State of Minnesota, Respondent, vs. Cory Henry Kelderman, 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This opinion will be unpublished and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

A03-690

 

State of Minnesota,

Respondent,

 

vs.

 

Cory Henry Kelderman,

Appellant.

 

Filed May 25, 2004

Affirmed

Kalitowski, Judge

 

Rock County District Court

File No. 67-K7-02-173

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Donald R. Klosterbuer, Rock County Attorney, Rock County Courthouse, 204 East Brown, Luverne, MN 56156 (for respondent)

 

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

 

            Considered and decided by Minge, 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

KALITOWSKI, Judge

            Appellant Cory Henry Kelderman challenges his conviction of two counts of conspiracy to commit a first-degree controlled substance crime (conspiracy to manufacture methamphetamine), one count of a first-degree controlled substance crime (manufacture of methamphetamine), and one count of a second-degree controlled substance crime (possession of six grams or more of methamphetamine).  Appellant argues that (1) the district court erred by admitting evidence seized in an unjustified nighttime search; (2) the court failed to properly instruct the jury; and (3) the evidence does not support the conviction.  We affirm. 

D E C I S I O N

I.

            Appellant argues that the evidence seized during the nighttime search of his residence should be suppressed because a nighttime search was not justified.  "When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing or not suppressing the evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Minnesota law requires that search warrants be executed between the hours of 7 a.m. and 8 p.m. unless a court determines that a nighttime search is necessary to "prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public."  Minn. Stat. § 626.14 (2002).  Thus, the affidavits offered in support of the search warrant must demonstrate the necessity of a nighttime search.  State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978).  Minn. Stat. § 626.14 is intended to prevent nighttime intrusions "with people being roused out of bed and forced to stand by in their night clothes while the police conduct the search."  Id. at 841.  These types of nighttime searches involve a much greater intrusion upon privacy and are presumably more alarming than an ordinary daytime search of a home.  Id. at 839-40.    

            Here, law enforcement officials arrested and questioned appellant's co-conspirators Robin Davis and Kevin O'Connell after a store reported their suspicious purchase of pseudoephedrine-containing medication.  Davis told law enforcement officials that she and O'Connell were planning to deliver the boxes of pseudoephedrine to appellant that night in exchange for methamphetamine, although O'Connell denied that a delivery was planned for that night.  Relying on Davis's statements, law enforcement officials applied for a search warrant authorizing a nighttime search, stating that appellant was "expecting O'Connell and Davis to deliver the [pseudoephedrine] at or shortly after 2 a.m. tonight.  Both are now in custody.  Kelderman may become concerned when O'Connell and Davis fail to come and as a result remove and/or hide the objects of the search."  The district court determined that the reason stated in the application and subsequent warrant established the "immediacy and necessity" of a nighttime search.  

            Appellant does not argue that the reason stated in the affidavit in support of a nighttime search, if true, is legally insufficient.  Nor would such an argument be successful since the stated reason includes more than mere boilerplate language.  See State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (stating that courts should defer to warrants in resolving doubtful or marginal cases).  Instead, appellant argues that the search was invalid and the evidence should have been suppressed because the reason stated in the affidavit is false.

            If the application for a search warrant includes intentional or reckless misrepresentations of fact that are material to the finding of probable cause, the search warrant is void and the fruits of the search must be excluded.  State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989); State v. Causey, 257 N.W.2d 288, 292-93 (Minn. 1977).  A misrepresentation is material if, when set aside, there is no longer probable cause to issue the search warrant.  Moore, 438 N.W.2d at 105.  If the misrepresentation is material, then the court must determine whether the police deliberately or recklessly misrepresented facts because innocent or negligent misrepresentations will not invalidate a warrant.  Id.        

            Here, the district court found that Davis told the police that she and O'Connell were planning on delivering pseudoephedrine to appellant that night.  And there is no evidence that the law enforcement officials deliberately and recklessly misrepresented facts either to support the warrant as a whole or the nighttime search authorization in particular.  Therefore, we conclude that a nighttime search was justified and the district court properly denied appellant's motion to suppress evidence from the search.   

II.

            Appellant argues that the district court erred by failing to instruct the jury that (1) accomplice testimony must be corroborated; (2) it had to unanimously agree on the overt act for each conspiracy charge; and (3) it had to determine whether one or multiple conspiracies existed.  District courts are allowed "considerable latitude" in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). 

