State of Minnesota v. Michael Allen Truelove ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0365
State of Minnesota,
Respondent,
vs.
Michael Allen Truelove,
Appellant.
Filed January 26, 2015
Affirmed in part, vacated in part, and remanded
Schellhas, Judge
Brown County District Court
File No. 08-CR-13-153
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Robert D. Hinnenthal, Brown County Attorney, Paul J. Gunderson, Assistant County
Attorney, New Ulm, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant challenges his conviction of second-degree controlled-substance crime
on the basis that it is not supported by sufficient evidence. He challenges his conviction
and sentence for fifth-degree controlled-substance crime because it is a lesser-included
offense of second-degree controlled-substance crime. We affirm appellant’s conviction of
second-degree controlled-substance crime, vacate his conviction and sentence for fifth-
degree controlled-substance crime, and remand for correction of the judgment of
conviction.
FACTS
After stopping a vehicle with a cracked windshield, a New Ulm police officer
determined that the vehicle’s driver, W.P., was under the influence of some substance
and arrested the driver for driving while impaired (DWI). The officer observed that the
vehicle’s front-seat passenger, appellant Michael Allen Truelove, was fidgeting, flailing
his arms, rocking back and forth, and unable to speak coherently. Upon exiting the
vehicle, Truelove also had difficulty maintaining his balance. The officer determined that
Truelove also was under the influence of some substance and transported Truelove to a
detoxification facility for his safety. After the traffic stop, police released another
occupant of the vehicle, a backseat passenger, G.B. Police searched the vehicle and
discovered that the center console contained an open envelope addressed to Truelove that
contained a baggie of 4.3 grams of methamphetamine. Police also found a small digital
scale and a hose containing a burnt substance in the vehicle. The vehicle was registered to
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a female who was not an occupant at the time of the traffic stop. During a routine search
of Truelove at the detoxification facility, intake staff discovered a baggie containing 1.9
grams of methamphetamine in one of Truelove’s pockets.
Respondent State of Minnesota charged Truelove with second-degree controlled-
substance crime under Minn. Stat. § 152.022, subd. 2(a)(1) (2012), for possession of six
or more grams of methamphetamine, and fifth-degree controlled-substance crime under
Minn. Stat. § 152.025, subd. 2(a) (2012), for possession of methamphetamine. During a
jury trial, W.P. testified that Truelove picked her up in the vehicle that police later
stopped and that W.P. believed belonged to Truelove’s girlfriend. W.P. purchased
methamphetamine from Truelove but did not know the weight of the drug she purchased;
she did not have a scale with her. W.P. knew that Truelove had additional
methamphetamine with him, but she did not know how much or where he kept it. After
W.P., Truelove, and G.B. used methamphetamine, W.P. took over driving because
Truelove caused the vehicle to swerve on the road. Police discovered baggies containing
methamphetamine in W.P.’s sock after her arrest, and the state charged her with DWI and
fifth-degree controlled-substance crime. W.P. testified at Truelove’s trial as part of a plea
agreement with the state. She testified that the only methamphetamine that she possessed
was that found in her sock and that any methamphetamine found in the vehicle did not
belong to her. G.B. testified that he did not have methamphetamine in his possession
when police stopped the vehicle and that any methamphetamine found in the vehicle did
not belong to him.
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A New Ulm police sergeant testified that he compared the baggie found in
Truelove’s pocket with the baggie found inside the envelope in the vehicle and that the
two were “similar” and could have come from the same box of baggies. The sergeant
further testified that digital scales like the one found in the vehicle are “commonly used
by those involved in the drug trade.” The jury found Truelove guilty of second- and fifth-
degree controlled-substance crime, and the district court convicted Truelove of both
offenses and imposed concurrent sentences of 98 and 21 months’ imprisonment. This
appeal follows.
DECISION
Sufficiency of evidence for second-degree controlled-substance conviction
Truelove argues that the evidence was insufficient for the jury to find that he
possessed the methamphetamine discovered in the vehicle. Appellate review of a
challenge to the sufficiency of the evidence involves “a painstaking analysis of the record
to determine whether the evidence, when viewed in the light most favorable to the
conviction, was sufficient to permit the jurors to reach the verdict which they did.” State
v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). The verdict will not be
disturbed “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 the
defendant was guilty of the charged offense.” Id. The reviewing court must assume that
the jury believed the state’s witnesses and disbelieved any evidence to the contrary, as the
weight and credibility to be given to witness testimony is for the jury to determine. State
v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).
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Corroboration of accomplice testimony
Truelove contends that the jury found him guilty of second-degree controlled-
substance crime based on uncorroborated accomplice testimony.
