                       This opinion will be unpublished and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
                                  A15-1005

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Joseph Ray Burrell,
                                    Appellant.

                                Filed April 25, 2016
                                     Affirmed
                                    Reyes, Judge

                          Blue Earth County District Court
                               File No. 07CR142474

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Klaphake,

Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

REYES, Judge

       Appellant argues that there is insufficient evidence to support his conviction of

aiding and abetting first-degree sale of a controlled substance. We affirm.

                                         FACTS

       On the night of March 6, 2014, appellant Joseph Ray Burrell and his friend, C.G.,

drove together to meet appellant’s girlfriend, Ashley Stillwell, to exchange approximately

one ounce of methamphetamine.1 C.G. accompanied appellant because the two planned

to go on a drug run to the Twin Cities following the exchange. The first attempted

exchange between appellant and Stillwell was interrupted when an officer drove up in his

squad car. The officer testified that he happened upon the vehicles in a parking lot and,

as he approached, the vehicles separated. C.G. also confirmed through his trial testimony

that the officer interrupted the first attempted exchange between appellant and Stillwell.

       Appellant and Stillwell later reconnected for the exchange. Both Stillwell and

C.G. confirmed that this exchange occurred and that appellant gave Stillwell one ounce

of methamphetamine. Stillwell testified that she was told to get rid of the

methamphetamine for $2,000. According to Stillwell and C.G., the methamphetamine

was packaged in a plastic bag. Additionally, both stated that appellant passed Stillwell

the drugs through the driver’s side window of his vehicle and the passenger’s side

window of the vehicle Stillwell was in. Appellant and Stillwell were living together at


1
 The quantity of methamphetamine exchanged and later sold was disputed at trial.
Neither party disputes the quantity on appeal.

                                             2
this time. Stillwell was unsure why appellant did not give her the methamphetamine at

their residence but assumed it was because he did not have it when they were together.

       Following the exchange, Stillwell went shopping at Walmart and, soon after, met

her buyer, who was an undercover agent, in the Walmart parking lot. There, Stillwell

sold the methamphetamine for $2,000 to the buyer. Immediately after the sale, the agent

identified himself as a member of the Minnesota River Valley Drug Task Force

(MRVDTF) and took Stillwell into custody. Through his testimony, the agent confirmed

that Stillwell was inside the Walmart store when he arrived and that she later met him in

the parking lot. The agent also stated that he and Stillwell had originally agreed to meet

earlier in the day, but Stillwell postponed the meeting, and he was unsure why.

       When first questioned by the agent, Stillwell identified C.G. as her source. But

Stillwell eventually informed the agent that appellant supplied her with the

methamphetamine. Stillwell stated that she did not immediately implicate appellant

because she was “trying to protect [her] boyfriend.” Stillwell testified that she knew

appellant sold drugs, that she was not personally accustomed to handling such a large

quantity of methamphetamine, and that she did not know anyone other than appellant

who could get her that much methamphetamine. According to the MRVDTF agent,

appellant was “in a different league” than C.G. with respect to controlled-substance sales

and, based on his training and experience, C.G. was more of a “low level . . . user dealer.”

A second MRVDTF agent also testified that he knew appellant to be a high-level drug

dealer in the area.




                                             3
       The sole witness appellant called at trial was J.K., who testified that he went to

C.G.’s house in the early morning hours of March 7, 2014, to buy methamphetamine.

J.K. stated that C.G. was angry and nervous that Stillwell had stolen an ounce from him.

       Appellant waived his right to a jury trial, and the district court found appellant

guilty of aiding and abetting first-degree sale of a controlled substance in violation of

Minn. Stat. §§ 152.021, subd. 1(1), 609.05, subd. 1 (2012). The district court acquitted

appellant of the sale and conspiracy charges. Appellant filed a motion for

reconsideration. The court denied appellant’s motion and sentenced him to 189 months

in prison. This appeal follows.

                                      DECISION

I.     Accomplice testimony

       Appellant first asserts that Stillwell’s accomplice testimony was not sufficiently

corroborated to restore confidence in its truthfulness. We disagree.

       The parties do not dispute that Stillwell was an accomplice. Accomplice

testimony is inherently suspect, State v. Jackson, 746 N.W.2d 894, 898 (Minn. 2008),

because of concern that an accomplice will offer self-serving, dishonest testimony, State

v. Clark, 755 N.W.2d 241, 253 (Minn. 2008). Therefore, a conviction cannot be based on

the uncorroborated testimony of an accomplice. See Minn. Stat. § 634.04 (2012). “[W]e

have long held that evidence is sufficient to corroborate an accomplice’s testimony when

it is weighty enough to restore confidence in the truth of the accomplice’s testimony.”

