This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-0262
State of Minnesota, Respondent,
vs.
Thomas Ardell Gentry, Appellant.
Filed March 9, 2015 Affirmed Hudson, Judge
St. Louis County District Court File No. 69DU-CR-13-545
Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and
Mark Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)
Tara Kalar, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and
Hudson, Judge.
UNPUBLISHED OPINION
HUDSON, Judge
Appellant challenges his conviction of second-degree sale of a controlled
substance, claiming the circumstantial evidence was insufficient to sustain his conviction
and that he was deprived of his right to a fair trial when the prosecutor made improper statements during closing arguments. Because the evidence was sufficient to sustain
appellant’s conviction and the prosecutor did not commit misconduct, we affirm.
FACTS
After a jury trial, appellant Thomas Ardell Gentry was convicted of second-degree
sale of a controlled substance in violation of Minn. Stat. § 152.022, subd. 1 (2012). On
February 7, 2013, law enforcement executed a search warrant at J.H.’s apartment in
Duluth. Law enforcement paid a confidential informant (CI) to call individuals inside
J.H.’s apartment and request “a dollar,” i.e., $100, of cocaine. When the apartment door
opened, officers rushed into the apartment. Investigator Eikam entered first and
encountered J.H., whose hands were clenched in fists. He pushed J.H. into the apartment
to allow the other officers to enter. Gentry was standing in the kitchen, located two to
three feet off the entry, and “looked as if he was going to try to run out the door.” Eikam
pulled Gentry to the kitchen floor. After Gentry was “taken down to the ground,” Eikam
noticed “where [Gentry] was standing, there was a clear plastic baggie laying on the
floor” and it “looked like [crack cocaine] had spilled out of the bag.” Gentry had
approximately $275 in cash although no crack cocaine was found on him.
Officer McShane, another officer who participated in executing the warrant, stated
that “[i]t was almost like it was raining crack cocaine when we went into the apartment.”
He testified that after Gentry’s struggle with officers he noticed a sandwich baggie “full
of individually-wrapped pieces of crack cocaine” and “several, small individual packaged
pieces of crack cocaine in baggie corners all over the kitchen floor” next to Gentry.
2 McShane handcuffed J.H. When J.H. opened his hands, he was holding two
individually-wrapped pieces of crack cocaine, consistent with the CI’s order for drugs. A
third male, L.A., was sitting on a couch in the living room and a female, S.W., was
sleeping in the bedroom. S.W., who was J.H.’s on-again/off-again girlfriend, also
testified that she had not seen the crack cocaine on the kitchen floor prior to the execution
of the search warrant. In addition, S.W. testified that “after awhile” she realized Gentry
was selling drugs.
Cocaine was ultimately found in three areas: 147 individually-packaged rocks on
the kitchen floor; a baggie filled with packaged rocks in the living room; and two
packaged rocks in J.H.’s clenched fists.
After the warrant was executed, J.H. was interviewed at the police station. He said
that Gentry would come up from the Twin Cities every couple weeks with cocaine, that
Gentry would stay with him for approximately three days at a time, and that J.H. would
make deliveries for Gentry. J.H. additionally testified that Gentry had been selling crack
cocaine out of his apartment for some time and that in exchange Gentry would give him
crack cocaine for his personal use. But J.H. later testified that the day of the search
warrant was the first time he had ever been arrested so he was frightened and told the
investigator at the police station “whatever [she] wanted to hear.” On cross-examination,
J.H. stated that he would like to recant the statements he made to the investigator because
he was on crack cocaine at the time and had not slept in two to three days. But the
investigator testified that at the time of the interview J.H. was cooperative and did not
appear tired or impaired.
3 DECISION
I. Sufficiency of the Evidence
Gentry first argues that the circumstantial evidence presented at trial was
insufficient to prove he possessed crack cocaine. In considering a sufficiency-of-the-
evidence claim, our review is limited to a painstaking analysis of the record to determine
whether the evidence, when viewed in the light most favorable to the conviction, is
sufficient to allow the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430
(Minn. 1989). We must assume “the jury believed the state’s witnesses and disbelieved
any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 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 the defendant was guilty of the charged offense. Bernhardt v. State, 684
N.W.2d 465, 476–77 (Minn. 2004).
“Direct evidence is evidence that is based on personal knowledge or observation
and that, if true, proves a fact without inference or presumption.” Bernhardt, 684
N.W.2d at 477 n.11 (quotation omitted). But a conviction based on circumstantial
evidence warrants heightened scrutiny. Id. at 477. Circumstantial evidence is “evidence
based on inference and not on personal knowledge or observation.” Id. at n.11 (quotation
omitted). Although circumstantial evidence warrants stricter scrutiny, it is given the
same weight as direct evidence. State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999). We
“examine independently the reasonableness of the inferences that might be drawn from
the circumstances proved.” State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)
4 (quotations omitted). We must consider the evidence as a whole and not examine each
piece in isolation. Id. at 332.
