                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1773

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Jason Lonny Spillum,
                                     Appellant.

                              Filed December 15, 2014
                                     Affirmed
                                  Connolly, Judge

                              Polk County District Court
                               File No. 60-CR-10-1003


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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Renee Bergeron, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and

Bjorkman, Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges his convictions for conspiracy, first-degree controlled-

substance crime—sale, and failure to affix a tax stamp, arguing that his uncorroborated

confession was not sufficient evidence to establish his guilt, that his prosecution in

Minnesota violated double jeopardy, and that the prosecutor engaged in vindictive

prosecution. Because appellant’s confession was corroborated by sufficient evidence,

neither constitutional nor statutory double-jeopardy provisions preclude his convictions,

the vindictive-prosecution claim is not properly before this court and in any event is

without merit, and his pro se claims are also without merit, we affirm.

                                          FACTS

       In February 2009, in Grand Forks, North Dakota (ND), appellant Jason Spillum

sold a confidential informant (CI) a gram of cocaine, for which the CI paid appellant

$200 in marked bills. ND police officers searched appellant’s apartment and found five

bags, each containing between 1.35 grams and 3.05 grams of a substance later determined

to be cocaine. Appellant pleaded guilty to ND charges of delivery of cocaine and of

possession of cocaine with intent to deliver.

       Appellant told the ND police officers investigating this incident that he had been

selling about 3.5 grams of cocaine per week for about a year, that he usually bought 14

grams every couple of weeks, that his supplier was R.C., who lived in East Grand Forks,

Minnesota (MN), and that appellant did not know who supplied R.C. Appellant added

that he hated himself for reporting R.C., a lifelong friend.


                                                2
       During the interview, appellant received a message on his phone from R.C. The

message indicated that R.C. knew the police had come for appellant and asked appellant

if his child support was unpaid. Appellant told the officers that he had monthly child-

support payments of $1,403 and was usually behind. The ND police told MN police

what they had learned from appellant about R.C.

       When the MN police searched R.C.’s residence, they found the marked bills that

appellant had received from the CI. R.C. was charged with conspiracy, first-degree

controlled-substance crime—sale, and failure to affix a tax stamp. Because appellant

agreed to testify against R.C., respondent State of Minnesota (the state) agreed not to

charge him.

       In May 2010, on the day R.C.’s trial was scheduled to begin, appellant recanted

his statement to the ND police, denied that R.C. supplied him with cocaine, and refused

to testify against R.C. The state dismissed the complaint against R.C. and charged

appellant with one count of conspiracy, one count of first-degree controlled-substance

crime—sale (specifically with having possessed ten or more grams of cocaine within a

90-day period between March 1, 2008, and March 15, 2009, i.e., prior to the incident in

which cocaine was found in his apartment on March 16, 2009), and one count of failure

to affix a tax stamp.

       In February 2011, appellant entered an Alford plea to first-degree controlled-

substance crime—sale and was sentenced to 104 months in prison. In 2012, he filed a

petition for postconviction relief, seeking to withdraw his Alford plea on the ground that

his prosecution in MN violated the prohibition of double jeopardy because he had


                                            3
previously been convicted of the same offense in ND. His double-jeopardy argument

was rejected, but he was allowed to withdraw the plea on another grounds. The three

charges against appellant were reinstated.

       A jury found appellant guilty on all three counts. He challenges his conviction,

arguing that his confession was not corroborated by sufficient evidence to clearly

establish his guilt, that his constitutional and statutory double-jeopardy protection barred

his MN prosecution for offenses of which he had been convicted in ND, and that the

prosecutor engaged in vindictive prosecution.

                                      DECISION

1.     Sufficiency of the Evidence

       This court “will not overturn a guilty verdict if, giving due regard to the

presumption of innocence and the prosecution’s burden of proving guilt beyond a

reasonable doubt, the jury could reasonably have found the defendant guilty of the

charged offense.” State v. Hurd, 819 N.W.2d 591, 598 (Minn. 2012) (quotation omitted).