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.
Minn. Stat. § 634.04 (2012). The corroborating evidence must tend to affirm the truth of
the accomplice’s testimony and point to the defendant’s guilt to “some substantial
degree,” and “evidence is sufficient to corroborate an accomplice’s testimony when it is
weighty enough to restore confidence in the truth of the accomplice’s testimony.” State v.
Clark, 755 N.W.2d 241, 253–54 (Minn. 2008) (quotations omitted) (noting that
corroborating evidence need not establish a prima facie case of guilt). The corroborating
evidence may be direct or circumstantial. State v. Johnson, 616 N.W.2d 720, 727 (Minn.
2000). But accomplice testimony may not be corroborated solely by the testimony of
another accomplice. State v. Pederson, 614 N.W.2d 724, 733 (Minn. 2000). “[Section
634.04] contemplates that the issue of whether an accomplice’s testimony has been
sufficiently corroborated is a question of fact to be determined by the jury.” Clark, 755
N.W.2d at 251.
A jury instruction about the need for corroboration of accomplice testimony “must
be given in any criminal case in which any witness against the defendant might
reasonably be considered an accomplice to the crime.” State v. Lee, 683 N.W.2d 309, 316
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(Minn. 2004) (quotation omitted). “Generally, the test for whether a particular witness is
an accomplice is whether the witness could have been indicted and convicted for the
crime with which the defendant is charged.” State v. Scruggs, 822 N.W.2d 631, 640
(Minn. 2012) (quotations omitted). The district court may determine as a matter of law
whether a witness is an accomplice if the facts are undisputed and only one inference can
be drawn. Holt v. State, 772 N.W.2d 470, 483–84 (Minn. 2009). “But if the question is
disputed or subject to differing interpretations, the issue of whether a particular person is
an accomplice is a fact question for the jury to resolve.” Scruggs, 822 N.W.2d at 640.
Here, the district court instructed the jury about the need for corroboration of
accomplice testimony and told the jury that W.P. and G.B. “are persons who could be
charged with the same crime as [Truelove]. You cannot find [Truelove] guilty of a crime
on the testimony of these accomplices unless that testimony is corroborated.” On appeal,
the state questions whether this language was proper and whether G.B. could be
considered an accomplice to possession of methamphetamine. Even if we assume that
both W.P. and G.B. were accomplices to possession of methamphetamine and that the
jury instructions were correct, sufficient evidence corroborates the testimony of W.P. and
G.B. The envelope containing methamphetamine found in the vehicle was addressed to
Truelove, indicating that he possessed the envelope and its contents. Cf. State v. Wiley,
366 N.W.2d 265, 270 (Minn. 1985) (determining that evidence was sufficient to establish
appellant’s constructive possession of marijuana found in bedroom containing mail
addressed to appellant and inside boxes with appellant’s name on them). The vehicle also
contained a small digital scale, evidencing drug-trade participation and supporting W.P.’s
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testimony that Truelove sold her methamphetamine while in the vehicle and that he had
additional methamphetamine with him. This corroborating evidence tends to affirm the
truth of the accomplice testimony and point to Truelove’s guilt to a “substantial degree.”
See Clark, 755 N.W.2d at 253 (quotation omitted).
Sufficiency of circumstantial evidence
Truelove argues that the circumstantial evidence presented at trial was insufficient
for the jury to find that he possessed the methamphetamine discovered in the vehicle.
Although circumstantial evidence is given the same weight as direct evidence, a
conviction based on circumstantial evidence warrants “a higher level of scrutiny.”
Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004). The sufficiency of circumstantial
evidence is reviewed by using a two-step analysis. State v. Silvernail, 831 N.W.2d 594,
598 (Minn. 2013). First, the reviewing court must identify the circumstances proved by
the evidence, “consider[ing] only those circumstances that are consistent with the
verdict.” Id. at 598–99 (stating that the jury is in the best position to evaluate the
credibility of circumstantial evidence and that “we defer to the jury’s acceptance of the
proof of these circumstances and rejection of evidence in the record that conflict[s] with
the circumstances proved” (quotation omitted)). Second, the reviewing court must
“determine whether the circumstances proved are consistent with guilt and inconsistent
with any rational hypothesis except that of guilt.” Id. at 599 (quotation omitted) (stating
that the reasonableness of all inferences is examined independently, with no deference
given to the jury’s choice between reasonable inferences). “Circumstantial evidence must
form a complete chain that, in view of the evidence as a whole, leads so directly to the
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guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference
other than guilt.” State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012) (quotations omitted).
