                           This opinion will be unpublished and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
                                      A16-0470

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                  Brandon Allen Linscheid,
                                        Appellant.

                                  Filed February 27, 2017
                                          Affirmed
                                       Stauber, Judge

                             Cottonwood County District Court
                                  File No. 17-CR-15-341

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Nicholas Anderson, Cottonwood County Attorney, Windom, Minnesota (for respondent)

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

         Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Stauber,

Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

         Appellant seeks reversal of his two controlled-substance convictions, arguing that:

(1) the evidence was insufficient to show that he conspired with another to sell
methamphetamine for purposes of proving his conviction of second-degree controlled-

substance crime (sale) and (2) the testimony of a confidential informant could not be used

as corroborating evidence to support either the second-degree conviction or a separate

third-degree controlled-substance conviction because the confidential informant was

purportedly an accomplice in those crimes. We affirm.

                                         FACTS

       Following a two-day trial, a jury convicted appellant Brandon Allen Linscheid of

two controlled-substance offenses: second-degree controlled-substance crime (sale), and

third-degree controlled-substance crime (sale). Both offenses occurred in May 2015 and

involved two controlled buys that were facilitated by a confidential informant, S.B. In

May 2015, S.B. was a high-school-aged methamphetamine addict who had agreed to

become an informant while he was serving jail time on a probation violation for a

separate controlled-substance offense. S.B. was a friend and schoolmate of 18-year-old

A.M., and A.M. was 31-year-old appellant’s girlfriend. S.B. and A.M. testified for the

state at trial and established the circumstances surrounding the two controlled buys that

involved appellant.

I.     S.B.’s testimony.

       S.B. testified that, in May 2015, appellant was living with A.M. and her mother in

an apartment complex. On May 6, S.B. went to A.M.’s apartment to hang out. While

A.M. was not in the room, S.B. asked appellant if he could “buy some meth off of him,”

specifically, a “teener,” which is 1.7 grams of methamphetamine. According to S.B.,

appellant said, “Yeah, I know where to get some,” and they discussed “prices, amounts,


                                             2
[and] things of that nature,” and appellant told S.B. that he could “get [in] contact [with]

him by just stopping by or talking to [A.M.].” After properly setting up the buy with law

enforcement and receiving $100 in a marked bill, S.B. contacted A.M., was dropped off

near A.M.’s car (in which appellant was a passenger), gave appellant and A.M. the $100,

and was told that it would take them about 45 minutes to obtain the methamphetamine

from Worthington.

       During school the next day, A.M. and S.B. agreed to transfer the

methamphetamine after school. S.B. went to A.M.’s apartment after school, and while

appellant was in the background, A.M. handed him a baggie of methamphetamine, which

completed the first transaction.

       Next, according to S.B., on May 27, 2015, S.B. asked A.M. if he could buy an

“eight-ball,” or 3.5 grams of methamphetamine, and she initially “said she had somebody

that could get it” but then later “said that that person couldn’t get it and she was gonna

ask [appellant] for it after he got off work.”1 Later that day, S.B. gave A.M. $350 in

marked bills that he had received from law enforcement, and A.M. told S.B. that she

would contact him when appellant got off work. Later, S.B. stopped at a shop at the

Windom Apartments where A.M. and appellant were “sitting around smoking”

methamphetamine and asked appellant about the “ball [he] was supposed to get.”

Appellant told him that the sale was “all messed up,” but that he would get the

methamphetamine “even if [he had] to do it in little bits at a time.” S.B. secretly took


1
  During S.B.’s testimony, the district court admitted evidence of texts pertaining to this
transaction from A.M.’s and S.B.’s phones.

                                              3
some photos of the shop with his phone. On the 27th, S.B. did not receive any

methamphetamine from A.M. or appellant, but he smoked methamphetamine with them,

even though he was forbidden to do so as a confidential informant. He explained that he

did so to discourage them from suspecting that he was “a snitch or a CI or something.”

S.B. never received the eight-ball from appellant.

II.    A.M.’s testimony.

       A.M. testified that she was a methamphetamine addict who was testifying in

accordance with the terms of her plea agreement for a third-degree controlled-substance

(sales) conviction for the May 7, 2015 transaction with S.B. A.M. further testified that

she and S.B. were friends and that she had begun dating appellant in October of 2014.

She also testified that when appellant moved into her home, he brought a small scale.

       As to the May 6-7 drug sale, A.M. testified that, before the sale, appellant had

agreed to sell methamphetamine to S.B. and had received a marked $100 from S.B. to

complete the sale. The methamphetamine for S.B. came from appellant, who instructed

her to “give it to [S.B.] when he came to the door.” She also testified that the

methamphetamine they sold to S.B. as weighing 1.7 grams actually weighed only one

gram because she and appellant had used some of it earlier that day.

