                        This opinion will be unpublished and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
                                   A14-1050

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                               Ricky Marcel Roberson,
                                     Appellant.

                                 Filed July 27, 2015
                                      Affirmed
                                  Peterson, Judge

                            Olmsted County District Court
                              File No. 55-CR-13-1235

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget K. Sabo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Peterson, Presiding Judge; Johnson, Judge; and Minge,

Judge.*




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                          UNPUBLISHED OPINION

PETERSON, Judge

       In this appeal from convictions of second- and third-degree controlled-substance

crime, appellant argues that the evidence was insufficient to prove that he was

predisposed to sell drugs to a police informant. We affirm.

                                         FACTS

       Appellant Ricky Marcel Roberson was charged with second- and third-degree

controlled-substance crime (sale) after he sold cocaine to police informant W.R. during

controlled buys on November 7 and December 5, 2012. Appellant had never previously

been charged with a controlled-substance sale crime. Appellant raised an entrapment

defense, waived his right to a jury trial on the defense, and presented the defense to the

district court for decision.

       At the hearing on the defense, appellant testified that he had known W.R. for more

than four years and that they had had an on-again-off-again sexual relationship.

Appellant denied ever selling or providing drugs to anyone other than W.R. But he

admitted that he and W.R. had used cocaine together.

       On cross examination and re-cross examination, appellant testified:

               Q. What’d you mean when you said that you were going to
               give her some of our product?
               A. The stuff we smoked and shared with each other before we
               had intercourse, if we had intercourse for that night. That’s
               what I mean –
               Q. So our is you and her?
               A. Yeah. Like I buy it and it’s ours. We’re sharing it. We’re
               using it.



                                            2
             Q. So if it was already hers, why is she paying you back for
             it?
             A. Because I had bought it so we can enjoy a good night
             together, that’s why it was ours and that’s what I meant when
             I said that.
             ...
             Q. So what does our product mean to you? Just something
             that you were going to share with [W.R.]?
             A. Yeah.
             Q. That supposedly was hers also.
             A. It wasn’t hers to go and do whatever she was asking me
             she could go do with it, it was for me and her to enjoy a good
             night together. It was ours –
             Q. But if you’re paying 90 –
             A. – because I’m sharing.
             Q. If you’re paying 90 to a hundred bucks a gram for this
             stuff and she’s saying, hey, I can get like 50 bucks or more on
             a $20 amount, that’s a money making venture for you; right?
             A. No, because I was okay anyway. I didn’t think like that. I
             didn’t really care for that, I was just trying to get some pussy.
             Excuse my language.
             ...
             Q. And when I asked you what you meant by our product,
             that’s what you were talking about; is that right?
             A. Yes. Stuff I’d get that we’d share.
             Q. Right. You got it. You bought it. She didn’t – It wasn't
             hers, but you shared with her; right?
             A. Um hmm.
             Q. Is that a yes?
             A. Yes.
             ...
             Q. And that was what you called our product, which was
             really yours.
             A. I use our product to indicate that I was sharing it with her
             and it was ours because I didn’t mind sharing it with her. So
             she – I wasn’t telling her she couldn’t smoke this or couldn’t
             smoke that. It was like we was just back and forth, so it was
             ours to share.

      Appellant testified that sometime before the November 7 controlled buy, W.R.

told him that she needed money to avoid eviction and asked for his help. W.R., who had



                                            3
two young children, showed appellant an eviction notice and said that she would be

evicted in one or two weeks. When appellant told W.R. that he could not afford to lend

her money, W.R. asked appellant to get her crack cocaine and said that she had an

available buyer and could make the money needed to pay her bills by selling the cocaine

to the buyer. Appellant initially refused, but during the next three or four days, W.R.

repeatedly asked him to get her cocaine.

       The district court found that appellant’s testimony about W.R. playing on his

sympathies by claiming that she was under financial pressure and facing imminent

eviction and that she could make a substantial profit by reselling the cocaine was

plausible and unrebutted.     Based on this testimony, the district court assumed for

purposes of analysis that appellant proved by a fair preponderance of the evidence that

the government induced the sale crimes. But, based on the statutory definition of “sell”

and appellant’s testimony that he had provided W.R. with cocaine free of charge on

numerous prior occasions, the district court found that the state proved beyond a

reasonable doubt that appellant was predisposed to commit the sale crime and, therefore,

appellant’s entrapment defense failed.

       A jury found appellant guilty as charged. The district court sentenced him to an

executed prison term. This appeal followed.

