State of Minnesota, Respondent, vs. Amanda Elizabeth Larson, Appellant.

State of Minnesota, Respondent, vs. Amanda Elizabeth Larson, Appellant. A06-1036, Court of Appeals Unpublished Decision, December 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-1036
 
State of Minnesota,
Respondent,
 
vs.
 
Amanda Elizabeth Larson,
Appellant.

 

Filed December 4, 2007

Affirmed in part and remanded in part

Kalitowski , Judge

 

Clay County District Court

File No. KX-05-947

 

Lori Swanson, Attorney General, John S. Garry, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Brian J. Melton, Clay County Attorney 807 North 11st Street, P.O. Box 280, Moorhead, MN 56560 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Amanda Larson challenges her conviction of conspiracy to commit first-degree controlled-substance crime under Minn. Stat. § 152.021, subd. 1(1) (2004).  Appellant argues that (1) the circumstantial evidence was not sufficient to prove that appellant conspired with her boyfriend to sell cocaine; (2) the court abused its discretion in admitting Spreigl evidence of appellant's past association with gang members involved in drug dealing; (3) the court erred in admitting both evidence of drugs found in her house and the testimony of her former boyfriend; (4) the district court erred in declining to respond to a jury question and request; (5) appellant was denied effective assistance of counsel by her attorney's injection of race and appellant's sexual history into the trial; and (6) the cumulative effect of the trial errors deprived appellant of a fair trial.  We affirm in part but remand to the district court for posttrial proceedings regarding appellant's ineffective-assistance-of-counsel claim. 

D E C I S I O N

I.

            Appellant argues that the evidence presented to the jury was insufficient for it to find beyond a reasonable doubt that she conspired to sell cocaine.  We disagree.  In considering a claim challenging the sufficiency 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 they did."  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary."  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

            This court's review includes an analysis of both the facts presented and the inferences that the jury could reasonably draw from those facts.  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000).  Because "weighing the credibility of witnesses is the exclusive function of the jury," Pieschke, 295 N.W.2d at 584, this court assumes that the jury believed the state's witnesses and disbelieved contrary evidence.  Moore, 438 N.W.2d at 108.  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, reasonably could conclude that the defendant was guilty of the charged offense.  State v. Olhausen, 681 N.W.2d 21, 25-26 (Minn. 2004).  "The dispositive consideration . . . is not whether reasonable doubt existed, but whether there was sufficient evidence for a jury to reasonably conclude that no reasonable doubt existed."  State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997). 

            "[A] conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence."  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  But "[w]hile it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence."  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the defendant's guilt as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Jones, 516 N.W.2d at 549.  Because a jury is in the best position to evaluate circumstantial evidence, its verdict is entitled to deference.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). 

            An individual is guilty of first-degree controlled-substance conspiracy crime when she conspires with another to sell "one or more mixtures of a total weight of ten grams or more containing cocaine" at least once within a 90-day period.  Minn. Stat. § 152.021, subd. 1(1) (2004).  A criminal conspiracy "requires (1) an agreement between two or more people to commit a crime, and (2) an overt act in furtherance of the conspiracy."  State v. Stewart, 643 N.W.2d 281, 297 (Minn. 2002).  Although there must be evidence that "objectively indicates an agreement," the state need not prove the existence of a formal agreement to commit a crime.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  Indeed, a conspiracy may be inferred from the circumstances.  State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521 (1943). 

            Appellant argues that "the state's evidence merely established appellant's guilt by association."  We disagree.  The record indicates that evidence was presented from which the jury could have inferred the existence of an agreement to sell cocaine:  (1) cocaine was found in appellant's bedroom in her boyfriend's shoe; (2) other drugs and paraphernalia were found during the search of appellant's house; (3) appellant's former boyfriend testified about appellant's prior drug sales; and (4) a police officer testified about appellant's association with a group that sold drugs.  Appellant acknowledges this evidence but contends that the evidence does not support an inference of an agreement.  But assuming that the jury believed the testimony of the state's witnesses, as the reviewing court must, appellant was knowledgeable about drugs and had been involved in drug sales before.  There was a large quantity of cocaine in the bedroom appellant shared with her boyfriend, a scale commonly used to measure drugs in appellant's bathroom, and various other drugs and drug-sale supplies throughout the house and in the garbage from the house.  The sum of this evidence satisfies the objective-indication-of-an-agreement standard and supports an inference that appellant was aware of the cocaine and had at least tacitly agreed to possess it.  Moreover, possession of such a large quantity of cocaine (62 grams) supports an inference that the cocaine was for sale rather than for personal use. 

