State of Minnesota, Respondent, vs. David G. Voss, 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This opinion will be unpublished and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

A03-1719

 

 

State of Minnesota,

Respondent,

 

vs.

 

David G. Voss,

Appellant.

 

 

Filed September 28, 2004

Affirmed

Anderson, Judge

 

Nobles County District Court

File No. K1-03-63

 

John Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

Gordon Moore, Nobles County Attorney, Nobles County Courthouse, 318 Ninth Street, Worthington, MN  56187 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge; Anderson, Judge; and Halbrooks, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant challenges his conviction of and sentence for first-degree controlled-substance offense (sale of more than 10 grams of methamphetamine), arguing that the evidence was not sufficient to support the conviction when the lab performed initial "color" tests on all seven baggies of the alleged methamphetamine, but only performed a "confirmatory" test on one of the seven baggies.  Appellant also argues that the court erred in ordering him to pay restitution for the buy money expended by police.  We affirm.

FACTS

 

            On July 12, 2002, two confidential informants met with police to set up a drug buy.  One of the confidential informants claimed that he had previously spoken to appellant David Voss and Debra Arends about buying methamphetamine from them.  Police placed a microphone on one of the informants, searched both of them and their vehicle, and gave them $550 to buy one-half ounce to one ounce of methamphetamine.  The informants then drove to meet appellant and Arends.   

            The police observed the entire meeting from a nearby location.  The police also videotaped and audiotaped a portion of the meeting.  One of the informants got into the backseat of Arends's vehicle.  The informant asked appellant for one ounce and told him that he had $550.  Appellant then stated, "[L]et's see if we can do it.  I would think he'd do it."  Arends stated that she thought they could get the informant "four for five"; meaning, four "eight-balls" for $500.[1]  According to the informant, he gave Arends the $550 and then appellant and Arends told him that they would meet again in a park in Worthington.  At the park in Worthington, according to the informant, Arends handed him a cigarette pack containing seven "teeners."[2]  The informants then left and brought the cigarette pack and its contents to the police, who were nearby.  The police searched the informants and their car again, and did not find any drugs or cash.

            The police sent the cigarette package and its contents to the Minnesota Bureau of Criminal Apprehension ("BCA") for testing.  The total weight of the seven packages found in the cigarette pack was 11.476 grams.  A BCA forensic technician ran "confirmatory"[3] testing on one of the seven bags, and it tested positive for methamphetamine.  The same technician ran "color" tests on all seven bags and the tests indicated the controlled substance was within the methamphetamine class of drugs.  The technician testified that she would not conclusively be able to state a substance was methamphetamine based on the "color" test alone and that confirmatory testing was needed in order to confirm, from a scientific viewpoint, whether a substance was methamphetamine.

            Appellant was charged with first-degree sale of ten grams or more of methamphetamine in violation of Minn. Stat. § 152.021, subd. 1(1) (2000), and aiding and advising a first-degree sale of ten grams or more of methamphetamine in violation of Minn. Stat. §§ 152.021, subd. 1(1), and 609.05, subd. 1 (2000).  The district court also instructed the jury on the lesser-included offenses.  The jury found appellant guilty of all charges.  The district court sentenced appellant to 110 months in prison and ordered him to pay $550 in restitution for the buy money used to purchase the methamphetamine from appellant.  This appeal followed.

D E C I S I O N

 

I.

            The first issue is whether there was sufficient evidence to prove that appellant sold or aided in the sale of ten grams of methamphetamine.  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 a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which 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).  The reviewing court "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 proven guilty of the offense charged."  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            When a defendant is convicted based on circumstantial evidence, "[t]he evidence is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt."  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  A conviction may stand when the circumstances "form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonably inference other than that of guilt."  State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).  This stricter standard "still recognizes a jury is in the best position to evaluate the circumstantial evidence surrounding the crime."  State v. Race, 383 N.W.2d 656, 662 (Minn. 1986).  Also, the jury determines the credibility and weight given to the testimony of individual witnesses.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).

