State of Minnesota, Respondent, vs. Marc Edward Fox, Appellant.

State of Minnesota, Respondent, vs. Marc Edward Fox, Appellant. A04-335, Court of Appeals Unpublished, February 1, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-335

 

 

State of Minnesota,

Respondent,

 

vs.

 

Marc Edward Fox,

Appellant.

 

 

Filed February 1, 2005

Affirmed
Klaphake, Judge

 

Lincoln County District Court

File No. K1-02-178

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Susan E. Damon, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Michael W. Cable, Lincoln County Attorney, 214 North Norman Street, P.O. Box 190, Ivanhoe, MN  56142 (for respondent)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Following a jury trial, appellant Marc Edward Fox was convicted of conspiracy and aiding and abetting the manufacture of methamphetamine (meth), Minn. Stat. §§ 152.021, subd. 2a, .096, 609.05, subd. 1 (2002).  The district court sentenced him on the aiding and abetting conviction to 98 months in prison, which is the presumptive sentence for a severity level VIII offense based on a criminal history score of one.

            On appeal, appellant argues that he is entitled to a new trial because the district court committed reversible error by (1) refusing to strike for cause jurors who had served on another jury the previous month in which another defendant was convicted of aiding and abetting the manufacture of meth; and (2) failing to give an accomplice corroboration instruction.  Appellant further argues that the district court abused its discretion by refusing to depart from the presumptive sentence.

            Because Minn. R. Crim. P. 26.02, subd. 5(1)9 does not require that a juror be dismissed merely because he or she has served on a prior jury that has tried another person for the same crime, where the two cases do not involve the same defendants or facts, and because the lack of an accomplice corroboration instruction did not prejudice appellant, we affirm the conviction.  Because the district court did not abuse its discretion in denying appellant's request for a reduction in his sentence, we affirm the sentence.

FACTS

            On October 16, 2002, Lincoln County Sheriff Jack Vizecky and a special agent from the Bureau of Criminal Apprehension (BCA) arrived at appellant's residence to follow up on reports filed on September 24 by employees of two grocery stores, one in Tyler, Minnesota, and the other in Elkton, South Dakota.[1]  The employees reported that a man, whom they later identified as appellant, had purchased a large quantity of matches and other items that are commonly used to manufacture meth.  One of the Elkton store employees further testified that appellant came in that day with a younger man, who acted nervous and had difficulty getting money in and out of his wallet, and who purchased boxes of matches and toilet bowl cleaner.  Authorities traced the reports to appellant's wife because a Ford Bronco observed by the Tyler store employee was registered to her and because she signed a check that was used to purchase the matches at the Elkton store.

            According to Vizecky, appellant's wife explained that she often gave appellant signed checks to shop for them.  Vizecky then testified as follows:

Uh, as we were talking to her, the door opened and I turned around and [appellant] came into the house and the first thing he said, after [the BCA agent] introduced us was, I was wondering when you were going to come.

 

[Appellant then] indicated that he had been the individual who had passed the check [at the Elkton store] that was signed by his wife.  He said that he had bought the matches for Byron Ellefsen.  He didn't know what Byron was using the matches for.  Uh, when he - - he said it would have been pretty suspicious if Byron had bought all of the matches.  When we asked him why he was giving Byron matches, and he did indicate that he didn't use drugs; he didn't know how to make methamphetamine; but he wondered if he was going to be charged.

 

Vizecky further testified that appellant "indicated he had bought matches in Tyler, Minnesota, an hour before he bought matches in South Dakota, and Byron got all of the matches."

            At trial, Byron Ellefsen testified for the state.  He had already pleaded guilty to manufacture of meth and possession of stolen property, and was serving a 55-month sentence, a significant downward departure from his presumptive 110-month sentence.  Ellefsen testified that appellant traded him red phosphorus for "product" and that on September 24, 2002, appellant brought him some red phosphorus in a bowl.  Ellefsen further testified that appellant also had brought some rock iodine to his house that day, which Ellefsen believed appellant had prepared himself, but that the iodine was so dirty Ellefsen had to show appellant how to clean it using distilled water.  Ellefsen testified that the five-gallon bucket of water found on his property during the search had been used to clean the iodine.

            The state also presented testimony from the three store employees who had reported purchases of large amounts of matches on September 24.  All three identified appellant in the courtroom as the man who made the purchases.  The two Elkton employees also testified that appellant had been in the store several times before and had purchased matches, Drano, pseudoephedrine, and fruit jars.

            Appellant did not testify and presented no witnesses.  The district court instructed the jury on the elements of the charged crimes and liability for crimes of another, but failed to give an accomplice corroboration instruction.

D E C I S I O N

I.

            Appellant argues that the district court committed reversible error by refusing to strike for cause jurors who had served on another case in Lincoln County less than one month earlier.  The defendant in the earlier case was represented by the same defense attorney and prosecuted by the same prosecutor as was appellant, and was found guilty of conspiracy and aiding and abetting to manufacture meth.  The facts of the earlier case were also somewhat similar to the facts here:  in the earlier case, the state alleged that the defendant had purchased cold tablets and, in exchange for meth, gave them to a friend who was manufacturing meth at his father's lake cabin.

