State of Minnesota, Respondent, vs. Jesus Torres Villalobos, Appellant.

State of Minnesota, Respondent, vs. Jesus Torres Villalobos, Appellant. A05-2245, Court of Appeals Unpublished, December 5, 2006.

This opinion will be unpublished and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

A05-2245

 

State of Minnesota,

Respondent,

 

vs.

 

Jesus Torres Villalobos,

Appellant.

 

 

Filed December 5, 2006

Affirmed
Crippen, Judge*

 

Hennepin County District Court

File No. 4065809

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Disputing his controlled substance conviction, appellant Jesus Villalobos claims that he was wrongfully denied his choice of counsel, and that the state offered insufficient evidence of his guilt.   There being no merit in these or other claims stated in his brief, we affirm.

FACTS

On September 29, 2004, a park police sergeant worked "plain clothes surveillance detail" in Loring Park.  He observed appellant engage in two transactions involving what the officer believed to be marijuana.  As officers pursued appellant, he threw a plastic bag containing ten smaller bags out of his hat.  The ten smaller bags each bore a "Batman" logo and contained marijuana.  The other men involved in the transactions were arrested, and each was found with a small bag of marijuana bearing the Batman logo. 

The state subsequently charged appellant with sale of a small amount of marijuana in a park zone, a controlled substance crime in the fourth degree pursuant to Minn. Stat. § 152.024, subd. 1(4) (2004).  Following waiver of jury trial, appellant was tried in a three-day bench trial in July 2005.  He was found guilty as charged and sentenced to 24 months.

D E C I S I O N

1.

            Appellant argues that the district court abused its discretion in refusing to appoint substitute counsel.  The right to counsel includes a fair opportunity to secure an attorney of choice, but an indigent defendant's right to representation does not include the right to choose which attorney will provide the representation.  State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993); State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  A court will grant an indigent's request for substitute counsel "only if exceptional circumstances exist."  Vance, 254 N.W.2d at 358.  The decision whether to grant a request for substitute counsel lies within the district court's discretion.  State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998); State v. Clark, 698 N.W.2d 173, 177 (Minn. App. 2005).

"General dissatisfaction or disagreement with appointed counsel's assessment of the case does not constitute the exceptional circumstances needed to obtain a substitute attorney."  Worthy, 583 N.W.2d. at 279.  Rather, "exceptional circumstances are those that affect a court-appointed attorney's ability or competence to represent the client."  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001). 

Appellant made his complaints about counsel in a letter sent to a district court judge in May and in a pre-trial hearing on July 7, 2005.[1]  First, appellant's letter states that his attorney only came to visit him twice.  Even assuming, arguendo, that counsel and client did not meet again before the trial, this record of meetings does not establish "exceptional circumstances."  See Clark, 698 N.W.2d at 178 (affirming denial of substitute counsel where defendant alleged that attorney "never" came to see him, but was present at appearance two months before the trial; observing that "[a]t a minimum, Clark and his appointed attorney had an opportunity to discuss his case at that appearance.").  Similarly, appellant and his attorney had, "at a minimum," the opportunity to discuss the case during the two jail visits and during appearances prior to the trial.  Additionally, at the July 7 hearing, the court arranged for appellant's attorney to meet with him prior to the trial.  Appellant has not shown that more contacts were needed for quality representation.  His complaints of lack of contacts do not constitute a showing of "exceptional circumstances."

            At the July 7 hearing, appellant alleged that his appointed counsel had violated Minn. R. Prof. Conduct 9.4, "professional responsibilities of Defendant Counsel, paragraph W, X, B, H, D and M and that's why [he was] not satisfied with him," but there is no rule 9.4.  Appellant's attorney asserts that appellant may have meant Minn. R. Prof. Conduct 8.4, Misconduct.  As rule 8.4 does not contain paragraphs resembling those stated by appellant, this is not a compelling interpretation.[2]  Generalized allegations of dissatisfaction are not enough to support exceptional circumstances.  Worthy, 583 N.W.2d at 279.  As such, this reason for complaint also falls short of exceptional circumstances.

