This opinion will be unpublished and may not be cited except as provided by Minn.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 A16-0045
State of Minnesota, Respondent,
vs.
Tracee Chung, Appellant.
Filed December 5, 2016 Affirmed Rodenberg, Judge
Hennepin County District Court File No. 27-CR-14-20782
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Stephen V. Grigsby, Minneapolis, Minnesota (for appellant)
Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Tracee Chung challenges her conviction for aiding and abetting the sale
of 50 kilograms or more of marijuana. We affirm. FACTS
Appellant met Sleum Prodfuang in 2011. Later that year, appellant helped
Prodfuang traffic 11 pounds of marijuana through the mail from Arizona to Minnesota.
Appellant and Prodfuang were arrested, and both pleaded guilty to fifth-degree-
controlled-substance crimes.
In May 2013, appellant and Prodfuang rented a house together. After they moved
in, a neighbor began to suspect that someone was dealing drugs out of appellant’s
residence. The neighbor became suspicious when he saw people loading large bags into
a car on three or four occasions, and many short-term visitors coming and going. On
June 19, 2014, the neighbor saw what he thought was a drug deal between Prodfuang and
a visitor. The neighbor immediately reported this to the police. The visitor and
Prodfuang then left appellant’s house in separate cars, and police stopped both cars.
Police found a large amount of marijuana in the visitor’s car. Based on that, they arrested
the visitor and Prodfuang, and obtained a warrant to search appellant’s house. Police
kept the home under surveillance while they sought the warrant, and they executed the
warrant the following day.
During the search of the home, police discovered approximately 235 pounds of
marijuana, along with plastic bags and scales. Most of the marijuana was found in
appellant’s garage and basement. Police also found a digital scale and about $6,000 in
cash in appellant’s bedroom, and receipts showing nearly $100,000 of cash deposits into
multiple bank accounts among appellant’s personal papers.
2 Police also recovered Prodfuang’s phone and appellant’s phone. Searches of the
phones showed text messages between Prodfuang and a person identified as “Wini.” The
text messages showed that Prodfuang planned to fly to Utah on June 15, 2014, and then
meet up with Wini in the southwestern United States. From June 17 to 19, 2014,
Prodfuang received text messages from Wini concerning the progress of Wini’s travel to
Minnesota. A search of appellant’s phone showed that she made a 42-second phone call
to Wini during the time that Wini was driving to Minnesota. During the search of
appellant’s house, police found a van in her garage that had been rented in California and
was set to be returned in St. Paul on June 20. The van contained bags of marijuana,
suggesting to police that Wini had used it to transport marijuana to appellant’s house.
Finally, during the search of appellant’s phone, police found text messages
between appellant and Prodfuang on the day Prodfuang was arrested, in which appellant
requested $500,000 from Prodfuang as reimbursement for the work she had done for him.
Text messages also showed that appellant asked Prodfuang to buy her a Lexus, and
Prodfuang indicated to appellant that he was actively looking to purchase a used Lexus
for her.
The state charged appellant with two counts: conspiracy to sell 50 kilograms or
more of marijuana and “the sale of, and aiding and abetting the sale of, 50 kilograms or
more of marijuana.” Before trial, appellant sought to discover, by way of a subpoena
duces tecum, documents related to an involved police officer’s unrelated investigations,
with the purpose of impeaching the officer at trial. The district court prohibited it.
Appellant also challenged the admissibility of evidence of the incidents leading up to her
3 2011 conviction. The district court admitted the evidence as both immediate-episode
evidence and under rule 404(b). The jury found appellant not guilty of the conspiracy
charge, but guilty of aiding and abetting the sale of marijuana. After the jury delivered its
verdict, the court remanded appellant to custody. Appellant was later sentenced to 58
months in prison, with credit for jail time served.
This appeal followed.
DECISION
Appellant argues on appeal that (1) the evidence was insufficient to convict her of
aiding and abetting the sale of marijuana, (2) the court erred by not giving the jury a
requested unanimity instruction, (3) the court erred in admitting evidence of her past bad
acts, (4) the court erred in quashing her subpoena duces tecum for documents related to
an investigating officer, and (5) the court erred by denying her bail after the jury had
found her guilty and before sentencing.
I. Sufficiency of the evidence
A. Appellant’s liability as a principal concerning the sale of 50 kilograms or more of marijuana
The state argues for the first time on appeal, despite the case having been tried to
the jury as an aiding-and-abetting case, that the evidence at trial was sufficient to prove
appellant guilty as a principal for the sale of 50 kilograms or more of marijuana, and that
we should therefore expand the scope of our review of the sufficiency of the evidence.
The state did not raise this theory of liability at the district court, and we therefore do not
consider it. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). The case was tried to a
4 jury exclusively as one in which appellant was charged with conspiracy and aiding and
abetting the sale of marijuana. We review the sufficiency of the evidence in that context.