We undergo a two-step process in applying the circumstantial-evidence standard.
State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). “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 [s]tate.” State v. Silvernail, 831
N.W.2d 594, 598–99 (Minn. 2013) (quotation omitted); see also State v. McCormick, 835
N.W.2d 498, 505 n.2 (Minn. App. 2013) (noting that we evaluate the jury’s likely
determinations from their guilty verdict when reviewing the circumstances proved)
review denied (Minn. Oct. 15, 2013). We assume “that the jury resolved any factual
disputes in a manner that is consistent with the jury’s verdict.” Moore, 846 N.W.2d at
88.
“The second step is 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). A proffered rational alternative hypothesis must
be supported by more than “mere conjecture” and must “point to evidence in the record
that is consistent with a rational theory other than guilt.” State v. Tscheu, 758 N.W.2d
849, 858 (Minn. 2008).
Gentry contends that the state failed to prove beyond a reasonable doubt that he
had actual physical possession of the cocaine when the search warrant was executed. But
Gentry was charged with, and the jury convicted him of, second-degree sale of a
5 controlled substance. “A person is guilty of controlled substance crime in the second
degree if: (1) 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
cocaine. . . .” Minn. Stat. § 152.022, subd. 1(1). “Sell” is defined as “to sell, give away,
barter, deliver, exchange, distribute or dispose of to another, or to manufacture” or “to
possess with intent to perform” the same. Minn. Stat. § 152.01, subd. 15a(1), (3) (2012).1
Because Gentry was convicted of sale, we review evidence supporting sale, and not
merely possession.
Gentry claims that the only evidence that he controlled the cocaine was J.H.’s
statement at J.H.’s own plea colloquy for drug-related charges that Gentry had been
selling crack cocaine out of his apartment for some time. But Gentry misstates the
record. At Gentry’s trial, J.H. testified that (1) the drugs found on the kitchen floor in the
apartment did not belong to J.H. and (2) that Gentry would bring the drugs into the
apartment from the cities and sell them. J.H. also told law enforcement the same
information shortly after the warrant was executed. This was direct evidence that Gentry
1 Gentry alternatively argues that there was insufficient evidence to show that he constructively possessed cocaine for the purposes of possession with intent to sell. See State v. Florine, 303 Minn. 103, 104–05, 226 N.W.2d 609, 610 (1975) (holding constructive possession exists “where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it up to the time of the arrest.”). But because the definition of “to sell” encompasses more than constructive possession, proof of constructive possession was not necessary for the conviction. See State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002) (holding that “a jury need not always decide unanimously which of several possible means the defendant used to commit the offense in order to conclude that an element has been proved beyond a reasonable doubt”).
6 sold crack cocaine. Although J.H. later testified he would like to recant the statement to
law enforcement because he was on crack cocaine at the time and had not slept in several
days, the interviewing investigator testified J.H. was cooperative and did not appear
confused, tired, or impaired. “The jury, as the judge of credibility, is free to disregard
part of a witness’s testimony and accept another part.” State v. Landa, 642 N.W.2d 720,
726 (Minn. 2002). Thus, despite J.H.’s inconsistent trial testimony, assuming the jury
believed J.H.’s statements made to law enforcement shortly after the execution of search
warrant—when the investigator stated he was coherent—and his consistent statements at
trial, J.H.’s testimony supports Gentry’s conviction. Moreover, S.W., J.H.’s girlfriend,
testified that “after awhile” she realized Gentry was selling drugs. This, too, was direct
evidence of Gentry’s guilt because it was based on S.W.’s personal knowledge and
observations.
Gentry also argues the CI’s failure to identify him contradicts evidence that Gentry
sold drugs from J.H.’s apartment. At trial, the CI was unable to identify Gentry as
someone who sold her cocaine. But she was unable to say he had not sold her cocaine
because “at the time, the guy that [she] dealt with . . . had no hair” and Gentry had hair at
trial. Contrary to Gentry’s claim, the CI’s straightforwardness in her inability to identify
Gentry at trial arguably bolsters the credibility of her other statements.
Gentry incorrectly claims there is no other evidence to sustain his conviction. To
the contrary, Officer Eikam testified that after Gentry was taken to the ground there was a
“clear plastic baggie laying on the floor” and it “looked like [crack cocaine] had spilled
out of the bag.” Officer McShane testified that it was “almost like it was raining crack
7 cocaine” when they entered the apartment, indicating that the crack cocaine spilled when
the officers entered, not that the drugs were previously on the kitchen floor. S.W. also
stated that she had not seen the crack cocaine on the floor prior to the execution of the
search warrant. The cocaine was also packaged in individual baggie corners, strongly
suggesting it was wrapped for sale. In addition, Gentry had a significant amount of cash
on him.
