Opinion
No. C0-01-1793.
Filed November 5, 2002.
Appeal from the District Court, Stearns County, File No. K2-00-1367.
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, and Roger S. Van Heel, Stearns County Attorney, (for respondent)
Michael C. Davis, (for appellant)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Dana Cobbins appeals his convictions of first-degree sale of a controlled substance for the benefit of a gang and racketeering, arguing that the convictions were not supported by the evidence. Because we conclude that the evidence was insufficient to prove the identity and the weight of the suspected crack cocaine that appellant was convicted of selling, we reverse.
FACTS
At issue in this case is appellant Dana Cobbins's involvement with the sale and transportation of crack cocaine in conjunction with a criminal enterprise. During Cobbins's trial, the state presented testimony that in the past two decades Chicago-based gangs had spread to Minnesota for the purpose of selling drugs. The state also offered testimony that Lionel Fraction, Cobbins's co-defendant at trial, had come to Minnesota from Chicago in the mid-1990s and, along with Cobbins, was involved in an operation that sold crack cocaine.
The state offered testimony that in approximately mid-May 1999, Cobbins and his girlfriend, Deann Becker, transported approximately one ounce (approximately 28 grams) of suspected crack cocaine between St. Cloud and Moorhead. Becker testified that she was involved with cocaine distribution in the Fargo-Moorhead area. On direct examination, she testified as follows about the May 1999 trip:
Prosecutor: Did you ever drive Dana Cobbins from Fargo/Moorhead to St. Cloud? Becker: To take him home. Prosecutor: And did you ever drive Dana Cobbins to St. Cloud to pick anything up? Becker: Not that I'm aware of, no. Prosecutor: Do you remember a time in May of '99, where Dana Cobbins stated told you that he needed to pick something up in St. Cloud and you went round trip? Becker: We went we came up here and came back, yes.
State's witness Craig Cook testified that he sold crack cocaine in conjunction with others in the enterprise at issue in this case. On direct examination, Cook testified that he remembered a delivery by Cobbins and Becker of "[r]oughly an ounce," but on cross-examination, Cook admitted that he did not see the crack cocaine that Cobbins and Becker allegedly transported.
Cobbins was charged in Stearns County district court with two offenses, racketeering in violation of Minn. Stat. §§ 609.903, subdivision 1(1) and 609.904, subdivisions 1 and 2 (2000); and first-degree sale of a controlled substance for the benefit of a gang in violation of Minn. Stat. §§ 152.021, subdivision 1(1), 609.229, subdivisions 2, 3 and 4 and 609.05, subdivision 1 (2000). The state alleged that the May 1999 sale was a predicate offense of the racketeering charge.
After the jury returned guilty verdicts for both counts of racketeering and of first-degree controlled substance sale for the benefit of a gang, the trial court sentenced Cobbins to 98 months for the racketeering conviction and 134 months for the controlled substance sale conviction. This appeal followed.
DECISION
Cobbins argues that the evidence was insufficient to support his convictions for first-degree controlled substance sale for the benefit of a gang and racketeering. In reviewing an appeal claiming insufficiency of the evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume the jury believed the state's witnesses and disbelieved any contrary evidence. 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 that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
First-degree controlled substance crime for the benefit of a gang
Cobbins contends that the state failed to produce scientific evidence and eyewitness testimony demonstrating beyond a reasonable doubt the identity and the weight of the crack cocaine he was charged with selling. The state must prove Cobbins sold ten grams or more of crack cocaine to convict him of first-degree controlled substance sale. Minn. Stat. § 152.021, subd. 1(1) (2000). No crack cocaine was seized that appellant allegedly transported. Consequently, no scientific tests were conducted.
To argue scientific testing was required, Cobbins relies principally on State v. Robinson, 517 N.W.2d 336 (Minn. 1994). In Robinson, the Minnesota Supreme Court held that
[t]he weight of the mixture is an essential element of the offense charged; like every other essential element, it must be proven by the state and proven beyond a reasonable doubt.