            Here, appellant did not object to any of the jury instructions nor did he request any additional jury instructions.  Failure to request specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  But a reviewing court can reverse if the instructions constituted plain error, or were misleading or confusing on fundamental points of law.  Baird, 654 N.W.2d at 113.  Plain error is:  (1) error; (2) that is plain; and (3) that affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  An appellant bears the "heavy burden" of showing that the error affects substantial rights, which is satisfied if the appellant shows that the error was prejudicial and affected the outcome of the case.  Id. at 741.  

            Appellant first argues that the district court erred by failing to instruct the jury that accomplice testimony must be corroborated.  Under Minnesota law, an accused may not be convicted on the uncorroborated testimony of an accomplice.  Minn. Stat. § 634.04 (2002).  Accomplice testimony need not be corroborated on every point or element of the crime.  State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982).  Rather, corroborative evidence must restore confidence in an accomplice's testimony, confirming its veracity and indicating the defendant's guilt in a substantial way.  State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000).  Further, accomplice testimony cannot be corroborated solely by the testimony of another accomplice.  State v. Harris, 405 N.W.2d 224, 227 (Minn. 1987).      

            An accomplice-testimony instruction must be given in every criminal case in which any witness against the defendant might reasonably be considered an accomplice to the defendant's crime.  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989); see State v. Landro, 504 N.W.2d 741, 745 (Minn. 1993) (stating that the general test for determining whether a witness is an accomplice is whether that person could have been indicted and convicted for the same crime for which the defendant was charged).  Here, it is not disputed that O'Connell, Davis, and Kevin Smiens were appellant's accomplices. But even if the district court erred in not giving an accomplice-testimony instruction, appellant has failed to establish that the error was prejudicial and affected the outcome of the case.  The testimony of O'Connell, Davis, and Smiens was corroborated by the testimony of several law enforcement officials and the large amount of physical evidence seized from appellant's residence.  Therefore, we conclude that the district court's failure to give an accomplice-testimony instruction, which was not requested by appellant, was not plain error because it did not affect the outcome of the case. 

            Appellant further contends that the prosecutor improperly exploited the district court's failure to give the accomplice-testimony instruction.  Appellate courts reviewing claims of prosecutorial misconduct "will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant's right to a fair trial."  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  There are two distinct standards for prosecutorial misconduct:  serious misconduct will be found harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error, while for less serious misconduct, the standard is whether the misconduct likely played a substantial part in influencing the jury to convict.  Id. (quotations omitted).  

            Appellant claims that the prosecutor improperly expressed a personal opinion about the credibility of Davis and Smiens.  A prosecuting attorney cannot personally endorse the credibility of witnesses.  State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995).  But if a defendant fails to object to or seek cautionary instructions on a prosecutor's comments made during closing argument, this court will reverse only if the comments were unduly prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  In determining whether the prosecutorial misconduct was unduly prejudicial, the reviewing court should consider the closing argument as a whole, rather than focusing on selective phrases or remarks that may be taken out of context or given undue prominence.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).  Here, considering the prosecutor's closing argument as a whole, the comments were not unduly prejudicial.  Further, appellant's contention that the prosecutor committed misconduct by mentioning evidence outside the record that O'Connell had violated a code between drug users is also without merit.     

            Appellant also argues that the district court failed to explain that the existence of an overt act was a separate element of the conspiracy charge, specify what overt acts were alleged, or instruct the jury that it had to unanimously agree on what overt act was committed.  To convict a defendant of conspiracy to manufacture methamphetamine, the state must prove beyond a reasonable doubt that:  (1) the defendant entered into an agreement with another to manufacture methamphetamine; and (2) the defendant or another party to the conspiracy committed an overt act with the purpose of furthering the conspiracy.  Minn. Stat. §§ 609.175, subd. 2, 152.096, subd. 1, .021, subd. 2a (2002). 

            Further, jury verdicts in criminal cases must be unanimous.  Minn. R. Crim. P. 26.01, subd. 1(5).  But unanimity is required only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed.  State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987) (quotation omitted), review denied (Minn. Jan. 20, 1988).  Nonetheless, a jury must unanimously agree on which acts constitute an element of the crime.  State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001).

