State of Minnesota, Respondent, vs. Jeremy A. Luckhardt, 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This opinion will be unpublished and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

C3-02-2026

 

State of Minnesota,

Respondent,

 

vs.

 

Jeremy A. Luckhardt,

Appellant.

 

Filed May 25, 2004

Affirmed in part, reversed in part, and remanded Hudson, Judge

 

Lyon County District Court

File No. K1-02-433

 

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Richard R. Maes, Lyon County Attorney, Courthouse, 607 West Main Street, Marshall, Minnesota 56258 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

On appeal from his conviction of first-degree controlled substance crime in violation of Minn. Stat. §§ 152.021, subds. 1(1) and 3(b) (2002), and 609.05, subd. 1 (2002), for selling 10 grams or more of a mixture containing methamphetamine (count one), and first-degree controlled substance crime in violation of Minn. Stat. §§ 152.021, subds. 1(1) and 3(b), and 609.05 subd. 1, for possession with intent to sell methamphetamine (count two) appellant challenges his conviction claiming: (1) he was denied effective assistance of counsel because his trial counsel failed to challenge the nighttime search warrant; (2) the prosecutor committed prosecutorial misconduct by introducing evidence the trial court had ruled was inadmissible; (3) the trial court erred by admitting his prior convictions as impeachment evidence; and (4) the trial court erred by departing upward from the presumptive guideline sentence.  We affirm in part, reverse in part, and remand for resentencing.

FACTS

On April 29, 2002, Robert Jarman, an informant who has assisted drug task forces around the state in numerous drug buys, was asked to assist the Brown/Lyon/Redwood County Drug Task Force with a controlled buy.  Jarman arranged to purchase one-half ounce of methamphetamine from Jackie Topps, from whom Jarman had previously purchased drugs.  Topps told Jarman to come to her apartment.  Deputy Louwagie of the Lyon County Sheriff's Department gave Jarman $600 of marked currency and Jarman arranged to meet at Topps' residence in Marshall, Minnesota.  Jarman arrived at Topps' apartment at around 4:20 p.m., and Deputy Louwagie and other law enforcement officers waited undercover outside.  Topps told Jarman that the person she was getting the drugs from was on his way.  Jarman waited for a couple of hours and eventually began asking Topps what was taking so long.  Jarman testified that Topps stated she didn't know because Jeremy just called and said he was on his way.  Between 7:00 and 7:30 p.m., Topps got a telephone call and went out to the lobby. 

            Louwagie testified that he observed appellant Jeremy Luckhardt driving toward Topps' apartment around 7:15 in a green Ford Contour.  Louwagie observed Topps get into appellant's car, drive away, and then return after two to three minutes.  Topps left the vehicle and entered her apartment. 

            When Topps returned to the apartment, she gave Jarman the drugs and Jarman left the apartment and turned the methamphetamine over to Louwagie.  Louwagie noticed that the methamphetamine was an unusual red color. 

            After Luckhardt's car left Topps' apartment, Officer Marquart followed Luckhardt to 105 Redwood Court in Lynd, Minnesota.  Marquart conducted surveillance of the residence while other officers obtained a search warrant.  During surveillance, Marquart observed three cars come to the residence and stay for three to ten minutes each.  Marquart also observed the Ford Contour leave the residence at 9:15 p.m., go to a bar for about one minute, and then come back to the residence.  Appellant testified that he went to the bar to purchase a soft drink.

            At around 10:30 p.m. the police executed the search warrant at 105 Redwood Court.  Charity Polfliet, Luckhardt's girlfriend, her two children, and Luckhardt were at the residence.  When the police entered Polfliet and her children were sitting on the couch watching television, and Luckhardt had just emerged from the shower, dressed, and was walking down the stairs.  In the course of the search, police found $2,316 in cash in the bedroom; $500 of this money was the marked buy money that Jarman had used to purchase the methamphetamine.  The police found 15.4 grams of methamphetamine that was the same unusual red color as the methamphetamine sold to Jarman, a torch, a knife, papers, a scale, marijuana pipes, IOU slips, and a glass pipe.  

            Luckhardt was charged in Lyon County with first-degree controlled substance crime in violation of Minn. Stat. §§ 152.021, subds. 1(1) and 3(b), and 609.05, subd. 1, for selling 10 grams or more of a mixture containing methamphetamine (count one).  He was also charged with first-degree controlled substance crime for possession with intent to sell methamphetamine in violation of Minn. Stat. §§ 152.021, subds. 1(1) and 3(b), and 609.05, subd. 1 (count two).

