State of Minnesota, Respondent, vs. Jesus Jimenez Perez, 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This opinion will be unpublished and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

C9-02-2192

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jesus Jimenez Perez,

Appellant.

 

 

Filed December 9, 2003

Affirmed

Halbrooks, Judge

 

 

Clay County District Court

File No. K702535

 

 

Mike Hatch, Attorney General, Peter Krieser, Kelly O'Neill Moller, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, Moorhead, MN 56560 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

 

            Considered and decided by Hudson, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            In this appeal from his conviction of first-degree possession of a controlled substance, appellant challenges the sufficiency of the evidence to support the conviction and the validity of his waiver of a jury trial.  We affirm.

FACTS

Appellant Jesus Jimenez Perez has a long history of drug use, primarily heroin, but also cocaine and methamphetamine.  On March 19, 2002, appellant was with Arnoldo Almeida when Almeida sold drugs to a confidential informant (CI).  Appellant later testified that he recognized the substance exchanged as "strong cocaine" that he and Almeida had sampled earlier.  The following day, the CI contacted Almeida by telephone and arranged to buy an "eight-ball" (3.5 grams) of methamphetamine.  Appellant was present when the CI called Almeida and then accompanied Almeida from West Fargo to Moorhead for the meeting. 

After they picked up the CI, the three men drove to a convenience store, and Almeida went inside to purchase cigarettes.  When Almeida returned to the car, he stated that he thought he had seen Detective Anderson, a DEA agent.  The police were electronically monitoring the buy, and Detective Anderson radioed Detective Krone that he thought he had been spotted.  Detective Krone then instructed a patrol officer to stop Almeida's car.

Both appellant and Almeida testified at trial that right before the police arrived, Almeida handed appellant a leather pouch and a loose "black ball."  Almeida testified that he did not tell appellant what was in the pouch, and appellant did not ask.  Appellant testified that he believed that the loose item was "smoke, marijuana, or something."  But when asked whether appellant would know what the black ball was, Almeida stated, "It was unwrapped.  He probably would have."  Although both appellant and Almeida testified that this exchange occurred immediately before the police pulled their vehicle over, Almeida stated in his custodial interview with Detective Anderson that the methamphetamine had been on appellant's person earlier that day.  Appellant testified that he concealed these items in his waistband just before the stop.

After police stopped Almeida's car, appellant was placed at the rear of the vehicle and patted down by Detective Krone.  Detective Krone testified, that during his search, he noticed "a black bulge" in the area of appellant's waist.  When the detective removed the pouch, he saw several items inside it that were wrapped in electrical tape.  Detective Krone also noticed another item in appellant's groin area that he later learned was a sock containing syringes that appellant kept with him for personal use.  Appellant was placed under arrest and transported to the Moorhead Police Department, where Detective Krone continued the search.  Two additional black balls wrapped in electrical tape were produced one that fell out of appellant's pants and another found in appellant's left boot.  The parties stipulated that the confiscated items were methamphetamine with a total weight of 47.3 grams.

Appellant waived his right to a jury trial.  The court found appellant guilty of possessing methamphetamine, a controlled-substance crime in the first degree in violation of Minn. Stat. § 152.021, subd. 2(1) (2000).  Appellant received the presumptive guideline sentence of 110 months in prison and was ordered to pay a $1,000 fine.  This appeal follows. 

D E C I S I O N

Appellant argues that the evidence was insufficient to support his conviction for unlawful possession of methamphetamine.  In considering a claim of insufficient evidence, we examine the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is the exclusive role of the fact-finder to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  The reviewing court must assume that the trial court believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the trial court, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

Appellant was convicted under Minn. Stat. § 152.021, subd. 2(1) (2000), which provides that a person is guilty of a first-degree controlled-substance crime if "the person unlawfully possesses one or more mixtures of a total weight of 25 grams or more containing cocaine, heroin, or methamphetamine."  To prove knowing possession of the cocaine, the state is required to show that (1) the defendant consciously possessed the drug, either physically or constructively; and (2) the defendant had actual knowledge of the nature of the substance.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  In this case, the question of whether there was sufficient evidence of appellant's guilt centers on the second part of the state's proof whether appellant had actual knowledge of the nature of the substance he possessed.        

