                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2016).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0153

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Rosalyn Mary Brooks,
                                       Appellant.

                                 Filed January 17, 2017
                                        Affirmed
                                     Larkin, Judge

                              Ramsey County District Court
                                File No. 62-CR-15-2258


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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)



         Considered and decided by Larkin, Presiding Judge; Peterson, Judge; and Hooten,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges her conviction of engaging in the business of concealing

criminal proceeds and the district court’s assignment of a severity level of six to that

offense for sentencing purposes. We affirm.

                                           FACTS

       In March 2015, respondent State of Minnesota charged appellant Rosalyn Mary

Brooks with engaging in the business of concealing criminal proceeds. The complaint

alleged that Brooks operated Papa Dimitri’s Classic Pizza and Ice Cream in St. Paul with

her son, Ryan Dimitri Brooks (Ryan), and that the restaurant was used to conceal the

proceeds of Ryan’s marijuana sales.

       The case was tried to a jury over four days, and the jury found Brooks guilty as

charged. Because that offense is not ranked under the Minnesota Sentencing Guidelines,

the district court assigned a severity level of six for sentencing purposes. The district court

stayed imposition of sentence, placed Brooks on probation for up to ten years, and ordered

her to serve 60 days in jail. This appeal follows.

                                      DECISION

                                              I.

       Brooks contends that the evidence was insufficient to sustain her conviction. When

considering an insufficient-evidence claim, an appellate court carefully analyzes the record

to determine whether the evidence, when viewed in a light most favorable to the conviction,

was sufficient to permit the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426,


                                              2
430 (Minn. 1989). The appellate court “assume[s] that the jury believed the state’s

witnesses and disbelieved contrary evidence.” State v. Brocks, 587 N.W.2d 37, 42 (Minn.

1998). The court will not disturb the jury’s 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).

          Brooks was charged under Minn. Stat. § 609.497, subd. 1 (2012), which provides

that

                        A person is guilty of a felony and may be sentenced
                 under subdivision 2 if the person knowingly initiates,
                 organizes, plans, finances, directs, manages, supervises, or
                 otherwise engages in a business that has as a primary or
                 secondary purpose concealing money or property that was
                 gained as a direct result of the commission of a felony under
                 [chapter 609] or chapter 152 . . . .

          Brooks does not dispute that the trial evidence was sufficient to prove that Ryan was

involved in the sale of marijuana and that cash revenue from that enterprise was routinely

deposited into the restaurant’s bank account. Nor does she dispute that trial evidence was

sufficient to prove that Brooks operated the restaurant. Instead, Brooks focuses on the

knowledge requirement. Brooks argues that “[t]he state’s circumstantial evidence was

insufficient to prove beyond a reasonable doubt that [she] knew that ‘Papa Dimitri’s’ bank

account was being used to conceal the proceeds of criminal activity.” In a supplemental

pro se brief, Brooks similarly argues that “[t]he evidence presented at trial shows no

knowledge by [her] that money placed in the pizza shop checking account was from drug

sales.”


                                                3
       The state relied on circumstantial evidence to prove Brooks’s knowledge. When a

defendant challenges the sufficiency of circumstantial evidence, an appellate court applies

a two-step analysis. State v. Anderson, 789 N.W.2d 227, 241 (Minn. 2010). First, the court

“must identify the circumstances proved, giving deference to the jury’s acceptance of the

proof of these circumstances and rejection of evidence in the record that conflicted with

the circumstances proved by the State.” Id. at 241-42 (quotation omitted). Second, the

court “independently examine[s] the reasonableness of all inferences that might be drawn

from the circumstances proved, including inferences consistent with a hypothesis other

than guilt.”   Id. at 242 (quotation omitted).        The court determines “whether the

circumstances proved are consistent with guilt and inconsistent with any rational

hypothesis except that of guilt.” Id. (quotation omitted). An alternative hypothesis does

not justify granting relief if the hypothesis is “not plausible or supported by the evidence.”

State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).

       The trial evidence established the following circumstances. Ryan was not employed

outside of the restaurant. Ryan visited the restaurant only occasionally. Brooks ran the

restaurant’s day-to-day operations. Brooks told law enforcement that she was a co-owner

of the restaurant and that she had cashed out her retirement savings to start the business.