            To prevail on a claim of juror bias, a defendant must show "(1) that the juror was subject to a challenge for cause; (2) that actual prejudice resulted from the failure to dismiss the juror; and (3) that trial counsel made an appropriate objection."  State v. Roan, 532 N.W.2d 563, 568 (Minn. 1995).  On appeal, a district court's decision whether to remove a juror for cause is afforded great deference.  Id.

            Appellant challenged the jurors for cause under Minn. R. Crim. P. 26.02, subd. 5(1)9, which allows a juror to be dismissed if he or she has "served on a trial jury which has tried another person for the same or a related offense to that charged in the indictment, complaint [or] tab charge."  Appellant argues that this rule should be interpreted to disqualify not only a juror who recently sat on a case involving the same defendants or facts, but also on a case "involving the identical charges for which the [present] defendant has been charged."

            Appellant's interpretation of rule 26.02, subd. 5(1), however, is inconsistent with this court's decision in State v. Bobo, 414 N.W.2d 490, 492 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).[2]  Noting that "[p]revious service as a juror is not a ground for challenge under the Rules unless the service was on a jury for a case related to the present case or the defendant," we concluded that because "the challenged juror had not served on any jury in a related case or a case involving Bobo, the juror was not subject to dismissal for cause."  Id. (citing Minn. R. Civ. P. 26.02, subd. 5(1); State v. Dulak, 348 N.W.2d 342, 344 (Minn. 1984)).

            We also conclude that appellant has failed to demonstrate that actual prejudice resulted from the seating of the juror who sat on the jury in the earlier meth manufacturing case.  Other jurors who sat on the earlier case were stricken for cause and dismissed from appellant's case based on their stated inability to disregard knowledge gained from that earlier case.  The one juror who remained seated on appellant's jury, however, specifically stated that he would be able to lay aside any impressions, opinions, or evidence that he had heard in the earlier case and that he would render a verdict solely on the evidence presented in appellant's trial.  Absent any evidence in the record to refute the juror's statements, we cannot conclude that actual prejudice was shown.  See Roan, 532 N.W.2d at 568-69 (affirming district court's refusal to remove four jurors for cause absent evidence of actual prejudice); State v. Stufflebean, 329 N.W.2d 314, 317-18 (Minn. 1983) (affirming refusal to remove juror who was employee of victim's father, where no actual prejudice was shown).

II.

            Appellant argues that he is entitled to a new trial because the district court failed to instruct the jury that a defendant cannot be convicted on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to convict the defendant.  See 10 Minnesota Practice, CRIMJIG 3.18 (1999); see also Minn. Stat. § 634.04 (2002).  Here, there is no dispute that Ellefsen was an accomplice and that the district court's failure to give the accomplice corroboration instruction was plain error; the only dispute is whether that plain error affected appellant's substantial rights.  See State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (stating reviewing court may grant new trial if "instructions contain plain error affecting substantial rights or an error of fundamental law"); State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989) (stating accomplice corroboration instruction required in any case in which any witness "might reasonably be considered an accomplice").

            Plain error in jury instructions affects "substantial rights" only if the error was prejudicial.  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).  An error is prejudicial if there is a "reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury."  Id. (quotation omitted).  Prejudice may not exist when an accomplice does not testify under a promise of leniency[3] and when the evidence is overwhelming and includes independent corroborating evidence.  See Shoop, 441 N.W.2d at 481.  Independent corroborating evidence may consist of (1) physical evidence associated with the crime; (2) the testimony of eyewitnesses and experts at trial; (3) inadequacies and admissions in a defendant's testimony; and (4) suspicious and unexplained conduct of an accused before or after the crime.  State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000) (citations omitted).

            Admittedly, here, the state presented no physical evidence, such as fingerprints or other eyewitnesses, to directly link appellant to the manufacture of meth on Ellefsen's property.  Nevertheless, significant other evidence was presented, including appellant's admissions to Sheriff Vizecky and his unexplained and suspicious conduct as reported by the store employees.  In particular, appellant admitted that within a one-hour period on September 24, he traveled to two different stores in two different states to purchase a substantial number of matchbooks, that he did so because it would have been suspicious for Ellefsen to purchase the matches himself, and that he gave all of the matches to Ellefsen.  Despite his claim to Sheriff Vizecky that he did not know what Ellefsen did with the matches, appellant volunteered that he was "wondering when [the officers] were going to come," thus implying that he knew what Ellefsen was doing with the matches.  Appellant's own statements and conduct provide sufficient evidence to corroborate Ellefsen's claim that appellant traded him matches for "product" or meth.  See State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001) (holding erroneous omission of jury instruction harmless when defendant's own statements to others corroborated accomplices' testimony); see also State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004) (accomplice's testimony not obtained under promise of leniency and corroborated by defendant's own testimony and other independent evidence).

