State of Minnesota, Respondent, vs. Donovan Earl Smith, 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This opinion will be unpublished and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

A03-1859

State of Minnesota,

Respondent,

vs.

Donovan Earl Smith,

Appellant.

Filed September 14, 2004

Affirmed

Lansing, Judge

Murray County District Court

File No. K5-03-131

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Paul Malone, Murray County Attorney, 2605 Broadway Avenue, Box 256, Slayton, MN 56172 (for respondent)

John Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Lansing, Presiding Judge; Harten, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this appeal from conviction of and sentencing for first-degree controlled-substance crime, Donovan Smith asserts reversible evidentiary and sentencing error.  Because the  district court's exclusion of the results of a search conducted six weeks after the charged offense did not deny Smith his constitutional right to present a complete defense and the district court did not abuse its discretion in imposing the presumptive sentence, we affirm.

F A C T S

Donovan Smith's conviction derives from evidence of two police-controlled buys in which an informant, who was a former sexual partner of Smith, purchased methamphetamine from Smith.  The informant had approached the Murray County Sheriff's Department in February 2003 about "helping with drug cases."  Because of earlier reports that Smith was dealing drugs in the community, the Murray County Sheriff arranged for the informant to participate in two controlled buys from Smith: the first on March 25, 2003, and the second on March 30, 2003.

The protocol for each of the controlled buys was to send the informant inside Smith's residence while the sheriff stayed outside in a vehicle and listened to the transaction through a transmitter that the informant was wearing.  The March 25 controlled buy yielded 4.4 grams of methamphetamine, and the March 30 controlled buy yielded 7.6 grams of methamphetamine.

Six weeks after the last purchase, police arrested Smith at his residence and charged him with illegal sale of controlled substance.  At the time of the arrest, police did not have a search warrant for Smith's residence.  A search of Smith's person, incident to his arrest, produced a pipe containing drug residue.  When Smith requested his jacket from behind a door, police searched the jacket and seized a baggie containing marijuana. 

Later that day, police sought and obtained a search warrant for Smith's residence, relying on the seized marijuana and the two previous sales.  No methamphetamine-related items were found in the search.  The state presented no evidence of the search at trial; Smith sought to introduce the negative results of the search as part of his defense.  The district court excluded the evidence on the ground that it was not relevant to the March sales and that it would confuse the jury.

The jury found Smith guilty of two counts of second-degree controlled-substance crime.  Because the aggregate amount of the sales exceeded 10 grams of methamphetamine, those offenses combined into one count of first-degree controlled-substance crime under Minn. Stat. § 152.021, subd. 1(1) (2002).  After denying Smith's motion for a downward durational or dispositional departure, the district court sentenced Smith to the presumptive guidelines sentence.

D E C I S I O N

I

"[E]very criminal defendant has the right to be treated with fundamental fairness and ‘afforded a meaningful opportunity to present a complete defense.'"  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)); accord U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7.  Nonetheless, criminal defendants are bound by the rules of evidence, which are designed to assure fairness and reliability in ascertaining guilt or innocence.  See State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000) (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049 (1973)).  Thus, even when a defendant alleges a violation of his constitutional rights, evidentiary challenges are reviewed under an abuse-of-discretion standard.  State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999).  To prevail on appeal, the appellant must establish both an abuse of discretion and resulting prejudice.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

In excluding the results of the search, the district court stated that the evidence was not relevant to whether sales occurred six weeks before the search and that it could confuse the jury.  Smith, however, argues that results from the search are relevant to whether the charged sales occurred, that the district court abused its discretion in excluding the evidence, and that this exclusion violated his constitutional right to present a complete defense.

"Relevant evidence" means evidence having any tendency to make the existence of any fact more or less probable than it would be without the evidence.  Minn. R. Evid. 401.  In evaluating the probative value of the search warrant's negative results, the district court emphasized that the execution of the warrant was separated by six weeks from the date of the sales with which Smith was charged.  Evidence of the search warrant's negative results would likely cause the jury to conclude that Smith was not currently manufacturing and selling methamphetamine.  From this a jury might infer that if Smith is not currently selling methamphetamine, he is less likely to have previously sold methamphetamine.  Therefore, the results of a subsequent search are marginally relevant because they might tend to make the jury believe it is less likely that Smith sold the informant methamphetamine. 

Relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of confusion of the issues.  Minn. R. Evid. 403.  While the evidence from the search may be marginally relevant, it is a dubious leap to conclude that Smith did not sell drugs six weeks prior to the search simply because he did not currently have methamphetamine-related items in his possession.  Therefore, the evidence has only limited probative value.  This limited probative value must be considered in light of the district court's assessment that the evidence could be confusing.  The multiple events of the controlled buys, the arrest, the issuance of the warrant and the subsequent search could lead to confusion and result in an undue amount of trial time and attention being spent on a marginally relevant event.  But even if such confusion could have been averted by the court's careful handling of this evidence, its exclusion of the evidence would be harmless error.  See State v. King, 622 N.W.2d 800, 809 (Minn. 2001) (when error is harmless beyond a reasonable doubt, conviction will not be reversed).

Therefore, because the results of the search are only tenuously related to whether the sales occurred, and because the results could tend to confuse the jury, we conclude that the district court did not abuse its discretion in excluding the evidence.

A decision to depart from the sentencing guidelines is within the district court's discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Under the guidelines, the district court must impose the presumptive guidelines sentence except when the case involves "substantial and compelling circumstances" that would warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  A circumstance or factor supports a downward departure if it tends to "excuse or mitigate the offender's culpability for the offense."  State v. Esparza, 367 N.W.2d 619, 621 (Minn. App. 1985). The presence of a mitigating factor does not obligate the sentencing court to grant a downward departure.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  Only in a "rare" case will a reviewing court reverse a district court's imposition of the presumptive sentence.  Kindem, 313 N.W.2d at 7. 

Smith argues that the district court abused its discretion by failing adequately to consider the mitigating factors that he presented when it denied his motion for a downward departure:  that he was an atypical methamphetamine dealer, that jail was an unsuitable sentence because of his physical and mental-health infirmities, that the length of his sentence resulted in ineligibility for the challenge incarceration program, and that his house had burned down, possibly from arson, while he was incarcerated.

In its denial of the departure motion, the court specifically addressed and rejected two of the factors Smith advanced for a departure.  The court reasoned that Smith would likely receive better treatment in prison than in a workhouse and that Smith's health problems would likely preclude him from eligibility for the challenge incarceration program, a fact that Smith acknowledged.

The remaining two factors raised by Smith are not mitigating factors under Minnesota's sentencing guidelines.  See Minn. Sent. Guidelines II.D.2.a.  Taking into account Smith's conduct and background, his sentence was not atypical for a methamphetamine dealer at the level for which he was sentenced.  See Minn. Sent. Guidelines app. (defining guidelines' fixed presumptive sentences as "presumed to be appropriate for all typical cases sharing criminal history and offense severity characteristics").  And, although the loss of his house is undeniably a personal tragedy, it does not mitigate his culpability for the offense.  Therefore, the district court did not abuse its discretion in concluding that no mitigating factors altered the imposition of the presumptive sentence.

Smith argues for the first time on appeal that the state engaged in sentencing entrapment or manipulation, thereby justifying a sentence departure.  When issues are not raised and considered in the district court, we address them on appeal only if they constitute plain error.  Minn. R. Crim. P. 31.02; Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  "The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights."  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citations omitted).  If all three prongs are met, we correct a plain error that "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings."  Id. (quotations omitted).

Sentencing entrapment and manipulation have received only limited recognition in Minnesota. "Sentencing entrapment occurs when ‘outrageous official conduct . . . overcomes the will of an individual predisposed only to dealing in small quantities, for the purpose of increasing the amount of drugs . . . and the resulting sentence of the entrapped defendant.'"  State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997) (quoting United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993)).  "Sentencing manipulation is outrageous government conduct aimed only at increasing a person's sentence."  Soto, 562 N.W.2d at 305.  In Soto, the Minnesota Supreme Court expressly declined to adopt either doctrine "in the absence of egregious police conduct which goes beyond legitimate investigative purposes."  Id.

Even if sentencing entrapment were fully recognized in Minnesota, no evidence in the record shows that the informant influenced Smith to sell more drugs than Smith was willing to sell.  In fact, both sales involved only a small amount of methamphetamine.  Furthermore, the record provides no factual basis to show that the police conducted the second controlled buy solely for the purpose of increasing Smith's sentence.  Indeed, the Soto court specifically recognized that "it is reasonable for the police to engage in a chain of transactions with a drug dealer in order to establish that person's guilt or to trace the dealer's supplier."  Id.  It is wholly conceivable the second controlled buy took place merely to obtain additional evidence to establish Smith's guilt.

Because the district court adequately considered the mitigating factors raised by Smith in imposing the presumptive sentence, and the doctrines of sentencing entrapment and sentencing manipulation do not provide a basis for relief, we affirm.

Affirmed.