Considering the entirety of the circumstances and resolving factual disputes in
favor of the jury’s verdict, we conclude that the state met its burden of proving Gentry’s
guilt beyond a reasonable doubt. Multiple witnesses saw the crack cocaine on the floor
only after Gentry was taken to the ground. The testimony indicates the cocaine spilled
upon the ground, consistent with Gentry’s struggle with the officers. Other
circumstances, including the cash found on Gentry and S.W.’s testimony that she
believed he was selling drugs out of the apartment, are consistent with his sales
conviction.
To the extent the state relies on circumstantial evidence to secure Gentry’s
conviction, we easily conclude that the circumstances proved regarding the spilled
cocaine are consistent with guilt and inconsistent with any other rational hypothesis.
Silvernail, 831 N.W.2d at 599. While Gentry asserts that the jury could have inferred
numerous explanations for how the cocaine ended up on the floor near him, he does not
provide any plausible explanations.
Given that three witnesses testified they did not see the drugs on the floor prior to
Gentry being “taken down,” it is unlikely the drugs were on the floor prior to the
8 execution of the search warrant. The drugs were found in the immediate proximity of
Gentry, and Officer McShane testified that Gentry was uncooperative, struggled with the
officers, and that it was “raining” cocaine. This is consistent with the rational hypothesis
that the baggie containing packaged drugs spilled in the kitchen during Gentry’s struggle
with the officers.
Because the cocaine apparently spilled during the execution of the search warrant,
the only other reasonable inference is that the cocaine was spilled by someone else in the
apartment. But there were only three other people in the apartment when the officers
entered: J.H., L.A., and S.W. J.H. was handcuffed shortly after the officers’ entry. J.H.’s
fists were clenched and when they opened, he was holding only two small rocks of
cocaine, consistent with him exiting to make a drug delivery to the CI. L.A. was seated
on the couch away from where the spilled drugs were found, and there is no testimony
that he struggled with law enforcement or was in proximity of the kitchen. S.W. was in
the back bedroom when the search warrant was executed and not in proximity to the
kitchen. We therefore conclude that the only reasonable inference and rational
hypothesis is that of Gentry’s guilt.
II. Prosecutorial Misconduct
Gentry claims that he was deprived of a fair trial because, during closing
arguments, the prosecutor made prejudicial statements, to which Gentry did not object,
and improperly vouched for the CI.
We will reverse a conviction due to prosecutorial misconduct “only if the
misconduct, when considered in light of the whole trial, impaired the defendant’s right to
9 a fair trial.” State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006). When determining
whether there was prosecutorial misconduct during a closing argument, we consider “the
closing argument as a whole rather than focus[ing] on particular phrases or remarks that
may be taken out of context or given undue prominence.” State v. Jackson, 714 N.W.2d
681, 694 (Minn. 2006) (quotations omitted).
The prosecutor “has the right to present to the jury all legitimate arguments on the
evidence, to analyze and explain the evidence, and to present all proper inferences to be
drawn therefrom.” State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998). The
prosecutor has “considerable latitude” in making a closing argument and need not make a
colorless argument. Id.
Allegations of unobjected-to prosecutorial misconduct are reviewed under a
modified plain-error test. State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012) (citing
State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006)). The test examines three prongs:
(1) whether there was an error; (2) whether the error was plain; and (3) whether the plain
error affected the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998). If the three prongs are satisfied, we then assess “whether [we] should
address the error to ensure the fairness and the integrity of the judicial proceedings.” Id.
The burden of proof is on appellant to satisfy the first two prongs, and the burden then
shifts to the state to prove that the error did not affect the defendant’s substantial rights.
Carridine, 812 N.W.2d at 146.
Gentry argues that the prosecutor committed misconduct when he made an
improper character reference by stating that J.H. was “not the type of person who is going
10 to be selling thousands and thousands of dollars of crack cocaine from his apartment. It’s
consistent with someone who is allowing other people to do it to support his [drug]
habit.” Instead of objecting, Gentry’s defense counsel opened his closing argument by
stating:
We heard [the prosecutor] say that [J.H.] was not the type of person who would be selling thousands of dollars worth of crack cocaine. The implication being Mr. Gentry is the type of person to be selling thousands of dollars of crack cocaine. There is no evidence before you as to what type of person sells thousands of dollars of crack cocaine. And so whatever you do in your deliberations, I hope it doesn’t come up that Mr. Gentry is the “type” of person to be doing this.
In rebuttal, the prosecutor admitted that he should not have used the phrase “type of
person” and apologized to the jury for the statement.
