State of Minnesota, Respondent, vs. Dale Allen Jones, 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This opinion will be unpublished and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

A03-1136

 

 

State of Minnesota,

Respondent,

 

vs.

 

Dale Allen Jones,

Appellant.

 

Filed August 17, 2004

Affirmed

Lansing, Judge

 

Crow Wing County District Court

File No. K8-01-2478

 

 

Donald F. Ryan, Crow Wing County Attorney, Kristine R. DeMay, Assistant County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

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

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Dale Jones guilty of three counts of first-degree controlled-substance crime.  On appeal from conviction, Jones challenges the admissibility of other-crimes evidenceand the sufficiency of the evidence to establish a conspiracy to manufacture methamphetamine.  In a pro se brief and response, Jones raises fifteen additional arguments.  Because we conclude that the admission of the other-crimes evidence was within the district court's discretion, the evidence sufficiently establishes the agreement to manufacture methamphetamine, and the issues raised in Jones's two supplemental briefs do not provide a basis for reversal, we affirm.

F A C T S

 

Acting on a tip from an informant, police obtained and executed a warrant in October 2001 to search for evidence of methamphetamine manufacturing on property in Merrifield in Crow Wing County.  Four structures were located on the property:  a mobile home, a pole barn, a garage or shed, and a smaller shed.

The mobile home's kitchen window was covered with a sheet or a blanket.  Inside the kitchen area, police found methamphetamine, bags containing 98.8 grams of ephedrine, and a rubber tub containing a glass jar with a mixture of red phosphorus and methamphetamine.  The rubber tub also held lye, a strainer, drain cleaner, vinyl tubing, a mixing spoon, and containers of Heet antifreeze.  In the kitchen refrigerator, police found a large glass jar containing a coffee filter and an orange liquid that tested positive for methamphetamine.  A plastic pitcher in the refrigerator was filled with a similar orange liquid.  In the living-room area, police found a beer can containing a coffee filter in a liquid that similarly tested positive for methamphetamine and cups containing orange liquid.

The police seized evidence from the mobile home's three bedrooms.  From one bedroom, they seized an Internet article on "How to Make Crank," a dish containing hypodermic needles, a glass jar containing liquid methamphetamine, and identification material for one of the occupants who was present during the search.  From a second bedroom, police seized identification documents for another person who was present during the search.  In the third bedroom, police found a black leather jacket.  From a pocket of the jacket, police seized a plastic bag with coffee filters that held methamphetamine. 

When the warrant was executed, Jones was in the small shed.  From the same shed, police seized a four-ounce container of iodine crystals.  The container had a green label that identified its source as BME Labstore, St. Paul, Minnesota, with a telephone number for the store.  Outside the small shed, police found two bottles of acetone.  Next to a garbage can, police found plastic gloves and vinyl tubing.  In back of the outbuildings, police found a fifty-five-gallon drum of toluene.

The state charged Jones with first-degree controlled-substance crime under Minn. Stat. §§ 152.021, subds. 2a, 3(a), and 609.05 (2000) (aiding and abetting methamphetamine manufacture); Minn. Stat. §§ 152.021, subds. 2a, 3(a), and 152.096 (2000) (conspiracy to manufacture methamphetamine); and Minn. Stat. §§ 152.021, subd. 2(1), and 609.05 (2000) (aiding and abetting possession of methamphetamine ).

At Jones's jury trial, an employee of the BME Labstore in St. Paul testified that Jones had purchased more than two pounds of iodine crystals in the six-month period immediately before the warrant was executed.  The most recent purchase was only two weeks before the warrant's execution.  Jones's mother testified that Jones had been living at home but left with one of the occupants of the Merrifield house to stay with him for a week to fish and to look for work.  She testified that when Jones left home he was wearing a leather coat, but the friend he left with wanted to buy the coat.

            The district court permitted the state to introduce two incidents as Spreigl evidence:  the first, admitted for the purpose of establishing motive for manufacture, was Jones's 2001 conviction of fifth-degree methamphetamine possession in Rice County.  The second, admitted to show knowledge and intent, was a March 2003 incident that involved Jones's purchase of ephedrine and possession of items used in the process of methamphetamine manufacture.

The district court denied the defense's motion for acquittal, and the jury found Jones guilty of all three counts.  The court imposed sentence only on the conspiracy-to-manufacture charge.  In this appeal Jones challenges the (1) admissibility of the Spreigl incidents, and (2) the sufficiency of the evidence to establish that he entered into a conspiracy to manufacture methamphetamine.  In a pro se brief, he raises fifteen additional issues. 