At trial Topps testified in exchange for a reduction in her sentence.  Topps testified that she did not know Jarman came to her apartment to pick up drugs, and that he told her he was there to pick up a package.  She admitted that she received the package from Luckhardt but claimed she did not know what was in the package. 

Daniel Williams, who lives across the street from Polfliet's home at 105 Redwood Court, testified that he has frequently seen appellant at Polfliet's house and that when he is home on the weekends appellant is there every morning, afternoon and evening.  Williams testified that there is a lot of traffic at the residence and that approximately 5 to 15 cars come each day and stay from 5 to 15 minutes. 

            Luckhardt testified on his own behalf.  Luckhardt admitted that he has second-degree burglary and theft convictions from 1997, and third-degree and fourth-degree controlled substance convictions, and an escape-from-custody conviction from 1999.  Luckhardt testified that he pleaded guilty to those offenses because he committed those crimes, but he did not plead guilty here because he "didn't do it." 

            Luckhardt testified that he picked up the $500 from Topps because Topps' former boyfriend Scott Thomasson owed it to him.  The police found Thomasson's expired driver's license in appellant's car and appellant contends he was holding it as collateral for the money Thomasson owed him.  Luckhardt testified that he drove Topps around the block because she wanted to hear his radio.  Luckhardt testified that he did not know that there was methamphetamine in the house. 

            The jury returned a guilty verdict.  The trial court sentenced appellant to 220 months in prison on both counts one and two, an upward departure from the presumptive guideline sentence.  Appellant filed a notice of appeal and this court stayed the appeal allowing appellant to file a petition for postconviction relief with the district court.  In his postconviction petition appellant alleged that his trial counsel was ineffective for failing to challenge the nighttime search warrant.  The trial court denied appellant's petition finding that the search was reasonable.  This appeal follows.

D E C I S I O N

I.          Ineffective Assistance of Counsel

First, appellant argues that his Sixth Amendment right to effective assistance of counsel was violated because his trial counsel failed to challenge the nighttime search warrant.

We review the denial of a postconviction petition to determine whether there is sufficient evidence to sustain the postconviction court's findings.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  We review issues of law de novo.  Berkow v. State, 573 N.W.2d 91, 95 (Minn. App. 1997), aff'd, 583 N.W.2d 562 (Minn. 1998).  We will not disturb a postconviction decision absent an abuse of discretion.  Hodgson, 540 N.W.2d at 517. 

            To succeed at an ineffective-assistance-of-counsel claim, appellant must affirmatively prove (1) that his trial counsel's performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's errors, the result of the murder trial would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052 (1984)).  "‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"  Id.

            Luckhardt argues that a reasonable attorney would have challenged the nighttime search warrant because it contained boilerplate language that did not identify particularized reasons justifying the issuance of a nighttime search warrant.  Luckhardt further contends that his attorney's failure to challenge the warrant prejudiced his case because suppression of the evidence seized during the search was the proper remedy for the warrant violation.

            The postconviction court concluded that the application for the search warrant and supporting affidavit demonstrated circumstances that made the nighttime search of the residence and motor vehicle reasonable.  Therefore, appellant's trial counsel was not ineffective for failing to challenge the affidavit.  We agree.

            Minn. Stat. § 626.14 (2002) states in relevant part that:

 

A search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.  The search warrant shall state that it may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless a nighttime search outside those hours is authorized.

 

            To justify a nighttime or a no-knock warrant the "police must have a reasonable suspicion that knocking and announcing their presence under the particular circumstances, would be dangerous or futile."  State v. Wasson,615 N.W.2d 316, 320 (Minn. 2000) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421 (1997)).  Reasonable suspicion is "something more than an unarticulated hunch, that the officer must be able to point to something that objectively supports the suspicion at issue."  Id.  Because of the preference for warrants, the standard is not high but it does require something more than conclusory boilerplate language.  Id. at 320-21.  "[A] generalized showing of drug trafficking is not sufficient justification for an unannounced entry because evidence of drug trafficking does not, ipso facto, equate to a conclusion that an announced entry would be dangerous or futile, or that it would result in the destruction of evidence."  State v. Botelho, 638 N.W.2d 770, 778 (Minn. App. 2002) (quotations omitted).

