State of Minnesota, Respondent, vs. Quentin Elliot Starin, 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This opinion will be unpublished and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

C6-02-2229

 

State of Minnesota,
Respondent,
 
vs.
 
Quentin Elliot Starin,
Appellant.

 

Filed November 18, 2003

Affirmed

Minge, Judge

 

Itasca County District Court

File No. K7012099

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

John Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street Northeast, Grand Rapids, MN 55744 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Peterson, Judge.  

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

Appellant challenges his conviction of conspiracy to commit a controlled-substance crime in the first degree on the grounds that corroborating evidence supporting the accomplice testimony was insufficient to support his conviction, that certain jury instructions were improper, that he had not voluntarily consented to a search of his vehicle, and that various other rulings by the district court were reversible error.  Because there was sufficient corroborating evidence, because the jury instructions were not objected to at trial and did not affect appellant's substantive rights, and because the district court did not err, abuse its discretion, or materially prejudice appellant's rights with respect to the other matters, we affirm.

FACTS Appellant Quentin Elliot Starin and Warren Wasson, Jr., a passenger in his car, were charged with various controlled-substance offenses when a search of Starin's car and of Starin's person revealed packaged methamphetamine, marijuana, and equipment for dividing, packaging, and using controlled substances.  Starin admitted to using a controlled substance, and blood tests confirmed the presence of methamphetamine in his system.  Wasson pled guilty and testified against Starin at a jury trial.  The jury found Starin guilty of conspiracy to sell ten or more grams of methamphetamine in violation of Minn. Stat. §§ 152.021, subds. 1(1), 3(b) (2000) and 152.096 (2000), the sale of ten or more grams of methamphetamine in violation of Minn. Stat. § 152.021, subds. 1(1), 3(a) (2000), and two counts of third-degree driving while impaired in violation of Minn. Stat. §§ 169 A. 20, subds. 1(2), 1(7) (2000) and 169 A. 27 (2000).  The district court only adjudicated him guilty to and sentenced on the conspiracy conviction.

 

 

D E C I S I O N I.

The first issue raised by appellant is that his conviction of conspiracy to commit a controlled-substance crime was based on accomplice testimony without sufficient corroborating evidence.  When reviewing a claim of insufficient corroborating evidence, this court "view[s] the evidence in the light most favorable to the state and all conflicts in the evidence are resolved in favor of the verdict."  State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).  The verdict will not be reversed if the jury could reasonably conclude that the defendant was proven guilty of the charged offense.  State v. Norris, 428 N.W.2d 61, 66 (Minn. 1988).  This court undertakes a painstaking review of the record to determine if the evidence was sufficient to permit the jury to reach the conclusion that it did.  Id. 

            Under Minnesota law, an accused may not be convicted on the uncorroborated testimony of an accomplice.  Minn. Stat. § 634.04 (2002).  The statutory language states:

A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

 

Id.  Corroboration is required because an accomplice may "testify against another in the hope of or upon a promise of immunity or clemency or to satisfy other self-serving or malicious motives."  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989).  Corroborating evidence need not establish a prima facie case of the defendant's guilt.  Adams, 295 N.W.2d at 533.  But, it must point to the defendant's guilt to some substantial degree.  Id.  Corroborating evidence may be direct or circumstantial and must link or connect the defendant to the crime.  Id.  Corroborating evidence can be found from

the defendant's association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant's opportunity and motive to commit the crime and his proximity to the place where the crime was committed.  The defendant's entire conduct may be looked to for corroborating circumstances.  If [the defendant's] connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient.

 

Id. (citation omitted).