B. Aiding and abetting the sale of 50 kilograms or more of marijuana
Appellant has advanced two distinct arguments on appeal concerning whether the
evidence was sufficient to convict her of aiding and abetting the sale of marijuana. In her
brief, she argues that the evidence was insufficient for the jury to find that she took any
specific affirmative action constituting aiding and abetting; at oral argument, appellant
argued, for the first time, that the evidence was insufficient to prove that she intended to
aid and abet the sale of marijuana because the jury could have drawn rational inferences
from the circumstantial evidence inconsistent with her guilt. Both of appellant’s
sufficiency arguments fail. The evidence of appellant’s aiding and abetting the sale of
marijuana is overwhelming.
1. Proof of an affirmative act
To convict a person of aiding and abetting a crime, the jury must find that she
“intentionally” aided and abetted the principal in committing that crime. Minn. Stat.
§ 609.05, subd. 1 (2012). Here, we need not determine whether appellant’s passive
presence during the commission of a crime is a sufficient basis for aiding-and-abetting
liability, because the state proved at trial that appellant took multiple affirmative actions
to aid and abet Prodfuang’s sale of marijuana.
Appellant argues that the jury could rationally find, based on the proved
circumstances, that she was not actively involved in Prodfuang’s drug business.
Appellant argues that the text messages between her and Prodfuang were related to a
5 personal dispute, that she wanted payment for free work she had done for Prodfuang’s
mother, and that other evidence of her actions have innocent explanations. These
arguments presume that the jury accepted appellant’s explanation of the texts. But the
jury found appellant guilty, implicitly rejecting her testimony. Moreover, the amount of
marijuana being stored in, and sold out of, appellant’s house is so significant as to render
unreasonable any argument that she was unaware of it. Appellant was convicted in 2011
in a drug-sale operation involving Prodfuang. Appellant testified that she only made
approximately $12,000 each year from her employment. The receipts and cash found in
appellant’s possession are wholly inconsistent with the argument that appellant did not
handle and receive money used in drug sales. Finally, appellant was in contact with Wini
while Wini was transporting the marijuana that was seized at appellant’s home. On this
record, reviewed in the light most favorable to the jury’s verdict, the state proved
multiple affirmative acts by appellant to aid and abet the sale of drugs.
2. Circumstantial evidence of guilt
At oral argument, appellant contended that our analysis of the sufficiency of the
evidence must include the two-step circumstantial-evidence test. Appellant arguably
forfeited this issue by failing to include it in her initial brief to this court. See State v.
Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (“Where a defendant asserts error, but
fails to address the error in his appellate brief, the issue is deemed waived.”), review
denied (Minn. Aug. 5, 1997); see also State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn.
2015) (explaining the difference between “waiver” and “forfeiture”). However, we
address appellant’s argument on its merits because it fails even if it was not forfeited.
6 We apply heightened scrutiny when reviewing the sufficiency of circumstantial
evidence using a two-step analysis. State v. Al-Naseer, 788 N.W.2d 469, 473-74 (Minn.
2010). First, we identify the circumstances proved, deferring to the jury’s acceptance of
evidence that proved those circumstances, as well as the jury’s rejection of evidence that
conflicted with those circumstances. Id. at 473. Second, we “determine whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt. 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.” State v. Silvernail, 831 N.W.2d 594, 599
(Minn. 2013) (quotations omitted). We will sustain a conviction if “the reasonable
inferences that can be drawn from the circumstances proved as a whole” are “consistent
with the hypothesis that the accused is guilty and inconsistent with any rational
hypothesis except that of guilt.” State v. Fox, 868 N.W.2d 206, 223 (Minn. 2015).
Considered in the light most favorable to the state, the evidence proves the
following circumstances. In 2011, appellant helped Prodfuang transport marijuana into
Minnesota. After they were both convicted of controlled-substance crimes, appellant and
Prodfuang began living together in 2013. Sometime in 2014, appellant’s neighbor began
to suspect someone was selling drugs out of appellant’s house because of an incident in
which he saw people loading large black trash bags into a car and because of the number
of short-term visitors. In early June 2014, Prodfuang arranged for a person named
“Wini” to drive a large amount of marijuana from California to Minnesota. While Wini
was transporting the marijuana, appellant called Wini at least once, and had Wini’s phone
7 number stored in her contacts. Around the time that Wini arrived at appellant’s home
with the marijuana, appellant began texting Prodfuang, demanding $500,000 for all of the
“business work” she had done, and asking that he buy her a Lexus. Prodfuang responded
by texting that he was shopping for a Lexus for appellant. The last call Prodfuang made
before he was arrested was to appellant. After appellant was arrested, police searched her
home and found 235 pounds of marijuana in the home, along with scales and packaging
materials. Police also found $6,000 in cash in one of appellant’s jackets, and papers
among appellant’s personal possessions showing cash deposits totaling nearly $100,000
into multiple bank accounts.