            Here, in Deputy Louwagie's affidavit requesting a nighttime search, he explained, "[y]our affiant is requesting a night time search due to the fact that the prerecorded monies and the drugs can be removed and or destroyed.  Your affiant believes that if the search warrant is delayed that evidence of these sales, including prerecorded U.S. Currency used may be destroyed." 

            Appellant argues that this language is boilerplate and similar to the conclusory language in Botelho, 638 N.W.2d at 778 n.4., and State v. Hohneke, No. C7-02-1400, 2003 WL 21146814, *1 (Minn. App. May 20, 2003).  In Botelho we held that the search warrant was conclusory when the only expression of need for an unannounced search was the general language, that "[p]ersons involved in Drug trafficking will destroy evidence . . . [and] will use violence"; but the warrant provided no particularized facts of dangerousness, futility, or destruction of evidence related to the search of the respondents' residence.  638 N.W.2d at 778 n.4.  In Hohneke we determined that a search warrant was conclusory and did not establish reasonable suspicion when it stated:  "[y]our affiant knows from previous police experience narcotic traffickers often conduct their business during nighttime hours in an effort to mask their business from neighbors and police, and therefore have larger quantities of narcotics and contraband on hand."  2003 WL 21146814, at *4. 

Conversely, in Wasson, the supreme court found that the search warrant was sufficient because it pointed to a specific, objective piece of information that weapons were likely present in the house given that numerous weapons were seized from the exact location just three months previously.  615 N.W.2d at 320-21.

            Based on the record in this case, we conclude that the affidavit stated sufficient particularized facts to justify issuing the nighttime search warrant.  First, the affidavit explained that a controlled buy had just occurred, and that the pre-recorded money had likely been passed to appellant.  Next, the police had followed Luckhardt home immediately after the buy took place and suspected that there was a limited window of time in which they could find the pre-recorded money in Luckhardt's possession.  Further, the affidavit indicated that a witness had previously observed cars coming and going from the residence giving Luckhardt ample opportunity to dispose of the pre-recorded money.  And, in fact, as Officer Marquart was conducting surveillance on the residence, three cars came to the residence for a short period of time and Luckhardt left the residence and went to a bar for about one minute.  During any of these encounters Luckhardt could have exchanged or spent the pre-recorded monies, thereby severely hampering the state's case. 

Thus, we conclude that the nighttime search warrant was not defective because it was based on particularized facts expressing the need for immediacy to protect the destruction or removal of evidence, namely the pre-recorded buy monies that law enforcement had reason to believe Luckhardt had just received.  Because a challenge to the nighttime search warrant would likely have been unsuccessful, the failure of appellant's attorney to object to a valid warrant did not fall below an objective standard of reasonableness.  Therefore, appellant has failed to satisfy the first Strickland prong.

            Further, even if the nighttime search warrant had been defective, appellant did not satisfy the second prong of the Strickland test because, in this case, suppression of the evidence was not the proper remedy; thus appellant was not prejudiced by his attorney's failure to challenge the nighttime search warrant.  As in State v. Lien, 265 N.W.2d 833, 839-41 (Minn. 1978) any violation here of the nighttime warrant requirement did not frustrate the constitutional dimensions of the statute.  The Lien court explained that while the general rule against nighttime searches is statutory, it may also have a constitutional dimension, which is based on the belief that a nighttime search involves a much greater intrusion upon privacy than a search in the day.  Id.  The Lien court went on to explain that the rule is primarily designed to prevent the kind of nighttime intrusion of rousing people out of bed and forcing them to stand in their nightclothes while the police conduct a search.  Id.at 840-41. 

Here, the police entered the residence at around 10:30 p.m.  Officer Marquart had been conducting surveillance of the residence since 7:30 p.m., immediately after the transaction at Topps' apartment.  During his surveillance of the residence, Marquart witnessed Luckhardt go to a bar for about one minute at 9:15 and then witnessed additional activity at the house at 9:30 and 9:45 when individuals came to the residence in cars and remained for about three to five minutes.  Thus, it was clear that people were not sleeping in the residence.  Moreover, when the police entered the residence everyone was dressed and awake.  Thus, because the constitutional dimensions of the statute were not implicated, suppression of the evidence was not the proper remedy. 

II.        Prosecutorial Misconduct

            Next, Luckhardt contends that the prosecutor committed misconduct at three stages of the trial.

