Opinion
No. A03-501.
Filed April 27, 2004.
Appeal from the District Court, Stearns County, File No. K7-02-347.
Mike Hatch, Attorney General, and Janelle P. Kendall, Stearns County Attorney, Sam D. Young, Assistant County Attorney, Administration Center, (for respondent).
John Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, (for appellant).
Considered and decided by Stoneburner, Presiding Judge; Anderson, Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Kevin Epps challenges his conviction of third-degree controlled-substance crime under Minn. Stat. § 152.023, subds. 1(1), 3(a) (2000), arguing that the evidence was not sufficient to support the conviction. We affirm.
FACTS
On December 3, 2001, Mae Knox ("the informant"), an admitted drug user, contacted St. Cloud Police Officer James Steve. The informant told Steve she was willing to conduct a controlled buy for pay, and that she had a phone number for a man named "Dread" from whom she could purchase cocaine. The informant admitted that she went to Steve only after she had unsuccessfully tried for several days to contact "Dread" to buy drugs. She also testified that she had never done this before but needed the money. Steve testified that the informant had been acting as a paid informant for the previous year and a half and that he agreed to pay the informant $50 on this occasion if she successfully bought drugs from "Dread."
Steve had the informant call the phone number to set up a buy. The informant told "Dread" that she had a hundred dollars and wanted a gram of crack. "Dread" told the informant that drugs cost more in St. Cloud than in the Cities but said "[he knew] some people [he could] call to try to get . . . somethin' for [her]." "Dread" then asked the informant to call him back in about 30 minutes. When the informant called "Dread" back, "Dread" asked, "[W]here you want me to come pick you up at?" The informant told "Dread" to pick her up in front of the Cash Wise Liquor Store. After "Dread" asked how much money the informant had, and the informant responded that she had only about $100, "Dread" said he would help her out.
The informant was strip-searched, outfitted with an electronic transmitter and given $100 of buy money. After surveillance was set up around the area by the police, Steve dropped the informant off near the liquor store. Steve and other officers kept the informant in sight at all times. The informant then called "Dread" to get a description of the car he was driving and learned that he was driving a white Chevrolet Cavalier. A few minutes later, a white Cavalier driven by appellant approached the informant. The informant told appellant to move away from the store's entrance and appellant moved the car to a nearby parking spot. The informant walked up to the driver's side of the car.
There is disagreement as to what occurred next. The informant testified that when she went to the car, appellant told her he only had a half-gram to sell. The informant also testified she gave appellant $50 of the buy money for the cocaine and put the other $50 under her blouse. Deputy Steve Lehmkuhl testified he saw the informant reach through the driver's window holding money in her hand and then put something into her blouse. Lehmkuhl also testified he heard the informant ask if she could get more. After the informant walked away, Lehmkuhl claims he followed the car and recognized the driver as appellant.
Appellant testified that he did not sell the informant any drugs. He asserts that after being laid off from his job, he let it be known that he was willing to taxi people around town for a small fee, and that he thought the informant wanted a ride. He testified that he was confused when the informant started talking about drugs. Appellant also testified that he only offered to drive the informant to the Cities so she could buy drugs there. He asserts he told the informant he needed gas and would come back and get her in about 30 minutes. He claims the informant leaned into his car, looked at the gas gauge, and then gave him five dollars for gas money.
After the informant walked away, Steve picked her up and she handed him $50 and what was later determined to be .10 grams of cocaine knotted in cellophane. Steve debriefed the informant and took her to the law enforcement center where she was again strip-searched. Steve then showed the informant a photo array containing appellant's picture. After the informant identified appellant as the person who sold her the cocaine, Steve paid the informant $50 for her assistance.
Appellant was arrested and charged with a third-degree controlled-substance crime under Minn. Stat. § 152.023, subds. 1(1), 3(a) (2000). After a jury trial, appellant was found guilty as charged. The district court stayed imposition of appellant's sentence and placed him on probation for up to 20 years. This appeal followed.
