                          This opinion will be unpublished and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
                                     A14-1164

                                   State of Minnesota,
                                       Respondent,

                                            vs.

                               Alfonso Domingo Martinez,
                                       Appellant.

                                    Filed May 4, 2015
                                        Affirmed
                                     Hudson, Judge

                              Dakota County District Court
                              File No. 19HA-CR-13-3346


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

James Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Charles F. Clippert, St. Paul, Minnesota (for appellant)

       Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and

Bjorkman, Judge.
                          UNPUBLISHED OPINION

HUDSON, Judge

      Appellant challenges the sufficiency of the evidence to support his convictions of

conspiracy to distribute a controlled substance and aiding and abetting the sale of a

controlled substance. Because the circumstantial evidence is sufficient to support the

convictions, we affirm.

                                         FACTS

      After a bench trial, the district court found appellant Alfonso Domingo Martinez

guilty of one count of conspiracy to commit first-degree controlled substance crime, sale,

and one count of aiding and abetting first-degree controlled substance crime, possession.

      At trial, an agent with the Minnesota Bureau of Criminal Apprehension (BCA)

testified that he received information about a potential sale of methamphetamine and

acted as an undercover agent, calling an identified cell-phone number to arrange a

purchase. He spoke to J. M.-V., who instructed him to go to a specified intersection on

Fremont Avenue North and call that number again. The agent proceeded to that location

and made the phone call; the same person answered. Two men, G. C.-G. and J. M.-V.,

exited a residence at the intersection and entered the agent’s vehicle. The agent paid J.

M.-V. $800 for one ounce of methamphetamine and negotiated a purchase of four pounds

of methamphetamine the next day, discussing the use of code words about purchasing a

car. That evening, the agent called J. M.-V. again and stated that he would buy four

“cars.” The next morning, on a Drug Enforcement Agency cell phone, the agent traded




                                            2
text messages with J. M.-V. relating to purchasing “cars.” He then initiated a recorded

phone call with J. M.-V. and arranged to meet him at a McDonald’s in Lakeville.

       Another BCA agent testified that, the next day, he set up surveillance of the

Fremont Avenue residence and observed a Jaguar and a white van drive up within a

minute of each other. The Jaguar pulled ahead to make room for the van, and men exited

both vehicles. Those men, who included Martinez, shook hands with two other men who

appeared to have come from the residence. They all stood talking on the curbside for

several minutes, with one man gesturing as if giving directions. A few minutes later, two

men entered each vehicle and drove away.

       A Hennepin County deputy conducted surveillance on the moving vehicles. She

followed them as they drove south on 35W in tandem, maintaining no more than a car

length apart, with the van in the lead. The deputy continued the surveillance until a state

trooper pulled the Jaguar over in a prearranged stop.

       The trooper conducting that stop spoke to the driver, Martinez, and asked whether

he was traveling with the van because he was following so closely. Martinez stated that

he was waiting for an opportunity to pass and produced a valid driver’s license and car

registration and an outdated insurance card. The trooper testified that Martinez “seemed

really on edge” and “blurted out” without being asked that they were going to Mystic

Lake Casino. The trooper had Martinez sit in the squad car and verified that he had valid

insurance.   The trooper asked with whom Martinez was traveling, and Martinez

responded, “Juan,” but could not provide Juan’s last name. When the trooper asked

where Juan was from, Martinez stated that he thought he was from Chicago. They


                                             3
returned to the Jaguar, and the passenger, J. M.-V., produced a Mexican identification

card and said that he was from Mexico. The trooper then gave Martinez a warning for

following too closely and asked permission to search the Jaguar.

       By that time, another state trooper had arrived and conducted a canine search,

which revealed a .40-caliber loaded handgun under the Jaguar’s passenger seat and a

white powder, identified as a cutting agent for narcotics, in a sealed plastic bag behind

the rear passenger seat. Martinez acknowledged responsibility for the contents of the

Jaguar.