At a pretrial hearing the trial court ruled that the state could not introduce evidence of a controlled buy that allegedly occurred on April 15, 2002, at 105 Redwood Court, Lynd, Minnesota.  Luckhardt contends that because the prosecutor referred to this controlled buy twice while questioning a witness and once in the state's closing argument, he was deprived of a fair trial and this court should reverse his conviction.  

            Respondent counters that the prosecutor's references to the April 15th controlled buy were not prosecutorial misconduct because appellant's counsel opened the door to the April 15th incident.  Further, respondent contends any error was harmless because appellant failed to object at the time of questioning, the questioning was brief, and regardless of this questioning there was overwhelming evidence against appellant.

            When reviewing a claim of prosecutorial misconduct, we "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) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)).  In determining whether prosecutorial misconduct deprived a defendant of a fair trial, there are two distinct standards.  Id.  In cases in which the misconduct was serious, the standard is whether the misconduct is harmless beyond a reasonable doubt.  Id.  "[M]isconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error."  Id. (quotation omitted).  In cases involving less serious misconduct, the standard is whether the misconduct likely played a substantial part in influencing the jury to convict.  Id. 

            Here, there were three incidents of alleged misconduct in which the prosecution referred to the April 15th incident.  First, during cross-examination of Jarman the prosecutor asked if he had ever bought drugs from Topps before, and Jarman stated that a couple of weeks before the April 29th sale he drove to Lynd with Topps' boyfriend to buy drugs.  No objection was made after this exchange. 

Second, during the cross-examination of Deputy Louwagie, appellant's counsel played a tape of Louwagie's interview with Topps, apparently to show that Topps was associated with another Jeremy, Jeremy Kerst.  In an effort to show the jury that Louwagie questioned Topps about Kerst in this case, defense counsel played a tape of Louwagie's interview with Topps.  During the taped interview Louwagie refers to the April 15th incident.

After appellant's counsel completed cross-examination, on redirect, the prosecutor then asked:

Q.        Why did you think it was Jeremy Luckhardt who was coming to the Topps' residence and not Kerst?

 

A.        We were purchasing methamphetamine, that is what Mr. Jarmon asked for.  On a prior occasion we were down at the residence of 105 Redwood Court and purchased methamphetamines.  The information we received throughout the investigation led to that residence, and Mr. Luckhardt. 

 

Q.        Is that the prior occasion we heard about on the tape? 

 

A.        Yes.

 

Later in the exchange, the prosecutor asked who went to 105 Redwood Court, Lynd, a couple of weeks before.  No objection was made throughout this interaction. 

Finally, during the state's closing argument, the prosecutor stated "[the police] knew Jeremy Luckhardt -- or they believed at that point that he was providing drugs, they knew there was traffic going on at this residence at 105 Redwood Court in Lynd, where they believed he lived.  They had come there previously and purchased 10 grams of methamphetamine."  Again, defense counsel did not object.

It is unprofessional conduct for the prosecutor to knowingly offer inadmissible evidence in order to bring that evidence to the attention of the judge or jury.  State v. White, 295 Minn. 217, 223, 203 N.W.2d 852, 857 (1973).  Here, we are disturbed by the prosecutor's obvious efforts to introduce the inadmissible evidence of the alleged April 15th controlled buy.  The state's argument that its references to the alleged April 15th controlled buy were not misconduct because appellant opened the door by playing the tape that referenced the April 15th incident is unpersuasive.  The prosecutor questioned a witness about the April 15th controlled buy before appellant played the tape, and again referenced the incident in its closing argument, which occurred well after the defense played the tape.  Moreover, after defense counsel played the tape the prosecutor could have requested permission from the district court before questioning Louwagie about the April 15th incident.  Thus, we conclude that the prosecutor committed misconduct by continually referencing this incident in direct opposition to the trial court's ruling that this evidence was inadmissible. 

            Although these incidents constituted misconduct, we are mindful that appellant's counsel did not object to any of the prosecutor's references to the April 15th incident.  And while "a court may reverse a conviction despite the defendant's failure to object or seek instructions if the prosecutor's comments were unduly prejudicial[,] [t]he defendant's failure to object implies that the comments were not prejudicial."  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (citation omitted).  Accordingly, unchallenged prosecutorial misconduct is reviewed for plain error; we determine if the misconduct was "so prejudicial to the defendant's right to a fair trial, that the defendant's failure to object . . . should not forfeit his right to a remedy."  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).  Here, because of the substantial evidence against Luckhardt, we are not persuaded that the prosecutor's questions and comments referring to the April 15th controlled buy were so prejudicial as to deprive Luckhardt of a fair trial.  

