State of Minnesota, Respondent, vs. Maria Domingo Jimenez, Appellant.

State of Minnesota, Respondent, vs. Maria Domingo Jimenez, Appellant. A04-1833, Court of Appeals Unpublished, August 9, 2005.

This opinion will be unpublished and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

A04-1833

 

 

State of Minnesota,
Respondent,
 
vs.
 
Maria Domingo Jimenez,
Appellant.

 

 

Filed August 9, 2005

Affirmed
Forsberg, Judge*

 

Lyon County District Court

File No. K4-03-940

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Richard R. Maes, Lyon County Attorney, Lyon County Government Center, 607 West Main Street, Marshall, MN  56258 (for respondent)

 

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

 

            Considered and decided by Hudson, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Appellant challenges her conviction of first-degree controlled substance crime, arguing that the informant's testimony and evidence that she was in the vicinity of the controlled purchase is insufficient to support the conviction.  We affirm. 

FACTS

            On October 8, 2003, police informant R.H. reported to the Lyon County Sheriff's Department that J.O. was distributing narcotics.  According to R.H., J.O. could connect him with a woman named "Maria," who had cocaine for sale. 

            A controlled purchase was set up for that same afternoon.  R.H. was provided with $600 to purchase 14 grams of cocaine and fitted with a radio transmitter to monitor the transaction.  Deputy Dan Louwagie and the surveillance team followed R.H. to a gas station near J.O.'s house, parking in a nearby lot.  Several minutes later, the surveillance team observed J.O. walk across the street to the gas station and enter R.H.'s vehicle.  J.O. proceeded to call "Maria" on his cellular phone.  Deputy Louwagie later determined that the number belonged to appellant Maria Jimenez. 

R.H. and J.O then drove across the street to J.O.'s house and parked in an alley to await "Maria's" arrival.  A short time later, Deputy Louwagie observed two women in a green car pull into the alley and stop.  The green car was registered to Maria Jimenez.  Deputy Louwagie saw a woman exit the green car, enter R.H.'s car, and a minute later return to the green car and drive off. 

 R.H.'s testimony substantiates Deputy Louwagie's observations.  R.H. testified that after the green car pulled into the alley, Jimenez exited her vehicle and entered his car.  R.H. offered Jimenez $600.  Jimenez confirmed the amount and handed R.H. what was later determined to be 13.6 grams of methamphetamine.  Jimenez exited R.H.'s vehicle and drove away in the green car.  Both Deputy Louwagie and R.H. identified Jimenez as the woman who sold R.H. the methamphetamine. 

But Jimenez and her niece, V.D., offered a different version of the events.  Jimenez testified that around 4:30 p.m. on October 8, she received a phone call from J.O., but could not hear him because of a bad connection.  Jimenez thought that J.O.'s pregnant sister might be going into labor, so she and V.D. drove to J.O.'s house.  When they arrived, Jimenez saw J.O. laughing at her, as if the call had been a joke, so Jimenez drove off.  According to Jimenez, no one exited the vehicle or sold R.H. any drugs.

About two weeks after the controlled purchase, Jimenez was arrested and charged with selling over 10 grams of methamphetamine, a first-degree controlled substance crime, in violation of Minn. Stat. § 152.021, subd. 1(1) (2002).  The matter proceeded to trial and a jury convicted Jimenez of first-degree sale of a controlled substance.  Jimenez moved for a judgment of acquittal, which was denied.  The district court imposed a 43-month sentence, a downward durational departure from the presumptive guidelines sentence.  This appeal followed.

D E C I S I O N

Jimenez argues that the evidence is insufficient to support her conviction of first-degree sale of a controlled substance, Minn. Stat. § 152.021, subd. 1(1) (2002).  Our review of an insufficient evidence claim is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jury to reach a guilty verdict.  State v. Olhausen, 681 N.W.2d 21, 25 (Minn. 2004).  We assume that the jury believed the testimony that supports the conviction and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  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, reasonably could conclude that the defendant was guilty of the charged offense.  Olhausen, 681 N.W.2d at 25-26.  The evidence as a whole need not exclude all possibility that the defendant is innocent, rather, it must only make such a theory seem unreasonable.  State v. Fidel, 451 N.W.2d 350, 353 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990). 

A person is guilty of a first-degree controlled substance sale crime if "on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing cocaine, heroin, or methamphetamine."  Minn. Stat. § 152.021, subd. 1(1). 

Jimenez denies selling methamphetamine to R.H. on October 8.  Jimenez contends that absent any physical evidence, such as fingerprints or the $600, the informant's testimony and the deputy's observations are insufficient as a matter of law to support the first-degree controlled substance conviction.  It is well-established, however, that a conviction can rest upon the testimony of a single credible witness.  State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004); State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990); State v. Hadgu, 681 N.W.2d 30, 34 (Minn. App. 2004), review denied (Minn. Sept. 21, 2004).  A single witness identification can be sufficient to support a conviction "if a witness testifies that in his belief, opinion, and judgment the defendant is the one he saw commit the crime."  State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985).  The jury is free to disbelieve the defendant's reasonable alternative explanations of what occurred.  State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).

Viewing the evidence in the light most favorable to the conviction, the record provides a sufficient factual basis to support the jury finding that Jimenez sold methamphetamine to R.H. on the afternoon of October 8.  R.H., the police informant, testified that he met J.O. at a gas station where J.O. called "Maria" to arrange a buy.  Jimenez acknowledges receiving this call from J.O. and Deputy Louwagie verified that the number J.O. dialed belonged to Jimenez.  R.H. testified that after making the phone call, he and J.O. went to J.O.'s house to wait for "Maria" to arrive.  Several minutes later, a green car pulled up and the woman who had been driving exited the vehicle.  The woman entered R.H.'s vehicle and the parties exchanged money and 13.6 grams of methamphetamine.  The green car was registered to Jimenez and she admitted that she drove a green car to J.O.'s house that afternoon.  Deputy Louwagie observed this entire transaction from across the street and corroborated R.H.'s factual account. 

Both Deputy Louwagie and R.H. identified Jimenez as the woman who sold methamphetamine to R.H.  Deputy Louwagie closely observed Jimenez as she was driving away from J.O.'s house and recognized her from a past encounter.  Based on a photograph shown to R.H. several minutes after the sale, R.H. confirmed that Jimenez was the woman who sold him the methamphetamine.  At trial, Deputy Louwagie and R.H. again identified Jimenez as the woman who sold R.H. the methamphetamine.  Jimenez's conviction rests not on one eyewitness identification, but on two eyewitness identifications.

Jimenez points to no specific evidence that would make either R.H.'s or Deputy Louwagie's testimony not credible, other than the fact that R.H. is a paid informant.  But Minnesota has not adopted a corroboration requirement for testimony from paid informants either legislatively or judicially.  In Minnesota, only accomplice testimony must be corroborated.  See Minn. Stat. § 634.04 (2004).  In any event, R.H.'s testimony was corroborated by Deputy Louwagie and by the circumstantial evidence.

Although Jimenez admitted at trial to driving by J.O.'s house on October 8 in a green car, she testified that she never stopped the car to complete a drug sale.  Apparently, the jury disbelieved Jimenez's testimony, and we must credit that finding.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998) (noting it is the exclusive province of jury to determine the weight and credibility to be afforded the testimony of each witness).  Based on the testimony of Deputy Louwagie and the informant, R.H., the jury reasonably could have concluded that, rather than just driving by, Jimenez went to J.O.'s house to sell methamphetamine.  The evidence is sufficient to support Jimenez's conviction of first-degree sale of a controlled substance. 

Affirmed.

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