Business records for the restaurant were located near the restaurant’s cash register,

including bills and receipts for restaurant supplies. Brooks signed checks on behalf of the

restaurant and paid the restaurant’s bills. The restaurant’s commercial landlord normally

contacted Brooks when there were lease issues.




                                              4
       The restaurant was open from approximately 4:00 p.m. to 9:00 p.m. daily. During

an 18-day surveillance period, the restaurant sold approximately 23 to 25 pizzas. The

restaurant had one to two customers, and Brooks made one to two deliveries, each day of

the surveillance period.     From January 2014 through the end of October 2014, the

restaurant had approximately $8,000 in sales and $32,000 in expenses. During that same

period, approximately $101,000 was deposited into the restaurant’s bank account. Most of

the deposits were in cash.

       When police executed a search warrant at the restaurant on December 30, 2014, the

inside of the restaurant was dirty, the soda dispenser did not work, and there was a “very

low volume of product” inside the restaurant’s coolers and storage area. A sign at the cash

register indicated that the restaurant only accepted cash. The restaurant’s menus advertised

lunch specials from “11:00 a.m. to 3:00 p.m.,” even though the restaurant did not open until

3:00 or 4:00 p.m. A neighboring business owner talked with Brooks about the menus

“stat[ing] hours that they weren’t keeping.” The neighbor observed potential customers

trying to enter the restaurant during the advertised hours and walking away disgruntled.

The neighbor advised Brooks that she should not advertise that the restaurant would be

open when it was actually closed.

       In October 2013, the U.S. Postal Service intercepted a package mailed to “Classic

Pizza” at the restaurant’s address. A postal inspector opened the package pursuant to a

search warrant and found a metal safe containing three bags of marijuana weighing about

2.37 pounds. On December 30, 2014, police executed a search warrant at Brooks’s

residence and found two handguns, three small bags of marijuana, and a safe containing


                                             5
marijuana residue. The handguns were in a wooden box just outside of the kitchen. Ryan’s

DNA was found on one of the handguns. The bags of marijuana were in a cabinet in a

laundry area and in a dresser next to a day bed.

       On January 28, 2015, Brooks spoke with Ryan while he was in custody related to

the underlying circumstances of this case. During the phone conversation, Brooks said

multiple times that she “want[ed] out.” Brooks also stated “[y]ou’re not makin’ enough

money to pay the bills.” After Brooks mentioned the police searching the restaurant, Ryan

responded, “We got raided for no reason. There was nothin’ there. So as long as you shut

your d--n mouth of work, we’re good! Don’t be stupid!” When Brooks brought up a check

that the police seized during the search, Ryan replied, “You, ah, you can’t talk on this f---

-n’ phone! Are you stupid?”

       These circumstances are consistent with the jury’s finding that Brooks was guilty of

engaging in the business of concealing criminal proceeds and inconsistent with any rational

hypothesis other than guilt. Brooks signed checks to pay the restaurant’s bills, and she was

highly involved in the day-to-day operations of the restaurant. She therefore was aware of

the significant disparity between the restaurant’s revenues and expenses. Brooks argues

that “[e]ven knowing that the restaurant had been running a deficit, [she] may nevertheless

have believed that the business was able to remain solvent for reasons completely unrelated

to her son’s own criminal enterprise.” But Brooks does not point to any evidence that

would support a belief that the funds used to keep the restaurant solvent were coming from

a legal source. And it is simply not plausible that Brooks believed that Ryan could fund




                                             6
the restaurant’s expenses through legitimate means when the restaurant was his sole place

of employment.

       Because the evidence was sufficient for the jury to conclude, beyond a reasonable

doubt, that Brooks was guilty of engaging in the business of concealing criminal proceeds,

we do not disturb the verdict.

                                            II.

       Engaging in the business of concealing criminal proceeds is designated as an

unranked offense under the Minnesota Sentencing Guidelines. Minn. Sent. Guidelines 5.A

(2012). When a district court sentences an offense that is designated as an unranked

offense, the court “must assign an appropriate severity level for the offense and specify on

the record why that particular level was assigned.” Minn. Sent. Guidelines 2.A.4 (2012).