            The corroborating evidence in this case is primarily testimony of Grand Rapids police officer James Denny.  He stated that: (1) a search of Starin's car produced a blue pouch containing a total of 16.7 grams of methamphetamine, in addition to other drug paraphernalia such as butane lighters, glass pipes, and razor blades; (2) Starin admitted to knowing that Wasson had a quantity of methamphetamine in a blue pouch; (3) the methamphetamine was packaged into five separate baggies, each weighing one-eighth of an ounce a weight commonly known as an "eight-ball" when sold (based on his training and experience, Officer Denny testified that this packaging is consistent with the sale of drugs); (4) Starin admitted to knowing that Wasson sold drugs; (5) Starin admitted that he used methamphetamine on the date in question; (6) Starin admitted to driving Wasson from the Mille Lacs casino to Wasson's stepmother's house in Grand Rapids and anticipated that Wasson would sell drugs there; and (7) a blood sample taken from Starin on the date in question showed the presence of methamphetamine.  Additionally, Jailer Timothy Higgins testified that he found a small baggie containing white powder in Starin's pants pocket while booking and processing Starin at the Itasca County Jail.  The substance was given to Officer Denny who testified that the bag contained 0.7 grams of methamphetamine.

Here, when viewing the evidence in a light favorable to the state, the prosecution provided sufficient evidence to corroborate accomplice Wasson's testimony.  Starin's own admissions to Officer Denny reveal that Starin knew there was methamphetamine in the pouch, that Wasson sold drugs and was likely selling drugs that day, and that he willingly drove to destinations determined by Wasson.  Taken together, this corroborative evidence suggests joint participation.  Starin's admissions to Officer Denny also corroborate Wasson's testimony as to where the pair traveled that day.  These admissions demonstrate appellant's proximity and opportunity to commit the crime.

Starin further argues that without the accomplice testimony, the remaining evidence provides no substantial basis for concluding that he conspired to sell methamphetamine.  But accomplice testimony need not be corroborated on every point or element of the crime.  State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982) (citations omitted).  Rather, corroborative evidence must restore confidence in an accomplice's testimony, confirming its veracity and indicating the defendant's guilt in a substantial way.  State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000).  Because the prosecution presented Officer Denny's testimony of Starin's admissions, and because those admissions to Officer Denny suggest joint participation, and a proximity and opportunity to commit the crime, we conclude that the state provided sufficient evidence to corroborate Wasson's accomplice testimony in a substantial way.

II.

Next, Starin challenges two instructions that were submitted to the jury: the permissive-inference instruction regarding knowing possession of a controlled substance and the instruction regarding an overt act. 

District courts are allowed "considerable latitude" in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  The jury charge must be read as a whole, and if the charge correctly states the law in language that can be understood by the jury, there is no reversible error.  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).  "The jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case."  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  "An instruction is in error if it materially misstates the law.  Furthermore, it is well settled that the court's instructions must define the crime charged.  In accordance with this, it is desirable for the court to explain the elements of the offense rather than simply to read statutes."  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted).

Where the appellant does not object to the jury instructions at trial, this court may only reverse if the instructions were misleading or confusing on fundamental points of law.  State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002).  Minn. R. Crim. P. 31.02 allows consideration of plain errors not previously brought to the attention of the district court if the appellant shows that the district court's ruling (1) was error; (2) that the error was plain, and (3) that the error affected appellant's substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The third prong is satisfied when the error is prejudicial and affects the outcome of the case.  Id. at 741; State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990).  But even if all three prongs are met, the reviewing court must then assess whether it should address "the error to ensure fairness and the integrity of the judicial proceeding."  Griller, 583 N.W.2d at 740.

The first jury instruction issue is whether the district court erred by allowing a permissive-inference instruction regarding knowing possession of a controlled substance.  Starin argues this issue for the first time on appeal.  If Starin had been adjudicated on and sentenced for the controlled-substance crime of possession with intent to sell, then the permissive-inference instruction and the prosecutor's recitation of that instruction in closing argument would be plain error and would support reversal of a possession charge under State v. Litzau, 650 N.W.2d 177, 186-87 (2002) (permissive-inference instruction for the charge of possession of a controlled substance under the circumstances was plain error).  Here, Starin was adjudicated and sentenced only on the conspiracy charge, which did not require a finding of knowing possession.  Therefore, the permissive-inference instruction and the prosecutor's closing remarks are irrelevant to the sentence and do not provide a basis for reversing the judgment of the conspiracy conviction in this case.