We next consider whether the proved circumstances support a rational inference
inconsistent with guilt. See, e.g., Silvernail, 831 N.W.2d at 600 (finding no rational
inference inconsistent with guilt); c.f. State v. Sam, 859 N.W.2d 825, 836 (Minn. App.
2015) (finding that a rational inference inconsistent with guilt existed).
We see no rational inference inconsistent with appellant’s guilt. Considering the
circumstances proved, all of which indicate appellant aided and abetted Prodfuang’s drug
business, a rational fact-finder could only conclude, as did this jury, that appellant is
guilty of aiding and abetting the sale of marijuana.
II. Unanimity instruction
Appellant argues that the district court erred by not instructing the jury that the
jurors “must unanimously agree on the act that constituted the affirmative act for aiding
and abetting.” Appellant does not challenge the propriety of the district court having
incorporated into a single instruction the definition of the crime of sale of marijuana and
8 the definition of liability for crimes of another by aiding and abetting the sale of
marijuana. Rather, appellant argues that the jury was required to agree on the affirmative
act forming the basis of her accomplice liability, and that, “[h]ad this instruction been
properly considered, the [jury] might have concluded that no such act exists.”
We review a district court’s choice of jury instructions for abuse of discretion.
State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2005). An erroneous omission of a
requested instruction only results in appellate relief if prejudice is demonstrated on
appeal. Id.
“Jury verdicts in all criminal cases must be unanimous.” State v. Pendleton, 725
N.W.2d 717, 730 (Minn. 2007). To be unanimous, “a jury must unanimously find that
the government has proved each element of the offense. But the jury does not have to
unanimously agree on the facts underlying an element of a crime in all cases.” Id. at 730-
31 (quotation omitted). The district court need not give a unanimity instruction where a
defendant is charged for a “pattern” of past actions, or a “grouping of past acts” that
constitute a crime. Id. at 731-32. “The rule that jurors need not agree on the mode of
commission of a crime ‘is not only constitutional, it is probably indispensable in a system
that requires a unanimous jury verdict to convict.’” Id. at 733 (quoting Schad v. Arizona,
501 U.S. 624, 650, 111 S. Ct. 2491, 2506 (1991) (Scalia, J., concurring in part and
concurring in the judgment)).
Here, the state presented overwhelming evidence that appellant was involved in a
large drug-dealing operation with Prodfuang, involving interstate shipments of marijuana
and a supply and distribution network in Minnesota. The state provided a wealth of
9 evidence proving a pattern of appellant’s assistance in the drug-sale operation. Even if
we were to conclude (which we do not) that the district court ought to have given a
unanimity instruction, any error was harmless. The record contains overwhelming
evidence of appellant’s active participation in Prodfuang’s criminal enterprise.
Considered in the light most favorable to the verdict, the record evidences that appellant
both demanded and received thousands of dollars for her role in the operation, and when
the criminal enterprise was interrupted by police, she was asking for hundreds of
thousands of dollars in additional pay for her efforts.
III. Admission of 2011 marijuana-dealing evidence under 404(b) exception for bad acts
The district court allowed the state to introduce evidence of appellant’s acts in
2011, which led to her conviction for fifth-degree possession of a controlled substance.
The district court admitted the evidence as both immediate-episode evidence and under
Minn. R. Evid. 404(b). Appellant argues that the district court erred in admitting the
evidence under rule 404(b) because the district court relied too heavily on the weakness
of the state’s case to find that the probative value of the past bad acts was not outweighed
by the potential for unfair prejudice.
Evidence of a past bad act is inadmissible to prove a defendant acted in conformity
with that past crime or wrong. Minn. R. Evid. 404(b). However, such evidence may be
admitted to prove other things, such as a common scheme or plan or the defendant’s
mental state, if “the probative value of the evidence is not outweighed by its potential for
unfair prejudice to the defendant.” Id.
10 We review a district court’s admission of 404(b) (Spreigl) evidence of other
crimes for abuse of discretion. State v. Clark, 738 N.W.2d 316, 345 (Minn. 2007). See
State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965).1 “The appellant
challenging the admission of [404(b)] evidence bears the burden of showing the error and
any resulting prejudice.” Id.
When weighing the probative value of evidence against its potential for unfair
prejudice, courts consider the need for the evidence as one of a number of factors
properly to be used in making a decision. State v. Ness, 707 N.W.2d 676, 690 (Minn.