D E C I S I O N

 

I

 

Evidence of other crimes or misconduct is not admissible to show bad character.  State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965).  It may be allowed, however, if offered for the limited purpose of showing "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."  Minn. R. Evid. 404(b).  The admission of Spreigl evidence is subject to district court discretion, and a ruling admitting or rejecting the evidence will not be reversed absent a clear abuse of discretion.  State v. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994). 

For Spreigl evidence to be admissible, the evidence of defendant's participation in the offense must be clear and convincing, the evidence must be relevant and material to the state's case, and the probative value of the evidence must outweigh its potential for unfair prejudice.  State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).  In weighing probative value, the court must consider how crucial the Spreigl evidence is to the state's burden of proof.  Id.

            The district court ruled that Jones's 2001 conviction was admissible to show that he had a motive to manufacture methamphetamine.  "Motive" is the "willful desire that leads one to act."  Black's Law Dictionary 1034 (7th ed. 1999).  As evidence of the 2001 conviction, the district court allowed the verdict form and a redacted version of the complaint charging Jones with fifth-degree possession of methamphetamine.  The complaint alleged that Jones, who was found by police slumped in the driver's seat of a car, stated that he was "using crank" and admitted that he knowingly possessed eight bindles, each containing methamphetamine, that were found in the pocket of his leather jacket. 

The evidence of Jones's 2001 conviction of methamphetamine possession clearly and convincingly establishes his participation in that crime.  Relevance and materiality depend on the closeness of the relationship between the other crime and the charged crime in terms of time, place, and modus operandi.  State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995).  The closer the relationship, the greater the relevance or probative value of the evidence and the less the likelihood that the evidence will be used for an improper purpose.  State v. Cogshell, 538 N.W.2d 120, 123 (Minn. 1995).  Jones's 2001 conviction of fifth-degree methamphetamine possession, occurring about eight months before the current offense, is relevant to show a motive for manufacturing more methamphetamine.

The evidence was also important to allow the state to meet its burden of proof.  Because the methamphetamine was found in the mobile home, rather than in the small shed where Jones was located, the evidence was needed to fortify the circumstantial evidence of Jones's involvement in the methamphetamine production.  To limit the prejudicial effect of the Spreigl evidence, the district court gave cautionary instructions when the evidence was introduced and in the final instructions to the jury.  The district court did not abuse its discretion in admitting evidence of Jones's 2001 conviction.

The second Spreigl offense that the district court permitted into evidence involved Jones's purchase of ephedrine and possession of a large amount of materials used in the manufacture of methamphetamine.  Charges on this offense were pending at the time of Jones's trial; the state produced evidence of the offense through a Target security guard and two police officers.  The Target security guard observed Jones purchasing several packages of ephedrine and discarding the packaging in the store's outdoor garbage can.  In response to a request from police who saw Jones discard additional items in a Holiday Store garbage can, the security guard retrieved from that garbage can an empty can of Heet, ten empty packages of ephedrine, and numerous matchbooks with the strike plates missing.  The subsequent stop and search of Jones's car produced two propane tanks and more than a thousand matchbooks containing strike plates made of red phosphorus, a primary ingredient in the "cold cook" methamphetamine-manufacturing process.  The district court permitted evidence of this incident to show Jones's knowledge of the facts required to make his alleged conduct criminal and also to demonstrate intent.

The principles that govern the admissibility of Spreigl evidence are the same whether the other crime occurs before or after the current charged offense.  State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998); see also State v. Lynch, 590 N.W.2d 75, 80-81 (Minn. 1999) (allowing evidence of subsequent robbery with same accomplice charged in current offense); State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980) (allowing Spreigl evidence of participation in subsequent burglary).

The testimony of the three witnesses established that Jones's participation in the 2003 purchase and possession of items used in the manufacturing of methamphetamine is clear and convincing.  In assessing the relevance, the court considered that the two events were separated in time but determined that the Spreigl offense was nonetheless relevant.  The Minnesota Supreme Court has taken a flexible approach in applying the criteria for the admission of Spreigl evidence, "upholding admission notwithstanding a lack of closeness in time or place if the relevance of the evidence was otherwise clear."  Lynch, 590 N.W.2d at 80-81; see also State v. Bailey, 677 N.W.2d 380, 402 (Minn. 2004)  (upholding admission of Spreigl evidence of burglaries occurring one year after charged offense of murder when there was a "strong factual nexus" among all incidents, which involved burglaries of homes of lone women near defendant's residence and involved knives). 