If the direct evidence, viewed in the light most favorable to the state, would permit the

jury to reasonably conclude that the state has proven the fact in question beyond a

reasonable doubt, the evidence is sufficient to sustain a conviction. State v. Hokanson,

821 N.W.2d 340, 353 (Minn. 2012), cert. denied 133 S. Ct. 741 (2013). “[An appellate

court] may reverse only if no rational jury could have found the essential elements of the

crime beyond a reasonable doubt. This standard applies even in cases where a confession

dominates the government’s proof at trial.” United States v. Kirk, 528 F.3d 1102, 1111

(8th Cir. 2008) (citation omitted).


                                             4
       A defendant’s confession is direct evidence of guilt. State v. McClain, 208 Minn.

91, 95-96, 292 N.W. 753, 755 (1940). However, uncorroborated confessions of guilt are

not sufficient to support a conviction. Minn. Stat. § 634.03 (2012). “Under Minn. Stat.

§ 634.03, a confession of the defendant shall not be sufficient to warrant a conviction

without evidence that the offense charged has been committed. The section has a dual

function.   It discourages coercively acquired confessions and makes the admission

reliable.” In re Welfare of M.D.S., 345 N.W.2d 723, 735 (Minn. 1984). But the statute

does not require independent corroboration of each element of an offense. Id. “[N]ot all

or any of the elements ha[s] to be individually corroborated but [can] be sufficiently

substantiated by independent evidence of attending facts or circumstances from which the

jury may infer the trustworthiness of the confession.” Id. (quotation omitted).

       Appellant relies on M.D.S. to argue that the state did not provide adequate

corroborating evidence for his confession. In M.D.S., the juvenile defendant was charged

with aiding and advising felony murder after being in the car with two men who shot at a

home and killed one of the occupants, then shot at a school.         Id. at 734-35. The

corroborating evidence included one witness’s testimony that, the day after the murder,

the defendant brought him and the two men a newspaper clipping about the murder and

discussed hiding the weapon and leaving town and the victim’s neighbor’s testimony

that, on the night of the murder, she saw a car like the car the defendant said had been

outside the victim’s house. Id. at 738. In addition, the testimony of the victim’s son and

husband that, of the three accused, only the defendant had previously been to their house

corroborated the defendant’s statement that she gave them the address; glass fragments at


                                             5
the scene corroborated the defendant’s statement that she directed one of the men to shoot

at the window rather than the door; and damage to a nearby school corroborated the

defendant’s statement that she suggested they shoot at the school. Id. The corroborating

evidence was found to be adequate. Id.

       Appellant also relies on State v. Heiges, 806 N.W.2d 1, 13-14 (Minn. 2011)

(finding adequate corroborating evidence of the defendant’s statements that she had been

pregnant; she had tried to end her pregnancy; she planned to kill the baby after delivery;

she delivered the baby in the bathtub; the baby’s father threatened to hurt her, as he had

in the past, if she did not drown the baby; she drowned the baby, put its body in a

shoebox, and threw the shoebox down the apartment garbage chute; and, when she was

later in a despondent state, she cut her wrists in the bathtub). The state’s evidence

included: (1) testimony from employees at the apartment building that the defendant at

first wore fitted clothing, began wearing loose clothing, and after May 2005 wore fitted

clothing again and that she gained weight prior to May 2005; (2) testimony from an

acquaintance that the defendant had said she was trying to abort the baby by drinking full

bottles of alcohol and using drugs, that the baby’s father punched her in the stomach in an

effort to end the pregnancy, and that she planned to deliver the baby in northern

Minnesota, kill it, and bury it in the woods; (3) testimony from a forensic scientist that

the blood in the bathroom could have come from appellant, the baby’s father, or their

child, and that 75.5% of the population could be excluded as sources of the blood;

(4) testimony from one of the defendant’s classmates that bruises had been seen on the

defendant and from another that the baby’s father had been seen throwing things at her


                                            6
and abusing her; and (5) testimony from the baby’s father that the defendant came into

their bedroom naked and wet, said, “it’s done,” and, a few days later, tried to commit

suicide; and testimony that there was a garbage chute in the apartment. Id.

       Appellant tries to distinguish M.D.S. and Heiges, but the corroborating evidence

offered here was similar to the evidence offered in those cases. “[T]he quantity and type

of independent evidence necessary to corroborate a confession depends upon the facts of

each case. Corroborative facts may be of any kind, so long as they tend to produce

confidence in the truth of the confession. Thus, circumstantial evidence may justify a

jury’s inference that a defendant’s statement is true.” Kirk, 528 F.3d at 1112 (quotations

and citations omitted).

