State of Minnesota, Respondent, v. Michael Jerome Gruhlke, Appellant.

State of Minnesota, Respondent, v. Michael Jerome Gruhlke, Appellant. A04-1077, Court of Appeals Unpublished, July 12, 2005.

This opinion will be unpublished and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

A04-1077

 

State of Minnesota,

Respondent,

 

v.

 

Michael Jerome Gruhlke,

Appellant.

 

Filed July 12, 2005

Affirmed

Randall, Judge

 

Cottonwood County District Court

File No. KX-03-288

 

 

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

 

L. Douglas Storey, Cottonwood County Attorney, 1044 Third Avenue, Windom MN 56101 (for respondent)

 

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

 

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant challenges his conviction of a first-degree controlled-substance crime, a sale, in violation of Minn. Stat. § 152.021, subd. 1 and 3(b) (2002).  He argues that the evidence was insufficient to support the jury's guilty verdict.  We affirm.

FACTS

Appellant Michael Gruhlke was charged in Cottonwood County District Court with a first-degree controlled substance crime (sale of more than 10 grams of methamphetamine) in violation of Minn. Stat. §§ 152.021 subd.1 and 3(b) (2002).  The conviction is based on a single sale of 13.9 grams of methamphetamine ("meth") to a confidential informant.  Augustine Martines, a confidential informant, was working with the Cottonwood County Drug Task Force in exchange for a reduction in jail time.  This was not the first time Martines had worked as a confidential informant for the police.  Martines had recently been charged with burglary, theft, DWI, and assault, stemming from events that took place in the space of one evening.[1]  In return for his cooperation with the police on the drug purchase with appellant, Martines pled guilty to burglary and DWI, the other charges were dismissed, and he was sentenced to 30 days of house arrest. 

            On August 19, 2003, Martines contacted the Chief of Police and told him that he had arranged to buy meth at a Hardee's restaurant in Windom.  Shortly before the scheduled buy, Martines met with the police chief to prepare for the controlled buy.  The police chief gave Martines $450 in marked currency to buy the drugs, and placed a radio transmitter listening device in Martines's car.[2]  The police did not search Martines's car before or after the transaction.               

The police chief began visual and audio surveillance of the Hardee's restaurant from across the street at a gas station.  Two Windom police officers, Haken and Patterson, began surveillance in an unmarked vehicle at a motel parking lot next door to the Hardee's.  The two officers were listening and videotaping the surveillance.  Appellant called Martines and told him that he did not have a scale to weigh the meth.  There is conflicting testimony regarding the scale.  Martines testified that he already had a scale and the officers testified that they followed Martines to the police station to get a scale.

There is also conflicting testimony on where the actual transaction would take place.  The police officers testified that before the buy, Martines told the officers that he would take appellant to a park to make the purchase.  However, Martines testified that he decided to move the purchase to a lake during the buy after he noticed appellant's nervousness. 

The officers observed appellant drive into the Hardee's parking lot and get into Martines's car.  Both the police chief and the officers in the other vehicle drove to Cottonwood Lake Park.  The police chief followed Martines almost to the park while describing Martines's route to the other two police officers via cell phone.  The other two officers took an alternative route to the park and waited.  The police chief told the officers that Martines was about to come over the hill into view, which he did, and the officers followed them into the parking lot and parked a distance from the car in a spot which gave them a good vantage point.

Both police officers were able to listen to the transaction in the park and they had visual contact with Martines's car throughout the transaction.   After the transaction, Martines turned over the meth to the police and provided a description of the transaction.  Appellant was arrested two days after the buy, on August 21, 2003. 

Appellant was tried and convicted by a jury, and the district court sentenced appellant to 110 months in prison, pursuant to the sentencing guidelines.  This appeal followed.