            Appellant also asserts that counsel failed to provide discovery that appellant requested.  But the record does not show the existence of a document appellant says was needed.[3]  Failure to obtain non-existent documents does not reflect on his attorney's "ability or competence to represent the client."  See Gillam, 629 N.W.2d at 449 (identifying attorney ability as reason to substitute counsel).

            Finally, appellant argues that he had an "irreconcilable conflict" with his attorney, and that this justifies substitution of counsel under federal law.  See United States v. Webster, 84 F.3d 1056, 1062 (8th Cir. 1996) (noting that to prevail on a request for substitution of court-appointed counsel, a criminal defendant must demonstrate "a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant").  At the July 7 hearing, appellant's attorney stated that appellant did not trust him and was reluctant to talk to him.  But, as trial counsel also stated, their "relationship [had] improved some.  He [had] just recently begun to talk to me about the facts of the case, but that's a new development."  The court asked whether appellant was willing to talk with the attorney before his next hearing, and appellant responded, "[i]f he's going to assist me, and if he's really going to help me, of course I'm willing to cooperate."  Appellant later thanked the court for listening and stated, "I know that [appointed counsel] is looking out for my best interests.  I'm aware of that."  The conflict that may have existed between appellant and his attorney was not shown to be "irreconcilable."  On the contrary, it appears to have been reconciled.  And mere "personal tension" is not enough to constitute an exceptional circumstance.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). 

            In sum, appellant has failed to show exceptional circumstances justifying the substitution of counsel.

            Appellant further argues that the district court erred by saying it had no control over the decision to grant a substitute public defender.  He suggests that the failure to recognize and exercise that control was an abuse of discretion.  But it appears on the record that the court understood its role but wanted to impress upon appellant that if he rejected his attorney, the public defender would not appoint another attorney for him.  See, e.g., State v. Benniefield, 668 N.W.2d 430, 434-35 (Minn. App. 2003) (appellant not entitled to substitute counsel where he dismissed appointed counsel after expressing dissatisfaction that did not rise to level of exceptional circumstance).

In any event, such a statement is harmless error where, as here, no exceptional circumstances exist.  See, e.g., State v. Lamar,474 N.W.2d 1, 3 (Minn. App. 1991) (holding trial court's statement that rule prevented substitution of appointed counsel and failure to ascertain whether there was good cause for substitution was harmless error where defendant made no showing of improper representation); see also Clark,698 N.W.2d at 178 (holding that "any overstatement in the court's explanation of the law was harmless," where request was untimely and appellant failed to demonstrate exceptional circumstances).

2.

Appellant also challenges the sufficiency of the evidence supporting his conviction.  He contends that (1) the evidence does not rule out a rational theory that he gave each of the men a small piece of jewelry (some of which was found on his person when he was apprehended) instead of marijuana; and (2) even assuming, arguendo, that he gave them marijuana, the evidence does not support that it was in exchange for money.

In reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the verdict and assumes that the fact finder disbelieved any testimony conflicting with the result reached.  State v. Thomas, 590 N.W.2d 755, 757 (Minn. 1999).  The verdict will be upheld if the fact finder, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty of the offense charged.  Id. at 757-58.  And "[a] conviction based on circumstantial evidence will be upheld if the reasonable inferences drawn from the evidence are inconsistent with any rational hypothesis except that of the defendant's guilt." State v. Rhodes, 657 N.W.2d 823, 840 (Minn. 2003) (quotingState v. Gates, 615 N.W.2d 331, 337 (Minn. 2000) (alteration in Rhodes)).

            Here, the park policeman testified that he saw appellant hand two men small bags containing a green substance, packaged consistently with the appearance of marijuana.  He saw the first man hand appellant money in exchange for the bag and saw the second man hand appellant curled paper that the officer believed was money.  Shortly thereafter, the men were found to have small plastic baggies in their possession containing what was later verified to be marijuana; the bags resembled other bags of marijuana found in appellant's possession.  When arrested, appellant had two ten-dollar bills as well as a number of items of jewelry.