            We conclude that the quantity of drugs and drug-sale supplies found in and around appellant's house, taken together with the testimony of the state's witnesses, are sufficient to support the jury's finding that appellant conspired to sell cocaine. 

II.

            Appellant argues that the district court erred in admitting Spreigl evidence regarding her association with a racketeering organization.  This court reviews the district court's decision to admit prior-bad-acts evidence for an abuse of discretion.  State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006).  "A defendant who claims the trial court erred in admitting evidence bears the burden of showing the error and any resulting prejudice."  Id.  Here, appellant's claim fails because she cannot establish that the evidence was irrelevant or that she was impermissibly prejudiced by the admission of the testimony. 

 

Evidence of other crimes, wrongs, or bad acts may be admitted only for limited, specific purposes, including showing "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."  Minn. R. Evid. 404(b).  Such evidence is not admissible to prove the character of a person or to show that the person acted in conformity therewith on a particular occasion.  Id.  Further, evidence of other bad acts may not be introduced if its probative value is substantially outweighed by its tendency to unfairly prejudice the fact-finder.  Id.; Minn. R. Evid. 403.  If the admission of evidence of other crimes or misconduct is a close call, it should be excluded.  State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995). 

Minnesota courts use a five-step process to determine whether to admit other-acts evidence.  The steps are:

(1) the state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state's case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant.

 

Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005) (quoting State v. Asfeld, 662 N.W.2d 534, 542 (Minn. 2003)).  When the district court erroneously admits other-acts evidence, this court must determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  Ness, 707 N.W.2d at 691. 

Here, the state properly notified defense counsel of its intention to use other-acts evidence, and appellant does not dispute that she participated in the prior act or that the state clearly indicated what the other-act evidence was offered to prove.  Rather, appellant maintains that the evidence is irrelevant and unfairly prejudicial.  We disagree.

            Appellant first argues the evidence was irrelevant because there was not a sufficiently close relationship between the charged offense and the evidence in time, place, and modus operandi.  But the challenged testimony showed appellant's familiarity with cocaine trafficking, making it more likely that she knew that

(1)     the corner-cut plastic sandwich baggies in her garbage and the gram scale in her bathroom were for the purpose of packaging and weighing cocaine for sale;

 

(2)     the persons whom her former boyfriend said came to her house late at night were coming to buy cocaine and the small packages she handed them contained cocaine;

 

(3)     there was cocaine stored at her house; and

 

(4)     the cocaine kept in her bedroom was of a quantity for packaging and re-sale, rather than for personal use.

 

Because the district court has broad discretion when admitting evidence, we conclude that the admission was not error. 

            Appellant also contends that the district court abused its discretion in determining that the state's Spreigl evidence was sufficiently probative to outweigh its potential for unfair prejudice.  We disagree.  A district court has broad discretion in weighing the probative value of evidence against its danger of unfair prejudice.  State v. Filippi, 335 N.W.2d 739, 744 (Minn. 1993).  Evidence is not unfairly prejudicial simply because it is damaging to a defendant's case.  State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996). 

            As discussed above, the evidence is probative of appellant's intent regarding the cocaine found in her bedroom.  And in weighing the probative value of the evidence against its danger of unfair prejudice, the district court limited the testimony to avoid undue prejudice and used model jury instructions to caution the jury not to convict appellant based on the Spreigl testimony.  On this record, we conclude that the district court did not err in determining that the probative value of the challenged, other-act evidence outweighed its danger of unfair prejudice.

III.

            Appellant argues that the district court committed reversible error in admitting evidence of the drugs found in the basement during the search of her house and by allowing her former boyfriend to testify.  We disagree.