       Most significantly, the fact that the marked bills that the CI gave appellant in ND

in exchange for cocaine were found in the MN residence of R.C. corroborated appellant’s

statements that he knew R.C., purchased cocaine from him, and used money obtained

from selling cocaine to pay R.C. for more cocaine. Appellant’s relationship with R.C.

was further corroborated by the text message R.C. sent to appellant’s phone while

appellant was in custody on March 16, 2009, as did the fact that R.C. and his family lived

in East Grand Forks, MN. Testimony from two witnesses who had purchased cocaine

from R.C. during 2000 and 2001 corroborated appellant’s statement that he and R.C. had

sold cocaine together around that time.

       Appellant’s guilty pleas in ND provided further corroboration.           Adequate

corroboration for a confession may be provided by “‘appearing in court and making a

further solemn and unequivocal admission not only of [c]orpus delicti, but also of


                                            7
personal guilt.’” State v. Plagman, 265 Minn. 274, 276-77, 121 N.W.2d 621, 623 (1961)

(quoting McClain, 208 Minn. at 95, 292 N.W. at 754). Appellant pleaded guilty to

delivering approximately one gram of cocaine to the CI in exchange for $200 in Grand

Forks on February 25, 2009; this corroborated his statements that he had been selling

cocaine for about a year and had sold cocaine to the CI. He also pleaded guilty to

possessing, in Grand Forks on March 16, 2009, approximately 11 grams of cocaine that

he intended to deliver to others; this corroborated his statements that he sold cocaine to

others, and the drug paraphernalia and drug-related items found in appellant’s Grand

Forks residence provided additional corroboration.

       Appellant argues that the corroborating evidence here is merely “peripheral or

incidental details.” But the presence of the marked bills appellant received from selling

cocaine in the home of appellant’s cocaine supplier was more than peripheral to

appellant’s dealings in cocaine, and his guilty pleas to cocaine-related charges were more

than incidental to his statements about the events leading to the charges. Appellant also

argues that R.C. could have acquired the marked bills by selling appellant something

other than cocaine, but nothing in the record supports this argument.

       The direct evidence of appellant’s statements, together with the corroborating

evidence, when viewed in the light most favorable to the state, “would permit the jury to

reasonably conclude that the [s]tate has proven the fact in question beyond a reasonable

doubt, [and] the evidence is sufficient to sustain a conviction.” Hokanson, 821 N.W.2d at

353.




                                            8
2.     Double Jeopardy

       Appellant argues that constitutional and statutory double-jeopardy protections

prohibited his prosecution in Minnesota.            The interpretation of both constitutional

provisions and statutes is reviewed de novo. State v. Castillo-Alvarez, 836 N.W.2d 527,

533-34 (Minn. 2013).

       A.        Constitutional double-jeopardy protection

       “[T]he Supreme Court has interpreted the Double Jeopardy Clause of the United

States Constitution to allow successive state prosecutions when the defendant’s act

transgresses the laws of both states.” Id. at 534. This interpretation is based on the

principle that

                 two sovereigns, each deriving power from independent
                 sources, may both prosecute an offender for a crime arising
                 from the same conduct that violates the laws of each
                 sovereign. In other words, when a single act by an offender
                 transgresses the laws of two sovereigns, he or she has
                 committed two distinct criminal offenses.
                 ....
                 . . . [W]e construe Minn. Const. art I § 7 [the Double
                 Jeopardy clause] to allow successive state prosecutions when
                 the defendant’s act transgresses the laws of both states.

Id. at 535-36 (citations omitted). Because appellant’s acts transgressed the laws of both

ND and MN, the federal and state constitutional double-jeopardy clauses did not bar his

successive prosecutions in the two states.

       B.        Statutory double-jeopardy protection

                 If an act or omission in this state constitutes a crime under
                 both the laws of this state and the laws of another jurisdiction,
                 a conviction or acquittal of the crime in the other jurisdiction



                                                9
             shall not bar prosecution for the crime in this state unless the
             elements of both law and fact are identical.

