State of Minnesota, Respondent, vs. Dana Cobbins, Appellant.

State of Minnesota, Respondent, vs. Dana Cobbins, Appellant. A05-1617, Court of Appeals Unpublished, December 19, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1617

 

State of Minnesota,

Respondent,

 

vs.

 

Dana Cobbins,

Appellant.

 

Filed December 19, 2006

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge

 

Clay County District Court

File No. K3-04-001797

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Ken Kohler, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Lansing, 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 Dana Cobbins was convicted of the following five counts stemming from his involvement in a drug distribution enterprise:  (Count 1) aiding a controlled substance crime in the third degree, sale; (Count 2) controlled substance crime in the third degree, sale; (Count 3) aiding the sale of a simulated controlled substance; (Count 4) conspiracy to commit a controlled substance crime in the third degree, sale; and (Count 5) racketeering.  Appellant challenges his convictions on Counts 1, 3, 4, and 5 claiming insufficiency of the evidence.  He also challenges his conviction on Count 4 on the ground that the jury instructions denied him his right to a unanimous jury verdict.  Further, appellant argues that he was denied a fair trial due to the accumulation of several evidentiary errors and challenges the district court's sentencing procedures.  We affirm in part, reverse the conviction on Count 4, and remand for resentencing.

D E C I S I O N

I.

            Appellant challenges the sufficiency of the evidence on Count 1, which stems from a controlled buy that took place on October 13, 2003. 

            In considering a claim of insufficiency of the evidence, this court's review is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which 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).  This is especially true when resolution of the matter depends on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  "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 [a] defendant was proven guilty of the offense charged."  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). 

            Appellant argues that the evidence was not sufficient to support conviction of aiding a controlled substance crime in the third degree.  We disagree.

"A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime."  Minn. Stat. § 609.05, subd. 1 (2004).  Accomplice liability does not require "[a]ctive participation in the overt act," State v. Williams, 415 N.W.2d 760, 761 (Minn. App. 1987), but aiding and abetting the sale of drugs "requires some active participation to reach the requisite intent."  State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991).  Liability attaches when the defendant "plays some knowing role in the commission of the crime and takes no steps to thwart its completion."  State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995).

            Appellant was not physically present at the buy because he was incarcerated.  But the record indicates that:  (1) the day before the buy, a confidential informant contacted appellant's girlfriend seeking to purchase crack cocaine; (2) appellant's live-in girlfriend, following a complaint by the informant about the proposed transaction, said "let me talk to him"; (3) the informant called again the following day seeking to purchase cocaine and, in a recorded conversation, appellant's girlfriend responded, "I just need to . . . I need to holler at my man"; (4) when the informant complained about the attempted transaction the night before, appellant's girlfriend responded, "I'm sorry, . . . I mean I don't know how . . . how it goes down, you know what I'm saying . . ."; (5) the informant and appellant's girlfriend met at a convenience store where appellant's girlfriend sold the informant crack cocaine; and (6) following the buy, the informant met with a detective and reported to the detective that appellant's girlfriend told him that she had "talked to [appellant] today on the phone and he said yeah."

            To establish the requisite intent to aid this sale, the evidence must establish at a minimum that appellant became aware of the transaction prior to it taking place, and that he actively participated after he became aware.  See Minn. Stat. § 609.05, subd. 1; Kessler, 470 N.W.2d at 542.  We conclude that appellant's girlfriend's recorded statement that "[she] need[ed] to holler at [her] man" before a sale could take place and the informant's statement that appellant's girlfriend told him that she had in fact contacted appellant prior to the sale, when taken in the light most favorable to the conviction, is sufficient to support the conviction for aiding in the sale of cocaine.

            Appellant alleges insufficient evidence was presented to uphold his conviction on Count 3 but provides no argument or authority in support.  We conclude that appellant has waived this argument by failing to brief it.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that an appellant that fails to support its assertions with argument or authority waives the issue).

II.

            Appellantargues that his conviction of conspiracy violated his right to a unanimous jury verdict because the jury instructions did not require the jury to agree on a particular overt act in connection with a specific co-conspirator or conspiracy.  We agree.

            A person is guilty of conspiracy when he "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 (2004).  