Brooks argues that the district court abused its discretion in assigning a severity level of

six to her offense of engaging in the business of concealing criminal proceeds. An appellate

court reviews a district court’s severity-level determination for an abuse of discretion.

State v. Bertsch, 707 N.W.2d 660, 666 (Minn. 2006).

       In assigning a severity level of six, the district court emphasized that the maximum

statutory penalty for engaging in the business of concealing criminal proceeds is 20 years.

See Minn. Stat. § 609.497, subd. 2 (2012) (providing that a person convicted of engaging

in the business of concealing criminal proceeds “may be sentenced to imprisonment for not

more than 20 years”). The district court explained:

              This is hardly a sophisticated business operation. It was pretty
              clumsily executed. But my assumption is that the Legislature
              intended for this to be a more serious crime than the other


                                             7
              crimes that you mentioned on these other cases. And I could
              have gone to a level 7, which would have been still below the
              line. I could have gone above the line because there are a lot
              of 20-year maximums that are admits to prison. But I thought
              that given the circumstances, and all the information I had, that
              6 made sense.

       Caselaw indicates that the district court’s consideration of statutory penalties was

appropriate. For example, in State v. Kenard, the supreme court concluded that the

legislature’s establishment of a higher maximum sentence under one provision of a statute

than under another showed its intent to treat convictions under the former provision more

seriously. 606 N.W.2d 440, 444 (Minn. 2000). The supreme court stated that the decision

to provide a higher statutory maximum for convictions under the former provision “may

dictate a higher severity level” for a conviction under that provision. Id.

       In State v. Huynh, the supreme court concluded that it was not an abuse of discretion

for the district court to assign a severity level of eight to the offense of racketeering. 519

N.W.2d 191, 198 (Minn. 1994).          The supreme court noted that “the penalties for

racketeering are similar to the penalties for offenses ranked by the [sentencing guidelines]

as severity level VIII offenses, such as first degree assault,” citing the 20-year statutory

maximum prison sentences for those two offenses. Id. The supreme court reasoned that

“[t]he legislature clearly intended to punish severely those persons who engage in

racketeering.” Id.

       In sum, when assigning a severity level to an unranked offense, statutory penalties

are a relevant consideration. The district court therefore appropriately considered the

severity levels assigned to ranked offenses with statutory penalties similar to the statutory



                                              8
penalty for Brooks’s offense. And the district court reasonably assigned a severity level of

six to Brooks’s offense, noting that six is lower than the severity levels assigned to ranked

offenses with similar statutory penalties.

       A district court may also consider the following factors when assigning a severity

level to an unranked offense: (1) “the gravity of the specific conduct underlying the

unranked offense,” (2) “the severity level assigned to any ranked offense with elements

that are similar to the elements of the unranked offense,” (3) “the conduct of and severity

level assigned to other offenders for the same unranked offense,” and (4) “the severity level

assigned to other offenders engaged in similar conduct.” Minn. Sent. Guidelines 2.A.4

(2012). No single factor is controlling and the list of factors is not meant to be exhaustive.

Kenard, 606 N.W.2d at 443.

       As to these factors, the state submitted district court records regarding four unrelated

defendants who had been convicted of the crime of concealing criminal proceeds. A person

is guilty of the crime of concealing criminal proceeds if the person “(1) conducts a

transaction involving a monetary instrument or instruments with a value exceeding $5,000;

and (2) knows or has reason to know that the monetary instrument or instruments represent

the proceeds of, or are derived from the proceeds of, the commission of a felony . . . .”

Minn. Stat. § 609.496, subd. 1 (2016).

       In State v. Robinson (85-K7-98-84), the defendant mailed a package containing

$9,500 in drug proceeds to a recipient in Washington. The district court assigned a severity

level of three to the offense. In State v. Schafer (43-K6-99-344), the defendant transferred

a safe containing $50,000 in drug proceeds to a third party to post bail for the defendant’s


                                              9
boyfriend. The district court assigned a severity level of three to the offense. In State v.

Guion (62-CR-14-2369), a drug dealer’s girlfriend used the drug-sale proceeds to purchase

a vehicle and a home, and withdrew funds from her bank accounts to conceal drug proceeds

from law enforcement. The district court assigned a severity level of five to that offense

pursuant to a plea agreement. In State v. Desender (27-CR-97-47653), the defendant

embezzled money from his employer over multiple years and laundered the money through

various means, including depositing it in his parents’ bank accounts. The district court in

that case assigned a severity level of six.

