State of Minnesota, Respondent, vs. Wayne Dion McMath, 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This opinion will be unpublished and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

C7-02-1767

 

State of Minnesota,

Respondent,

 

vs.

 

Wayne Dion McMath,

Appellant.

 

Filed July 1, 2003

Affirmed as modified Huspeni, Judge*

 

 

Stearns County District Court

File No. K1021493

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Janelle Kendall, Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN  56303-4773 (for respondent)

 

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

 

 

 

            Considered and decided by Willis, Presiding Judge, Forsberg, Judge,* and Huspeni, Judge.

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

HUSPENI, Judge

            Appellant challenges his conviction of second-degree controlled-substance crime, arguing that the trial court abused its discretion by denying his request for a continuance, by admitting evidence of his prior drug purchase, and by making an erroneous restitution award.  Because we conclude that the trial court did not abuse its discretion in denying a continuance and in its evidentiary rulings, we affirm the conviction.  And because restitution was incorrectly calculated (an error recognized by the state), we modify the amount of restitution.

FACTS

Appellant Wayne Dion McMath was arrested after participating in a controlled buy of cocaine by Robert Jarmon, a police informant.  When Jarmon bought cocaine on March 11, 2002 from a man known as "Perm," McMath was present in the room.  When Jarmon asked Perm if he could buy more cocaine from him in the future, Perm indicated that future purchases would have to go through McMath, and McMath gave Jarmon his phone number.

            The following day, McMath called Jarmon and asked him if he wanted to "hook up."  Jarmon told the police about the call from McMath, and the police recorded a subsequent call that Jarmon placed to McMath.  According to the transcript of the recording, Jarmon asked McMath if he was "ready."  McMath responded that he "couldn't find nobody else * * * [s]o it's gonna be that same sh--."  McMath asked, "Do you still want me to call him and have him over here or you wanna try and find somebody else?"  Jarmon responded, "I deal with him now.  You try to find me somebody else for the long run."  McMath then said, "All right."

            After the phone call, Jarmon returned to the house where the sale had occurred on the previous day.  Referring to a man known as "T," McMath told Jarmon "that's him," and Jarmon bought $100 worth of cocaine from T.  Jarmon used money that the police had given him for the purpose of making the controlled buy.

            McMath was charged with two counts of controlled-substance crime, one count for each of the days he and Jarmon were in contact.  He was assigned a public defender.  A week later, he asked the trial court to appoint a different public defender, arguing that he had "conflicts of interest" with the public defender who then represented him.  The court denied McMath's request.

            McMath and his public defender attended a settlement conference on May 17, 2002.  At that time, the March 11 charge was scheduled for trial on May 21, 2002, and the March 12 charge was scheduled for trial in June 2002.  At the settlement conference, the prosecutor stated that he intended to switch the trial dates and try McMath for the March 12 charge on May 21.  The public defender stated that he had no objection to the date change and could be ready for trial the following week.  But McMath requested a 90-day continuance for both trial dates, arguing that he needed additional time to conduct his own investigation and consult with a different attorney because he had not yet spoken to his public defender about the charges.  The trial court denied McMath's motion for a continuance and scheduled a trial for the March 12 charge on May 21.

            Before trial on the March 12 charge, McMath moved to exclude evidence of the March 11 drug sale.  He contended that the danger of unfair prejudice outweighed the probative value of the evidence.  The trial court denied the motion, holding that the evidence was relevant to showing a common plan or scheme.

At trial, McMath asserted that Jarmon visited his house on March 11 and 12, 2001, because Jarmon's truck was in need of repair, and McMath hoped to introduce Jarmon to his friend who repaired trucks.  McMath denied participating in any sale of cocaine on March 12, 2001.

McMath was found guilty after trial to a jury and was sentenced to 58 months in prison and ordered to pay $150 restitution for the "buy money" used for the March 12 drug purchase.  In view of the guilty verdict, the state dropped the March 11 charge.  This appeal follows.

D E C I S I O N

I.

The granting of a continuance is a matter within the trial court's discretion, and the court's ruling will not be reversed absent a clear abuse of discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).  "When denial of a continuance deprives defendant's counsel of adequate trial preparation, we must reverse the conviction."  In re T.D.F., 258 N.W.2d 774, 775 (Minn. 1977). 