The court in its detailed findings of fact states that it found the arresting officer very credible.  It rejected the argument that the officer was "guessing" about what he saw.  "He was not guessing but using his common sense and his experience as a police officer and his knowledge of drug transactions as well as the conduct in the park to conclude that it appeared to be a drug transaction."  Although appellant was also carrying a bag of jewelry, the jewelry was not packaged in individual bags like the ones the officer saw appellant hand each of the men, and the men were not found with bags of jewelry in their possession.  The sale of jewelry is not a rational hypothesis.

Appellant's argument that marijuana may have been given without remuneration is also not a rational hypothesis where the arresting officer testified that he saw the first man give appellant money and saw the second man give appellant a curled up piece of paper, which he believed to be money, in exchange for the bags.  The court also noted that the amount of money found in appellant's possession was consistent with the amount commonly paid for the amount of marijuana in each of the bags.  It further noted that the conduct was not consistent with a social exchange, but that it instead appeared to meet the statute's criteria that the exchange be for remuneration.  Finally, the court stated that the packaging of the marijuana in individual bags and the number of the baggies made it "clear" that he "had packaged them for sale to separate individuals."  When considering this evidence in the light most favorable to the court's verdict, the evidence is sufficient to find that the marijuana was given in exchange for money. 

3.

            Appellant argues that the court abused its discretion by allowing the prosecution to reopen its case to clarify testimony regarding the whereabouts of the plastic bag that contained the ten small bags of marijuana.  The decision whether to allow a party to reopen its case is within the court's discretion.  State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985); State v. Jouppis, 147 Minn. 87, 89, 179 N.W. 678, 679 (Minn. 1920).  It is sufficient for purposes of this review to note that there was no evidence of prejudice, since the court had admitted the ten small bags of marijuana that were contained in the larger plastic bag prior to reopening the record.  See State v. Berg, 326 N.W.2d 14, 16 (Minn. 1982) (denying request for new trial where error in reopening was not prejudicial). 

            In his supplemental pro se brief, appellant argues that he was improperly rearrested after being released from the initial arrest.  He has not identified any law that prohibits such arrest.  Assignment of error based on "mere assertion" and not supported by authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  No such prejudice is apparent here, and as such appellant's argument is waived.

            Appellant also poses the argument that Minn. Stat. § 152.024 is unconstitutional.  A statute's constitutionality is a question of law, which we review de novo.  Hamilton v. Comm'r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). 

            Citing the Minnesota constitutional requirement that laws must include an enacting clause and title, appellant asserts that Minn. Stat. § 152.024 lacks both.  See Minn. Const., art. IV, §§ 22 (enacting clause), 17 (title).  But appellant ignores the distinction between law and statute.  "Although the Minnesota Statutes are prima facie evidence of the laws of Minnesota, they are not the laws themselves."  Ledden v. State, 686 N.W.2d 873, 877 (Minn. App. 2004).  Here, the enacted law contains the appropriate enacting clause and title.  1989 Minn. Laws ch. 290, art. 3, § 11 (codified as Minn. Stat. § 152.024).  Appellant further asserts that the statute is printed in a book with a copyright, and argues that because laws may not be copyrighted the statute is not a true public law.  But statutes may be reproduced in many forms without affecting their validity.  Relying on the revisor of statutes' preface, appellant argues that since the statutes are a revision, they are nothing more than a reference book.  This is not the case.  Rather, the statutes state the content of enacted laws as compiled by the revisor of
statutes. Ledden, 686 N.W.2d at 877.  Appellant's arguments as to the constitutionality of Minn. Stat. § 152.024 lack merit.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]At the pre-trial hearing, appellant's counsel informed the judge that appellant's request for substitute counsel had been previously denied on several occasions.  The record does not reflect any earlier rulings.  Respondent therefore argues that without a record the court cannot conduct review of the issues.  See State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984) ("a criminal defendant cannot obtain a new trial on appeal by establishing that error occurred in the conduct of the trial unless he provides this court with a complete transcript or appropriate stipulation").  We review the issue on the record that is before us.   

[2]Appellant's earlier letter asserted that his attorney violated paragraphs W, X, P, H, T, and M.

[3]According to appellant's trial counsel, three of the requested police reports were not included in the initial discovery.  Counsel made an oral motion before the court for complete discovery, and received two of the documents.  The prosecutor indicated that the third document did not exist.