unfair when compared to those of Volpe and Oothoudt also has no legal support.  Appellant received a 36-month consecutive sentence for the solicitation offense.  Volpe and Oothoudt both pleaded guilty to charges of conspiracy to manufacture methamphetamine.  Under their plea agreements, the state recommended a sentence reduction of 16 percent for Volpe and 6 percent for Oothoudt.  A plea agreement is typically the result of quid pro quo negotiations, whereby the defendant benefits from a reduced charge and sentence and the state benefits from avoiding the risk of acquittal and the time and expense of trial.  See State v. Hoffa, 511 N.W.2d 462, 464 (Minn. App. 1994).  In light of plea agreements with the state, which contrast the involvement of Volpe and Oothoudt from that of appellant, there is no merit to appellant's claim.  Because consecutive sentencing is expressly permitted by Minn. Stat. § 609.494 and because the facts do not render consecutive sentencing unwarranted, we will not disturb the district court's sentencing decision.

               Affirmed.