       The second state trooper noticed that the Jaguar appeared to be traveling with the

van and was following it at an unsafe distance. He observed the stop of the Jaguar and

then stopped the van, identifying its occupants as G. C.-G., the passenger, and O.S., the

driver. Both appeared nervous, and O.S. stated that he did not believe that there was

insurance on the van, but he did not know for sure. G. C.-G. stated that they were going

to a roofing job and that the driver’s first name was Octavio, but he did not know his last

name. The trooper issued a citation for no insurance and obtained permission to search

the van. A canine alerted to the possible presence of drugs, and the men were detained.

O.S. had on his person about $2,900 in cash, a round of ammunition for a .40 caliber

handgun, and a small amount of suspected marijuana. The search of the van recovered

suspected methamphetamine packaged in clear plastic bags in the rear cargo area. The

substance in one of the bags tested positive for 444 grams of methamphetamine.

       In a post-arrest interview, Martinez told police that “Juan” had called him and said

that he needed a ride to pick up some money, that Martinez had showed up alone at the


                                            4
Fremont Avenue address, and that he was not following or driving in tandem with

another vehicle. He said nothing about going to a casino and stated that he did not see

the van after leaving Minneapolis.

      J. M.-V. testified that he had pleaded guilty to, and was convicted of, first-degree

controlled substance crime a few weeks before Martinez’s trial, but that he “[didn’t]

know anything.” Although advised of a possible prosecution for perjury, he declined to

answer questions, and the district court found him in contempt of court. The district

court found Martinez guilty of both counts and sentenced him to 120 months on the

conspiracy offense. This appeal follows.

                                     DECISION

                                            I

      Martinez argues that the circumstantial evidence is insufficient to convict him of

conspiracy to commit first-degree controlled-substance crime. Our review on a claim of

insufficient evidence is limited to a painstaking analysis of the record to determine

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

sufficient to permit the fact-finder to reach its verdict. State v. Webb, 440 N.W.2d 426,

430 (Minn. 1989). We must assume that “the [fact-finder] believed the state’s witnesses

and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108

(Minn. 1989). This court will not disturb a verdict if the fact-finder, 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). When reviewing


                                           5
the sufficiency of the evidence, we apply the same standard to bench and jury trials. In re

Welfare of M.E.M., 674 N.W.2d 208, 215 (Minn. App. 2004).

       In reviewing a conviction based on circumstantial evidence, we apply a two-step

analysis. State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011). First, we “identify the

circumstances proved,” deferring to the fact-finder’s acceptance of proof of those

circumstances and rejection of evidence that conflicted with those circumstances. State v.

Silvernail, 831 N.W.2d 594, 598–99 (Minn. 2013). “We recognize that the trier of fact is

in the best position to determine credibility and weigh the evidence.” State v. Al-Naseer,

788 N.W.2d 469, 473 (Minn. 2010). In the second step, we “examine independently the

reasonableness of all inferences that might be drawn from the circumstances proved” to

“determine whether the circumstances proved are consistent with guilt and inconsistent

with any rational hypothesis except that of guilt.”      Silvernail, 831 N.W.2d at 599

(quotations omitted). We do not defer to the fact-finder’s choice between reasonable

inferences. Id. “Circumstantial evidence must form a complete chain that, as a whole,

leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any

reasonable inference other than guilt.” Hanson, 800 N.W.2d at 622 (quotation omitted).

       A person is guilty of engaging in a conspiracy if that person “conspires with

another to commit a crime and in furtherance of the conspiracy one or more of the parties

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

(2012).   “The elements of the underlying crime need not be proven to establish

conspiracy since the crime itself need not be proven to prove conspiracy.” State v. Tracy,

667 N.W.2d 141, 146 (Minn. App. 2003). But “both knowledge of an agreement and


                                            6
evidence of intent to commit the crime or act that is the object of the conspiracy” are

required. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). As long as the evidence

objectively shows an agreement to commit a crime, the state need not prove the existence

of a formal agreement. State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). And direct

evidence of a conspiracy is not required if a conspiracy may be inferred from the

circumstances. Id. If “several persons commit separate acts which form parts of a

connected whole, an inference of conspiracy—that there was concert in both planning

and execution—is permissible.” State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 522

(1943).

