State of Minnesota, Respondent, vs. Soong See, Appellant.

State of Minnesota, Respondent, vs. Soong See, Appellant. A06-1383, Court of Appeals Unpublished, September 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1383

 

State of Minnesota,

Respondent,

 

vs.

 

Soong See,

Appellant.

 

Filed September 11, 2007

Affirmed

Kalitowski, Judge

 

Olmsted County District Court

File No. K4-05-385

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Mark A. Ostrem, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

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

 

            Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Soong See challenges his convictions of second-degree controlled substance crime, intent to sell, in violation of Minn. Stat. § 152.022, subd. 1(1) (2002), and third-degree controlled substance crime, possession, in violation of Minn. Stat. § 152.023, subd. 2(1) (2002), arguing that (1) the district court erred by permitting respondent's expert witness to provide his opinion on the ultimate issue at trial; (2) insufficient evidence exists to support the conviction for intent to sell; and (3) the district court made inadequate findings of fact.  We affirm.

D E C I S I O N

            Appellant was on juvenile probation in December 2003 when two probation supervisors went to his home for a field visit.  When appellant came out of his bedroom he appeared nervous and fidgety.  One of the probation supervisors asked appellant to empty his pockets and appellant complied, handing the supervisor a baggie containing eight smaller baggies which were later determined to contain cocaine.  Each bag contained between .291 and .558 grams of cocaine; the total weight was 3.008 grams.

            After appellant waived his right to a jury trial, a bench trial was held.  Respondent called an officer from the Rochester Police Department Narcotics Unit to testify regarding drug sale practices.  The officer testified that he had participated in more than a hundred controlled buys involving "8-balls," which is about an eighth of an ounce of cocaine.  He further testified that he had bought an 8-ball that was packaged in more than one bag, but had never bought an 8-ball that was packaged in eight individual packages and that it was not uncommon to purchase smaller quantities ranging between .1 and .3 grams.  The officer also testified that a person buying an 8-ball and then splitting it up and selling it in smaller packages could make a $600 profit and he could not think of any reason a person buying an 8-ball would buy it in eight individual baggies because they would get a better price if they bought it as a single quantity.  Finally, he testified that in his opinion, the eight baggies recovered from appellant were packaged for sale and not for personal use.

I.

            Appellant argues that the district court committed plain error by allowing the officer to provide expert testimony as to the ultimate issue at trial.  We disagree.

            Appellant argues that in the following testimony, the officer improperly provides his opinion as to the ultimate issue at trial:

Q.        Now, are you personally familiar with how the drugs   [ ] that were the issue of this particular trial were packaged?

 

A.        Yes, sir.

 

Q.        And based on your experience as a narcotics officer, have you formed an opinion as to whether the eight individual packages of cocaine that were found on the defendant on December 5, 2003 were intended for personal use or for sale?

 

A.        Yes, I have.

 

Q.        What is that opinion?

 

A.        My opinion is that they were packaged for sale.

 

Q.        What do you base that opinion on?

 

A.        I base it on the experience of eight years, almost, in narcotics and what we have purchased, talking to drug dealers, talking to drug users and how it's packaged.  This was packaged for sale.  It's not packaged to sell to one individual, and it's not for personal use.

 

            Because appellant did not object to this testimony, it must be reviewed under the plain error doctrine.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Under the plain error doctrine, appellant "must show that the district court's failure to sua sponte exclude the testimony at issue constituted (1) an error; (2) that was plain; and (3) that affected [appellant's] substantial rights."  State v. Medal-Mendoza, 718 N.W.2d 910, 919 (Minn. 2006).

            Minnesota's rules of evidence permit expert opinion on the ultimate issues if such testimony is helpful to the fact-finder.  See Minn. R. Evid. 704 ("[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."); State v. Moore, 699 N.W.2d 733, 740 (Minn. 2005).  "Expert opinion testimony is not helpful if the subject of the testimony is within the knowledge and experience of a lay jury and the testimony of the expert will not add precision or depth to the jury's ability to reach conclusions about that subject which is within their experience."  Moore, 699 N.W.2d at 740 (quotations omitted).  Expert testimony on the ultimate issue is not helpful if it embraces a legal conclusion, term of art, or "would merely tell the jury what result to reach."  Id.