            Jury unanimity is required as to each element of a charged crime, but not for alternative means of satisfying a particular element.  State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001).  And "nothing in Minnesota law permits trial on one count of criminal conduct that alleges different acts without requiring the prosecution to elect the act upon which it will rely for conviction or instructing the jury that it must agree on which act the defendant committed."  Id. at 356.

            Here, the state asserted in closing argument that appellant conspired to sell cocaine with several co-conspirators and that appellant or any of these co-conspirators committed an overt act in furtherance of the agreement.  The jury was instructed that to satisfy the entering-of-an-agreement element of the conspiracy charge, it must find an agreement between appellant and one or more co-conspirators to sell cocaine between January 2003 and September 9, 2004.  The jury instructions labeled the charged overt acts as the sale of cocaine and instructed the jury to convict if it found that an overt act took place between January 2003 and September 9, 2004.

            During closing arguments, the state urged the jury to convict based on at least three separate overt acts:  (1) aiding the sale of cocaine on October 13, 2003; (2) sale of cocaine on November 18, 2003; and (3) the sale of a simulated controlled substance on November 20, 2003.  But the state did not allege any specific agreement with any specific co-conspirators, arguing instead during closing arguments that appellant "conspired over and over again to sell crack cocaine with Marvin Fraction and Charles Fraction, Greg Fraction, Ferris Lee, Herb Brown, Lenard Wells, as well as others, and probably including Deb Ballesteros and other individuals that came and went throughout the organization."  Based on the state's argument and the jury instructions, each member of the jury could have decided that an agreement occurred at some point in a 21-month period between appellant and any of at least seven individuals and that any of at least three possible overt acts furthered the agreed-upon conspiracy.  We conclude that such instructions and argument allow for an unreasonable number of possible permutations of the agreement and overt act elements.

            Respondent argues that the jury verdict was unanimous because the jury convicted appellant of all three offenses alleged as overt acts satisfying the conspiracy charge element.  But because a particular agreement was never identified, jurors may have been unanimous in regard to each overt act standing alone, but not unanimous as to which agreement the act furthered.  Because the jury instructions fail to ensure that the jury reached a unanimous verdict regarding one set of the required elements, we conclude that appellant's right to a unanimous jury verdict was violated and we therefore reverse appellant's conviction on Count 4 and remand for resentencing.  Because we reverse based on appellant's right to a unanimous jury verdict, we do not reach the issue of sufficiency of the evidence on this Count.

III.

            Appellant argues that there is insufficient evidence to support the Count 5 racketeering conviction.  We disagree.

            A person is guilty of racketeering if the person "is employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity."  Minn. Stat. § 609.903, subd. 1(1) (2004).  The state must show that appellant was associated or employed by an enterprise and that he participated in a pattern of criminal activity as part of that association.

            An enterprise is characterized by:

1)        a common purpose among the individuals associated with the enterprise; where 

 

2)        the organization is ongoing and continuing, with its members functioning under some sort of decisionmaking arrangement or structure; and where

 

3)        the activities of the organization extend beyond the commission of the underlying criminal acts either to coordinate the underlying criminal acts into a pattern of criminal activity or to engage in other activities.

 

State v. Huynh, 519 N.W.2d 191, 196 (Minn. 1994).  The finding of an enterprise under the racketeering statute must focus on "organized crime and exclude[] ordinary, run-of-the-mill criminal activity."  Id. at 195 (quotation marks omitted).

            Here, the record provides testimony that appellant and three or four other individuals began selling crack cocaine together in the Fargo/Moorhead area starting in 2003.  The group would pool their money together, Greg Fraction or Charles Fraction would travel to Minneapolis or Chicago to buy large quantities of crack cocaine, and bring it to Fargo/Moorhead where the group would sell it for a profit.  This evidence establishes that the group had a common purpose in profiting from the importation and sale of crack cocaine.

             A nonparticipant in the enterprise testified that appellant and another group member were the leaders of the group, and that he saw them with onion-sized pieces of crack cocaine discussing how it should be distributed throughout the Fargo/Moorhead area.  He also testified that appellant and the other leader tried recruiting him to sell crack cocaine.  Although there is contradictory evidence in the record, the jury weighed such testimony and found a clear system of authority.  We conclude that the evidence is sufficient to uphold the jury's determination.