      Martinez argues that the evidence did not “form a complete chain” leading only to

his guilt because the record did not contain evidence connecting him to an agreement to

distribute controlled substances. Specifically, he points out that none of his possessions

was found at the Fremont Avenue residence, he was seen only briefly greeting the other

men outside that residence, no text messages or emails link him to those men, and no

DNA or fingerprint evidence connected him with a conspiracy.

      But a defendant must demonstrate more than mere conjecture to overturn a

conviction based on circumstantial evidence. State v. Lahue, 585 N.W.2d 785, 789

(Minn. 1998). The state proved the following circumstances: (1) Martinez arrived at the

location of a previous day’s drug purchase; (2) he greeted several men there and appeared

to receive directions; (3) he drove a Jaguar with one of the men, in tandem with a van

containing the other men, along the route to a planned drug purchase; (4) police

recovered a large quantity of drugs from the van; and (5) he acknowledged responsibility


                                            7
for the Jaguar’s contents, which included a loaded handgun and a substance frequently

used as a cutting agent for drugs. These circumstances proved are not consistent with a

reasonable hypothesis that he did not know of an agreement to commit the crime of

selling illegal drugs and did not have a common purpose, along with the other men, to

commit that crime. See Burns, 215 Minn. at 189, 9 N.W.2d at 521 (requiring a “common

purpose” to commit the crime at the heart of the conspiracy and that “each of them

understood that the others had that purpose”).         Therefore, we conclude that the

circumstantial evidence is sufficient to sustain Martinez’s conviction of conspiracy to

commit first-degree controlled-substance crime.

                                             II

       Martinez challenges the sufficiency of the evidence to sustain his conviction of

aiding and abetting first-degree controlled-substance crime. A person is guilty of aiding

and abetting the crimes of another if that 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 satisfy the intent element of aiding and abetting an offense, the state must

prove the defendant “had knowledge of the crime and intended his presence or actions to

further the commission of that crime.” State v. Hawes, 801 N.W.2d 659, 668 (Minn.

2011) (quotation omitted). Passive acquiescence, inaction, or a mere presence at the

scene of a crime does not rise to the level of criminal culpability, but the state need not

prove that the defendant actively participated in the overt act constituting the substantive

offense. State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995). A fact-finder may infer


                                             8
the requisite intent from a variety of facts, including the defendant’s presence at the scene

of the crime, a close association with the principal offender before and after the crime, a

lack of objection or surprise under the circumstances, and flight with the principal

offender from the scene of the crime. Hawes, 801 N.W.2d at 668.

       Martinez argues that the state has failed to prove that he knew that he was driving

J. M.-V. to a drug transaction. He points out that his mere nervousness when his vehicle

was stopped is insufficient to establish aiding-and-abetting liability.        See State v.

Burbach, 706 N.W.2d 484, 490 (Minn. 2005) (noting that nervous behavior alone did not

support a reasonable articulable suspicion of criminal activity). But the district court

considered additional facts establishing Martinez’s close association in time and place

with the other men when they were transporting a large quantity of drugs to an arranged

drug transaction. Further, the district court found that Martinez’s assertion that he did not

know the purpose of the trip was incredible, based on the inconsistent evidence of his

position following the van and his statement that he did not see the van after leaving

Minneapolis, as well as the inconsistency of his statement to the trooper—that he was

going to the casino—with his later statement to police—that he was taking his passenger

to pick up money, with no reference to a casino. See Silvernail, 831 N.W.2d at 599

(stating that even in cases involving circumstantial evidence, the fact-finder is in the best

position to evaluate the credibility of the evidence). Based on the circumstances proved,

Martinez cannot show the existence of an alternative rational hypothesis that he was

unaware of the crime and did not intend his presence or actions to further its commission.




                                             9
See Hawes, 801 N.W.2d at 668. The evidence is sufficient to sustain his conviction of

aiding-and-abetting first-degree controlled-substance crime.

      Affirmed.




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