The second jury instruction issue is whether the district court denied Starin's right to a unanimous verdict by instructing the jury that they only had to find that Starin or Wasson committed one of six alleged overt acts.  Starin contends that this instruction permitted the jury to convict him without unanimous agreement on who committed which of the alleged overt acts.  Although Starin failed to object to the instruction in the district court, he now argues that this issue should be addressed because it is plain error that affected his substantial rights.

In Stempf, this court held that "[w]here jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed, the instructions violate the defendant's right to a unanimous verdict."  State v. Stempf, 627 N.W.2d 352, 354 (Minn. App. 2001) (citing State v. Begbie, 415 N.W.2d  103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988)).  In Stempf, this court reversed the appellant's conviction of possession of a controlled substance when the jurors were presented with evidence that he possessed methamphetamine in a truck and also at his work.  Id. at 359.  The court held that the jury instructions violated the appellant's right to a unanimous verdict because the jurors, in finding him guilty of possessing drugs, could have relied on separate instances of possession.  Id.   

Here, the state attempted to prove one element of the crime an overt act with multiple instances.  The instructions required the jurors to find only that one of the two conspirators committed one of six acts.  Like Stempf, this instruction potentially allowed jurors to convict Starin while disagreeing as to which alleged overt act satisfied the element.  As a result, we conclude that the trial court erred.

But, even though we conclude that the trial court's instruction was error, we do not find it constituted plain error.  Plain error exists when the court goes against clear and established law.  See Ihle, 640 N.W.2d at 917.  Here, the trial court followed the recommended jury instruction in 10 Minnesota Practice, CRIMJIG 5.07 (1999).  See State v. Sutherlin, 396 N.W.2d 238, 241 (Minn. 1986) (finding the trial court did not commit plain error when it followed the recommended instruction without objection).  Further, the law in this area is unsettled, as courts continue to grapple with the implications of Stempf.  See Crowsbreast, 629 N.W.2d at 438 (finding the trial court did not commit plain error when the error occurred, if at all, in an unclear area of the law).  Therefore, we conclude that the jury instruction did not constitute plain error.

We also conclude that the error did not affect Starin's substantial rights.  Here, Starin's co-conspirator Wasson testified to the six acts offered by the state as proof of an overt act.  That evidence was further substantiated by Starin's own admissions, as testified to by Officer Denny and Jailer Higgins.  Thus, even if the jury had a clearer instruction, it does not seem reasonably likely that the verdict would have been affected given the strong evidence as to most, if not all, the alleged overt acts.

As a result, although the trial court may have erred, it was neither plain error nor did it affect appellant's substantial rights.  Therefore, we do not find that this jury instruction constituted reversible error. 

III.

Starin raises three evidentiary issues.  A district court's evidentiary ruling will not be reversed absent a clear abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  The appellant has the burden of showing that the trial court abused its discretion and that such abuse caused prejudice.  Id.

The first evidentiary issue is whether the district court abused its discretion by allowing the admission of transcripts made from two tape-recorded interviews between Starin and police officers.  At the omnibus hearing to determine whether the transcripts were to be suppressed, the transcriptionist testified that she erased the contents of the recording under the mistaken belief that the case was closed.  She further testified to the procedures followed to ensure accuracy in producing the transcript.  Officer Denny testified that he had reviewed the transcripts and found them accurate.  The district court determined that the prosecution sufficiently established the accuracy of the transcripts and that any other concerns about accuracy could be addressed through cross-examination.

Starin argues that his conviction should be reversed because the transcripts cannot be verified as accurate.  Starin contends that the written transcripts do not meet the definition of "duplicate" because they do not reflect the tone, volume, or rhythm of the conversation, and thus do not accurately reproduce the original in accordance with Minn. R. Evid. 1001(4). 