            The record includes evidence establishing that the enterprise's activities extended beyond the underlying criminal acts because the enterprise transported drugs from other cities into Fargo/Moorhead, referred customers to each other, and recruited others into the organization.  Because sufficient evidence in the record establishes that the enterprise had a common purpose of selling crack cocaine, was ongoing, and had a system of authority, and that the enterprise's activities extended beyond the mere sale of cocaine, we affirm the enterprise element.

            The pattern-of-criminal-activity element requires three predicate criminal acts that relate to participation in the enterprise.  Minn. Stat. § 609.902, subd. 6 (2004). Here, appellant, who was convicted of four predicate acts, challenges two of them:  (1) aiding in the sale of cocaine on October 13, 2004, and (2) conspiracy to sell cocaine.  Because we hold that the evidence is sufficient to affirm appellant's conviction for aiding the sale of cocaine on October 13, 2004, and appellant does not adequately challenge his convictions on Count 2 or Count 3, we conclude that the state presented sufficient evidence of three predicate acts and, thus, of a pattern of criminal activity.

            Sufficient evidence establishes that appellant was part of a criminal enterprise and that he intentionally participated in the affairs of the enterprise as shown by his convictions on Counts 1, 2, and 3.  We therefore affirm appellant's conviction of racketeering.

IV.

            Appellant argues that he was denied a fair trial due to the accumulation of the following evidentiary errors:  (1) the admission of evidence of appellant's gang affiliation; (2) the admission of photographs from a previous case in which appellant's racketeering conviction was overturned; and (3) the reference by a prosecution witness to a murder case tenuously linked to appellant.  We conclude there is no reversible error.

            "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  If the district court has erred in admitting evidence, we must determine whether a reasonable possibility exists that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

            Appellant challenges the denial of his pretrial motion to prohibit the introduction of any evidence regarding gang affiliation.  But aside from his assertion that such evidence is prejudicial and unrelated to the charged crimes, appellant does not cite any authority for his position.  See Modern Recycling, Inc., 558 N.W.2d at 772.  Evidence of appellant's gang affiliation has substantial probative value because it shows a close affiliation with other members of the enterprise who are also involved in gangs.  Furthermore, testimony regarding the street or gang names of appellant and other members of the enterprise is critical to understanding relevant recordings in which proper names are not used.  Because evidence of gang affiliation is relevant to the racketeering charge and has strong probative value, we conclude that the district court did not abuse its discretion by determining that the evidence was more probative than unfairly prejudicial.

            Appellant challenges the fairness of his trial because photographs used as evidence in a previous trial were admitted into evidence.  During trial here, many photographs of appellant with his associates were introduced.  Two of these photographs were introduced in a different trial resulting in a racketeering conviction that was reversed on appeal.  When appellant objected to the photographs from the previous trial, the district court withdrew them and instructed the jury to ignore them.  Even if the admission of the photographs was error, we conclude that no reasonable possibility exists that these photographs significantly affected the verdict here.  In addition to the district court's curative instruction to the jury the record also indicates that the two photographs do not differ materially from numerous other photographs properly admitted showing appellant with groups of his associates.

            Appellant argues that testimony elicited on direct examination that implicated a murder case resulted in unfair prejudice.  Appellant made a motion to prohibit references to a murder that occurred in Clay County, and the district court granted the motion.  In describing how he came to investigate the racketeering activities of appellant and other members of the enterprise, a witness gave the following testimony:

Q.     . . . [D]uring the homicide investigation you were involved with, . . . were there names that were brought up that eventually led you to start an investigation into racketeering?

 

A.     Yes.

 

Q.     How was that? What names started to come up that led you towards looking at a group of people?

 

A.     Through that investigation we determined that there as [sic] two groups of people that were working in the Fargo-Moorhead area that were primarily responsible for selling crack cocaine.

 

Q.     And not necessarily the one group that you were looking at in regard to the homicide, but what was the other group? What individuals were you identifying at that point?

