State of Minnesota, Respondent, vs. Thomas Royal Renney, 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This opinion will be unpublished and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

CX-02-2220

State of Minnesota,

Respondent,

vs.

Thomas Royal Renney,

Appellant.

Filed October 21, 2003

Reversed

Randall, Judge

Becker County District Court

File No. K7-01-774

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Joseph A. Evans, Becker County Attorney, Lincoln Professional Center, P.O. Box 476, Detroit Lakes, MN 56502 (for respondent)

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

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Hudson, 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 fifth-degree controlled substance crime, arguing that the state presented insufficient evidence to prove beyond a reasonable doubt that a paid informant purchased marijuana from appellant.  We agree with appellant that the state did not present sufficient corroborating evidence to support the conviction.  Reversed.

FACTS

            On September 5, 2000, Mike Felix, a paid informant, contacted Becker County Deputy Sheriff Patrick Johnston to tell Johnston that he had arranged to buy marijuana at the home of appellant Thomas Royal Renney.  Felix had worked as a "career informant" with police in Minnesota and Iowa since 1990.  Generally, Felix would set up a buy on his own, then contact Johnston.  The two would meet, Johnston would search Felix and his vehicle, would provide money for the buy, and then would follow Felix and observe the purchase.  Afterward, Johnston would follow Felix to an agreed-to location, search him again, receive the drugs purchased, and be debriefed.  Felix would be paid $50 for successfully purchasing marijuana, and $100 for other drugs such as cocaine or methamphetamine. 

            On September 5, Felix told Johnston he had arranged to buy marijuana from appellant through appellant's brother-in-law, Cody Tow.  Johnston and Felix met and performed their usual pre-buy routine.  Felix already had some "buy money" that Johnston had given him for an earlier buy, so Johnston instructed him to use that money to purchase marijuana from appellant.

            Johnston followed Felix in a separate vehicle.  Felix stopped at a school and picked up Cody Tow and another man, Jeremy Dupree.  Johnston then followed Felix to the end of the block on which appellant's house stood.  Johnston did not follow Felix all the way to appellant's house because it was located on a dead-end street, so he parked at the end of the block.  After a few minutes, Felix's car passed again, and Johnston followed him as he dropped Tow and Dupree back at the school, and then proceeded to the location where they were to meet.  Felix gave Johnston a bag containing what tested to be 24.4 grams of marijuana.  Felix told Johnston that he bought the marijuana from appellant for $130.  Johnston did not find any other drugs on Felix or in his car.

            Appellant was charged with fifth-degree controlled-substance crime: sale of marijuana.  A court trial was held July 10, 2002.  Deputy Johnston testified that he was familiar with appellant's residence from other investigations, and that he knew he could not follow Felix all the way to the house.  He waited at the end of the block for about 10 minutes before Felix's car returned from the house.  Johnston testified that he did not put an electronic transmitter on Felix's person, as is the normal procedure.  He did state he had used Felix to complete at least 6 buys before September 5.  Johnston admitted that he could not search Felix's car between the time Felix picked up Tow and Dupree and their later meeting, so he could not know whether Tow or Dupree had any drugs on their persons.

            Felix testified that he had driven Tow to appellant's house to buy marijuana on other occasions.  On September 5, he and Tow went into appellant's house through the garage, while Dupree stayed in the car.  Felix testified that there were other people in the garage buying marijuana.  When asked to describe the inside of the garage, Felix testified that there had been a minivan inside and that one of the two doors was open.  He did not recall the rest of the garage.

            Dupree testified for the defense that September 5 was the only time he went to appellant's house with Tow.  After Felix picked them up, they went to appellant's house and parked in the driveway.  Dupree did not remember seeing any other people around.  Dupree stayed in the car, and he thought Felix had stayed in the car with him, although he could not say so with certainty.  Dupree thought that the purpose of the trip had been to "getor to sell some weed for Mike Felix," but he had not been involved in the transaction.  Dupree testified that he never saw Felix and Tow exchange anything when they returned to the car.

            Finally, appellant testified in his own defense.  He stated that he had never seen Mike Felix before the day of trial.  He admitted that Tow had come to his house, but maintained that Tow had come to sell marijuana to appellant, rather than to buy it.  Appellant admitted to being a regular user of marijuana, but insisted that he had never sold it.  Appellant admitted that there was a minivan in his garage that night, but testified that there were no other people present. The district court found appellant guilty of fifth-degree controlled substance crime by order dated August 5, 2002, and this appeal follows.

D E C I S I O N

            In considering a claim of insufficient evidence, our 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, was sufficient to allow the factfinder to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). 

            Appellant argues that the testimony of Felix, a paid police informant, is not sufficient to support his conviction.  Specifically, appellant argues that not enough corroborating evidence was presented to show that the marijuana came from appellant. 

            The use of confidential informants is a common law-enforcement technique, and is often valuable, especially in drug cases.  See, e.g. State v. Grilli, 230 N.W.2d 445, 454 (Minn. 1975).  So-called "controlled buys" are a way for officers to catch drug dealers in the act.  But surveillance, both visual and audio, is important to the reliability of a controlled buy.  Body wires, marked money, and immediate arrests help ensure the reliability of the informant's information. 

            Appellant notes that other jurisdictions have adopted the rule that the testimony of an informant, like that of an accomplice, must be corroborated, and cannot sustain a conviction on its own.  Minn. Stat. § 634.04 (2002).  This argument is not without merit.  At some point during the planning and commission of a crime, an accomplice shares a common goal with a defendant.  In contrast, the paid confidential informant is always antagonistic to the defendant.  The informant's success depends on the defendant's failurearrests and convictions must occur for an informant to receive the benefits with which law enforcement rewards "good snitches."  In addition, accomplices can be expected to know even more about a defendant's involvement in a crime than an informant.  Although the state can conduct sting operations from the outside, it cannot cross the line into involvement in the crime without risking a due process violation.  See, e.g. State v. Morris, 272 N.W.2d 35, 36 (Minn. 1978) (legal "due process defense" available even to predisposed defendant where police involvement or inducement to commit crime is sufficient).  The argument that if an accomplice's testimony has to be corroborated, Minn. Stat. § 634.04 (2002), then most certainly a confidential informant's should be makes sense, but that, for now, is not the law.  However, the lack of valid corroboration for a confidential informant's testimony doesn't help the state's case, it hurts it.

We have only to note what is obviousthat while we do not say that the uncorroborated testimony of an informant can never be sufficient to support a conviction, we can say that the uncorroborated testimony of an informant may often be insufficient.  This is one of those cases.  Although Johnston testified that he followed Felix to the end of appellant's street, he acknowledged that he waited at the end of the block and did not visually observe the drug transaction.  Felix did not wear a body wire.  No marked money was recovered from appellant.  Although none of these things are legal essentials of proof of a controlled buy, their collective absence diminishes the credibility of the informant-buyer's testimony.  Further, Tow and Dupree entered Felix's car after Johnston searched it, and Johnston admitted he could not know if either of them brought drugs into the car.  Appellant and Dupree both gave testimony inconsistent with Felix's.  Dupree testified that he thought Felix had stayed in the car.  Felix could not describe the inside of the garage fully.  Felix is a "career informant" who makes part of his living buying drugs for the police.  On these facts, Felix's testimony alone, corroborated only by Johnston (whose testimony was based entirely on Felix's word), is insufficient to meet the burden of proof beyond a reasonable doubt.  We reverse appellant's conviction of fifth-degree controlled substance crime. 

Reversed.