                                     DECISION

       Citing State v. Grilli, 304 Minn. 85, 95, 230 N.W.2d 445, 455 (1975), appellant

argues that when an entrapment defense is presented to the court rather than to the jury,

the issue is one of law, and review is de novo. In Grilli, the supreme court held that


                                             4
              following complaint or indictment and at a time prior to the
              commencement of trial, a defendant shall elect whether to
              have his claim of entrapment presented in the traditional
              manner as a defense to the jury or to have it heard and
              decided by the court as a matter of law.

Id. (emphasis added).

       The emphasized language in this quotation from Grilli suggests that an entrapment

defense is an issue of law, which we would review de novo. But the supreme court later

clarified its statement in Grilli as follows:

                      Some confusion has arisen by the use of the same
              term, “entrapment as a matter of law,” to refer to different
              things. In the Grilli case we used the term to refer to the
              situation in which the defendant waives his right to have
              entrapment decided by the jury and elects to have the
              [district] court decide it as trier of fact. Secondly, some cases
              use the phrase to refer to what, for the sake of clarity, should
              be termed the due-process defense. Thirdly, the phrase could
              be used to refer to those rare situations in which, although the
              defendant did not elect to have the [district] court decide
              entrapment as trier of fact, the evidence which has come out
              at trial is such that the court is required to take the case from
              the jury and rule that there was entrapment as a matter of law.
              For clarity’s sake, in the future we will use the phrase only
              when referring to this last situation.

State v. Ford, 276 N.W.2d 178, 183 (Minn. 1979).

       Appellant is in the same situation as the defendant in Grilli; he waived his right to

have his entrapment defense decided by the jury and elected to have the district court

decide it as trier of fact. He now argues on appeal that the evidence was insufficient to

prove that he was predisposed to sell drugs to W.R.

       When considering a claim of insufficient evidence, this court applies the same

standard of review to a bench trial as to a jury trial. State v. Hough, 585 N.W.2d 393,


                                                5
396 (Minn. 1998). Under that standard, this court conducts “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. Caine,

746 N.W.2d 339, 356 (Minn. 2008) (quotation omitted). We will not disturb the 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 crime charged. Bernhardt v. State, 684 N.W.2d 465, 476–77

(Minn. 2004). Inconsistencies in testimony go to witness credibility, which is an issue

for the fact-finder, not this court. State v. Pendleton, 706 N.W.2d 500, 512 (Minn. 2005).

       To raise an entrapment defense, a defendant must show “by a fair preponderance

of the evidence . . . that the government induced the commission of the crime.” State v.

Vaughn, 361 N.W.2d 54, 57 (Minn. 1985). To establish inducement, “the evidence must

show that the state did something more than merely solicit the commission of a crime.”

State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980) (affirming district court’s dismissal of

entrapment defense when “state merely provided defendant with the opportunity to

commit the crime”). “[S]omething in the nature of persuasion, badgering, or pressure by

the state must occur before the inducement element is satisfied.”            Id.   Appellant’s

testimony that W.R. played on his sympathies is sufficient to support the district court’s

assumption that appellant proved by a fair preponderance of the evidence that the

government induced the drug sales.

       Once a defendant has raised the issue of entrapment by showing inducement, the

burden shifts to the state to “prove beyond a reasonable doubt that the defendant was


                                              6
predisposed to commit the offense.” Vaughn, 361 N.W.2d at 57. Predisposition may be

shown “by evidence of (a) defendant’s active solicitation to commit the crime, (b) prior

criminal convictions, (c) prior criminal activity not resulting in conviction (as here), or

(d) defendant’s criminal reputation, or by any other adequate means.”          Olkon, 299

N.W.2d at 107-08.

       Appellant was charged with violating Minn. Stat. § 152.022, subd. 1(1) (2012),

and Minn. Stat. § 152.023, subd. 1(1) (2012). Both of these statutes make it a crime to

unlawfully sell a controlled substance. “Sell” is defined as “to sell, give away, barter,

deliver, exchange, distribute or dispose of to another.” Minn. Stat. § 152.01, subd. 15a

(2012) (emphasis added).     Because the statutory definition of “sell” includes “give

away,” the district court found that appellant’s conduct of providing cocaine to W.R. free

of charge on numerous occasions was “legally identical to the current allegations that he

gave her cocaine for money” and proved beyond a reasonable doubt that appellant was

predisposed to provide W.R. cocaine when she asked him to do so.

       Appellant argues that the district court “erred in holding that predisposition to

commit the charged crime may be established beyond a reasonable doubt by evidence

that the defendant committed a fundamentally different crime.” Citing State v. Carithers,

490 N.W.2d 620 (Minn. 1992), appellant contends that the district court erred by finding

that when appellant gave cocaine to W.R., there was a sale under the statutory definition.

