State v. Bauer, Minn.Ct.App., 12/29/2009. The Paul Bunyan Drug Task Force bankrolled a thrift shop up around Warroad, Minnesota, and installed confidential informant to run it. In addition to $2K a month for expenses, Paul offered a bounty of up to $100.00 for each controlled buy that the CI made at the thrift shop. The CI hired Mr. Bauer’s mom as a part time store clerk. In turn, Mom introduced the CI to her son, Mr. Bauer, who commenced to sell marijuana to the CI. Mr. Bauer also sold some ecstasy to the CI. All together, Mr. Bauer sold marijuana to the CI on two different dates, and he sold ecstasy to the CI on one separate date.
For each of the sales the state charged Mr. Bauer with an appropriate drug count. The state also charged him with distribution of ecstasy without a tax stamp, and with conspiracy to sell marijuana. A jury convicted him on all of these counts. The trial court imposed sentence on all but the conspiracy count.
Mr. Bauer argued that he had been entrapped, both at trial and on appeal. Both the jury and the appellate court rejected this argument. On appeal, Mr. Bauer also argued that Paul’s operation of the thrift store as a ruse by which to conduct a drug emporium was so outrageous so to violate due process. This is an argument that recently got some favorable play recently (and from the same appellate judge writing here) in the investigation of prostitution. Here, though, the appellate court declines to entertain the issue because it had not been presented to the trial court.
Mr. Bauer made numerous prosecutorial misconduct arguments to the appellate court. Among them, he complained that this statement, in italics, was improper:
That’s not entrapment. That’s exactly what happens in each and every undercover case. That’s what Special Agent Woolever had been doing for 17 years. If it wasn’t allowed, he and a lot of other people would be out of jobs and drug dealers would have free [rein].
The appellate court agreed that the statement was improper, but because there was no objection to it under plain error there was no prejudice. Mr. Bauer also complained of two instances in which the prosecutor injected her own opinion of how videos of the thrift store sales demonstrated Mr. Bauer’s guilt:
[L]ook at the defendant’s demeanor in the videos of these transactions. He doesn’t look a bit uncomfortable. It’s very relaxed and laid back, despite his testimony that he was weary. He was uneasy. That’s what he told you yesterday. I don’t know about you, but if I’m uneasy, I avoid the situation. I don’t go back voluntarily on several occasions.
…
Is it reasonable to believe that the defendant went and told Special Agent Newhouse, after he was arrested on October 23rd, 2006 that he thought he had been set up? I listened to hundreds of statements. . . . Most people who believe they’ve been set up are very eager to tell the police that they think they’ve been set up. They don’t wait to be asked, and officers don’t generally ask people “oh, by the way, do you think you were set up on this deal?”
Although the portions in italics were plainly erroneous, again, the appellate court concluded that there was no prejudice to Mr. Bauer. Finally, the appellate court found plain error in two instances of the prosecutor’s closing argument when she asked the jurors to use answers that they had supplied during voir dire to determine Mr. Bauer’s credibility.
Lastly, Mr. Bauer complained about the sentence for both the sale of ecstasy and sale of ecstasy without a tax stamp. The appellate court first concludes that both of these offenses are intentional offenses and so the test whether they arise out of a single behavioral incident is whether the conduct “(1) shares a unity of time and place and (2) was motivated by an effort to obtain a single criminal objective. State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000); State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).” The appellate court concludes that the two offenses share a unity of time but they had different motives – selling drugs and evading taxes - so the two sentences are okay.
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