            Here, the officer's testimony that in his opinion the drugs found in appellant's possession were "packaged for sale" did not use terms of art, embrace a legal conclusion or tell the jury what result to reach.  The officer did not testify to the legal conclusion that appellant possessed the cocaine with the intent to sell it, rather he merely opined that the drugs were packaged for sale.  The officer's testimony is helpful because the manner in which cocaine is packaged and sold is not within the knowledge or experience of a lay jury and adds depth to the jury's understanding of the nature of the contraband appellant possessed. 

            We conclude that the district court did not err by allowing the officer's testimony regarding the packaging of cocaine.

II.

            Appellant argues that his conviction for second-degree controlled substance crime, intent to sell, is not supported by sufficient evidence.  We disagree.

            When assessing the sufficiency of evidence, appellate courts review bench trials in the same manner as jury trials.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).  The review is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the [court] to reach the verdict which [it] did."  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The verdict should stand if the court, "while acting with due regard for the presumption of innocence and requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense, given the facts in evidence and the legitimate inferences that could be drawn therefrom."  State v. Crow, 730 N.W.2d 272, 280 (Minn. 2007).  We assume that the fact-finder believed the state's witnesses and disbelieved the defendant's witnesses.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001). 

            "[C]ircumstantial evidence is entitled to the same weight as direct evidence."  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  A fact-finder is in the best position to evaluate circumstantial evidence, and its verdict is entitled to deference.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

            A person is guilty of controlled substance crime in the second degree, intent to sell, if the person unlawfully possesses three grams or more of a mixture containing cocaine with the intent to "sell, give away, barter, deliver, exchange, distribute or dispose of to another."  Minn. Stat. §§ 152.01, subd. 15a(3), .022, subd. 1(1) (2002).

            Appellant argues that the state's only proof of appellant's intent to sell is the officer's testimony regarding the packaging of the cocaine found in appellant's possession.  But intent to sell or distribute may be proven circumstantially by evidence as to a large quantity of the substance and evidence as to the manner of packaging.  State v. Lozar, 458 N.W.2d 434, 444 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  Here, evidence was presented that the manner in which the cocaine was packaged supported the inference that appellant intended to sell the cocaine.  Appellant possessed more than three grams of cocaine which was found in eight separate baggies, five of which weighed close to 0.3 grams, an amount the officer testified is often bought and sold during controlled buys.  The officer also testified that in eight years of conducting controlled buys, he had never bought an eighth of an ounce of cocaine in eight separate baggies.

            Appellant argues that this evidence supports a rational hypothesis other than guilt, namely that the drugs were possessed for appellant's personal use.  But we assume that the district court believed the officer's testimony, Vick, 632 N.W.2d at 690.  The officer's testimony regarding the packaging of cocaine, in combination with the fact that appellant was caught in possession of more than three grams of cocaine contained in eight separate individual baggies, is sufficient to support appellant's conviction.

III.

            Appellant argues that the district court's findings of fact do not satisfy the written findings requirement of Minn. R. Crim. P. 26.01.  We disagree.

            Rule 26.01 mandates that in a case tried without a jury, the court shall "specifically find the essential facts in writing on the record."  Minn. R. Crim. P. 26.01, subd. 2.  "If the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding." Id.

            The district court made the following findings of fact regarding the second-degree controlled substance charge:

            1.         Defendant on one or more occasions within a ninety-day period sold one or more mixtures of a total weight of three grams or more containing cocaine.

 

            2.         Defendant knew or believed that the substance sold or possessed with the intent to sell was cocaine.

 

            3.         Defendant's act took place on December 5, 2003.           

 

            Appellant argues that the district court's findings contravene the rule because they do not meet the goal of aiding the appellate court in reviewing the conviction.  See State v. Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990) ("The purpose of written findings is to aid the appellate court in its review of conviction resulting from a nonjury trial.").         

            Here, the district court's findings of fact address each element of appellant's offense and are sufficient to allow meaningful appellate review.  Further, even if the district court failed to make a necessary finding, it is deemed to have made all factual findings necessary to support its general finding that appellant is guilty of second-degree controlled substance crime.  See Minn. R. Crim. P. 26.01, subd. 2; State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989) ("Even though the trial court did not specifically find [the defendant] entered with intent to commit criminal sexual conduct, such intent can be assumed to be included in the general finding.").

            Affirmed.