Clark, 755 N.W.2d at 253 (quotation omitted). An accomplice’s testimony need not be

corroborated “on every point or element of the crime.” State v. Lemire, 315 N.W.2d 606,


                                              4
610 (Minn. 1982). “The precise quantum of corroborative evidence needed necessarily

depends on the circumstances of each case, but corroborative evidence does not need to

be sufficient to establish a prima facie case of the defendant’s guilt or sustain a

conviction.” Clark, 755 N.W.2d at 253–54 (quotation omitted).

       When the sufficiency of corroborating evidence is challenged, we view such

evidence in the light most favorable to the verdict and resolve any inconsistencies in

favor of the state. State v. Pippitt, 645 N.W.2d 87, 93 (Minn. 2002). In determining

whether an accomplice’s testimony is corroborated, “[t]he defendant’s entire conduct

may be looked to for corroborating circumstances.” Clark, 755 N.W.2d at 254 (quotation

omitted). The following facts may be used to corroborate an accomplice’s testimony and

link appellant to the crime: (1) participation in the preparation for the criminal act;

(2) opportunity and motive; (3) proximity of appellant to the place where the crime was

committed under unusual circumstances; (4) association with persons involved in the

crime in such a way as to suggest joint participation; and (5) possession of an instrument

or instruments probably used to commit the offense. Id.

       Here, the first four facts are present. Appellant supplied Stillwell with the

narcotics sold to the MRVDTF agent. Appellant and Stillwell had the opportunity and

motive to sell methamphetamine. Appellant was in close proximity to the exchange and

sale. Finally, appellant and Stillwell were living together and romantically involved at

the time of the offense, indicating a close association between the two to suggest their

joint participation in criminal activity. These facts corroborate Stillwell’s testimony.




                                              5
       In addition, testimony of other witnesses can also restore confidence in the truth of

an accomplice’s testimony. See Lemire, 315 N.W.2d at 610-11 (discussing testimony of

several other witnesses as independent, corroborating evidence). Stillwell’s testimony

was directly corroborated by the testimony of several other witnesses. The testimony of

both C.G. and the officer supported Stillwell’s testimony with respect to the attempted

exchange of methamphetamine. C.G. confirmed the subsequent meeting and successful

exchange. And the first MRVDTF agent corroborated Stillwell’s testimony regarding her

presence in Walmart when he arrived and the sale in the Walmart parking lot.

       Appellant points to a single statement made by Stillwell during her testimony, that

appellant told her to “get rid of [the methamphetamine] for $2--for $2,000,” and argues

that, because this particular statement was not corroborated, the court should conclude

that Stillwell’s testimony as a whole is insufficiently corroborated. But the Minnesota

Supreme Court has expressly rejected appellant’s interpretation of the accomplice-

testimony corroboration requirement. Clark, 755 N.W.2d at 251-55. In rejecting this

approach, the majority stated that “focusing so narrowly on whether the evidence

corroborated specific statements during [the accomplice’s] testimony . . . departs from the

principles that have guided our analysis of accomplice-testimony corroboration since we

decided Rasmussen, 241 Minn. at 313, 63 N.W.2d at 3, over 50 years ago.” Id. at 255.

       Therefore, we conclude that Stillwell’s testimony was sufficiently corroborated by

other evidence to restore confidence in her testimony and allow it to be considered for the

purposes of our circumstantial-evidence analysis of appellant’s knowledge and intent.




                                             6
II.    Knowing and intentional

       Appellant further argues that the record contains insufficient evidence that he

knowingly and intentionally aided and abetted a first-degree controlled substance sale.

We are not persuaded.

       “A person is criminally liable for a crime committed by another if the person

intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the

other to commit the crime.” Minn. Stat. § 609.05, subd. 1 (2012). “To impose liability

under the aiding and abetting statute, the state must show some knowing role in the

commission of the crime by a defendant who takes no steps to thwart its completion.”

State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quotation omitted). “Mere presence

at the scene of a crime does not alone prove that a person aided or abetted.” Id. But

“active participation in the overt act which constitutes the substantive offense is not

required.” Id. “A jury may infer the requisite state of mind from a variety of facts,

including presence at the scene of the crime, [and] a close association with the principal

offender before and after the crime.” State v. Bahtuoh, 840 N.W.2d 804, 810 (Minn.

2013). Additionally, “[e]vidence tending to show an intent to sell or distribute includes

evidence as to the large quantity of drugs possessed.” State v. Hanson, 800 N.W.2d 618,

623 (Minn. 2011) (quotation omitted).

       A conviction can rest on direct or circumstantial evidence. See, e.g., State v.

