Opinion
No. A05-1268.
Filed August 22, 2006.
Appeal from the District Court, Olmsted County, File No. K8-04-2792.
Mike Hatch, Attorney General, and Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, (for appellant)
Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant challenges his second-degree controlled-substance offense conviction and sentence, arguing that there was insufficient evidence to prove that the sale had taken place within a park zone and that the trial court abused its discretion in denying his motion for a downward durational departure. We affirm.
FACTS
The state charged appellant Darshund Adonis Tate with third-degree and second-degree controlled-substance crimes. The latter charge required proof that Tate sold cocaine within a park zone in the City of Rochester. After a bench trial, the district court found Tate guilty of both charges. He contends that the evidence was insufficient to establish beyond a reasonable doubt that he sold cocaine within a park zone. He also challenges the court's refusal to depart from the sentencing guidelines.
The court found that a paid police informant contacted Tate and stated that she would have money on the following day for the purchase of an "eight ball," a term for a quantity of cocaine. Tate gave her a telephone number to call.
The informant called Tate the next day, and he arranged to pick her up in his car. Before Tate arrived, the police searched the informant, attached a "wire" to her, and gave her $300 in marked bills for the drug purchase.
Tate picked up the informant, drove to various businesses, made a telephone call, picked up another female, and eventually drove to the Silver Lake Park area where he parked behind a white car "approximately one half block away from Silver Lake Park."
The informant then gave the marked bills to Tate who went to the white car and returned with a substance, determined to be cocaine, that he gave to the informant. Tate then dropped the informant off and continued to drive with the other female until the police stopped his car. In their search of the car, the police found $100 of the marked money.
The court denied Tate's motion for a downward departure from the sentencing guidelines and imposed the lowest range of the presumptive sentence.
DECISION
Sufficiency of the Evidence
The second-degree controlled-substance crime of which Tate was convicted requires proof beyond a reasonable doubt that the crime occurred within a "park zone." Minn. Stat. § 152.022, subd.1(6)(i) (2004). A "park zone" is an area designated as such by a governmental entity. Minn. Stat. § 152.01, subd. 12a (2004). It "includes the area within 300 feet or one city block, whichever distance is greater, of the park boundary." Id.
Tate argues that "the state presented no evidence on the measured distance from the park to where the transaction allegedly occurred" and thus failed to establish an essential element of the crime.
We address claims of insufficiency of the evidence through a painstaking review of the record to determine whether the evidence, viewed in a light most favorable to the verdict, was sufficient to allow the trier of fact to reach that verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This standard of review applies both to jury and bench trials. State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979). In conducting our review, we must assume that the trier of fact believed the state's witnesses and disbelieved evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
Tate does not appear to dispute that Silver Lake Park is a park zone. Rather, he contends that, because the state presented no evidence that the area of the park was within a grid system, the one-city-block criterion does not apply, and that the state presented no evidence that the transaction occurred within 300 feet of the park zone. He notes that the state presented no evidence showing the location of the boundary of Silver Lake Park. Rather, the state presented only the police officer's opinion, without any foundation, that [Tate's] car and the white car were parked about a third of a block from Silver Lake Drive or about a hundred feet.
He further indicates that there were "no maps, no surveyor's plan, no photos, no video, or no measurements to establish where the park boundary was located."
Tate relies on State v. Estrella, 700 N.W.2d 496 (Minn.App. 2005), review denied (Minn. Nov. 15, 2005), and an unpublished case for the proposition that the one-city-block criterion does not apply when it has not been shown that a grid system is in place. As Tate notes, Estrella holds that if there is no grid system, the crime must occur within 300 feet of the park boundary before an accused can be convicted of a crime within a park zone. Id. at 501.