III.       Prior Offenses

Next, appellant argues that the trial court erred by allowing the state to use Luckhardt's five prior felony convictions for impeachment purposes. 

A trial court's decision on the admissibility of impeachment evidence under Minn. R. Evid. 609 will not be reversed absent a clear abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Impeachment by prior offense is allowed if the crime "(1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment."  Minn. R. Evid. 609(a).  The prior convictions used to impeach appellant were felony convictions that were punishable by imprisonment in excess of one year; thus they were subject to a determination of whether the prejudicial effect outweighs the probative value.  Trial courts have great discretion in determining what prior convictions are admissible under the balancing test of Rule 609(a)(1).  See State v. Lloyd, 345 N.W.2d 240, 246 (Minn. 1984).

When deciding whether the prejudicial effect of an impeachment conviction so outweighs its probative value that its use is plain error, we consider five factors: 

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.

 

Ihnot, 575 N.W.2d at 586 (quotations omitted).

(1)       Impeachment Value

Luckhardt argues that because his prior convictions did not involve dishonesty, they did not have impeachment value.  But Luckhardt's prior convictions were useful for impeachment purposes because they gave the jury the opportunity to see his whole person.  See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (stating impeachment by prior conviction aids jury by allowing it to see whole person and better judge truth of that person's testimony); State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979) (stating even though prior crime does not involve dishonesty, it is still probative of credibility and truthfulness).  Luckhardt contends the "whole person" rationale runs counter to how juries decide cases, citing a Michigan Supreme Court decision for this proposition.  But Minnesota courts continue to rely on this theory, and under the whole-person theory Luckhardt's prior convictions have considerable impeachment value because they allow the jury to more thoroughly assess his honesty and credibility.

(2)       Dates of Conviction

Luckhardt concedes that the recency-of-the-crimes factor supports admitting his prior convictions because his convictions were from 1997 through 1999. 

(3)       Similarity of Past Crime

Luckhardt argues that the third factor weighs against admissibility because the potential for prejudice was significant given that his prior drug convictions were similar to the charged offense.  Indeed, the courts have found that "if the prior conviction is similar to the charged crime, there is a heightened danger that the jury will use the evidence not only for impeachment purposes, but also substantively."  Gassler, 505 N.W.2d at 67.  But courts have allowed impeachment by prior convictions of similar crimes.  See, e.g., Gassler, 505 N.W.2d at 67 (upholding admission of prior attempted murder conviction in murder trial); State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (upholding admission of prior aggravated rape conviction in criminal sexual conduct trial after noting "the fact that [the] prior crime was basically the same crime with which defendant was charged" weighed against admission).  While we acknowledge that Luckhardt's prior third-degree and fourth-degree controlled substance crimes were similar to the charged crimes here, we are persuaded that our holdings in Gassler and Bettin support the trial court's determination to admit appellant's prior convictions.

(4)       Importance of Defendant's Testimony

The fourth factor was satisfied in this case because the jury heard Luckhardt's version of the events when he testified.  See Gassler, 505 N.W.2d at 67 (stating fourth factor precludes admitting prior convictions if admission prevents jury from hearing defendant's version of events).  Indeed, Luckhardt was able to explain to the jury that he pleaded guilty to the other convictions because he committed the crime but in this case he did not plead guilty because he did not commit the crime.

(5)       Centrality of Credibility

Finally, Luckhardt contends that while his credibility is important, this case really rests on the credibility of Jarman and Topps.  But because Luckhardt chose to testify, and during his testimony contradicted the version of facts testified to by Topps, Luckhardt's credibility became a central issue in this case and the admission of his prior convictions was warranted. 

Thus, because the majority of the Ihnot factors support the admission of Luckhardt's prior convictions, we conclude that the trial court did not abuse its discretion by finding that the probative value of the impeachment evidence outweighed any prejudice.

IV.       Sentencing

Finally, Luckhardt contends that the district court's grounds for upwardly departing from the presumptive guideline sentence are not supported by the applicable case law or the record.

The trial court sentenced appellant to two concurrent 220-month sentences.  The trial court departed from the presumptive guideline because the trial court determined appellant was a career and dangerous offender, and because children were present during the commission of the crime. 

