                          This opinion will be unpublished and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
                                     A15-1457

                            James William Graham, petitioner,
                                       Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                                  Filed March 21, 2016
                                        Affirmed
                                      Jesson, Judge

                               Stearns County District Court
                                 File No. 73-CR-12-7497

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

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

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)

         Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Jesson,

Judge.

                         UNPUBLISHED OPINION

JESSON, Judge

         In this appeal from denial of postconviction relief, appellant argues that the

evidence was insufficient to convict him of second-degree controlled-substance crime
because the only evidence of his participation in a controlled buy was the uncorroborated

testimony of the paid informant. Because, under Minnesota law, the testimony of an

informant who is not an accomplice need not be corroborated, and because the record is

sufficient to establish appellant’s guilt beyond a reasonable doubt, we affirm.

                                             FACTS

       In January 2012, a paid confidential informant, C.W., participated in a controlled

buy of methamphetamine arranged by St. Cloud police.                 C.W. had a prior felony

conviction for wrongfully obtaining public assistance and, at the time of the controlled

buy, was a user of methamphetamine. Police considered her a reliable informant.

       In a phone call recorded by police, C.W. called a contact and arranged to meet at

an apartment building in Sartell to purchase one gram of methamphetamine for $110.

The investigator followed standard controlled-buy procedures, including supplying C.W.

with photocopied currency. He requested surveillance, hooked up a video device in an

unmarked law-enforcement car, provided C.W. with an audio recording device, and

followed her to the buy location.

       The investigator testified that on the way, C.W. called to tell him that she had

learned that another person, appellant James William Graham, would also be in the

building. C.W. tried to get someone to come outside to make the deal, but she was

unsuccessful, and someone directed her inside, where she met Graham. The investigator

saw her enter the apartment building, and another officer saw her leave the building. The

investigator   then   met   her     at   a   different   location,   where   she   surrendered

methamphetamine.


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       The state charged Graham with second-degree controlled-substance crime. At

Graham’s jury trial, C.W. identified him in court as the person who sold her drugs that

day. She testified that when she arrived at the buy location, Graham, whom she knew

slightly, was there with two other people. She testified that Graham had given her

directions to the apartment and she met him outside the building in the back. They went

inside, she put the money on a bed, he handed her a bag containing methamphetamine,

and she left. After the sale, C.W. identified Graham in a photo lineup and told police that

she was “100% sure” that he was the person who sold her drugs.

       C.W. also testified that a photo exhibit appeared to show the cash she was given.

She testified that she did not look at the serial numbers on the cash, but she had no reason

to believe it was not the money that she was given. She also identified the plastic bag

containing drugs, which she gave to the investigator after the controlled buy, although

she could not be completely sure that it was the same plastic bag. She further identified

Graham’s voice on an audio recording of the buy, which was played for the jury.

       Graham presented no witnesses and elected not to testify. The jury found him

guilty, and the district court imposed a presumptive 75-month sentence. In May 2015,

Graham filed a petition for postconviction relief, arguing that C.W.’s uncorroborated

testimony was insufficient to establish proof beyond a reasonable doubt that he

participated in the controlled buy. The district court issued an order denying the petition

without an evidentiary hearing, finding that direct evidence of the informant’s testimony

and circumstantial evidence of the police procedures used in the controlled buy, along




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with evidence of the audio from the buy heard by the jury, was sufficient to convict

Graham. This appeal follows.

                                     DECISION

       Graham argues that the postconviction court abused its discretion by denying his

petition for relief because the evidence is insufficient to support his conviction. This

court reviews a postconviction court’s decision on issues of law de novo, but reviews its

factual findings for clear error and to determine whether sufficient evidence exists to

support those findings. Pippitt v. State, 737 N.W.2d 221, 226 (Minn. 2007). We will not

reverse the postconviction court’s decision absent an abuse of discretion.         Id.   “A

postconviction court abuses its discretion when its decision is based on an erroneous view

of the law or is against logic and the facts in the record.” Riley v. State, 819 N.W.2d 162,

167 (Minn. 2012) (quotation omitted). Graham has the burden of showing that he is

entitled to relief. Pippitt, 737 N.W.2d at 226.