The trial court concluded that, "[g]iven his extensive knowledge of and experience with controlled substances, including methamphetamine, and taking into account the events of March 19 and March 20, as well as the credibility of the witnesses, [appellant] knew or believed that the items secreted on his person were rocks of methamphetamine."  The evidence supports this conclusion. 

It is undisputed that appellant knew that Almeida sold drugs to the CI on March 19 and that appellant went with Almeida on March 20 to meet the same CI for the same purpose.  Appellant and Almeida testified that appellant did not know that the items that he possessed were methamphetamine because they were wrapped in electrical tape and handed to him only moments before police arrived.  But this testimony was contradicted by Almeida's prior statement that appellant possessed the methamphetamine earlier that day and by Almeida's testimony that the black ball was unwrapped and that appellant probably would have known what it was.  Moreover, as the trial exhibits illustrate, every rock of methamphetamine was packaged in the same manner in a small, black ball.  It is also undisputed that appellant has a long history of drug use, and appellant admits that he has used methamphetamine.  It is therefore logical that he would be familiar with what methamphetamine looks like and how it is packaged. 

Given the totality of the evidence and viewing this evidence in the light most favorable to the conviction, the evidence was sufficient to show that appellant knew that the items that he possessed were methamphetamine.  Because it is undisputed that the amount of the methamphetamine that appellant possessed was 47.3 grams, the trial court properly found appellant guilty of a first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 2(1).

Appellant's second issue on appeal is based on his argument that the trial court failed to adequately explain the consequences of waiving a jury trial and failed to inquire as to whether appellant's waiver was "knowing, intelligent and voluntary."  See State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991).  Appellant also asserts that he should have been informed that the jury's decision would need to be unanimous.

In Ross, the supreme court stated that "[t]he purpose of the trial court's colloquy with the defendant is to learn whether the defendant's waiver is knowingly and voluntarily made" and whether the defendant "understands the basic elements of a jury trial."  Id. at 654.  While the supreme court commended certain guidelines for inquiry to the trial courts, such as the fact that a jury is composed of 12 members of the community, that a defendant may participate in jury selection, that a jury verdict must be unanimous, and that, if the defendant waives a jury, the judge will decide guilt or innocence, the court also recognized that each exchange between a trial court and a defendant will vary depending on the circumstances of the case.  Id.

Here, the trial court asked appellant two questions before accepting his waiver of a jury trial: 

THE COURT:  Mr. Perez, you've talked with Mr. Karlsson about your right to have a jury trial in your case and that that would be a jury of 12 people.  Do you understand that?

 

THE DEFENDANT:  Yes.

 

THE COURT:  And is it your desire at this time to give up your right to hear the case or to have a jury of 12 people hear the case and make the decision as to whether you're guilty or not guilty and have myself do that?

 

THE DEFENDANT:  Yes, Ma'am.

 

THE COURT:  All right.  Then we'll set you down for a court trial without a jury . . . .

 

The record establishes that appellant was informed that a jury consisted of 12 people, that the judge would decide his guilt or innocence, and that his waiver was voluntary.  Although it does not provide an understanding of the advice appellant received from counsel regarding his rights, the trial court should not inquire as to why appellant wishes to waive a jury trial.  Id.  The Ross court warned that "to intrude in this sensitive area might infringe on attorney-client privileged communications or compromise the judge's impartiality."  Id.  Given the questions asked by the trial court and appellant's prior experience with the court system, the record demonstrates that appellant's waiver was knowing, intelligent, and voluntary. 

Appellant's pro se supplemental brief also raises a claim of ineffective assistance of counsel.  Because a postconviction evidentiary hearing is the preferred method for raising such a claim, we will not address it here.  See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).  The issue is preserved should appellant choose to pursue it in a postconviction proceeding.

            Affirmed.