State of Minnesota, Respondent, vs. Donald Robert Fowler, 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This opinion will be unpublished and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

C7-02-2241

 

State of Minnesota,

Respondent,

 

vs.

 

Donald Robert Fowler,

Appellant.

 

Filed December 9, 2003

Affirmed Willis, Judge

 

St. Louis County District Court

File No. K301102464

 

Mike Hatch, Attorney General, Thomas R. Ragatz, David M. Aafedt, Francis Green III, Assistant Attorneys General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Alan Mitchell, St. Louis County Attorney, 100 North 5th Avenue West, #501, Duluth, MN  55802 (for respondent)

 

Frederick J. Goetz, Goetz & Eckland, P.A., 2124 Dupont Avenue South, Minneapolis, MN  55405 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and  Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his conviction of conspiracy to commit a first-degree controlled-substance crime, claiming that the evidence was insufficient to support his conviction.  We affirm.  FACTS

On May 15, 2001, members of the St. Louis County Sheriff's Department and the Boundary Waters Drug Task Force searched Drew Lashmett's residence in Babbitt, where they found materials used in the manufacture of methamphetamine.  After the search, Special Agent Jerome Koneczny, a Minnesota Bureau of Criminal Apprehension officer specializing in clandestine methamphetamine labs, interviewed Lashmett.  Lashmett said that he had been manufacturing methamphetamine with appellant Donald Robert Fowler and Doug Elkins.    

            On May 15 and 16, 2001, law-enforcement officers searched Elkins's residence.  Agent Koneczny testified that the search disclosed materials used in the birch-reduction method of manufacturing methamphetamine.  Another officer testified that during an interview, Elkins admitted that he had been manufacturing methamphetamine with Lashmett and Fowler.   

             On May 17, 2001, St. Louis County Deputy Sheriff Timothy Peterson went to Fowler's mother's house in Virginia, Minnesota, to interview Fowler.  During the interview, Officer Peterson obtained written consent from Fowler to search Fowler's property in Tower.  Officer Peterson testified that during a search conducted in Tower later that day, law-enforcement officers discovered in the fireplace of Fowler's sauna materials used in the manufacture of methamphetamine and similar materials partially burned in a fire pit on the property.  Officer Peterson testified that the number of pseudoephedrine blister packs found on Fowler's property was the largest that he had ever seen. 

            On May 18, 2001, Officer Peterson, Agent Koneczny, and other law-enforcement officers searched Fowler's property pursuant to a search warrant.  Agent Koneczny testified that he found numerous items consistent with the manufacturing of methamphetamine, including a document discovered in Fowler's bedroom containing the formula for methcathinone, a controlled substance very similar to methamphetamine, and a triple-beam scale, an object commonly used for weighing and packaging controlled substances for distribution. 

Officers also discovered in the bedroom of Fowler's boarder, Jeremy Engen, a Wal-Mart receipt reflecting a pseudoephedrine purchase.  And in a spare bedroom, they found a bottle of ephedrine.  Based on information received from Lashmett, law-enforcement officers also searched a vehicle owned by Fowler.  The search revealed boxes containing glassware, rubber gloves, lab-grade filters, ephedrine, and a valve system, all of which are used in the manufacture of methamphetamine. 

            Items seized from Fowler's property were tested for methamphetamine.  Samples taken from plastic tubing revealed the presence of d-pseudoephedrine and triprolidine, chemicals used in the methamphetamine manufacturing process.  Samples taken from coffee filters revealed the presence of d-pseudoephedrine, triprolidine, d-methamphetamine, and amphetamine, a chemical combination indicative of methamphetamine synthesis. 