       When considering an insufficient-evidence claim, a reviewing court undertakes “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 will 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. Bernhardt v. State, 684 N.W.2d 465, 476–

77 (Minn. 2004).




                                             4
      Graham argues that the only evidence identifying him as a participant in the drug

transaction was the uncorroborated testimony of C.W., who, he argues, is inherently

unreliable because she was a paid informant. But the jury may choose to believe the

testimony of witnesses who receive legal and economic compensation for their

cooperation. See State v. Triplett, 435 N.W.2d 38, 44-45 (Minn. 1989) (holding that the

jury could have relied on the testimony of a witness although the witness used drugs, lied

to police, and forged checks). And Minnesota law does not require corroboration of a

police informant’s testimony unless the informant is also an accomplice. State v. Hadgu,

681 N.W.2d 30, 34 (Minn. App. 2004), review denied (Minn. Sept. 21, 2004). Although

a defendant may not be convicted solely on the uncorroborated testimony of an

accomplice, Minn. Stat. § 634.04 (2010), a person who receives illegal drugs cannot be

an accomplice of a person charged with selling the drugs because those offenses are

separate and distinct. State v. Swyningan, 304 Minn. 552, 555-56, 229 N.W.2d 29, 32

(1975). Because C.W. only received the methamphetamine and did not aid in distributing

it, she was not an accomplice to Graham’s offense, and corroboration of her testimony is

not required. See Hadgu, 681 N.W.2d at 34.

      In an individual case, even if corroboration is not required by statute, the absence

of corroboration may call for a holding that the evidence is insufficient to support a

conviction. State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977). Graham argues that the

state’s additional evidence did not corroborate C.W.’s identification of him as the person

who sold her the drugs. He maintains that evidence of police procedures goes only to




                                            5
whether a drug deal occurred, not the seller’s identity, and that the jury could not have

identified Graham’s voice on the audiotape because he did not testify at trial.

       We agree that this evidence does not necessarily corroborate Graham’s

participation in the controlled buy. But a conviction may rest on the uncorroborated

testimony of a single credible witness. State v. Foreman, 680 N.W.2d 536, 539 (Minn.

2004). C.W., who was acquainted with Graham before the controlled buy, testified that,

when she viewed a photo lineup, she was “100% sure” that he was the person who sold

her drugs. A police officer confirmed that C.W. positively identified Graham from the

photo lineup.    C.W. also identified Graham in court as the person who sold her

methamphetamine.

       Graham argues that C.W.’s testimony was “significantly undermined” when she

admitted on cross-examination that she did not recognize the bills that were used in the

controlled buy and could not independently identify the plastic bag containing the

methamphetamine. But it is not unreasonable that she would not have noted the serial

numbers on the bills or the exact dimensions of the bag, given that the police found no

money on her person in a post-buy search, and she testified that she gave the bag to

police immediately after the buy.

       Graham also points out that, although C.W. testified that he “met [her] outside in

the back” of the building, police surveillance did not show that anyone had exited the

residence before her or entered the building with her. But “[a] jury, as the sole judge of

credibility, is free to accept part and reject part of a witness’ testimony.”     State v.

Poganski, 257 N.W.2d 578, 581 (Minn. 1977). The jury was free to reject the portion of


                                             6
C.W.’s testimony about Graham meeting her outside and still credit her testimony that he

was present when the drugs and money changed hands.

       “The weight and credibility of individual witnesses is for the jury to determine,”

and an appellate court cannot retry the facts. State v. Bliss, 457 N.W.2d 385, 390-91

(Minn. 1990). After a careful review of the record, we conclude that the evidence is

sufficient to sustain the postconviction court’s decision to deny Graham’s petition.

       Affirmed.




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