James William Graham v. State of Minnesota ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1457
James William Graham, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed March 21, 2016
Affirmed
Jesson, Judge
Stearns County District Court
File No. 73-CR-12-7497
Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)
Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Jesson,
Judge.
UNPUBLISHED OPINION
JESSON, Judge
In this appeal from denial of postconviction relief, appellant argues that the
evidence was insufficient to convict him of second-degree controlled-substance crime
because the only evidence of his participation in a controlled buy was the uncorroborated
testimony of the paid informant. Because, under Minnesota law, the testimony of an
informant who is not an accomplice need not be corroborated, and because the record is
sufficient to establish appellant’s guilt beyond a reasonable doubt, we affirm.
FACTS
In January 2012, a paid confidential informant, C.W., participated in a controlled
buy of methamphetamine arranged by St. Cloud police. C.W. had a prior felony
conviction for wrongfully obtaining public assistance and, at the time of the controlled
buy, was a user of methamphetamine. Police considered her a reliable informant.
In a phone call recorded by police, C.W. called a contact and arranged to meet at
an apartment building in Sartell to purchase one gram of methamphetamine for $110.
The investigator followed standard controlled-buy procedures, including supplying C.W.
with photocopied currency. He requested surveillance, hooked up a video device in an
unmarked law-enforcement car, provided C.W. with an audio recording device, and
followed her to the buy location.
The investigator testified that on the way, C.W. called to tell him that she had
learned that another person, appellant James William Graham, would also be in the
building. C.W. tried to get someone to come outside to make the deal, but she was
unsuccessful, and someone directed her inside, where she met Graham. The investigator
saw her enter the apartment building, and another officer saw her leave the building. The
investigator then met her at a different location, where she surrendered
methamphetamine.
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The state charged Graham with second-degree controlled-substance crime. At
Graham’s jury trial, C.W. identified him in court as the person who sold her drugs that
day. She testified that when she arrived at the buy location, Graham, whom she knew
slightly, was there with two other people. She testified that Graham had given her
directions to the apartment and she met him outside the building in the back. They went
inside, she put the money on a bed, he handed her a bag containing methamphetamine,
and she left. After the sale, C.W. identified Graham in a photo lineup and told police that
she was “100% sure” that he was the person who sold her drugs.
C.W. also testified that a photo exhibit appeared to show the cash she was given.
She testified that she did not look at the serial numbers on the cash, but she had no reason
to believe it was not the money that she was given. She also identified the plastic bag
containing drugs, which she gave to the investigator after the controlled buy, although
she could not be completely sure that it was the same plastic bag. She further identified
Graham’s voice on an audio recording of the buy, which was played for the jury.
Graham presented no witnesses and elected not to testify. The jury found him
guilty, and the district court imposed a presumptive 75-month sentence. In May 2015,
Graham filed a petition for postconviction relief, arguing that C.W.’s uncorroborated
testimony was insufficient to establish proof beyond a reasonable doubt that he
participated in the controlled buy. The district court issued an order denying the petition
without an evidentiary hearing, finding that direct evidence of the informant’s testimony
and circumstantial evidence of the police procedures used in the controlled buy, along
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with evidence of the audio from the buy heard by the jury, was sufficient to convict
Graham. This appeal follows.
DECISION
Graham argues that the postconviction court abused its discretion by denying his
petition for relief because the evidence is insufficient to support his conviction. This
court reviews a postconviction court’s decision on issues of law de novo, but reviews its
factual findings for clear error and to determine whether sufficient evidence exists to
support those findings. Pippitt v. State, 737 N.W.2d 221, 226 (Minn. 2007). We will not
reverse the postconviction court’s decision absent an abuse of discretion. Id. “A
postconviction court abuses its discretion when its decision is based on an erroneous view
of the law or is against logic and the facts in the record.” Riley v. State, 819 N.W.2d 162,
167 (Minn. 2012) (quotation omitted). Graham has the burden of showing that he is
entitled to relief. Pippitt, 737 N.W.2d at 226.
When considering an insufficient-evidence claim, a reviewing court undertakes “a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, was sufficient” to support the conviction. State v.
Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). 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. Bernhardt v. State, 684 N.W.2d 465, 476–
77 (Minn. 2004).
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Graham argues that the only evidence identifying him as a participant in the drug
transaction was the uncorroborated testimony of C.W., who, he argues, is inherently
unreliable because she was a paid informant. But the jury may choose to believe the
testimony of witnesses who receive legal and economic compensation for their
cooperation. See State v. Triplett, 435 N.W.2d 38, 44-45 (Minn. 1989) (holding that the
jury could have relied on the testimony of a witness although the witness used drugs, lied
to police, and forged checks). And Minnesota law does not require corroboration of a
police informant’s testimony unless the informant is also an accomplice. State v. Hadgu,
681 N.W.2d 30, 34 (Minn. App. 2004), review denied (Minn. Sept. 21, 2004). Although
a defendant may not be convicted solely on the uncorroborated testimony of an
accomplice, Minn. Stat. § 634.04 (2010), a person who receives illegal drugs cannot be
an accomplice of a person charged with selling the drugs because those offenses are
separate and distinct. State v. Swyningan, 304 Minn. 552, 555-56, 229 N.W.2d 29, 32
(1975). Because C.W. only received the methamphetamine and did not aid in distributing
it, she was not an accomplice to Graham’s offense, and corroboration of her testimony is
not required. See Hadgu, 681 N.W.2d at 34.
In an individual case, even if corroboration is not required by statute, the absence
of corroboration may call for a holding that the evidence is insufficient to support a
conviction. State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977). Graham argues that the
state’s additional evidence did not corroborate C.W.’s identification of him as the person
who sold her the drugs. He maintains that evidence of police procedures goes only to
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whether a drug deal occurred, not the seller’s identity, and that the jury could not have
identified Graham’s voice on the audiotape because he did not testify at trial.
We agree that this evidence does not necessarily corroborate Graham’s
participation in the controlled buy. But a conviction may rest on the uncorroborated
testimony of a single credible witness. State v. Foreman, 680 N.W.2d 536, 539 (Minn.
2004). C.W., who was acquainted with Graham before the controlled buy, testified that,
when she viewed a photo lineup, she was “100% sure” that he was the person who sold
her drugs. A police officer confirmed that C.W. positively identified Graham from the
photo lineup. C.W. also identified Graham in court as the person who sold her
methamphetamine.
Graham argues that C.W.’s testimony was “significantly undermined” when she
admitted on cross-examination that she did not recognize the bills that were used in the
controlled buy and could not independently identify the plastic bag containing the
methamphetamine. But it is not unreasonable that she would not have noted the serial
numbers on the bills or the exact dimensions of the bag, given that the police found no
money on her person in a post-buy search, and she testified that she gave the bag to
police immediately after the buy.
Graham also points out that, although C.W. testified that he “met [her] outside in
the back” of the building, police surveillance did not show that anyone had exited the
residence before her or entered the building with her. But “[a] jury, as the sole judge of
credibility, is free to accept part and reject part of a witness’ testimony.” State v.
Poganski, 257 N.W.2d 578, 581 (Minn. 1977). The jury was free to reject the portion of
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C.W.’s testimony about Graham meeting her outside and still credit her testimony that he
was present when the drugs and money changed hands.
“The weight and credibility of individual witnesses is for the jury to determine,”
and an appellate court cannot retry the facts. State v. Bliss, 457 N.W.2d 385, 390-91
(Minn. 1990). After a careful review of the record, we conclude that the evidence is
sufficient to sustain the postconviction court’s decision to deny Graham’s petition.
Affirmed.
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