“A jury is in the best position to evaluate circumstantial evidence, and its verdict is
entitled to due deference.” State v. Fairbanks, 842 N.W.2d 297, 307 (Minn. 2014).
For a defendant to be found guilty of possession of a controlled substance, the
state must prove that the defendant possessed the substance either physically or
constructively. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).
Constructive possession is shown when (a) the police found the substance in a place
under the defendant’s exclusive control to which other people did not normally have
access, or (b) if the police found the substance in a place to which others had access there
is a strong probability, inferable from the evidence, that the defendant was at the time
consciously exercising dominion and control over the substance. Id. at 104–05, 226
N.W.2d at 610–11 (stating that the constructive-possession doctrine permits conviction
“where the inference is strong that the defendant at one time physically possessed the
substance and did not abandon his possessory interest in the substance but rather
continued to exercise dominion and control over it up to the time of the arrest”).
Considering the evidence consistent with the jury’s verdict, the circumstances
proved at trial include that Truelove was driving a vehicle that was not registered to any
of its occupants but that W.P. believed belonged to Truelove’s girlfriend. W.P. purchased
methamphetamine from Truelove while in the vehicle, and she knew that he had more of
the drug with him. The three occupants of the vehicle used methamphetamine, and W.P.
took over driving the vehicle when Truelove’s driving became erratic. When police
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searched the vehicle, its center console contained an envelope addressed to Truelove that
contained a baggie of 4.3 grams of methamphetamine. Also discovered in the vehicle
were a small digital scale and a hose containing a burnt substance. W.P. and Truelove had
baggies of methamphetamine on their persons, and the baggie containing 1.9 grams of
methamphetamine in Truelove’s pocket was similar to the baggie in the envelope. The
methamphetamine found in the vehicle did not belong to W.P. or G.B. Given these
circumstances proved, the only reasonable inference is that Truelove constructively
possessed the methamphetamine in the vehicle while he drove and that he did not
abandon his possessory interest when W.P. took over driving. See Minn. Stat. § 152.028,
subd. 2 (2012) (“The presence of a controlled substance in a passenger automobile
permits the fact finder to infer knowing possession of the controlled substance by the
driver or person in control of the automobile when the controlled substance was in the
automobile.”).
Truelove argues that another reasonable inference is that W.P. possessed the
methamphetamine and hid it in an envelope she found in the vehicle when the officer
initiated the traffic stop. Truelove essentially asks this court to evaluate the credibility of
W.P.’s testimony that the methamphetamine found in the vehicle did not belong to her
and that the only methamphetamine she possessed was that found in her sock. But the
credibility to be given to W.P.’s testimony was for the jury to determine, and this court
must assume that the jury believed her testimony. See Huss, 506 N.W.2d at 292; see also
State v. Porte, 832 N.W.2d 303, 308–09 (Minn. App. 2013) (rejecting argument that
cocaine found in van driven by defendant could have belonged to van’s owner or
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passenger, when owner and passenger testified at jury trial and denied possession of
cocaine). The circumstantial evidence presented at trial was sufficient for the jury to find
that Truelove possessed the methamphetamine discovered in the vehicle and that he is
guilty of second-degree controlled-substance crime.
Convictions of second- and fifth-degree controlled-substance crime
The district court convicted Truelove of second- and fifth-degree controlled-
substance crime and imposed sentences for both offenses. On appeal, the state agrees
with Truelove that this was error because fifth-degree possession of a controlled
substance is a lesser-included offense of second-degree possession of a controlled
substance. A defendant may not be convicted of both a crime and an included offense,
and “included offense” means, among other things, “[a] lesser degree of the same crime.”
Minn. Stat. § 609.04, subd. 1 (2012). The court convicted Truelove of fifth-degree
controlled-substance crime under Minn. Stat. § 152.025, subd. 2(a), for possession of
methamphetamine. This offense is a lesser degree of second-degree controlled-substance
crime under Minn. Stat. § 152.022, subd. 2(a)(1), for possession of six or more grams of
methamphetamine, of which the court also convicted Truelove.
Because the district court erred by convicting Truelove of both second- and fifth-
degree controlled-substance crime, we vacate the conviction and sentence for fifth-degree
controlled-substance crime while leaving the jury’s guilty verdict for that offense in
force, and we remand the case to the district court for correction of the judgment of
conviction. See State v. Barrientos-Quintana, 787 N.W.2d 603, 614 (Minn. 2010)
(vacating convictions and sentences and remanding for correction of official judgment of
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conviction where defendant was improperly convicted of alternative charges arising from
single criminal act).
Affirmed in part, vacated in part, and remanded.
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