            Appellant was convicted of a first-degree controlled-substance offense (sale of more than 10 grams of methamphetamine) under Minn. Stat. § 152.021, subd. 1(1) (2000), which states that a person is guilty if "on one or more occasions . . . the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing . . . methamphetamine."  The weight of the controlled substance is an essential element of a first-degree sale offense and must be proved beyond a reasonable doubt.  See State v. Aviles-Alvarez, 561 N.W.2d 523, 526 (Minn. App. 1997) ("[T]he amount is an essential element of the crime . . . ."), review denied (Minn. June 11, 1997).  Where the identification of the drug is in question, the supreme court has not prescribed any minimum evidentiary requirements, and the sufficiency of the evidence is examined on a case-by-case basis.  State v. Vail, 274 N.W.2d 127, 134 (Minn. 1979).

            Appellant argues that because the state did not run confirmatory tests on six of the seven baggies sold to the informant, the evidence submitted at trial failed to prove beyond a reasonable doubt that appellant sold or aided in the sale of ten grams or more of methamphetamine.  Appellant cites State v. Robinson, 517 N.W.2d 336 (Minn. 1994) for support.

            In Robinson, a plastic baggie was found in the defendant's car containing 13 small, separate, clear-plastic packets, each containing a white substance.  Id. at 337-38.  The state's expert chemist randomly selected six or seven of the packets, emptied them into a single container, tested samples of the resulting mixture, and determined that the mixture was 87.6% cocaine base.  Id. at 338.  The supreme court concluded that the random sampling of six or seven of the 13 bags was insufficient to establish beyond a reasonable doubt the total weight of the mixture containing a controlled substance.  Id. at 339.  The supreme court stated that "‘[p]rotocol' notwithstanding, there seems to be no good reason why a sufficient quantity of the mixture should not be scientifically tested" to establish the element of weight.  Id.  The court also stated:

There may be instances where the seized material consists of pills or tablets where the individual items are so alike and the risk of benign substitutes so unlikely that random testing may legitimately permit an inference beyond a reasonable doubt that the requisite weight of the whole mixture is established.   . . . But this is a different case.

 

Id. at 340.    Appellant asserts that Robinson applies here because the substances in this case are packaged in a manner similar to those in Robinson.  Appellant also asserts that the fact that the state did preliminary color testing on the substances contained in all of the baggies does not distinguish this case from Robinson because the technician admitted that color testing was only preliminary and not conclusive.  We disagree.

            The Minnesota Supreme Court has recently addressed the use of circumstantial evidence to prove the weight of illegal substances in State v. Olhausen, 681 N.W.2d 21 (Minn. 2004).  In Olhausen, the supreme court determined that when a substance was not scientifically tested, "circumstantial evidence and officer testimony may be presented to the jury to attempt to prove the identity of the substance."  Id. at 28-29.  The court noted that "[t]he circumstantial evidence surrounding respondent's attempted sale and possession of a controlled substance is compelling" and concluded that the evidence was "sufficient to uphold the jury verdict relating to respondent's first-degree controlled substance offenses."  Id. at 28, 29.  The Olhausen court distinguished Robinson, emphasizing that in Robinson the state had possession of the entire amount of the controlled substance and should have tested it and noting that the margin of error between the alleged amount of substance and the statutory requirement has some significance.  Id. at 28.  While the present case does have some factual similarities to Robinson in that the state had possession of the entire amount of the controlled substance and the margin of error was very slight, here, there is also very compelling circumstantial evidence supporting the jury's verdict.