       In Carithers, the supreme court answered the certified question whether, “[w]hen

a married couple jointly acquires a Schedule I controlled substance, and one of the

partners uses that substance and subsequently dies from a drug overdose, did the


                                            7
legislature intend that the surviving partner be subject to prosecution under Minn. Stat.

§ 609.195(b)?”1 Id. at 620. The facts of the two cases involved in Carithers were as

follows:

                      (a) A friend gave defendant Gladwin and his wife a
              ride to the place of purchase. Gladwin bought two “papers” of
              heroin, while his wife and the friend waited in the car. They
              took the heroin to the Gladwin home. Gladwin prepared the
              syringes, keeping one for himself and giving one to his wife.
              Gladwin “shot up” himself, and his wife “shot up” at the
              same time. She passed out and died of a drug overdose.

                     (b) Defendant Carithers went by herself to buy the
              heroin, but it appears undisputed that she was buying not just
              for herself but for her husband also. She brought the heroin
              home and used her half. After showing her husband where
              she hid the heroin, she left the house. During her absence, her
              husband prepared a syringe and injected himself. He too died
              of an overdose.

Id. at 621.

       The supreme court answered the certified question in the negative. Id. at 622. The

court explained:

                     If a husband and wife jointly acquire the drug, each
              spouse has constructive possession from the moment of
              acquisition, whether or not both are physically present at the
              transaction. The absent spouse could be charged with

1
  Minn. Stat. § 609.195(b) (2014), which has not been amended since Carithers was
decided, provides:
             Whoever, without intent to cause death, proximately causes
             the death of a human being by, directly or indirectly,
             unlawfully selling, giving away, bartering, delivering,
             exchanging, distributing, or administering a controlled
             substance classified in Schedule I or II, is guilty of murder in
             the third degree and may be sentenced to imprisonment for
             not more than 25 years or to payment of a fine of not more
             than $40,000, or both.

                                            8
              constructive possession at any time following the purchase by
              his or her confederate. That the absent spouse did not
              exercise physical control over the substance at the moment of
              acquisition is an irrelevancy when there is no question that
              the absent spouse was then entitled to exercise joint physical
              possession.

Id. (emphasis in original).

       Appellant argues that there was no sale when he gave cocaine to W.R. before the

controlled buys because, like the married couples in Carithers, “he and W.R. jointly

acquired drugs with the intention of sharing drugs together.” But appellant testified that

the cocaine that he previously gave to W.R. “wasn’t hers to go and do whatever she was

asking me she could go do with it, it was for me and her to enjoy a good night together.

It was ours because I’m sharing.”

       The supreme court emphasized in Carithers that it was “not dealing with a case of

‘sharing’ of one’s individually acquired drugs with another person.”             Id. at 624.

“Rather,” the court stated, “we are dealing with joint acquisition and possession of drugs

under circumstances where neither defendant’s conduct can be fairly characterized as

involving a sale or transfer or delivery to the person who died.” Id. at 624. And the court

noted that

              [i]n a typical prosecution under section 609.195(b) on facts
              similar to those in this case, the state may be able to obtain a
              conviction by proving that the heroin was not jointly
              acquired, that is, that the defendant acquired the heroin
              individually, then “sold” it to the deceased. But in the instant
              case we must assume, given the phrasing of the certified
              question and the apparently undisputed facts, that each of the
              defendants acquired the heroin jointly with his or her spouse.

Id. at 623.


                                             9
      Viewing the evidence in the light most favorable to the conviction, as we must,

appellant’s testimony demonstrated that, unlike the married couples in Carithers, he and

W.R. did not jointly acquire cocaine before the controlled buys. Appellant explicitly

stated that the cocaine was not W.R.’s to do whatever she wanted to do with it, which

means that W.R. was not entitled to exercise joint physical possession of the cocaine

from the moment of acquisition; she could only use the cocaine because appellant gave

her some to use.

      Appellant characterizes giving cocaine to W.R. for free and giving cocaine to

W.R. in exchange for money as two fundamentally different crimes. But because the

legislature has defined “sale” to include both giving away and selling, Minn. Stat.

§ 152.022, subd. 1(1), and Minn. Stat. § 152.023, subd. 1(1), can both be violated by

either giving away cocaine or by selling cocaine. Consequently, when appellant gave

cocaine to W.R., he did not commit a fundamentally different crime than when he sold

cocaine to W.R.; he committed the same crime in a different way. Appellant acquired

cocaine individually, then gave cocaine to W.R.

      Giving W.R. cocaine was prior criminal activity by appellant that did not result in

a conviction. And the evidence of this criminal activity, which constituted a “sale” of a

controlled substance, was sufficient to prove beyond a reasonable doubt that appellant

was predisposed to unlawfully “sell” a controlled substance.

      Affirmed.




                                           10
