Opinion
No. A03-801.
Filed March 9, 2004.
Appeal from the District Court, Isanti County, File No. K7-02-838.
Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, and Jeffrey R. Edblad, Isanti County Attorney, (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Halbrooks, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 Jason Swick challenges his conviction of manufacturing methamphetamine in violation of Minn. Stat. § 152.021, subd. 2a (2002), contending that (1) the evidence is insufficient to support his conviction and (2) the district court's finding of guilt was untimely and lacked the specific findings of essential facts required by Minn. R. Crim. P. 26.01, subd. 2, including findings relating to Spreigl evidence the court took under advisement but failed to rule on. We affirm.
FACTS
On July 16, 2002, Officer Timothy Akers of the Isanti County Sheriff's Department executed a search warrant at Jessica Calander's townhome, where appellant Jason Swick had been living. Upon entering the residence, Officer Akers noticed a "chemical type smell in the upper level of the townhome." Police then seized several items commonly used to manufacture methamphetamine from an upstairs bedroom, including a gram scale, an X-Acto knife, a container of acetone, a syringe casing, bubble packs of either ephedrine or pseudoephedrine, lithium or sodium strips, a container of isopropyl alcohol, a coffee pot with a white, cloudy substance on it, a thermos, a quart jar, a propane tank, a piece of tinfoil with a burnt substance on it, a glass pipe, Pyrex glassware, filters, and a plastic bag containing several batteries. Police also seized a black bag containing "different glassware, pipe material, [and] some small gram plastic bags that are commonly used in the manufacturing and distribution of methamphetamine."
Officer Akers has been an investigator for 11 years and a peace officer for 25 years. He has investigated hundreds of controlled-substance crimes and has received specialized training in detecting the chemicals used in methamphetamine labs.
Officer Akers conducted field tests on the substances found on the tinfoil and glassware that were positive for methamphetamine. Additionally, he sent the tinfoil and two bottles containing unknown substances to the Bureau of Criminal Apprehension (BCA) for analysis. The BCA report indicated that the tinfoil contained trace amounts of methamphetamine and that one of the bottles contained 2.8 grams of ephedrine or pseudoephedrine, a substance used in the methamphetamine manufacturing process.
Appellant was arrested and charged with manufacturing methamphetamine in violation of Minn. Stat. § 152.021, subd. 2a (2000), a first-degree controlled-substance crime. Calander was also arrested and charged with aiding and abetting the manufacture of methamphetamine, but was granted immunity. At trial, Calander testified that she and appellant both used methamphetamine, supplied by appellant, on a regular basis. Calander also testified that appellant began bringing chemicals into their home in June 2002, including acetone and toluene, that he kept there because he "couldn't trust anybody else." Additionally, Calander stated that she saw appellant using acetone to "clean" methamphetamine on a glass plate in the microwave on at least two occasions. Although Calander discouraged this practice because the fumes produced a chemical smell, she testified that appellant cleaned the methamphetamine for her because otherwise it would make her sick. Officer Akers also provided extensive testimony at trial about the evidence seized from the townhome.
The district court found appellant guilty and sentenced him to a stayed term of 110 months and placed him on probation for 30 years. Appellant was also ordered to serve one year in jail, pay a $3,000 fine, and enter the Teen Challenge Chemical Dependency Treatment Program. This appeal follows.
DECISION I.
Appellant argues that the evidence is insufficient to support his conviction for manufacturing methamphetamine. Appellant bears a "heavy burden" in overturning a verdict based on a claim of insufficient evidence. State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001). This court's review is limited to a careful 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). Although circumstantial evidence "warrants stricter scrutiny, [it] is entitled to the same weight as direct evidence." State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999). A conviction based on circumstantial evidence will be upheld if the reasonable inferences from that evidence are consistent with the defendant's guilt and inconsistent with any rational hypothesis other than guilt. State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).
Under Minnesota law, a person is guilty of a first-degree controlled-substance crime "if the person manufactures any amount of methamphetamine." Minn. Stat. § 152.021, subd. 2a (2000) (emphasis added). "Manufacture" is defined to include "production, cultivation, quality control, and standardization by mechanical, physical, chemical, or pharmaceutical means, packing, repacking, tabletting, encapsulating, labeling, relabeling, filling, or by other process, of drugs." Minn. Stat. § 152.01, subd. 7 (2000).
In challenging the sufficiency of the evidence to support his conviction, appellant relies on State v. Traxler, which describes the production of methamphetamine as a four-step process. 583 N.W.2d 556, 558 (Minn. 1998). The first step is to extract ephedrine from tablet material. Id. The second step is to "cook" ephedrine with iodine and red phosphorous. Id. The third step, called the "cleanup," involves extracting the red phosphorus and adding a strong base solution and an organic solvent, resulting in liquid methamphetamine. Id. The fourth step is to convert the liquid methamphetamine into a more pure solid form by adding hydrochloric gas and boiling away remaining solvent. Id. Appellant argues that the evidence only establishes that the first step (separation of ephedrine) had occurred. Furthermore, appellant argues that the trace amounts of methamphetamine discovered on the tinfoil establish only that he possessed methamphetamine, not that he manufactured it.