D E C I S I O N

Appellant argues that his conviction should be reversed, claiming that the evidence presented at trial was insufficient to sustain the guilty verdict.  In 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, is sufficient to allow the jurors to reach the verdict.  State v. Webb, 440 N.W.2d 426, 430
(Minn. 1989).  The reviewing court will leave credibility determinations to the fact-finder and assume that the fact-finder believed the state's evidence and disbelieved evidence to the contrary.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  The reviewing court 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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

The use of confidential informants is a common law-enforcement technique, and is often valuable, especially in drug cases.  See State v. Grilli, 304 Minn. 80, 93-4, 230 N.W.2d 445, 454 (Minn. 1975).  Confidential informants may not be "clean" and, at times, may not be truthful.  However, that determination, like the credibility of all witnesses who take the stand, is for the fact-finder.  See Dale, 535 N.W.2d at 623.

            Appellant argues that the evidence is insufficient to prove beyond a reasonable doubt that he was involved in the sale of meth on August 19, 2003.  First, appellant argues that there were significant gaps in police procedure in this case.  Specifically, Martines, the confidential informant, initiated the drug buy and called the police after the fact.  Therefore, only Martines and appellant have actual knowledge of the content of the initial phone call placed by Martines to arrange the transaction.  Additionally, the police chief testified that he searched Martines, but did not search Martines's car.  Therefore, it cannot be verified whether the drugs were in Martines's car prior to appellant entering the vehicle.  Also, the audio device planted in Martines's car malfunctioned and so the
conversations between appellant and the informant were inaudible during trial.  Finally, the police did not immediately arrest appellant.  Appellant was arrested two days after the buy and no drugs or marked money was found on appellant.

            Respondent argues, in turn, that there is sufficient evidence and corroboration to convict. Contrary to appellant's assertions, the police were in visual contact with appellant throughout the surveillance.  Additionally, even though the recordings were inaudible for trial, the police testified that they were able to listen to the conversations between appellant and the informant throughout the transaction.  Police also testified to the content of the conversations.

            Here, the testimony of the police officers regarding the circumstances surrounding the transaction and their observations, both visual and auditory, provide sufficient evidence to support the verdict.         The two police officers testified that they had clear reception and could hear the transaction between appellant and informant.  The officers heard appellant request additional money for the meth, heard appellant offer Martines a choice between two different rocks of meth, and heard appellant discuss the possibility of an additional purchase in the future.  This evidence was bolstered by testimony regarding the officers' visual surveillance of appellant and Martines in the car.  Additionally, while the audio recording was unavailable to the jury, portions of the police testimony are supported by the videotape which was available at trial. 

            Ultimately, the jury found the police officers' testimony regarding what they had seen and heard to be credible, and sufficient to corroborate Martines's testimony.  This
court leaves issues of credibility to the fact-finder unless clearly erroneous.  See Webb, 440 N.W.2d at 430.  The jury was presented with all the evidence and heard the testimony of various witnesses.  When conflicting testimony is presented, it is the function of a jury to weigh the credibility of witnesses.  State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987).  In reaching its verdict, the jury weighed the evidence, including the challenges to the informant's credibility. 

This case is not a classic tightly woven trail of solid circumstantial evidence.  Understated, the confidential informant is not of the highest caliber.  However, we conclude the state had enough evidence to prove the offense beyond a reasonable doubt if the jury believed the state's witness.  The police officers testified as to their knowledge and the jury found that testimony to be credible.  The jury weighed the evidence and made the required credibility determinations.  We cannot say that, as a matter of law, the jury's verdict is "manifestly and palpably contrary to the evidence."  State v. Houge, 280 Minn. 372, 375-76, 159 N.W.2d 265, 267 (Minn. 1968).

            Affirmed.

[1] Martines, while intoxicated, broke a store window and stole merchandise; stole a car for a joy ride and ran it into a light post; and then had an altercation with his uncle"a bad day." 

[2] Chief Waldron had a receiver equipped with a tape recorder so that he could listen and record the conversations taking place in Martines's car.  The recording device malfunctioned, so no tape of the transaction was available for trial.