At trial, Lashmett, one of Fowler's co-conspirators, testified that methamphetamine manufacturing occurred on Fowler's property approximately ten times and that Fowler was a knowing participant.  According to Lashmett, Fowler acquired the necessary ingredients, such as pseudoephedrine pills and lithium batteries.  Lashmett testified that he and Fowler purchased pseudoephedrine together on at least two or three occasions and that Fowler prepared the ingredients for the cooking stage.  According to Lashmett, Fowler ground up the pseudoephedrine and cut open and stripped lithium batteries.  Next, either Lashmett or Elkins would cook the methamphetamine, and Fowler would occasionally stop in to check on the progress.  Once the cooking was completed, Fowler assisted in drying the finished product.  Lashmett testified that then he, Fowler, and Elkins divided the resulting methamphetamine among them by weighing it on Fowler's triple-beam scale.  

Sara Shackelton, an in-store loss-prevention employee at Wal-Mart, testified that Fowler's purchases of pseudoephedrine from her store came to her attention because of their volume.  Wal-Mart has a policy of limiting customers to three boxes of the same brand of pseudoephedrine per purchase.  Lashmett testified that Fowler told him how to circumvent this policy either by buying three boxes of each brand of pseudoephedrine in one purchase or by making multiple purchases of pseudoephedrine in one day.  Shackelton testified that Fowler purchased approximately 1,300 cold tablets containing pseudoephedrine from Wal-Mart stores during a two-week period in April 2001.  

            Engen, Fowler's boarder, also testified.  Engen lived at Fowler's residence in Tower from the end of 1999 until spring 2001.  According to Engen, Fowler and Elkins started manufacturing methamphetamine at Fowler's residence toward the end of 2000.  Lashmett became involved approximately one month later, and Brant Harris, another co-conspirator, began participating in early spring 2001.  Engen testified that he saw methamphetamine manufactured at Fowler's residence approximately four to six times.  Engen also testified that he observed Fowler removing pills from blister packs, grinding the pills, cutting open batteries, and drying and splitting the finished methamphetamine into packages.  Further, Engen testified that Lashmett and Elkins were the individuals primarily in charge of the cooking process but that Fowler was present at times and was aware that it was occurring at his residence.    

            Harris also testified.  Harris, who has a chemistry degree, first went to Fowler's residence because a mutual friend was concerned about the safety of the methamphetamine manufacturing operation there and wanted him to look at it.  After examining the set-up that was being used to cook the methamphetamine, Harris installed a ventilation system and supplied laboratory-grade chemicals, glassware, and other materials.  According to Harris, Fowler was aware that methamphetamine was being manufactured on his property.  Harris also testified that he purified crude methamphetamine with Fowler, Elkins, and Lashmett.   

            Fowler also testified.  He admitted that while he used methamphetamine with Elkins, Lashmett, and Harris, he did not participate in or have knowledge of the manufacture of methamphetamine on his property.  He claimed that he purchased pseudoephedrine for Lashmett, who had asked him to buy it for his girlfriend.  Fowler testified that, at the time, he did not know that pseudoephedrine was used in making methamphetamine.  Fowler also testified that in either February or March 2001, he told Lashmett and Elkins that he did not want them manufacturing methamphetamine on his property.  Fowler further testified that his residence was a "party house" where people had free access even if he was not home.

After a jury trial, Fowler was convicted of one count of conspiracy to commit a first-degree controlled-substance crime, in violation of Minn. Stat. §§ 152.021, subds. 2a and 3 and 152.096 (2000) (manufacture of methamphetamine), and one count of first-degree controlled-substance crime, in violation of Minn. Stat. §§ 152.021, subds. 2a and 3 and 609.05 (2000) (aiding and abetting the manufacture of methamphetamine).  Fowler was not sentenced on the aiding-and-abetting conviction, however, because the district court determined that the aiding-and-abetting charge and the conspiracy charge arose from the same course of conduct.  Fowler appeals the conspiracy conviction.

D E C I S I O N

Fowler argues that the evidence is insufficient to support his conviction of conspiracy to commit a first-degree controlled-substance crime.  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 that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  And 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, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

For a jury to find a defendant guilty of conspiracy to manufacture methamphetamine, the state must show that (1) the defendant entered into an agreement with another to manufacture methamphetamine and (2) there was an overt act in furtherance of the conspiracy.  Minn. Stat. §§ 152.096, subd. 1, 152.021, subd. 2a, 609.175, subd. 2 (2000); see State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980) (setting out the elements of crime of conspiracy).  Fowler argues that the state failed to present sufficient evidence to prove the first element of the conspiracy:  that he entered into an agreement with another to manufacture methamphetamine.