       As to the May 27 transaction, A.M. testified that appellant told her to get $350

from S.B. for an eight-ball. Because “wanting that much was kind of suspicious,” A.M.

and appellant agreed “that we were gonna just keep the money and not get him any

drugs.” S.B. came to A.M.’s home to give her the money on the 27th, and she gave the

money to appellant. According to A.M., appellant told S.B. that “it would take a couple


                                             4
times to get it right with the ball,” but he never told S.B. that he was not going to

complete the sale. A few days later, on May 31, 2015, A.M. and appellant met S.B. in

the shop area of her apartment building, and she verified that photos S.B. took at that

time were of appellant’s hands, among other things. She further testified that after she

pleaded guilty subject to a plea agreement, she entered an in-patient treatment program,

but was later dismissed when she twice had prohibited phone contact with appellant. She

testified that appellant instructed her to testify at trial that he had no part in selling drugs

to S.B., and that she had made the sales “because [S.B.] was [her] friend.”

       On cross-examination, A.M. admitted that there were discrepancies in her

testimony and previous statements about whether appellant or she took the $100 from

S.B. for the first sale. She also admitted that on May 31, she heard screaming and yelling

as she came out of her apartment and saw that S.B. “had a baseball bat,” and he and

another man were threatening appellant. She told them to leave, and they did.

       On this evidence, the jury convicted appellant of both offenses. At sentencing, the

district court vacated the third-degree conviction and imposed a 78-month executed

sentence on the remaining offense. This appeal followed.

                                       DECISION

I.     Sufficiency of evidence.

       Appellant argues that the evidence was insufficient to prove that he was a party to

a conspiracy to sell methamphetamine to S.B. for purposes of convicting him of the

second-degree offense. Generally, “[w]hen reviewing sufficiency of evidence, [an

appellate court] inquire[s] whether, given the facts in the record and any legitimate


                                                5
inferences that can be drawn from those facts, a jury could reasonably find that the

defendant was guilty of the charged offense.” State v. Young, 710 N.W.2d 272, 278

(Minn. 2006) (quotation omitted). In making this inquiry, the appellate court “view[s]

the evidence in the light most favorable to the verdict.” Id. When a conviction depends

on circumstantial evidence, the reviewing court applies the following two-step analysis:

              The first step is to identify the circumstances proved. In
              identifying the circumstances proved, we defer 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. . . .
                      The second step is to determine whether the
              circumstances proved are consistent with guilt and inconsistent
              with any rational hypothesis except that of guilt. We review
              the circumstantial evidence not as isolated facts, but as a whole.
              We examine independently the reasonableness of all inferences
              that might be drawn from the circumstances proved; including
              the inferences consistent with a hypothesis other than guilt.
              Under this second step, we must determine whether the
              circumstances proved are consistent with guilt and inconsistent
              with any rational hypotheses except that of guilt, not simply
              whether the inferences that point to guilt are reasonable. We
              give no deference to the fact finder’s choice between
              reasonable inferences.

State v. Silvernail, 831 N.W.2d 594, 598-99 (Minn. 2013) (quotations and citations

omitted); see State v. Robertson, 884 N.W.2d 864, 871 (Minn. 2016) (reiterating and

applying two-step test).

       Second-degree controlled-substance crime is defined as “on one or more occasions

within a 90-day period the person unlawfully sells one or more mixtures of a total weight

of three grams or more containing . . . methamphetamine.” Minn. Stat. § 152.022, subd.

1(1) (2014). Appellant could be convicted of this crime if he “conspire[d] with another to



                                              6
commit a crime and in furtherance of the conspiracy one or more of the parties [did]

some overt act in furtherance of such conspiracy.” Minn. Stat. § 609.175, subd. 2 (2014).

With regard to the various actions taken by co-conspirators,

              Everything said, written, or done by a conspirator in the
              execution or furtherance of the common purpose to commit a
              crime is deemed to be the act of every party to the conspiracy
              . . . and is admissible as evidence against each of them. The
              combination need not be established by direct proof.

State v. Jenkins, 411 N.W.2d 504, 508 (Minn. App. 1987) (quotation omitted).

       Appellant argues that there is insufficient evidence to establish that he and A.M.

“entered into an agreement . . . to sell methamphetamine to S.B.” He asserts that the

evidence of a conspiracy is lacking because it does not establish that they ever intended

or agreed to commit a drug crime—the evidence shows only that they intended to keep

S.B.’s $350. “[B]oth knowledge of an agreement and evidence of intent to commit the

crime or act that is the object of the conspiracy” must be shown. State v. Kuhnau, 622

N.W.2d 552, 556 (Minn. 2001); see State v. Burns, 215 Minn. 182, 186, 9 N.W.2d 518,

520 (1943) (requiring “common object” of conspiracy to commit the criminal offense that

is the “object” of the conspiracy); see also State v. Hatfield, 639 N.W.2d 372, 376 (Minn.

2002) (stating that agreement to conspire “must be shown by evidence that objectively

indicates an agreement”).

       The state produced no direct evidence to establish that A.M. and appellant

intended to procure three or more grams of methamphetamine to sell to S.B. Their only

testimony on that point was that they had decided not to sell an eight-ball to S.B. But

although “mere association with a person engaged in illegal activity does not make a


                                             7
person a conspirator,” an agreement to engage in a conspiracy may be inferred. State v.

