State v. Blanchard, A17-1172

State of Minnesota, Respondent, v. Joshua John Blanchard, Appellant

A17-1172

STATE OF MINNESOTA IN COURT OF APPEALS

December 31, 2018

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed in part, reversed in part, and remanded

Johnson, Judge

Polk County District Court

File No. 60-CR-16-75

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attorney, Scott A. Buhler, First Assistant County Attorney, Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bradford Colbert, Assistant Public Defender, Frances Bates (certified student attorney), St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Tracy M. Smith, Judge.

UNPUBLISHED OPINION

JOHNSON, Judge

A Polk County jury found Joshua John Blanchard guilty of multiple drug-related offenses. He challenges the sufficiency of the evidence and his sentences. We conclude that the evidence is sufficient to prove that Blanchard knowingly possessed a controlled substance. We also conclude that the district court did not err by imposing a sentence at the top of the presumptive range. But we conclude that the district court erred by imposing two sentences for a single behavioral incident. Therefore, we affirm in part, reverse in part, and remand for resentencing.

FACTS

Blanchard's convictions arise from an investigation into a drug-dealing network in northwestern Minnesota. On the evening of January 10, 2016, D.K. and an unnamed woman were arrested in Becker County for possession of methamphetamine. D.K. told a law-enforcement officer that he had purchased the methamphetamine from Brock Altringer, who lives in East Grand Forks, and that Altringer possessed more methamphetamine at his home. Law-enforcement officers obtained and executed a warrant authorizing a search of Altringer's apartment. During that search, officers found a substantial amount of methamphetamine, a scale, and a large amount of cash.

After being arrested, Altringer cooperated with law enforcement by identifying his supplier as Robert Delacruz, who at that time lived in North Mankato. Altringer said that he had purchased methamphetamine from Delacruz on multiple occasions in recent months. Altringer also said that Delacruz did not personally deliver the methamphetamine to Altringer but, rather, used a courier known as "Jake from State Farm." Altringer made recorded telephone calls to Delacruz in which he sought to purchase methamphetamine. Delacruz agreed to sell approximately one pound of methamphetamine to Altringer for $15,000.

At some time between 11:00 a.m. and 7:00 p.m. on January 11, 2016, Blanchard, who then was living in Madelia, departed from the Mankato area in Delacruz's car. Blanchard drove to New Ulm to sell marijuana to J.D. Blanchard asked J.D. to drive to St. Cloud with him to pick up money that he was owed, and J.D. agreed. J.D. fell asleep and did not awaken until Blanchard had driven past St. Cloud, at which time Blanchard told J.D. that he was driving to East Grand Forks, without explaining why he was doing so.

The next morning, a law-enforcement officer was waiting for a drug courier at Altringer's apartment building in East Grand Forks. At approximately 6:00 a.m., the officer saw Blanchard and J.D. arrive in Delacruz's car. The officer saw Blanchard knock on the door of Altringer's apartment. The officer then arrested Blanchard. Officers later executed a search warrant on the car that Blanchard had driven to Altringer's apartment building. Inside the car they found more than 600 grams (or 1.32 pounds) of methamphetamine, the majority of which was found inside a briefcase on the back seat. The officers also found marijuana, drug paraphernalia, and documents bearing Delacruz's name inside the car. In addition, officers found a tablet computer, which appeared to belong to Blanchard and had recently been used to search the internet for ways to evade law-enforcement surveillance and for information related to methamphetamine. Officers obtained a warrant authorizing the taking of a urine sample from Blanchard, and the sample tested positive for methamphetamine and amphetamine.

The state charged Blanchard with (1) conspiracy to commit a first-degree controlled-substance crime, in violation of Minn. Stat. § 152.021, subd. 1(1) (2014); (2) first-degree sale of a controlled substance, in violation of Minn. Stat. § 152.021, subd. 1(1);(3) first-degree possession of a controlled substance, in violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2014); (4) failure to affix a tax stamp to a controlled substance, in violation of Minn. Stat. § 297D.09, subd. 1a (2014); and (5) third-degree driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(7) (2014).