We disagree. The record contains ample circumstantial evidence supporting the district court's conclusion that appellant manufactured methamphetamine at the townhome. Calander testified that appellant kept chemicals in the home because he "couldn't trust anybody else," and she identified many of the items seized by police as belonging to appellant. Calander also testified that although appellant was unemployed, he frequently left the home for long periods of time, which is consistent with the state's theory that the methamphetamine lab was divided into separate locations. But more importantly, Calander stated that she saw appellant use acetone to "clean" methamphetamine on a glass plate in the microwave on at least two occasions, producing a "chemical smell." According to state's exhibit 1, "[a]cetone is generally used in the final step [of the manufacturing process] to clean up the finished methamphetamine, making it white." Based on this definition and Calander's testimony that cleaning was necessary to prevent her from becoming sick, we conclude that "cleaning" methamphetamine constitutes "quality control" and, therefore, "manufacture" under Minn. Stat. § 152.01, subd. 7. Consequently, we reject appellant's argument that the state proved only the first step in the manufacturing process.
We also reject appellant's argument that Calander's status as an accomplice precluded the district court from relying on her testimony. A conviction may rest on the testimony of an accomplice so long as "it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense." Minn. Stat. § 634.04 (2000). The corroborating testimony need not establish a prima facie case of the defendant's guilt, but it "must point to the defendant's guilt in some substantial degree." State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980). "The quantum of corroborative evidence needed necessarily depends on the circumstances of each case," and the "[c]orroborating evidence may be circumstantial or direct." Id. Physical evidence associated with the crime can provide sufficient corroboration of an accomplice's testimony. State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000).
Here, both the physical evidence and Officer Aker's testimony corroborated Calander's testimony. Police seized numerous items from appellant's home that are commonly used to manufacture methamphetamine. Although other items used in the manufacturing process were not found, Officer Akers stated that this was not surprising because methamphetamine labs are commonly divided into several locations. Officer Akers also testified that while executing the search warrant, he noticed a "chemical type smell" in the home that was consistent with "a lab that had not been operating just recently or [that had] been just sitting there idle." Viewing the evidence in the light most favorable to the conviction, this testimony establishes that a methamphetamine lab had been used in the home at some time prior to execution of the search warrant.
The corroborating evidence not only demonstrates that a methamphetamine lab had been operated, it also shows that methamphetamine was produced. Field tests on the tinfoil and glassware were positive for methamphetamine, and the BCA report confirmed that the substance on the tinfoil contained trace amounts of methamphetamine. Because Minn. Stat. § 152.021, subd. 2a, does not specify a minimum amount of methamphetamine to be produced, but only requires that a person manufacture "any amount," the fact that more methamphetamine was not discovered is not fatal to the state's case. A trace amount of the drug, found in connection with numerous other items consistent with the manufacturing process, is sufficient to satisfy Minn. Stat. § 152.021, subd. 2a. Cf. Traxler, 583 N.W.2d at 562 (where statute did not require proof of the specific weight or amount of the drug, trace amounts of methamphetamine were sufficient to sustain appellant's conviction for possession of methamphetamine). Therefore, because the evidence is consistent with appellant's guilt and inconsistent with any rational hypothesis other than guilt, the evidence is sufficient to support appellant's conviction for manufacturing methamphetamine. See Robinson, 604 N.W.2d at 366; State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
II.
Appellant next contends a remand is required because the district court's verdict and order was untimely and because the district court failed to make written findings on essential facts related to the verdict. Appellant's argument includes his contention that the court erred by failing to make a written finding on the admissibility of Spreigl evidence, which it took under advisement, but never ruled on.
A. Timeliness.
In cases tried without a jury, the district court is required to "make a general finding of guilty [or] not guilty" within seven days after the completion of the trial. Minn. R. Crim. P. 26.01, subd. 2. Here, appellant's trial was completed on December 9, 2002. Seven days later, on December 16, 2002, the district court filed its verdict and order finding appellant guilty. Thus, there is no merit to appellant's argument that the district court's order was untimely.
B. Spreigl Evidence.
At the end of the state's case-in-chief, the prosecutor offered a certified copy of appellant's 1998 conviction of a fifth-degree controlled-substance crime (possession), arguing that the evidence was relevant to establish appellant's intent and identity. The defense objected, arguing that the conviction was too remote, not relevant to the present charge, and unduly prejudicial. The following exchange then took place:
THE COURT: I'm obviously not in a position to rule on the Billstrom factor, so I'll accept it now as a court exhibit, take the issue under advisement until I've had a chance to review that matter . . .
MR. HILJUS [prosecutor]: Your honor, then I'll approach and hand over to the Court what I've marked as Court's Exhibit A with the understanding that it's not going into evidence at this point.
Both sides rested, and then the court stated, "[t]he record is concluded then with the possible exception of the Spreigl evidence." The parties proceeded to make closing arguments, and the court never ruled on the admissibility of the Spreigl evidence.