McMath contends that the trial court's refusal to grant a continuance denied him the opportunity to secure private counsel and adequately investigate his case.  We see no abuse of discretion in the trial court's denial of a continuance in this case.  A request to substitute counsel will only be granted "if exceptional circumstances exist and the demand is timely and reasonably made."  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  Further, in order to show prejudice resulting from denial of a continuance, McMath must allege a "specific reason why he felt the public defender could not adequately defend him."  See State v. Fagerstrom, 286 Minn. 295, 299-300, 176 N.W.2d 261, 265 (1970).  McMath alleges no specific reason.

In Vance, the supreme court held that a request for a continuance to secure private counsel was properly denied because the public defender had "investigated the facts and was prepared for trial."  254 N.W.2d at 359.  There is no evidence here that the public defender did not investigate the facts or was unprepared for trial.  At McMath's settlement hearing, his public defender told the court that he was ready to proceed regardless of the change in schedule.  He moved to exclude evidence of the March 11 meeting, conducted cross-examination of the state's witnesses, and moved for a directed verdict when the state rested.  Because McMath's counsel appears to have investigated the facts and was prepared for trial, the trial court did not abuse its discretion by denying McMath's request for a continuance.

II.

McMath next argues that the trial court abused its discretion by admitting evidence of the March 11 drug sale.  He contends that the evidence was unnecessary for the state to prove the March 12 charge and was highly prejudicial.

Evidence of other crimes or bad acts is characterized as "Spreigl evidence."  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  The admission of Spreigl evidence lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  Spreigl evidence is admissible to show, among other factors, "a common scheme or plan * * * so related to each other that proof of one or more of such tends to establish the accusation."  State v. Wofford, 262 Minn. 112, 117, 114 N.W.2d 267, 271 (1962) (quotation omitted). 

Further,

where two or more offenses are linked together in point of time or circumstances so that one cannot be fully shown without proving the other, * * * [the evidence] is admissible.  * * *  Such evidence, however, must show a causal relation or connection between the two acts so that they may reasonably be said to be part of one transaction.

 

Id. at 118, 114 N.W.2d at 271.

            We conclude that it is possible under the rationale of Wofford to affirm the admission of the challenged evidence here.  McMath concedes that the state was permitted to introduce evidence of the March 11 meeting to show that he and Jarmon were acquainted and had allegedly discussed future drug transactions.  But he contends that it was unnecessary to explain that the meeting occurred in conjunction with another drug deal.  We agree with the state, however, that evidence of the March 11 meeting, including the fact that it occurred in conjunction with another drug deal, was admitted to show the causal connection between the events of March 11 and March 12 because "they may reasonably be said to be part of one transaction."  Id. at 118, 114 N.W.2d at 272.

Further, Jarmon's testimony about the March 11 meeting refuted McMath's contention that he was trying to arrange the repair of Jarmon's truck.  See Kennedy, 585 N.W.2d at 391 (admitting Spreigl evidence of a common plan or scheme to refute defendant's account of what happened).

            When balancing unfair prejudice with probative value, the trial court must consider "how necessary the Spreigl evidence is to the state's case."  State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (citation omitted).  Prejudice "refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means."  State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999)(quotation omitted).  Here, the trial court concluded that the evidence of the March 11 meeting was necessary to show that when McMath called Jarmon on March 12, he intended to effect a drug deal.  Evidence of the March 11 drug sale was introduced to establish how McMath and Jarmon met.  Without evidence of the March 11 communication, McMath's call to Jarmon on March 12 would have been inexplicable.  There is no demonstrated unfair prejudice, and the trial court did not abuse its discretion by admitting this challenged evidence.

III.

Finally, McMath argues that the trial court abused its discretion by ordering him to pay $150 to reimburse the police for its buy money.  He contends that the police spent only $100 to effect the controlled buy.  District courts "are given broad discretion in awarding restitution."  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999) (citation omitted).  An award of restitution will not be reversed absent an abuse of discretion.  Id. at 672.

The record shows, and the state agrees, that the correct sum of buy money was $100.  Originally $50 was provided by the police; when that amount proved inadequate to make a purchase Jarmon returned the $50 and was given $100.  We, therefore, modify restitution to reflect that McMath must pay $100.

Affirmed as modified.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.