 

A.     We had identified by names and also by nicknames . . . Greg Fraction . . . Dana Cobbins [appellant] . . . Charles Fraction . . . Marvin Fraction . . . Ferris Lee . . . .

 

            Thus, the record indicates that the questioning on this topic was very brief, included reference to the fact that appellant was not being investigated for homicide, and no other reference was made to the homicide investigation during the course of the trial.  Accordingly, we conclude that appellant has failed to show a reasonable possibility that this brief reference to a homicide investigation significantly affected the verdict. 

V.

            Following appellant's conviction, the jury was asked to determine whether five aggravating factors were present for sentencing purposes on the racketeering count.  No new evidence was presented to the jury during this sentencing phase, but appellant and respondent made arguments.  Although appellant was not informed of the specific aggravating factors sought by the state until after the state rested its case in chief, the record indicates that appellant was aware that aggravating factors would be pursued as early as the omnibus hearing.

            The jury found that three of the five aggravating factors were present and, based on this jury determination, appellant was sentenced to 130 months' incarceration on the racketeering count.  The factors found by the jury to establish a major controlled substance offense are that (1) appellant occupied a high position of power in the drug distribution hierarchy; (2) the offense involved a high degree of sophistication or planning, occurred over a long period of time, or involved a broad geographic area of disbursement; and (3) three or more persons actively participated in the offense.  See Minn. Sent. Guidelines II.D.2.(b)(5).

            Appellant argues that the procedures were improper because (1) the jury was not instructed to find "substantial and compelling circumstances"; (2) appellant's constitutional rights to confront the evidence against him, testify, and present a defense were denied; and (3) the sentencing procedures generally violated due process. We disagree.

            Appellant asserts, without authority, that in order for a jury to find aggravating factors, the jury must also find that the circumstances resulting in the aggravating factors are substantial and compelling.  But the assignment of error in a brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  Modern Recycling, Inc., 558 N.W.2d at 772.  Because appellant has failed to support his assertion with argument or authority and we see no plain error, we affirm.

            Appellant also argues that his constitutional rights to testify, confront the evidence against him, and present a defense were denied because the district court did not allow additional evidence to be presented during the sentencing phase of the trial.  We disagree.

            Here, the record indicates that the district court stated that if appropriate conditions are met it would allow additional evidence or testimony during the sentencing phase of the trial:

I will allow testimony by either party if there is evidence that is relevant to the aggravation issues that has not been submitted in the state's case in chief or in the defendant's case in chief, but that evidence has to be available immediately after the verdicts are read . . . . 

 

The following day, appellant requested an evidentiary hearing regarding three witnesses he wanted to testify during the sentencing phase.  One of these witnesses was integral to the prosecution's case and had already given approximately 150 pages of testimony. Appellant argued that he would question this witness about appellant's place in the hierarchy of the enterprise.  But appellant also admitted that "obviously, we've litigated that he didn't have any position" during the guilt phase of the trial.  The other two witnesses sought by appellant were charged with racketeering for their participation in the same enterprise as appellant.  No evidence or assertion was provided that these witnesses would waive their Fifth Amendment rights, and appellant failed to make any showing that they would agree to testify.

            Importantly, appellant failed to make any showing that he had any new, relevant evidence to submit.  During the prosecution's case in chief and appellant's defense, appellant had the motive and opportunity to dispute testimony that he occupied a high position of power in the hierarchy of the enterprise and that the enterprise involved a high degree of sophistication or planning, occurred over a long period of time, or involved a broad geographic area of disbursement.  Moreover, appellant vigorously defended the accusation that three or more people were involved in the offense, by the repeated assertions during trial that appellant was not part of any enterprise for the purpose of selling drugs.  Thus, we conclude that the district court did not err.  Finally, we reject appellant's argument that he was denied the right to testify.  There is no evidence in the record indicating that appellant ever sought to testify and was denied his right to do so by the district court.

VI.

            We conclude that appellant was not denied a fair trial and that the district court did not err in its sentencing procedures.  We affirm all of appellant's convictions except the Count 4 conviction of conspiracy to commit a controlled substance crime in the third degree.  We reverse the Count 4 conviction and remand for resentencing.

            Affirmed in part, reversed in part, and remanded for resentencing.