            Appellant did not object to the admission of the drugs or the testimony during trial.  Generally, a defendant who fails to object to a specific error at trial forfeits the  right to raise the error for the first time on appeal.  State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002).  But an appellate court may consider an unobjected-to alleged error if it constitutes plain error that affected the defendant's substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  An error is plain if it is "clear or obvious."  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).  Because appellant failed to timely object, the alleged error must be "so clearly erroneous under applicable law and so prejudicial to the defendant's right to a fair trial, that the defendant's right to a remedy should not be forfeited."  In re Welfare of D.D.R., 713 N.W.2d 891, 899 (Minn. App. 2006).  Only then will this court assess whether to resolve the error in order to ensure the fairness and integrity of the trial.  State v. MacLennan, 702 N.W.2d 219, 235 (Minn. 2005).  And even if the unobjected-to error constituted plain error, appellant must show that there was a "reasonable possibility that the wrongfully admitted evidence significantly affected the verdict."  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

            Appellant cannot establish that the police officer's testimony about drugs found in her home affected her conviction.  Appellant's counsel discussed the drugs found in the basement in his opening argument.  Thus, the jury would have heard about the existence of the drugs regardless of the officer's testimony.  And because defense counsel also elicited testimony that appellant's roommates had been charged for the drugs found in their bedrooms, the jury could not have mistakenly assumed that appellant was responsible for those drugs.  Moreover, defense counsel relied on the fact that there were other drug users in the house to explain why drug paraphernalia was found in the garbage outside appellant's house.  We conclude that appellant was not prejudiced by the district court's admission of the challenged evidence and is not entitled to a new trial on this basis. 

            Appellant also challenges the relevance of her former boyfriend's testimony about prior drug sales by appellant.  Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  Minn. R. Evid. 401.   Because the testimony was relevant to appellant's intent regarding the cocaine found in her bedroom, we conclude that its admission was not plain error. 

            Appellant also argues that because her former boyfriend's testimony "merely spoke to appellant's propensity to commit the crime," it was inadmissible other-acts evidence under Minn. R. Evid. 404(b).  We disagree. 

            Although evidence of another crime or bad act is generally not admissible to prove that the accused acted in conformity with her character to commit the act she is charged with, such evidence is admissible if offered for another purpose, including proof of intent.  Minn. R. Evid. 404(b).    Here, the challenged testimony, in connection with the large amount of cocaine found in appellant's bedroom, is probative of appellant's intent to sell cocaine. 

But when offered for another purpose, the prosecution is required to notify the defense that it intends to use evidence of other acts or crimes.  State v. Spreigl, 272 Minn. 488, 497, 139 N.W.2d 167, 173 (1965).  Although the state failed to give the required notice here, we conclude that, on this record, appellant is not entitled to a new trial on this basis.

            The Minnesota Supreme Court addressed a similar situation in State v. Schweppe,  and held that "[s]ince [the challenged] testimony was properly admissible . . . , no prejudice flowed from a failure to follow the Spreigl requirement."  306 Minn. 395, 404, 237 N.W.2d 609, 616 (1975).  And as was the case here, the Schweppe court pointed out that the "defendant did not request a . . . cautionary instruction and neither then nor in his post-trial motion was there an objection to the absence of a Spreigl notice."  Id.  Finally, the Schweppe court concluded that "[t]he absence of any rulings by the trial court on these questions necessarily precludes review on appeal to this court."  Id.  We conclude that, as in Schweppe, appellant is not entitled to a new trial based on the admission of the challenged testimony.

IV.

 

            Appellant argues that the district court abused its discretion by referring the jury to the original conspiracy instruction when the jury asked whether conspiring and condoning, or allowing something to happen, were the same thing.  We disagree.

            This court reviews the district court's decision regarding whether to give additional instructions in response to a jury's question for an abuse of discretion.  State v. Harwell, 515 N.W.2d 105, 108-09 (Minn. App. 1994), review denied (Minn. June 15, 1994).  The district court may give additional instructions in response to a jury's question on a point of law, amplify previous instructions, reread previous instructions, or give no response.  Minn. R. Crim. P. 26.03; State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986).  But an "additional instruction may not be given in such a manner as to lead the jury to believe that it wholly supplants the corresponding portion of the original charge."  Murphy, 380 N.W.2d at 772.  Only where an instructional error has prejudiced a defendant's substantial rights will a new trial be granted.  State v. Jensen, 448 N.W.2d 74, 76 (Minn. App. 1989). 