The case was tried to a jury over four days in January and February of 2017. The state called 13 witnesses. Blanchard did not testify and did not present any other evidence. The jury found him guilty of all charges.

Before sentencing, Blanchard filed a motion in which he argued that he should not be sentenced on both count 1 and count 2 because the two charges arose from a single behavioral incident. The district court denied the motion. In May 2017, the district court imposed concurrent sentences of 103 months of imprisonment on count 1, 132 months of imprisonment on count 2, 54 months of imprisonment on count 4, and one year of local incarceration on count 5. The district court did not impose a sentence on count 3.

Blanchard timely filed a notice of appeal. In December 2017, he moved to stay the appeal so that he could seek post-conviction relief. This court granted the motion. See Minn. R. Crim. P. 28.02, subd. 4(4). Blanchard asked the post-conviction court to modify his sentences pursuant to the Drug Sentencing Reform Act of 2016 and State v. Kirby, 899 N.W.2d 485 (Minn. 2017). In February 2018, the district court reduced Blanchard's sentence on count 1 to 78 months of imprisonment and reduced his sentence on count 2 to 102 months of imprisonment. In March 2018, this court dissolved the stay of the appeal.

DECISION

I. Sufficiency of the Evidence

Blanchard first argues that the evidence is insufficient to sustain his convictions on counts 1, 2, 3, and 4 on the ground that the state did not prove beyond a reasonable doubt that he knowingly possessed a controlled substance. He does not challenge the evidence that he possessed the briefcase that contained methamphetamine; rather, he contends that the evidence is insufficient to prove that he knew that the briefcase contained a controlled substance.

When reviewing the sufficiency of the evidence for a conviction, we undertake "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 must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We do "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." Ortega, 813 N.W.2d at 100.

A person is guilty of conspiring to commit a crime if he "does some overt act in furtherance of such conspiracy." Minn. Stat. § 609.175, subd. 2 (2014). A person is guilty of first-degree controlled-substance crime if "the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing . . . methamphetamine." Minn. Stat. § 152.021, subd. 1(1). A person also is guilty of first-degree controlled-substancecrime if "the person unlawfully possesses one or more mixtures of a total weight of 25 grams or more containing . . . methamphetamine." Id., subd. 2(a)(1). A person is guilty of a crime if he distributes or possesses a controlled substance without affixing the appropriate tax stamps. Minn. Stat. § 297D.09, subd. 1a.

In this case, Blanchard challenges the sufficiency of the evidence that he knew that he possessed a controlled substance. "Knowledge is customarily determined from circumstantial evidence." State v. Ali, 775 N.W.2d 914, 919 (Minn. App. 2009), review denied (Minn. Feb. 16, 2010). If the state's evidence on one or more elements of a charged offense consists solely of circumstantial evidence, we apply a heightened standard of review. See State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016); Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004); State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013). In such a case, we apply a two-step test to determine the sufficiency of the evidence. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). First, we identify the circumstances proved. Id. (citing State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)). "In identifying the circumstances proved, we assume that the jury resolved any factual disputes in a manner that is consistent with the jury's verdict." Id. (citing Andersen, 784 N.W.2d at 329). Second, we "examine independently the reasonableness of the inferences that might be drawn from the circumstances proved" and then "determine whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt." Id. (quotations omitted). We must consider the evidence as a whole rather than examine each piece in isolation. Andersen, 784 N.W.2d at 332.

At the first step of the analysis, we note that the state proved the existence of the following circumstances: Delacruz, who lived in North Mankato, had previously sold controlled substances to Altringer. Delacruz uses a courier to deliver controlled substances to purchasers. Altringer called Delacruz seeking methamphetamine, and Delacruz agreed to...