DECISION
Appellant argues that the evidence is insufficient to prove beyond a reasonable doubt that a drug sale occurred. We disagree. When considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the verdict, is sufficient to allow the fact-finder to reach the conclusion that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume the jury believed the testimony that supports the conviction 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 jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). A conviction can rest on the testimony of a single witness, and it is the jury that determines the weight and credibility to be assigned to individual witnesses. State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).
To convict appellant of committing a controlled substance crime in the third degree, the state was required to prove beyond a reasonable doubt that the defendant sold at least one mixture containing cocaine. See Minn. Stat. § 152.023, subd. 1(1). At trial the informant testified that she received a package containing a substance believed to be crack cocaine from appellant in exchange for $50, which she paid directly to appellant. The substance later tested positive for cocaine.
Appellant argues that the informant's testimony is not credible because the informant was a drug addict with a financial interest in the sale. Appellant also argues that similar to accomplice testimony, the testimony of a drug-addicted paid informant should require corroboration. Appellant contends that the remaining evidence does not significantly corroborate the informant's claim that a drug sale occurred.
That a witness receives money in exchange for providing information to police does not render the testimony of an informant per se unreliable. See State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977) (concluding that the jury could believe witness despite the fact he was given favorable treatment by prosecution for his testimony). In addition, Minnesota has not adopted a requirement of corroboration for a drug-addicted paid informant's testimony. Instead, Minnesota caselaw indicates that the fact that the informant was a drug addict and was paid for her participation in the controlled buy does not automatically discredit her testimony. See State v. Triplett, 435 N.W.2d 38, 44-45 (Minn. 1989) (stating that although impeachment evidence was introduced that the witness had used drugs, lied to police, and forged checks, the jury presumably took these incidents into account and was not precluded from believing her testimony).
The record reflects sufficient evidence to support the jury's conclusion that the informant was reliable in the present case. Steve testified at trial that the informant had participated in controlled buys in the past. Also, the record contains no evidence that the informant's payment was contingent on successful prosecution of the alleged supplier. Rather, the informant was paid in full for the controlled buy involving appellant on the day it occurred. Therefore, the informant's compensation provided no incentive to falsely testify as to appellant's participation in the sale.
The record also indicates some corroboration. The officers testified that they observed the informant in the parking lot as she approached appellant's vehicle to attempt a controlled buy. Lehmkuhl testified that he observed the informant hand money to appellant and observed the informant then place something in her blouse. Steve testified that the informant immediately returned to him after the contact with appellant and produced what was later determined to be .10 grams of cocaine. The informant returned $50 in change from the $100 provided to her, and she was strip-searched before and after the controlled buy. Lehmkuhl confirmed appellant's identity when he followed appellant's vehicle after the buy.
In addition, the jury was allowed to hear the taped conversations between the informant and appellant. In the taped phone calls, the informant is heard offering $100 for drugs and appellant is heard telling the informant that drugs cost more in St. Cloud. Appellant also tells the informant, "I know some people I can call to try to get some, uh, get somethin' for you." In the surveillance tape from the parking lot, the informant is heard asking, "why don't you see if you can get me a little bit more." Appellant is heard responding, "when I come back I'll (indiscernible) with double up . . ." Steve explained in his testimony that a "double up" would be two half-grams or one gram of crack cocaine.
While corroboration is not a requirement, it is important and helpful. The jury was presented all the evidence and heard the testimony of various witnesses. When conflicting testimony is presented, it is the function of a jury to weigh the credibility of witnesses. State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987). In reaching its verdict, the jury weighed the evidence, including the challenges to the informant's credibility. The jury's verdict indicates that it found the testimony of the state's witnesses to be credible. After a careful review of the evidence in the light most favorable to the verdict, we conclude that there is sufficient evidence to support appellant's conviction of a third-degree controlled-substance crime.