While Fowler admits that he used methamphetamine, purchased pseudoephedrine, and allowed his property to be used as a "party house," he maintains that the evidence does not establish that he had actual knowledge of the methamphetamine manufacturing operation on his property.  Fowler asserts that he was an "innocent courier" of pseudoephedrine pills because he did not know how they would be used, citing Sisson v. Triplett, 428 N.W.2d 565, 572 n.6 (Minn. 1988) (concluding that innocent courier could not be criminally implicated).  He contends that, absent evidence of this knowledge, the state's evidence is insufficient to establish that he entered into an agreement to manufacture methamphetamine.  But there is ample evidence from which the jury could infer that Fowler was more than an "innocent courier" and that he conspired to manufacture methamphetamine. 

Proof of a formal agreement to commit a crime is not necessary to support a conspiracy conviction.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  To show a conspiracy, there must be evidence that objectively indicates an agreement.  Id.  Where the evidence indicates that several persons committed separate acts that formed parts of a connected whole, an inference of conspiracy is permissible.  State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943). 

Here, the jury could reasonably have inferred from the evidence presented that Fowler acted with Elkins, Lashmett, and Harris to accomplish the agreed-on criminal objective of entering into a conspiracy to manufacture methamphetamine.  Two of Fowler's co-conspirators testified that Fowler knew that methamphetamine was being manufactured on his property and that he was a knowing participant.  Lashmett testified that he, Fowler, and Elkins prepared the pills and lithium batteries for the cooking of the methamphetamine and that afterwards, the group weighed the finished methamphetamine and divided it.  Lashmett further testified that he purchased pseudoephedrine with Fowler on two or three occasions and that Fowler advised him how to circumvent Wal-Mart's three-box limit.  Harris testified that when he installed a ventilation system for the methamphetamine-manufacturing operation on Fowler's property, Fowler knew about it.  In addition, Harris testified that he purified crude methamphetamine with Fowler, Elkins, and Lashmett.  Engen also testified that he observed methamphetamine manufacturing on Fowler's property approximately four to six times and that Fowler was present and aware that it was occurring.  Engen testified that he saw Fowler removing pills from pseudoephedrine blister packs, grinding the pills, cutting open batteries, and drying and splitting the finished methamphetamine into packages.  Engen was not one of Fowler's co-conspirators.  See Minn. Stat. § 634.04 (2000) (requiring that when a co-conspirator's testimony is used to convict, that testimony must be corroborated by "such other evidence as tends to convict the defendant of the commission of the offense"). 

Additional evidence presented at trial also supports the jury's conclusion that Fowler entered into an agreement to manufacture methamphetamine.  The state provided evidence that Fowler purchased approximately 1,300 pseudoephedrine pills in a two-week period.  Fowler testified that he purchased the pills for Lashmett and did not know that pseudoephedrine was an ingredient in methamphetamine.  But the jury could have inferred that Fowler knew of the intended purpose of the pseudoephedrine based on the sheer volume of pills he purchased and the testimony of other witnesses that Fowler participated in methamphetamine manufacturing.  Thus, the state presented evidence sufficient to permit the jury to find that Fowler was more than an "innocent courier" of pseudoephedrine pills.

Fowler further argues that the state's evidence is insufficient to establish a conspiracy to manufacture methamphetamine because of numerous inconsistencies among the testimonies of Lashmett, Harris, and Engen.  But it is the province of the jury, not an appellate court, to determine the credibility and weight afforded the testimony of any individual witness.  State v. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994).

Viewing the evidence as a whole, and assuming, as we must, that the jury  believed the state's witnesses and disbelieved all contrary evidence, we conclude that the record supports the jury's finding that Fowler conspired to manufacture methamphetamine. 

            Affirmed.