            Here, appellant argues that by referring the jury to the original conspiracy instruction, the district court "failed in its duty to ensure the jury was accurately applying the correct legal principles during its deliberations."  But appellant fails to establish that the court's response to the jury was error.  The court directed the jury's attention to the first element of conspiracy, which states, "[a] person conspires with another when he or she agrees with the other to commit a crime."  Because this response specified that conspiracy requires an agreement (not merely "allowing something to happen"), the court acted within its discretion.

            We also reject appellant's argument that the district court abused its discretion by denying the jury's request for a dictionary.  Because the record indicates that the relevant definitions were included in the jury instructions, we conclude that the district court properly exercised its discretion in denying the request.

V.

            Appellant maintains that she was denied effective assistance of counsel based on her lawyer's references at trial to race and her sexual history.  To obtain a new trial on a claim of ineffective assistance of counsel, appellant must affirmatively prove that (1) her counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  "A reasonable probability is a probability sufficient to undermine confidence in the outcome."  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).  If one prong is determinative, we need not address the other.  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

            To establish the second prong, "[t]here must be a showing of actual prejudice, which requires this court to consider the totality of the evidence."  State v. Hood, 405 N.W.2d 459, 462 (Minn. App. 1987) (citation omitted), review denied (Minn. June 9, 1987).  "[A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors."  Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.  And the reviewing court must assume "that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision."  Strickland, 466 U.S. at 695, 104 S. Ct. at 2068.

            Here, the record indicates that appellant's counsel improperly made references to race throughout the trial including:  (1) appellant "chose to fraternize with black outlaws" and "black bucks"; (2) a witness's acquaintances were "black drug dealers"; (3) "blacks prefer crack cocaine"; (4) appellant's boyfriend was a "black stud"; and (5) appellant had affairs with "many, many black gangsters."  And in his closing statement, appellant's counsel improperly made a reference to appellant's sexual history by stating that the case was not about "who [appellant] was doing." 

The statements by appellant's counsel were outrageous and wholly inappropriate.  Moreover, the injection of race into a case where it is not relevant "can affect a juror's impartiality and must be removed from courtroom proceedings to the fullest extent possible."  State v. Varner, 643 N.W.2d 298, 304 (Minn. 2002).

When made by a prosecutor, inappropriate racial references are serious misconduct.  State v. Cabrera, 700 N.W.2d 469, 475 (Minn. 2005).  Although we are not presented with a prosecutorial-misconduct claim here, in the context of an ineffective-assistance claim, the injection of race by defense counsel can be just as damaging to the defendant.  See ABA Criminal Justice Prosecution and Defense Function Standards, 4-7.7(c) (3rd ed. 1993) ("[r]emarks calculated to evoke bias or prejudice should never be made in a court by anyone, including defense counsel.").  We thus conclude, and the state concedes, that appellant's counsel's conduct fell below an objective standard of reasonableness. 

Turning to the prejudice prong of the Strickland test, we conclude that the district court is in the best position to determine the effect of defense counsel's inappropriate remarks.  As the Minnesota Supreme Court has recognized, "[g]enerally, an appeal from a conviction is not the most appropriate way to raise issues of trial counsel's ineffective representation."  State v. Cermak, 350 N.W.2d 328, 332 n.5 (Minn. 1984).  And "[w]hether a new trial should be granted because of [an attorney's] misconduct . . . is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect."  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).

We conclude that the effect of appellant's counsel's inappropriate conduct is best examined by the court that heard the case.  Therefore, we remand this issue to the district court for posttrial proceedings to conduct further fact-finding and make a determination as to whether there is a reasonable probability that, but for defense counsel's conduct, the result here would have been different.

VI.

 

Finally, appellant argues that the accumulation of errors in this case requires a new trial.  An accumulation of errors can require a new trial even when no single error so requires.  Larson v. Belzer Clinic, 292 Minn. 301, 307, 195 N.W.2d 416, 419 (1972).  Because, as discussed above, we have concluded that appellant failed to show that the district court erred, appellant is not entitled to a new trial based on an accumulation of errors.

Affirmed in part and remanded in part.