In both the charged offenses and the later Spreigl incident, Jones was seen purchasing substantial quantities of precursor materials for methamphetamine manufacture.  He was also found, along with another person, in close proximity to precursor materials that had been altered as a step in the methamphetamine-manufacturing process.  Jones's possession and altering of precursor materials with another person relates to the intent and knowledge required for the charged crimes. 

In determining relevancy of Spreigl evidence, the district court must consider how the proposed evidence relates to the issues in the case currently being tried and the reasons argued for its submission.  Lynch, 590 N.W.2d at 80.  In this case, Jones's theory of defense was that he did not knowingly possess methamphetamine or knowingly participate in its manufacture.  In the opening statement, his attorney told the jury, "Mr. Jones had no idea what was going on there."  In his closing statement, his attorney emphasized, "You've got to know what it is and you've got to know where it is."  Because knowledge is not tangible and intent is a state of mind, the existence of intent is generally proved circumstantially "by inference from word and acts of the actor both before and after the incident."  State v. Johnson, 616 N.W.2d 720, 726 (Minn. 2000).  Although the second Spreigl offense occurred months after the current charge, the volume of production materials that Jones possessed in the later incident supports an inference of knowledge of what is involved in methamphetamine production.  Thus, evidence of the later-occurring Spreigl incident "served to complete the picture of [Jones], not to paint another picture."  State v. Berry, 484 N.W.2d 14, 18 (Minn. 1992).  The district court did not abuse its discretion in concluding that a substantial similarity existed between the two incidents and that the Spreigl evidence was relevant. 

Jones argues that the probative value of this evidence is outweighed by its potential prejudicial effect because the jury heard testimony from three witnesses on the March 2003 incident.  The defense did not object at trial to the number of witnesses who testified about the incident or to the substance of their testimony.  See Ture v. State, 681 N.W.2d 9, 16 (Minn. 2004) (district court did not abuse its discretion in admitting Spreigl evidence when defendant did not object at trial to number of witnesses needed to establish evidence of other crime).  Because the pending charges had not yet been tried, Jones's involvement in the crime could not simply be demonstrated by proof of conviction; Jones has not shown that the additional witnesses were unnecessary.

The district court expressly cautioned the jury twice on the limited use of the incident:  once when the evidence was introduced and once just before deliberation.  The court also specifically instructed the jury not to convict Jones on his later behavior because to do so would be punishing him twice.  See Berry, 484 N.W.2d at 18 (cautionary instructions reduced any unfair prejudicial effect of Spreigl evidence).  Finally, the evidence was necessary.  Because Jones was apprehended in an outbuilding rather than the mobile home, the charge relied on circumstantial evidence.  Jones's claim that he did not know that methamphetamine was being manufactured and was unaware of the significance of the materials to the manufacturing process was a central issue.  Jones's participation in the purchase and possession of large amounts of manufacturing supplies provided relevant evidence on his knowledge of aspects of the manufacturing process and his intent in the purchase and possession of iodine crystals.  Under these circumstances, the district court did not abuse its discretion in admitting evidence of Jones's conduct in the 2003 incident. 

II

 

Jones challenges the sufficiency of the evidence to support his conviction of conspiracy to manufacture methamphetamine.  Specifically, he contends that the evidence is insufficient to prove that he entered into a conspiratorial agreement with another person to manufacture methamphetamine.  On a challenge to the sufficiency of the evidence, we conduct a rigorous review of the record to determine whether the evidence, direct and circumstantial, is sufficient to support the verdict.  Brown v. State, 682 N.W.2d ___, ___, 2004 WL 1470025, at *4 (Minn. July 1, 2004).

A person is guilty of conspiracy when he or she "conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy."  Minn. Stat. § 609.175, subd. 2 (2000).  Conviction of conspiracy requires an agreement between two or more people to commit a crime and an overt act in furtherance of that agreement.  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). 

A conspiracy conviction does not require proof of a formal agreement to commit a crime.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  The agreement, however, must be shown by objective evidence.  Id.  If "several persons commit separate acts which form parts of a connected whole, an inference of conspiracythat there was concert in both planning and executionis permissible."  State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 522 (1943). 