2006). While the prosecution’s need was formerly an independent requirement for
admission under 404(b), now the “prosecution’s need for other-acts evidence should be
addressed in balancing probative value against potential prejudice, not as an independent
necessity requirement.” Id. Appellant correctly asserts that the Minnesota Supreme
Court’s decision in Ness was an attempt “to move away from the undue emphasis [it] had
previously placed on the strength or weakness of the state’s case.” State v. Bell, 719
N.W.2d 635, 639 (Minn. 2006). But Ness did not foreclose district courts from
considering the prosecution’s need when conducting the balancing analysis. State v.
Scruggs, 822 N.W.2d 631, 644 (Minn. 2012) (“When examining whether the probative
value of Spreigl evidence outweighs its potential for unfair prejudice to a defendant, we
balance the relevance of the bad acts, the risk of the evidence being used as propensity
1 Evidence of other crimes or bad acts evidence is commonly referred to as “Spreigl evidence.” State v. Campbell, 861 N.W.2d 95, 102 (Minn. 2015).
11 evidence, and the state’s need to strengthen weak or inadequate proof in the case.”
(quotation omitted)).
The district court here considered four factors under rule 404(b) in its decision to
admit the 2011 evidence. First, it found that the probative value of the prior conviction
was high because the 2011 bad acts were closely related to the charged offense. Second,
the district court found that the evidence was relevant to show a relationship between
appellant and Prodfuang, who appellant was charged with having aided and abetted in
2014. Third, the district court found that the state had a “strong need for the prior bad act
evidence.” Finally, the district court found that the potential for unfair prejudice could be
reduced by providing a limiting instruction to the jury.
The district court properly considered that appellant’s actions in 2011 tended to
show a common scheme or plan. Appellant was acting in both instances with the same
person in similar enterprises. The 2011 evidence also properly tended to prove
appellant’s mental state during the 2014 incident. Appellant claimed ignorance of
Prodfuang’s activities, but the 2011 evidence demonstrates appellant’s knowledge that
Prodfuang was a drug dealer. Appellant assisted Prodfuang in 2011, and her having done
so demonstrates what she would have known about the hundreds of pounds of marijuana
in her home in 2014. The district court also properly used its discretion to give a limiting
instruction to the jury.
We conclude that admission of the 2011 bad-acts evidence was within the district
court’s discretion. We therefore do not separately consider whether it was also properly
admissible as immediate-episode evidence.
12 IV. Denial of subpoena duces tecum
Appellant argues that the district court improperly quashed her subpoena duces
tecum to examine the police reports of a detective who would be testifying at trial. She
claims that this deprived her of “a meaningful right to a compulsory process and
confrontation.”
“The United States Supreme Court has clearly stated that the Confrontation Clause
is not a constitutionally compelled rule of pretrial discovery.” State v. Cermak, 442
N.W.2d 822, 825 (Minn. App. 1989) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 52 107
S. Ct. 989, 999 (1987)). Still, a district court may compel the state to disclose even
confidential information if the defendant makes a “plausible showing that the information
sought would be both material and favorable” to her defense. State v. Hummel, 483
N.W.2d 68, 72 (Minn. 1992) (quotation omitted). The district court has discretion to
deny a defendant’s discovery request if she fails to make this showing. Id.
Here, appellant’s subpoena requested that law enforcement turn over “all
documents, including police reports that refer to or memorialize any experience of [the
detective’s] involvement in any investigation of cases involving marijuana.” Appellant
argued that this information was necessary to effectively question the detective. The state
objected, arguing that the request was unnecessary because appellant had already been
provided with a memorandum summarizing the detective’s experience and anticipated
testimony. The state also objected because the subpoena would require police to turn
over confidential information on cases unrelated to appellant’s case. The district court
granted the motion to quash the subpoena, stating that the information was confidential,
13 and appellant had not made a plausible showing that the information was necessary to her
defense because the memorandum from the prosecution provided sufficient evidence to
cross-examine the detective.
The district court acted within its discretion. The prosecutor’s memorandum to
appellant gave appellant information about the officer’s background that the prosecution
would use as foundation. Appellant did not identify to the district court what further
information she hoped to gain from her request. Her discovery request appears to have
been motivated solely by a wish to search unrelated files for the possibility of some
favorable evidence, and not based on any “plausible showing” of materiality. As a result,
appellant has not shown that the district court abused its discretion. And appellant has
not demonstrated any constitutional violation by the district court’s exercise of its
discretion. Cermak, 442 N.W.2d at 825.
V. Denial of bail
Finally, appellant argues that the district court violated article 1, section 7 of the
Minnesota Constitution by denying her bail and ordering her into custody after the jury
delivered its verdict and before sentencing. This issue is moot, since appellant has since
been convicted. State v. LeDoux, 770 N.W.2d 504, 515 (Minn. 2009) (“[B]ail issues are
considered moot after the defendant’s conviction.”).
Affirmed.