        The state noted that the legislature established a 20-year maximum sentence for

engaging in the business of concealing criminal proceeds, whereas it established a ten-year

maximum sentence for the offense of concealing criminal proceeds and argued that “[t]his

is a clear indication that [the legislature] intended to punish [the] person that engages in

[the former] conduct more severely.” Compare Minn. Stat. § 609.496, subd. 2, with Minn.

Stat. § 609.497, subd. 2 (2016). The state further argued that this case is most like the

Desender case because the defendant in that case embezzled money and concealed it over

the course of several years, which the state contended “was much more of a sophisticated

offense similar to what was happening here in this particular case.” The state also argued

that the gravity of the conduct in this case was more severe because the U.S. Postal Service

was used in the operation and there was evidence that drugs were delivered under the guise

of pizza deliveries.

       Brooks recommended the district court assign a severity level of three. She argued

that her conduct was not sophisticated because the state merely proved that Ryan deposited


                                              10
proceeds from his drug sales into the restaurant’s account and that Brooks was aware of it.

Brooks argued that “there was not a single piece of evidence that was ever introduced that

she engaged in a single drug transaction, which some of the other folks [in the cases

provided by the state] clearly did, [or] that she profited from it at all.” Brooks contrasted

the facts of this case with those in Desender, noting that the defendant in that case was “a

CFO stealing thousands of dollars to pay personal taxes, to pay a myriad of other

responsibilities and living a lavish lifestyle,” whereas Brooks worked and supported

herself.

       The state’s district court case examples are not entirely helpful. First, the cases

involve the crime of concealing criminal proceeds, which is also an unranked offense. See

Minn. Sent. Guidelines 2.A.4. We are not aware of any ranked offense with elements that

are similar to the elements of engaging in the business of concealing criminal proceeds.

Nor are we aware of any cases involving assignment of a severity level to the offense of

engaging in the business of concealing criminal proceeds. Moreover, because the offense

of concealing criminal proceeds requires only a single transaction, that offense is

appreciably different from the offense of engaging in an ongoing business that has a

primary or secondary purpose of concealing criminal proceeds. Compare Minn. Stat. §

609.496, subd. 1, with Minn. Stat. § 609.497, subd. 1.           Thus, the single criminal

transactions in Robinson and Schafer are not similar to the ongoing criminal conduct in

this case.

       Brooks’s conduct—knowingly operating a restaurant that was being used to conceal

drug proceeds—is most like the ongoing concealment of embezzled funds in Desender,


                                             11
where the district court assigned a severity level of six. To the extent that Desender is

instructive regarding the severity level assigned to an offender engaged in similar conduct,

it suggests that the district court did not abuse its discretion. Moreover, the district court’s

assignment of a severity level higher than the severity level assigned in Robinson and

Schafer is reasonable given that those cases involved only one criminal transaction and the

maximum statutory penalties for the offense of concealing criminal proceeds and engaging

in the business of concealing criminal proceeds indicate that the legislature intended a

harsher consequence for the latter offense.

       Lastly, although the district court did not specifically discuss the gravity-of-the-

offense factor, that factor supports the district court’s decision. Brooks was highly

involved in the operation and management of the restaurant that was used to conceal

proceeds of drug sales over an extended period of time. Brooks ran the restaurant’s day-

to-day operations for at least three years, signed checks on behalf of the restaurant, paid

the restaurant’s bills, and acted as the restaurant’s contact person regarding its commercial

lease. Brooks also told law enforcement that she was a co-owner of the restaurant and had

cashed out her retirement savings to start the business. The evidence shows that from

January 2013 through November 2014, $207,796.45 was deposited in the restaurant’s bank

account, but only a small fraction of that amount originated from the restaurant’s sales. In

sum, the record suggests that Brooks’s operation of the restaurant enabled Ryan to sell a

significant amount of marijuana over a significant period of time.




                                              12
      Under the circumstances, the district court did not abuse its discretion by assigning

a severity level of six to Brooks’s offense of engaging in the business of concealing

criminal proceeds.

      Affirmed.




                                           13