            The decision to depart from the sentencing guidelines rests within the district court's discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  But the district court must impose the presumptive guideline sentence unless it has grounds for departure.  Minn. Sent. Guidelines II.D.  Minn. Stat. § 609.1095, subds. 2 and 4 (2002), permits the sentencing court to depart from the presumptive guideline sentence if the defendant can be considered a career or dangerous offender. 

Respondent concedes that the district court erred by departing from appellant's sentence based on the career-and-dangerous-offender portions of the statute.

Under the career-offender statute, a sentencing court may depart from the presumptive guidelines if the court:  "[f]inds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as a part of a pattern of criminal conduct."  Minn. Stat. § 609.1095, subd. 4.  A "prior conviction" is defined as a conviction occurring "before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced under this section."  Minn. Stat. § 609.1095, subd. 1(c) (2002).  In State v. Huston, 616 N.W.2d 282, 283 (Minn. App. 2000), we explained how a court should count the sequential order of the convictions under the career-offender statute, explaining that the sequence of prior convictions must be offense/conviction, offense/conviction, and so forth.  We determined that such a requirement "better serves the general purpose of the statute by permitting five full postconviction opportunities for reform."  Id. at 284 (quotations omitted).  Here, Luckhardt has the following convictions:

1.         Felony theft                  offense committed July 6, 1996        convicted Feb. 19, 1997

2.         Burglary 2                     offense committed Nov. 25, 1996     convicted Feb. 19, 1997

3.         Cont. substance 4         offense committed Oct. 29, 1998      convicted Nov. 4, 1999

4.            Cont. substance 3         offense committed Nov. 25, 1998     convicted Nov. 4, 1999

5.         Rec. stolen prop.          offense committed Mar. 2, 1999       convicted Oct. 4, 1999

6.         Escape                           offense committed Aug. 20, 1999     convicted Nov. 4, 1999

 

Thus, in accordance with Huston, Luckhardt only had three prior convictions that qualify and was not a career offender under Minn. Stat. § 609.1095, subd. 4.

The district court also cited the dangerous-offender portion of the statute as grounds for upward departure.  For the district court to consider a defendant a dangerous offender, a defendant must have "two or more prior convictions for violent crimes."  Minn. Stat. § 609.1095, subd. 2(1) (2002).  Controlled-substance convictions are considered violent crimes under the statute.  Id. at subd. 1(d).  But under the Huston method of computing offenses, these offenses do not amount to two prior convictions.  Appellant committed a controlled substance offense on October 29, 1998, pleaded guilty, and was convicted of this offense on November 4, 1999.  This is one prior conviction.  But when appellant committed a second controlled substance offense on November 25, 1998, he had not yet been convicted of the October 29, 1998, offense, so the October 29, 1998, offense was not a conviction that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced under this section. 

Thus, appellant's two controlled substance offenses, which are Luckhardt's only offenses that qualify as violent offenses, only count as one prior conviction.  Accordingly, we conclude that the trial court erred by enhancing appellant's sentence based on the career-and-dangerous-offender statute. 

The trial court also cited the presence of children as grounds for the upward departure.  Appellant contends that this was not a proper grounds for departure because it is generally only used when children witness violent crimes.  Appellant notes that here the controlled substance was found in a bedroom in a cabinet, and the children were simply present in the home where appellant possessed controlled substances.  Appellant's argument has merit.  By the same token, we have never held that the presence of children as a departure factor is limited to situations where children are witnesses to violent crime.  Moreover, although appellant minimizes his conduct by suggesting that the children had no access to the drugs, the record reveals that pipes commonly used for smoking methamphetamine were found in the living room, and 15.4 grams of methamphetamine were located in the home.  In addition, the children were exposed to numerous people coming to the house to purchase and sell drugs.  Thus, we conclude that while the evidence of substantial and compelling circumstances is thin, the trial court did not abuse its discretion by upwardly departing on count two based on the presence of children in the home during commission of the crime.  As respondent concedes, however, the trial court erred in departing upward on count one because during the controlled buy between Topps and appellant in appellant's car, no children were present.

            Accordingly, we reverse the upward departure from the presumptive guideline sentence for count one and remand to the trial court for resentencing.  On this record, we are not convinced that the trial court would have imposed the upward departures if it had not erroneously determined that appellant was a career offender and a dangerous offender.  Because we hold that appellant was not a career or a dangerous offender, on remand we defer to the trial court's discretion to determine whether the appellant should also be resentenced on count two.

Affirmed in part, reversed in part, and remanded.