Pinkerton, 628 N.W.2d 159, 163-64 (Minn. App. 2001), review denied (Minn. July 24,

2001); see Burns, 215 Minn. at 189, 9 N.W.2d at 522 (allowing conspiracy to be inferred

from the circumstances, such as when “several persons commit separate acts which form

parts of a connected whole”).

       The state proved the following: (1) appellant brought a scale when he moved into

A.M.’s home; (2) within the same month, appellant and A.M. cooperated in selling one

gram of methamphetamine to S.B.; (3) A.M. next agreed to sell S.B. an eight-ball;

(4) A.M. could not arrange for the sale through other providers; (5) A.M. approached

appellant about selling an eight-ball to S.B.; (6) A.M. told S.B. that she and appellant

agreed to sell S.B. an eight-ball; (7) S.B. gave A.M. $350; (8) when S.B. did not receive

the eight-ball, he inquired of appellant and A.M., and was told by appellant that he would

receive the total amount agreed to, but in smaller increments. These actions are sufficient

to circumstantially prove that appellant and A.M. conspired to sell S.B. three grams or

more of methamphetamine.

       The pivotal evidence in determining the sufficiency of evidence of the conspiracy

is the weight to be given to appellant’s and A.M.’s testimony that they had agreed to keep

S.B.’s money but not complete the sale. Although it would be sufficient to establish a

conspiracy to steal money from S.B., this testimony, if credited fully, could have created

reasonable doubt that appellant and A.M. conspired to commit a controlled-substance

offense. But consistent with Silvernail, this court must defer to the jury’s rejection of

evidence that conflicted with the circumstances proved by the state. 831 N.W.2d at 599.


                                              8
Given the jury’s verdict that appellant and A.M. conspired to commit a second-degree

controlled-substance crime, the jury necessarily rejected appellant’s and A.M.’s

testimony that they did not intend to sell the eight-ball of methamphetamine to S.B. For

this reason, appellant’s argument fails under the first step of Silvernail.

       Further, in order to reverse a conviction based on circumstantial evidence, the

reviewing court must consider “whether the reasonable inferences that can be drawn from

the circumstances proved support a rational hypothesis other than guilt.” State v. Stein,

776 N.W.2d 709, 714 (Minn. 2010); Silvernail, 831 N.W.2d at 599. Under the second

Silvernail step, while it is theoretically possible for a jury to have believed A.M.’s and

appellant’s testimony that they did not intend to complete the sale, it would have been

unreasonable to do so. S.B. and A.M. were friends who lived in a small town, and the

parties had engaged in a drug transaction earlier that month. It is also unreasonable to

infer that S.B. would have acquiesced to paying $350 and receiving nothing. See State v.

Scanlon, 719 N.W.2d 674, 688 (Minn. 2006) (affirming conviction on circumstantial

evidence, and rejecting possible “scenarios [that] stretch the concept of ‘rational

hypothesis’ to absurd limits”); c.f. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989)

(stating that the jury is best able to weigh conflicting evidence).

       Applying Silvernail, we conclude that the jury did not credit appellant’s or A.M.’s

testimony that they did not intend to sell an eight-ball of methamphetamine to S.B., and

that the evidence credited by the jury could only rationally lead to an inference of guilt.

The circumstantial evidence is therefore sufficient to sustain appellant’s conviction of

conspiracy to commit second-degree controlled-substance crime.


                                              9
II.    S.B. an Accomplice.

       Appellant also argues that S.B. was an accomplice to his crimes because he

deviated from police protocols by ingesting methamphetamine while he was acting as a

confidential informant and by threatening appellant with a baseball bat after he did not

receive the methamphetamine promised in the drug transaction.

       “A conviction cannot be had upon the testimony of an accomplice, unless it is

corroborated by such other evidence as tends to convict the defendant of the commission

of the offense.” Minn. Stat. § 634.04 (2014). “Our case law defines an accomplice as

one who has been or who could be convicted of the same offense with which the

defendant has been charged.” State v. Houle, 257 N.W.2d 320, 324 (Minn. 1977).

       The jury had the duty to weigh to S.B.’s credibility as a witness, including

considering whether his conduct of ingesting methamphetamine while he was a

confidential informant and threatening appellant with a baseball bat made his testimony

not credible. See Pinkerton, 628 N.W.2d at 162 (“[I]t is the function of a jury to weigh

the credibility of witnesses.”). Although S.B. admittedly ingested methamphetamine

with A.M. and appellant on one occasion in May 2015, this conduct did not make him an

accomplice to the offenses of selling methamphetamine or conspiring to sell

methamphetamine. See State v. Swyningan, 304 Minn. 552, 556, 229 N.W.2d 29, 32

(1975) (stating that “one who receives heroin cannot be an accomplice of a person

charged with distributing heroin”); see also Pinkerton, 628 N.W.2d at 163 (stating that

“an agreement solely between a seller and a buyer of controlled substances cannot

constitute a conspiracy”). Further, S.B.’s conduct of threatening appellant with a baseball


                                            10
bat did not make him an accomplice to appellant’s crimes: that conduct was in direct

opposition to appellant’s criminal interests. Because S.B. was not an accomplice to

appellant’s crimes, his testimony could be used to corroborate A.M.’s testimony.

      Affirmed.




                                           11