Three law-enforcement officers watched Tate leave his car near Silver Lake Park, go to the parked white Cadillac, and return to his car, where the evidence shows he delivered cocaine to the informant. Each officer testified to the location of the transaction in reference to the park. All stated that the transaction occurred within one city block of the park, and all in addition estimated the actual distance in feet. Two officers estimated the distance to have been 100 feet and one 128 feet. One officer testified that the location was "about a hundred feet to the west of Silver Lake Drive and that drive, that road borders the park." Under common usage, "border" is synonymous with "boundary." The American Heritage Dictionary of the English Language 219 (3d ed. 1992). Thus, there was direct evidence that Tate committed the crime within 300 feet of the park boundary.
Tate complains that the distance evidence was merely a product of the officers' opinions, which lacked foundation. But he failed to object to the testimony about distance and, thus, has waived error, if any. State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001). Moreover, the admission of that testimony was not error. Each officer had firsthand knowledge of the location of Tate's car and the white Cadillac relative to the park.
A witness may give an estimate of a distance after perceiving that to which the distance relates. See Landeen v. DeJung, 219 Minn. 287, 291-92, 17 N.W.2d 648, 651 (1945) ("We have stated repeatedly that testimony of witnesses as to distances and speed are based on estimates as to what they observed . . . and cannot be held to mathematical exactness."). And the fact that two of the officers had 20 and 25 years experience respectively as police officers in the City of Rochester supported an inference that they were familiar with the park and its borders. The sufficiency of the foundation establishing the opportunity of witnesses to make certain observations is discretionary with the trial court. Daugherty v. May Bros. Co., 265 Minn. 310, 315-16, 121 N.W.2d 594, 598 (1963). There was sufficient foundation for the officers' estimates of how close to the park boundary Tate's drug sale occurred.
Departure Motion
Tate's second contention is that the district court abused its discretion in denying his motion for a downward durational departure. He was sentenced to a presumptive term of 64 months for a second-degree controlled-substance crime with two criminal history points. Minn. Sent. Guidelines IV. Tate does not dispute his past criminal record, but argues that the court should have granted a departure because (1) the evidence that the offense occurred within a park zone was minimal, (2) he played a minor role in the offense, and (3) a 64-month sentence is disproportionate to the offense.
A district court has broad discretion in determining whether to depart from a presumptive sentence under the sentencing guidelines. State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993). Departures are reviewed for an abuse of that discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). According to the Minnesota Sentencing Guidelines, a sentencing court must impose the presumptive sentence, "unless the individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D. In determining whether to depart from a presumptive sentence, the sentencing court should consider whether the defendant's conduct was "significantly more or less serious than that typically involved in the commission of the crime in question." Rairdon, 557 N.W.2d at 326 (quoting State v. Back, 341 N.W.2d 273, 276 (Minn. 1983)). A "passive or minor role in the crime" is a mitigating factor the sentencing court can look at when considering whether or not to depart. Minn. Sent. Guidelines. II.D.2.a.(2).
Tate argues that the sentencing court did not consider that the drug transaction took place within a park zone and not within a park. The legislative intent for enhancing drug crimes that take place within the vicinity of a park or school zone is to protect children from discarded drugs, drug paraphernalia, and drug dealers. State v. Benniefield, 678 N.W.2d 42, 47 (Minn. 2004). The sentencing court took this intent into consideration when it decided to sentence Tate at the bottom of the sentencing guidelines box. The court stated, "I think in terms of these zone things that this — given the distance you were from the park makes it less onerous than some."
Tate also relies on State v. Wittman, 461 N.W.2d 247 (Minn.App. 1990), to argue that the sentencing court should have granted his motion for a downward durational departure because he was only "superficially" involved in the drug transaction.
In Wittman, the defendant was convicted of conspiracy with her housemate to sell drugs. Id. at 248. The district court granted a downward dispositional departure because the defendant played a minor role in the matter and imposition of the guidelines sentence would have created an impermissible disparity when compared with the more culpable housemate's sentence. Id. at 248-49.
In contrast to the defendant in Wittman, Tate arranged the drug sale, drove the informant to the site of the sale, collected money from her, obtained and delivered the drug, and drove her back to her earlier location. Tate was integrally involved in all aspects of the crime and was not a minor or passive participant.
Finally, Tate has failed to show that his sentence was disproportionate, considering the severity of the crime.