Silvernail, 831 N.W.2d 594, 598-600 (Minn. 2013); State v. Flowers, 788 N.W.2d 120,

133-34 (Minn. 2010). “The [s]tate ordinarily proves a criminal defendant’s mental state

by circumstantial evidence.” See Bahtuoh, 840 N.W.2d at 809. Here, the state offered


                                              7
only circumstantial evidence of appellant’s knowledge and intent. When a conviction is

based on circumstantial evidence, we apply a two-step analysis. Silvernail, 831 N.W.2d

at 598. First, we identify the circumstances proved, assuming that the fact-finder

resolved any factual disputes in a manner that is consistent with the fact-finder’s verdict.

Id. at 598-99. Second, we independently examine the reasonableness of the inferences

the fact-finder could draw from those circumstances. Id. at 599. All circumstances

proved must be consistent with guilt and inconsistent with any rational hypothesis except

that of guilt. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010).

       A review of the record demonstrates that the following are circumstances proved:

(1) Stillwell and appellant were living together and romantically involved at the time of

the narcotics sale; (2) appellant was known by law enforcement as one of the area’s

“higher level” drug dealers; (3) Stillwell suspected that appellant participated in selling

drugs; (4) Stillwell was not accustomed to handling an ounce of methamphetamine;

(5) appellant was the only person Stillwell knew who could provide her with that quantity

of methamphetamine; (6) Stillwell arranged to sell the MRVDTF agent one ounce of

methamphetamine in the afternoon on March 6, 2014; (7) at some point, Stillwell

rescheduled her meeting with the MRVDTF agent to later that day; (8) Stillwell

attempted to meet appellant to receive methamphetamine from him; (9) the initial

exchange was interrupted by an officer; (10) appellant and Stillwell subsequently met to

exchange the methamphetamine; (11) appellant handed Stillwell the methamphetamine,

contained in a plastic bag, by passing the drugs through the driver’s side window of his

car and the passenger side window of the vehicle Stillwell was in; (12) Stillwell was


                                              8
given an ounce of methamphetamine and told to sell it for $2,000; and (13) soon after the

exchange with appellant, Stillwell met the MRVDTF agent in the Walmart parking lot

and sold him the methamphetamine she was given for $2,000.

       A review of the circumstances proved leads unerringly to the conclusion that

appellant knowingly and intentionally aided Stillwell in the methamphetamine sale. The

quantity of methamphetamine exchanged alone tends to show an intent to sell or

distribute. Hanson, 800 N.W.2d at 623. Furthermore, the temporal relation between

appellant’s meeting with Stillwell and Stillwell’s subsequent meeting with the MRVDTF

agent suggests that appellant knew the purpose for which he was supplying the drugs and

therefore intended to further the sale. In addition, appellant and Stillwell were living

together and romantically involved, demonstrating a close association between them

before, during, and after the crime. Bernhardt v. State, 684 N.W.2d 465, 477 (Minn.

2004) (“[P]resence, companionship, and conduct before and after an offense is committed

are relevant circumstances from which the jury may infer criminal intent.” (quotation

omitted)).

       Appellant takes issue with the inference that he instructed Stillwell to sell the

methamphetamine for $2,000. A review of Stillwell’s testimony shows that she did not

specifically attribute this instructive statement to appellant. But Stillwell unambiguously

identified appellant as providing her with the drugs. And appellant was the only person

Stillwell knew who could provide her with that quantity of methamphetamine. We

therefore conclude on independent examination that it was reasonable for the fact-finder




                                              9
to attribute the sale instructions to appellant. Silvernail, 831 N.W.2d at 599 (quoting

Andersen, 784 N.W.2d at 329).

       Appellant proposes two alternative rational hypotheses: (1) appellant thought

Stillwell was simply going to hold the methamphetamine for him while he went to the

Twin Cities, and he was unaware that Stillwell planned to sell the methamphetamine to

the MRVDTF agent or (2) Stillwell obtained the methamphetamine from another source.

None of the circumstances proved support either of appellant’s alternate hypotheses.

While J.K.’s testimony could have supported appellant’s second rational hypothesis, the

district court explicitly noted that J.K.’s testimony seemed “rehearsed” and rejected it as

not credible. As such, it was not a circumstance proved, and we may not consider it in

support of an alternate rational hypothesis. Silvernail, 831 N.W.2d at 599. Because

appellant’s arguments are based on circumstances that were not proved or mere

conjecture, they are unavailing. Andersen, 784 N.W.2d at 330.

       We conclude that sufficient evidence supports the district court’s determination

that appellant knowingly and intentionally aided a first-degree controlled-substance sale.

       Affirmed.




                                             10