            First, the technician concluded that the other six baggies would have a mixture containing methamphetamine because (1) the substances all had similar observable physical attributes, (2) the substances were all packaged similarly, and (3) the substances all had the same results on the color tests.  The technician also testified that she has analyzed approximately 1,200 samples of methamphetamine and that whenever she has had positive readings on the color tests, the confirmatory tests have shown it was methamphetamine.  Second, the color tests identify the substances as either methamphetamine or amphetamine.  Therefore, the color tests do provide circumstantial evidence that the substance was methamphetamine, or, at the very least, that the substance was not a fake drug.   Finally, the circumstances under which the substances were purchased demonstrated that it was methamphetamine.  The parties referenced "teeners," "eight-balls," a specific dollar value for the drugs, and used the term "meth" or methamphetamine.  We conclude that this circumstantial evidence is compelling and reflects a situation where the substances "are so alike and the risk of benign substitutes so unlikely that random testing may legitimately permit an inference beyond a reasonable doubt that the requisite weight of the whole mixture is established."  Robinson, 517 N.W.2d at 340.   

            The supreme court has not established a per se rule requiring detailed testing of all disputed evidence.  In the absence of such a rule, and given the facts and circumstantial evidence presented here, we cannot say that there is insufficient evidence such that the conviction must be reversed. 

II.

            The next issue is whether the district court abused its discretion when it ordered appellant to pay $550 in restitution for the "buy money" expended by law enforcement as part of the controlled buy.  The district court has broad discretion in ordering reasonable restitution.  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999), cert. denied, 528 U.S. 1165, 120 S. Ct. 1183 (2000).  Deciding whether a particular item of restitution fits within the statutory definition is a question of law reviewed de novo.  See In re Welfare of D.D.G., 532 N.W.2d 279, 280-81 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).

            The state first argues that because appellant did not object to the restitution order in the district court, this issue was waived on appeal.  See State v. Thole, 614 N.W.2d 231, 235 (Minn. App. 2000) (stating that the district court correctly refused to consider appellant's challenges regarding restitution when the issue was not raised in appellant's written motion and affidavit).  Arguments made for the first time on appeal generally will not be considered.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Also, a defendant is deemed to have waived his right to raise an issue if he fails to object.  See State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994) (holding that by failing to object to a particular trial error, a defendant is normally deemed to have waived his right to further review). 

            Appellant does not dispute that he failed to object to the restitution order in district court, but argues that this court may review the restitution order because it represents plain error.  The doctrine of plain error exists to permit appellate review of trial errors, even if a defendant has forfeited the right to such review by failing to object at trial.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); see also Minn. R. Crim. P. 31.02 ("Plain errors or defects affecting substantial rights may be considered by the court . . . on appeal although they were not brought to the attention of the trial court.").  "[B]efore an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.  If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings."  Griller, 583 N.W.2d at 740.

            Appellant argues that it is error to order restitution for money willingly expended by law enforcement for controlled drug buys because police do not qualify as victims of drug-related offenses under the restitution statute.  See State v. Dillon, 529 N.W.2d 387, 395 (Minn. App. 1995) (reversing the district court's order for the defendant to pay restitution to the Southeastern Minnesota Drug Task Force because it was neither a natural person or corporation as defined by Minn. Stat. § 611A.01(b) (1992)), remanded on other grounds, 532 N.W.2d 558 (Minn. 1995).  But in 1997, Minn. Stat. § 609.10, subd. 2(2), was amended to include payment of restitution "to a government entity that incurs [a] loss as a direct result of a crime."  Minn. Stat. § 609.10, subd. 2(a)(2) (2002); see Minn. Stat. § 611A.01(b) (2002) (defining "victim" to include "a government entity that incurs loss or harm as a result of a crime.").  "A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime."  Minn. Stat. § 611 A. 04, subd. 1(a) (2002).

            Because state and local police departments are government entities, and given that government entities are now defined as victims, we conclude that the district court's restitution order at issue here is not plain error, and we therefore decline to reach appellant's argument. 

            Affirmed.

[1] An "eight-ball" is a one-eighth-ounce baggie of methamphetamine.  Therefore, four "eight-balls" would total one-half ounce.

 

[2] "Teeners" are one-sixteenth-ounce baggies of methamphetamine.

 

[3] The confirmatory testing done here was a gas-chromatograph/mass spectrometry test, which is a procedure used by chemists to identify controlled substances.