Minn. R. Evid. 1004 governs the admissibility of a writing or recording when the original has been lost or destroyed.  Under rule 1004, an original is not required if it has been lost or destroyed, unless the proponent lost or destroyed them in bad faith.  The rule does not require the submission of a duplicate that meets the definition of rule 1001(4).  Additionally, as suggested by the district court, Starin's counsel thoroughly cross-examined Officer Denny on the issue of accuracy.

            Alternatively, Starin asks this court to find that the originals were destroyed in bad faith.  Starin does not point to any evidence suggesting a bad faith destruction of the original, nor does Starin show how the district court abused its discretion on this issue.  Because Starin's argument is without merit, we affirm the district court's admission of the transcripts.

            The second evidentiary issue is whether the district court abused its discretion in allowing the admission of appellant's blood sample results.  Starin fails to base his argument on any legal authority.  Minn. R. Civ. App. P. 128.02, subd. 1(d) (providing that an appellant's argument must be accompanied by citations to relevant authority).  Accordingly, this issue is not properly before this court.

The third evidentiary issue raised by Starin is whether the district court erred in not suppressing the evidence gathered in the search of his vehicle on the ground that he did not voluntarily consent to the search.  On review of a pretrial suppression order, this court will "independently review the facts and determine, as a matter of law, whether the district court erred in suppressing - or not suppressing - the evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Where a party challenges the district court's findings of fact, this court reviews those findings under a clearly erroneous standard of review.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

"‘Voluntariness' is a question of fact and it varies with the facts of each case."  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  The test for voluntariness is the totality of the circumstances.  Id.  The issue is whether a reasonable person in such circumstances would have felt free to decline a request to search.  Id.  "[T]he Fourth Amendment does not require for a voluntary search that the defendant know or be told that he has a right to refuse."  Id. at 881.  Circumstances that make an encounter with police uncomfortable are not enough to render the subsequent consent as involuntary.  Id. at 880.  "Rather, it is at the point when an encounter becomes coercive, when the right to say no to a search is compromised by a show of official authority, that the Fourth Amendment intervenes.  Consent must be received, not extracted."  Id.

            Here, according to Officer Snyder's testimony, Starin initially stated that the police officers could not search his vehicle unless they had probable cause or the consent of the owner.  Officer Denny testified that after the discovery of drug paraphernalia on Wasson, Starin orally consented to the search of his vehicle.  Additionally, Starin signed a written consent form while seated in the front of Officer Denny's squad car.  Officer Denny testified that he told Starin that if he wanted the search to cease, Starin should tell one of the officers.  The district court determined that Starin felt free to decline the officer's request to search because Starin had declined the officer's first request.  After consent was given, the district court found that Starin's failure to revoke consent was by choice, not coercion.  Therefore, the district court found Starin's consent to be voluntary.  Looking at the totality of the circumstances, the district court was not clearly erroneous in finding Starin's consent to be voluntary.

IV.

Starin raises two issues regarding the management of the trial.  These involve the failure of the district court to rule on Starin's request that the jury view his vehicle and the district court starting Starin's trial one day later than originally scheduled.  The district court has broad managerial discretion over trials.  Minn. Pers. Injury Asbestos Cases v. Keene Corp., 481 N.W.2d 24, 27 (Minn. 1992).  Appellate courts use an abuse of discretion standard when reviewing trial management decisions.  Life Trust Intern. v. Brown, 317 F.3d 799, 807 (8th Cir. 2003). 

Starin argues that the jury's proper understanding of the location of the blue pouch containing packaged methamphetamine in the car is a material fact to his case and that the jury should have viewed his vehicle outside the courtroom.  We note that Starin was able to present to the jury the exact location of the blue pouch through the cross-examination of Officer Snyder.  We conclude that there was no abuse of discretion or denial of Starin's right to a fair trial by failing to order the jury to view the vehicle.

The second issue is whether the district court's decision to start Starin's trial one day later than scheduled denied him a fair trial.  We find no merit in this objection.

Affirmed.