            While appellant asserts that his admissions were successfully negated by his claim that he did not know what Ellefsen was doing with the matches, the jury could easily find his denials not credible, particularly given appellant's history of unexplained and suspicious purchases of items commonly used to manufacture meth.  Cf. Shoop, 441 N.W.2d at 481 (noting that in contrast to state's overwhelming evidence, "defense was weak, consisting basically of character evidence of a few family members and friends that defendant is a nice person").  The jury was properly instructed on witness credibility, which would have alerted the jury to the potential for conflicting motivations behind certain testimony.  See Lee, 683 N.W.2d at 317 (holding that omission of accomplice testimony instruction was harmless error, partly because district court had given general instruction on witness credibility).  We therefore conclude that the lack of an accomplice corroboration instruction did not prejudice appellant so as to constitute plain error affecting his substantial rights.

III.

            Appellant argues that the district court abused its discretion when it denied his request for a downward departure from the presumptive sentence.  He asserts that in the "interests of fairness and uniformity, this court should reduce [his] sentence to 72 months."

            Appellant first insists that his conduct was significantly less serious than that typically involved in the manufacture of meth because there was no evidence that he or Ellefsen manufactured meth except for their personal use.  We do not believe that this is a relevant distinction.  Minn. Stat. § 152.021, subd. 2a (2002), which classifies the manufacture of meth in any amount as a first-degree controlled substance crime, reflects the intent of the legislature to treat manufacturers of any amount of the drug as severely as sellers. 

            Appellant next argues that his sentence should be reduced because his role in the crime was "minor or passive," which is a mitigating factor under the guidelines.  Minn. Sent. Guidelines II.D.2.a(2).  Appellant's role can hardly be characterized as minor or passive, when appellant procured the red phosphorus for Ellefsen because it would have been "pretty suspicious" if Ellefsen had bought all of the matches, thus suggesting that appellant's participation enabled Ellefsen to commit the crime without detection.  Even if appellant's participation was minor or passive, the district court was not obligated to depart downward.  See, e.g., State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (stating that presence of mitigating factor "did not obligate the court to . . . impose a shorter term"); State v. Back, 341 N.W.2d 273, 275 (Minn. 1983) (stating that district court under no obligation to depart, even if defendant's role was minor or passive).

            Appellant also argues that his sentence is inequitable when compared to that received by Ellefsen, who received only 55 months.  As support, appellant cites State v. Vazquez, 330 N.W.2d 110, 111-12 (Minn. 1983), in which the defendant argued that his sentence should be reduced to make it more equitable with that imposed on his co-defendant.  Although the supreme court in Vazquez acknowledged that it had discretion in an individual case to modify a sentence in the interests of fairness and uniformity, it nevertheless refused to do so in that case, reasoning that the sentence was not overly harsh when compared to sentences received by other offenders and that the sentence received by the co-defendant was too lenient.  Id. at 112.

            Here, appellant received the presumptive sentence, suggesting that his sentence is uniform with sentences received by other offenders convicted of the same offense and who have the same criminal history score.  In addition, the state suggested at appellant's sentencing that Ellefsen was given less time, in part, because he cooperated and testified.

            Finally, although the district court did not give specific reasons for denying appellant's request for a departure, it noted on the record that it was concerned that Ellefsen, who was much younger than appellant, looked to appellant for guidance and that appellant had some responsibility to "steer[] him in a different direction."  The district court considered the lesser sentence imposed on Ellefsen and found no inequity between the sentences.  Cf. State v. Bendzula, 675 N.W.2d 920, 924 (Minn. App. 2004) (stating trial court did not abuse its discretion in departing downward based partly on consideration of apparent inequity in punishment meted out to defendant and informant).

            We therefore conclude that the district court did not abuse its discretion by refusing to reduce appellant's sentence or otherwise depart from the presumptive sentence.  Appellant's conviction and sentence are affirmed.

            Affirmed.

[1]  Several days prior to October 16, a meth lab had been discovered during a search at a farm owned by appellant's stepson, Byron Ellefsen.  A number of items were observed that were consistent with the manufacture of meth by the red phosphorus method, including books of matches, drain cleaner, Mason jars containing liquid, a bucket containing a reddish-brown liquid, and a blister pack of pseudoephedrine.

[2]  Appellant's interpretation is also inconsistent with decisions from other jurisdictions, which hold that "prior jury service in a similar case, standing alone, is insufficient to sustain a challenge for cause."  State v. Lee, 637 So. 2d 102, 107 & n.10 (La. 1994).

[3]  Although Ellefsen's testimony may not have been given under any express promise of leniency because he had already been sentenced and was serving his time, Ellefsen stated that he was testifying "because I got a better deal" and "because I thought that [the state] would have came back on me."  Thus, Ellefsen was under the impression that his lenient sentence was somehow dependent on or tied to a requirement that he testify against appellant.