Id. at 339. The supreme court held that testing only 7 of the 13 packets of contraband seized from the defendant was insufficient to uphold the defendant's conviction when the total amount tested equaled less than ten grams. Id. at 340. The court further held that forensic testing of a random sample equaling less than ten grams was insufficient to sustain the conviction of a defendant who was charged with sale of ten grams or more of cocaine. Id. at 339. The court continued,
there seems to be no good reason why a sufficient quantity of the mixture [of cocaine] should not be scientifically tested so as to establish beyond a reasonable doubt an essential element of the crime charged.
Id. With regard to the charged offense of sale of ten grams or more of cocaine, the Robinson court held that "the state should be required, in cases such as this, to test enough of the substance mixture to prove scientifically the requisite weight." Id. While Robinson expressly addresses the question of the sufficiency of scientific testing, we conclude that it also clearly applies here, where no testing whatsoever was performed.
The state attempts to distinguish appellant's conviction from that in Robinson. The state asserts that Robinson should not apply uniformly to the different types of sale defined by the controlled substance statutes. Contending that Robinson has only been applied to sales based on possession with intent to sell, see e.g., State v. Traxler, 583 N.W.2d 556, 561 (Minn. 1998), the state argues that appellant's offense was instead a sale based on a delivery and distribution to which Robinson does not apply. We find this argument unpersuasive.
Minn. Stat. § 152.01, subd. 15a (2000) defines three types of sale:
"Sell" means:
(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or
(2) to offer or agree to perform an act listed in clause (1); or
(3) to possess with intent to perform an act listed in clause (1).
Aside from the fact that none of those was a delivery or distribution case, the state points to no decision acknowledging the distinction between the two types of sales. We decline to make such a distinction here. Unlike this case, each of the cases cited by the state involved scientific testing performed on at least part of the suspected controlled substance.
In addition, Cobbins cites State v. Vail, 274 N.W.2d 127 (Minn. 1979), in which the Minnesota Supreme Court held that where the district court found that scientific evidence of the identity of suspected marijuana was inadequate, nonscientific evidence was insufficient to sustain the verdict. Id. at 134.
Cobbins also contends that the testimony of Becker and Cook, who both testified about the May 1999 trip, was insufficient to support his conviction. Becker testified that she went to St. Cloud with Cobbins to pick "something" up. But Becker did not testify that she observed the crack cocaine. Further, Cook admitted on cross-examination that he never saw the drugs allegedly transported by Cobbins and Becker. The state argues that because Becker and Cook had intimate knowledge of Fraction's drug trafficking between St. Cloud and Moorhead, this evidence was sufficient to support the convictions. We find this general knowledge to be an inadequate replacement for an eyewitness's specific observation of the crack cocaine at issue.
Because neither the identity nor the exact weight of the crack cocaine was ascertained scientifically, and because neither witness actually observed it, we conclude that the jury could not reasonably conclude that the state proved both the identity and weight of the crack cocaine, and we reverse Cobbins's conviction for first-degree controlled substance sale for the benefit of a gang.
Racketeering
Cobbins also contends that his conviction for racketeering must be reversed because there was insufficient evidence to support the May 1999 crack cocaine sale, a predicate offense of the racketeering charge. The state contends that even if the evidence was insufficient to prove that Cobbins delivered ten grams of crack cocaine, the delivery of any amount of crack cocaine would constitute a felony offense sufficient to qualify as a predicate act for the racketeering charge. See Minn. Stat. § 609.902, subd. 4 (2000) (providing that a felony controlled substance violation constitutes a predicate offense for the purposes of the racketeering statute). While we agree with the state's interpretation of the statute, because we reverse Cobbins's conviction for selling crack cocaine in May 1999, we also reverse his conviction for racketeering. As a result, we need not address Cobbins's arguments regarding the other two predicate acts of the racketeering charge.
In addition to his sufficiency of the evidence arguments, Cobbins also alleges that (1) the district court improperly dismissed his motion to dismiss a juror for racial bias; (2) the district court improperly instructed the jury as to the racketeering charge; (3) the "crime committed for the benefit of a gang" statute is unconstitutional; (4) he was denied a speedy trial; (5) the ten-point gang identification criteria are not sufficiently reliable to support an expert opinion regarding gang membership; (6) the district court conducted itself improperly at trial; and (7) Cobbins was denied his right to witness confrontation. Because we reverse Cobbins's convictions, we need not address his remaining arguments.