Minn. Stat. § 609.045 (2012). Appellant’s ND convictions were for (1) delivery of

cocaine, specifically the delivery of one gram of cocaine to the CI in exchange for $200,

on February 25, 2009, and (2) possession of cocaine with intent to deliver or

manufacture, specifically the presence in his apartment of 11 grams of cocaine on

March 16, 2009. In MN, appellant was charged with (1) conspiracy from March 1, 2008,

to March 15, 2009; (2) controlled substance crime in the first degree—sale, from

March 1, 2008, to March 15, 2009; and (3) failure to affix a tax stamp from March 1,

2008, to March 15, 2009. The first and third MN charges are obviously not identical in

law or in fact to the crimes of which appellant was convicted in ND, and the ND

convictions therefore do not bar those charges. See State v. Aune, 363 N.W.2d 741

(Minn. 1985) (holding that federal conspiracy conviction did not bar state’s prosecution

on seven counts of transferring stolen property); see also State v. Heath, 685 N.W.2d 48,

61 (Minn. App. 2004) (in the context of methamphetamine, holding that “conspiracy to

manufacture” and “possession with intent to sell” were not part of the same behavioral

incident).

       While the MN charge of controlled-substance crime in the first degree—sale, from

March 1, 2008, to March 15, 2009, was less obviously different than the other MN

charges from the ND charges, it was not identical to them. The ND charges involved

selling cocaine on February 25, 2009, and possessing cocaine with intent to sell it on

March 16, 2009. The MN charge involved possessing at least ten grams of cocaine



                                           10
within a 90-day period between March 1, 2008, and March 15, 2009, and was based on

appellant’s March 2009 confession that he had been purchasing cocaine from R.C.

weekly or bi-weekly during the past year.             Thus, the double-jeopardy protection

requirement that “the elements of both law and fact are identical” is not met by

appellant’s MN and ND crimes. See Minn. Stat. § 609.045.

       Appellant argues that, because the MN complaint was not amended to change the

last day of the time period from March 15, 2009, to March 14, 2009, the MN jury could

have convicted him of the same crime to which he pleaded guilty in ND. But the jury

was instructed that, “[i]n determining whether the ten-gram threshold has been met for

this offense, you cannot consider . . . the quantities of cocaine at [appellant’s] residence

on or about March 16, 2009 . . . because [he] was already convicted for [that] offense[] .

. . in [ND] . . . .” Appellant’s trial attorneys did not object to this instruction.

       The state did not violate double jeopardy by prosecuting appellant.

3.     Vindictive Prosecution1

       Vindictive prosecution is presumed “when a defendant’s exercise of a procedural

right causes a complete retrial after he had been once tried and convicted.” Cuypers v.

State, 711 N.W.2d 100, 104 (Minn. 2006) (quotation omitted).                   But there is no

presumption of vindictiveness in a prosecutor’s initial decision to charge, and, “[i]n the


1
 We note that this issue is not properly before us both because it could have been, but
was not, raised before trial, see Minn. R. Crim. P. 10.01, subd. 2, and because it could
have been, but was not, raised to the district court, and this court generally does not
consider matters not argued to and considered by the district court. Roby v. State, 547
N.W.2d 354, 357 (Minn. 1996). We nevertheless address it in the interest of
completeness.

                                               11
area of pretrial prosecutorial decisions, . . . there is generally no presumption of

vindictiveness.” Id.

       Appellant argues that, when he refused to testify against R.C., he was “exercising

his procedural right” not to perjure himself, so the decision to charge him was vindictive

prosecution. See id. But appellant had agreed to testify against R.C. in exchange for the

state’s agreement not to charge him; having broken his agreement, he had no right to

enforce the state’s agreement. If appellant lied to the state when he said that R.C.

regularly supplied him with cocaine, the state’s agreement not to prosecute was based on

a lie, and appellant had no right to it. Appellant fails to show that the prosecution was

vindictive. 2

       Affirmed.




2
  Appellant submitted three additional issues in a pro se brief. Our review indicates that
none of these issues has merit. Appellant’s ineffective-assistance-of-counsel claim fails
because it is largely based on matters of trial strategy and this court does not review trial
strategy. See State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009). His claim that
evidence of his unpaid child-support obligation was erroneously admitted fails because
that evidence was relevant to appellant’s claimed need to sell drugs. Finally, his claim
that one juror might not have been impartial because that juror might have been related to
a woman whom appellant had dated fails because it was based on a posttrial conversation
that was not part of the record.


                                             12