“Character attacks are improper comments during a prosecutor’s closing
argument.” State v. Atkins, 543 N.W.2d 642, 649 (Minn. 1996); see also State v.
Washington, 521 N.W.2d 35, 39–40 (Minn. 1994) (holding that references to a
defendant’s nature were improper character comments). Although the prosecutor did not
directly comment on Gentry’s character and clarified that he was attempting to show that
J.H. was not responsible for the cocaine, we conclude his character comment was an
error.
The next step is to determine if the error was plain. An error is plain if it is “clear
or obvious” and “is (or should be) apparent to the trial court.” State v. Kelley, 855
N.W.2d 269, 286 (Minn. 2014). Gentry claims that the error was plain because “the court
has reiterated that use of concepts and terms such as . . . different ‘worlds[]’ and ‘these
11 people’ should be avoided.” See State v. Paul, 716 N.W.2d 329, 334 (Minn. 2006). In
Paul, the prosecutor made reference to the “world” in which several witnesses lived and
called the witnesses “these people.” Id. The supreme court concluded that the state’s
unobjected-to remarks did not constitute misconduct and therefore were not plain error
because the remarks were brief; not demeaning; did not mention a particular community;
summarized evidence; were intended to address inconsistencies and lack of cooperation
by witnesses; and were not intended to appeal to the passions of the jury. Id. at 339.
After reviewing the record as a whole, we conclude the prosecutor’s reference to
the “type of person” does not constitute plain error. First, like the remarks in Paul, the
statement was brief, and, as the prosecutor clarified, was not intended to address J.H.’s
character. Instead it was intended to show that the evidence demonstrated J.H. was not
responsible for the drugs, partially because his apartment did not contain the typical
supplies for packaging and selling the large quantity of seized drugs. Second, while the
judge did not give a curative instruction, both Gentry’s attorney and the prosecutor
informed the jury that character was not in question.
But even if the error were plain, we conclude it did not affect Gentry’s substantial
rights. We consider factors including the strength of the evidence against the defendant,
the pervasiveness of the misconduct, and whether the defendant had an opportunity or
made efforts to rebut the improper conduct. State v. Davis, 735 N.W.2d 674, 682 (Minn.
2007). Here, the evidence is sufficient to sustain Gentry’s sale conviction. And in the
context of the entire trial, the misconduct was not pervasive: the prosecutor made one
improper statement about a witness that did not “inflame the jury’s passion” or compare
12 the “world” of the witness to that of the jury. Additionally, defense counsel used the
opportunity during his closing statement to remind the jury that Gentry’s character was
not on trial.
Since Gentry’s substantial rights were not affected by the error, we need not
address whether to correct the error to ensure the fairness and integrity of the
proceedings.
Finally, Gentry asserts that the prosecutor improperly vouched for the CI. “A
prosecutor may not personally endorse the credibility of a witness or impliedly guarantee
a witness’s truthfulness.” Jackson, 714 N.W.2d at 696; see also Swanson, 707 N.W.2d at
656 (holding that the statement “the state believes [the witness] is very believable” is
impermissible vouching on its face). But the state may argue that a particular witness
was or was not credible. State v. Fields, 730 N.W.2d 777, 785 (Minn. 2007); see, e.g.,
State v. Smith, 825 N.W.2d 131, 139 (Minn. App. 2012) (holding that the prosecutor’s
brief comments that a witness was “very sincere” and “very frank in his testimony” were
arguments regarding credibility and therefore were not improper vouching), review
denied (Minn. Mar. 19, 2013).
A prosecutor has “a right to analyze the evidence and vigorously argue that the
state’s witnesses were worthy of credibility whereas defendant and his witnesses were
not.” State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977). As long as the prosecutor
does not intentionally misstate the evidence or mislead the jury as to inferences it may
draw, he may argue all reasonable inferences from the evidence in the record. State v.
McCray, 753 N.W.2d 746, 753–54 (Minn. 2008).
13 Gentry claims that when the prosecutor stated what B.W. “said is corroborated by
other facts that turned out during the investigation in the case,” he improperly vouched
for her believability because the evidence was insufficient without the prosecutor’s
statement. Specifically, during closing the prosecutor argued that: the process B.W.
explained to law enforcement about purchasing crack from J.H.’s apartment was
consistent with what occurred during the warrant execution process; B.W. was frank
about a prior conviction and why she was working with the police; and B.W. was a
credible witness. Gentry does not identify what evidence the prosecutor misstated or that
the prosecutor did anything other than analyze the evidence to demonstrate it was
consistent with B.W.’s testimony. See Googins, 255 N.W.2d at 806. We thus conclude
the prosecutor did not improperly vouch for B.W. when he stated that her testimony was
corroborated by other facts in the investigation.
Affirmed.