Appellant argues that the court's failure to make a written finding on the admissibility of the Spreigl evidence was prejudicial because the court may have ultimately relied on the evidence in finding appellant guilty. But this argument ignores the fact that the court accepted the exhibit with the explicit understanding that the evidence was notbeing admitted into evidence at that time. Because the exhibit was never admitted, we disagree with appellant's contention that the court erroneously considered it.
But even if the district court had considered the evidence, a remand is not required. A court will not reverse a conviction based on the erroneous admission of objected-to evidence so long as the admission was harmless beyond a reasonable doubt. State v. Shannon, 583 N.W.2d 579, 585 (Minn. 1998). To determine whether an erroneous admission of evidence was harmless, we examine the record as a whole and consider the strength of the state's evidence and the weakness of any defense evidence. State v. Van Wagner, 504 N.W.2d 746, 749 (Minn. 1993). As a general rule, an error is less likely to be prejudicial where the evidence of guilt is strong. State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995). Here, because the evidence was more than sufficient to sustain appellant's conviction, even without the Spreigl evidence, we conclude that any error was harmless. Likewise, any error in failing to submit written findings on the Spreigl matter was also harmless.
C. Written Findings.
Appellant's final argument is that the district court erred by failing to make written findings supporting the guilty verdict in accordance with Minn. R. Crim. P. 26.01, subd. 2. The rule provides that, within seven days of issuing the general finding of guilt, the district court "shall in addition specifically find the essential facts in writing on the record. . . . If the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding." Id. The rule also provides that "[i]f an opinion or memorandum of decision is filed, it is sufficient if the findings of fact appear therein." Id. The district court's findings may also be "gleaned from comments from the bench" so long as those comments "afford a basis for intelligent appellate review." State v. Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990) (quotations omitted).
Here, the district court did not submit written findings explaining its evaluation of the evidence within seven days after its general finding of guilt, nor did it make oral findings during the trial. The sole explanation of the court's verdict is contained in the verdict and order, which states:
The Court finds the defendant, Jason Lloyd Swick, GUILTY on the sole count on the criminal complaint of Felony Controlled Substance Crime in the First Degree: Manufacture, in violation of Minn. Stat. § 152.021, subd. 2a.
. . . .
The Department of Corrections is directed to prepare a pre-sentence investigation report forthwith. Specifically, the Court directs the DOC to consider the viability of an upward deviation based on child endangerment in that [appellant's] minor daughter was residing in the home in which he was (1) manufacturing methamphetamine, and (2) storing chemicals and equipment to produce methamphetamine.
It should be noted that the minor child is Calander's daughter and there is no evidence that appellant is her father.
The purpose of written findings is to aid the appellate court in its review of a conviction resulting from a nonjury trial. Scarver, 458 N.W.2d at 168. But where appellate review is possible without specific findings, and the evidence is sufficient to sustain the conviction, appellate courts may presume findings consistent with the district court's general finding of guilt and uphold the conviction. See Minn. R. Crim. P. 26.01, subd. 2; see also State v. Dominguez, 663 N.W.2d 563, 566 (Minn. App. 2003) (rejecting appellant's "narrow focus on the adequacy of the district court's findings . . . [and reviewing] the entire record to determine whether there [was] sufficient evidence to support the conviction"); State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988) (invoking omission provision of rule 26.01 and upholding the convictions because the record contained evidence supporting the convictions), review denied (Minn. Feb. 22, 1989); Crowley Co. v. Metro. Airports Comm'n, 394 N.W.2d 542, 545 (Minn. App. 1986) (recognizing that appellate courts may exercise their function in the absence of findings, provided that the record is reasonably clear and the facts are not seriously disputed); but see State v. Taylor, 427 N.W.2d 1, 5 (Minn. App. 1988) (holding that remand was appropriate even where the record contained evidence sufficient to support the convictions), review denied (Minn. Sept. 28, 1988); see also State v. Thomas, 467 N.W.2d 324, 327 (Minn. App. 1991) (following Taylor and remanding where district court failed to make the specific findings required by rule 26.01).
While we agree that the district court's findings are insufficient under Minn. R. Crim. P. 26.02, subd. 2, we conclude that remand is not required. The court's order provides a sufficient basis for appellate review because it demonstrates that appellant was found guilty based on evidence that he was "manufacturing methamphetamine" and "storing chemicals and equipment to produce methamphetamine." The record as a whole demonstrates that there was sufficient evidence to support the conviction. Because it is unnecessary to remand for findings where such remand would serve no purpose, we decline to do so here. See Nyberg v. R.N. Cardozo Brother, Inc., 243 Minn. 361, 366, 67 N.W.2d 821, 824 (1954) (concluding that where record showed that all evidence was presented and considered, remand for additional findings would "serve no useful purpose"); Woodward v. Interstate Office Sys., 379 N.W.2d 177, 179-80 (Minn. App. 1985) (holding that because the record supported the missing finding, remand was unnecessary).