The defense acknowledges that the overt-act requirement was satisfied by Jones's purchase of more than two pounds of iodine crystals in the six-month period before the search warrant was executed.  Jones claims, however, that the evidence is insufficient to convict him of conspiracy because the state failed to prove that he agreed with others to manufacture methamphetamine.  See Hatfield, 639 N.W.2d at 377 (concluding that possession of precursor ingredients was insufficient, standing alone, to support finding of agreement to manufacture drugs).  Jones argues that only iodine crystals were found in the same shed where he was located at the time of the search and that manufactured methamphetamine was discovered only in the mobile home.  But additional materials consistent with the manufacture of methamphetaminevinyl tubing, plastic gloves, and a fifty-five-gallon drum of toluenewere found on the property outside the mobile home.  Jones's claim that he had only recently arrived at the Merrifield property conflicts with his mother's testimony that he had left for a week's visit with an occupant of the property. 

The presence of iodine crystals where Jones was found, the ingredients and paraphernalia used in the manufacture of methamphetamine inside and outside the mobile home, and the numerous containers of orange liquid testing positive for methamphetamine in the common areas of the mobile home, reasonably support an inference of a manufacturing process that occurred during Jones's stay.  The jury was entitled to infer that this evidence, combined with Jones's purchase of iodine within two weeks before his stay, was inconsistent with any rational hypothesis other than guilt, and could rationally find that the state had proved beyond a reasonable doubt that Jones conspired with others to manufacture methamphetamine. 

III

In a pro se supplemental brief and a response brief, Jones lists fifteen additional points.  The points are not supported by legal authority or, for the most part, by facts in the record.  Consequently, these points cannot provide a basis for reversal unless prejudicial error is obvious on mere inspection.  State v. Ture, 632 N.W.2d 621, 632 (Minn. 2001).  We review these claims for obvious prejudicial error.

Jones challenges the constitutionality of the stop in the second Spreigl offense.  We conclude that Jones has not shown error:  the issue was not raised in the district court, and the undisputed testimony of the Target security guard and the police officers suggests no constitutional infirmity.  Similarly, we see no error in the issuance of the search warrant for the Merrifield property.  Jones expressly waived an omnibus hearing, which is the proper forum for this claim, and the record discloses no apparent unreliability of the informant or the informant's statements to police.  Jones does not provide any facts to support his claim of unfair prosecution and the record discloses none.  Jones also provides no facts or law to support his claim that his right to a speedy trial was violated.  Jones was released from custody pending trial and was present in the courtroom when the trial date was continued by agreement.  Jones has not provided any additional information on the admissibility of the Spreigl offenses that would alter our determination on that issue.

Two of Jones's points are challenges to the jury's determination on possession.  The challenges, however, are based on concepts of actual physical possession and do not take into account the doctrine of constructive possession.  See, e.g., State v. Cusick, 387 N.W.2d 179, 181 (Minn. 1986) (constructive possession of illegal drugs sustained by evidence of proximity to defendant's possessions in a car notwithstanding defendant did not own the car).  Jones raises six other challenges that are essentially challenges to the facts as found by the jury.  As a reviewing court, we must defer to the jury's assessment of credibility of witnesses and the weight to be given their testimony, and we do not reweigh the facts on appeal.

Jones contends that the presence of the armed guard in the courtroom improperly influenced the jury to believe he was guilty.  In response to a request from Jones's attorney, the district court placed the guard on the other side of the counsel bar in the courtroom.  Jones was in custody at the time of trial, and, consequently, the presence of the guard was necessary to security and not improperly prejudicial.  See State v. Aguilar, 352 N.W.2d 395, 397 (Minn. 1984) (finding no prejudice to defendant in courtroom security procedures).

Finally, Jones asserts an ineffective-assistance-of-counsel claim, arguing that his attorney failed to investigate his status as a visitor on the Merrifield property, failed to obtain a speedy trial, and failed to object to the testimony of the employee from whom Jones purchased iodine at the BME Labstore.  Jones's attorney asserted Jones's status as a visitor on the Merrifield property and called Jones's mother as a witness to that fact.  The attorney also requested a continuance on the late disclosure of the Labstore employee as a witness.  We have already addressed the speedy-trial objection.  We discern no basis for an ineffective-assistance-of-counsel claim.

Affirmed.