            Here, the district court instructed the jury that "whoever conspires with another to commit a crime is guilty of conspiracy if one or more of the parties to the conspiracy does some overt act in furtherance of the conspiracy" and that each element had to be proven beyond a reasonable doubt. But in describing the elements of conspiracy, the district court failed to specify which overt acts were alleged.  Instead, the court inserted language regarding the alleged crime and criminal objective.  Nonetheless, in the state's closing argument, the prosecutor listed the alleged overt acts that occurred in appellant's conspiracy with Smiens:  Smiens purchased and delivered pseudoephedrine to appellant and appellant took possession of that pseudoephedrine.  And although not explicitly stated, these were the same overt acts alleged and repeatedly referenced in the Davis/O'Connell conspiracy.  We thus conclude that even if the district court erred in instructing the jury regarding overt acts, the error was harmless.  

            Appellant also argues that the district court erred in failing to instruct the jury that it had to determine whether one or multiple conspiracies existed.  Where a criminal defendant enters into a single agreement, he cannot be convicted of multiple conspiracy violations.  Braverman v. United States, 317 U.S. 49, 52-53, 63 S. Ct. 99, 101-02 (1942).  Whether there are multiple conspiracies or a single one is a question of fact for the jury to decide.  United States v. Pullman, 187 F.3d 816, 821 (8th Cir. 1999).

            Appellant cites no caselaw to support his propositions that multiple conspiracies exist when there are separate and distinct unlawful agreements to achieve distinct purposes and that no interpretation of the conspiracy statute would allow a jury to find that a defendant may be convicted of as many counts of conspiracy as there are alleged co-conspirators.  Further, the evidence shows that appellant had two separate agreements, one with Davis and/or O'Connell and one with Smiens, even though the agreements essentially had the same purpose of manufacturing methamphetamine.  We conclude that the district court did not err and that even if the district court committed an error in the conspiracy instruction, any such error was harmless. 

III.

            Lastly, appellant argues that the evidence is insufficient to support his conviction.  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).  It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  The reviewing court 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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  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). 

            Appellant first argues that the evidence is insufficient to support his conviction of the two conspiracy counts.  A conspiracy to manufacture methamphetamine requires that (1) the defendant entered into an agreement with another to manufacture methamphetamine; and (2) the defendant or another party to the conspiracy committed an overt act with the purpose of furthering the conspiracy.  Minn. Stat. §§ 609.175, subd. 2, 152.096, subd. 1, .021, subd. 2a.  Proof of a formal agreement to commit the crime charged is not required for a conspiracy conviction; the evidence need only objectively indicate an agreement.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  Therefore, a conspiracy may be inferred from the circumstances.  State v. Watson, 433 N.W.2d 110, 114-15 (Minn. App. 1988), review denied (Minn. Feb. 10, 1989).  Where the evidence permits an inference of concert of action to accomplish an unlawful result, as where several individuals commit separate acts which form 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, Davis, O'Connell, and Smiens all testified that they bought pseudoephedrine and gave it to appellant in exchange for methamphetamine.  And Smiens testified that he once waited while appellant made the methamphetamine so that he could get his share, but he left before appellant completed the batch.  Therefore, even if an explicit agreement did not exist, the evidence objectively indicates that appellant had an agreement with Davis/O'Connell and an agreement with Smiens to manufacture methamphetamine.

            Appellant also argues that the evidence does not support the verdict because law enforcement officials did not find anhydrous ammonia, a key ingredient in manufacturing methamphetamine, or observe a production line.  But the statute does not require a defendant to possess every ingredient necessary to manufacture a controlled substance to be found guilty of conspiracy to manufacture it.  See Minn. Stat. §§ 609.175, 152.096, subd. 1.  Nor is evidence of a production line a prerequisite for finding a defendant guilty of manufacturing a controlled substance.  See Minn. Stat. § 152.021, subd. 2a.  Further, appellant's conviction is supported by the testimony of O'Connell, Davis, Smiens, and the law enforcement officials as well as the substantial physical evidence seized at his residence.  O'Connell and Smiens testified that they personally gave pseudoephedrine to appellant in exchange for methamphetamine that he made.  In addition, Smiens testified that he once observed appellant making methamphetamine.  And although appellant's testimony conflicts with the testimony of O'Connell, Davis, and Smiens, ultimately, the jury determines the credibility and weight given to the testimony of witnesses.  Folkers, 581 N.W.2d at 327. 

            Affirmed.