State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1473

State of Minnesota,
Respondent,

vs.

Darrol Allen Shepersky,
Appellant.

Filed July 10, 2017
Affirmed
Johnson, Judge

Hubbard County District Court
File No. 29-CR-15-1359

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Donovan D. Dearstyne, Hubbard County Attorney, Park Rapids, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge ; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Hubbard County jury found Darrol Allen Shepersky guilty of a first-degree
controlled-substance crime based on evidence that he sold methamphetamine to a
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confidential informant. On appeal, Shepersky argues that the prosecutor engaged in
misconduct by eli citing inadmissible evidence. In the alternative, Shepersky argues that
he is entitled to be resentenced pursuant to the 2016 Minnesota Drug Sentencing Reform
Act. We affirm.
FACTS
The state presented evidence at trial that, on February 18, 2015, Shepersky contacted
a man who was an informant for the Paul Bunyan Drug Task Force and offered to sell him
one-half ounce of methamphetamine for $1,000. The informant contacted Agent
Diekmann of the Hubbard County Sherriff’s Office. The informant met with Agent
Diekmann and Agent Rasmus to arrange a controlled buy from Shepersky. The agents
provided the informant with audio-recording equipment and $1,000 in cash. While the
informant was meeting with the agents, he received a telephone call from Shepersky. The
informant and Shepersky agreed to meet in front of Shepersky’s apartment building.
The informant drove himself to Shepersky’s apartment building. Agent Diekmann
and Agent Rogers followed the informant to the apartment buildi ng and parked nearby.
Agent Rasmus and Agent Seaberg already were parked nearby in an unmarked vehicle.
The informant contacted Shepersky and told him that he had arrived. Shepersky exited the
apartment building and entered the informant ’s car. The inf ormant asked Shepersky
whether the “stuff” was “good,” and Shepersky replied, “Yeah.” Shepersky set a package
of methamphetamine next to the car’s gear-shifting knob, and the informant handed the
cash to Shepersky. After Shepersky exited the informant’s vehicle, Agent Rasmus saw
Shepersky walk back into the apartment building. The informant then drove to a pre-
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arranged place and met with Agent Diekmann and Agent Rogers, who followed him there.
The informant told Agent Diekmann that the methamphetamine was on the floor of the
passenger side of the front seat of his car. Agent Diekmann found the methamphetamine
there.
In December 2015, the state charged Shepersky with one count of first -degree
controlled substance crime, in violation of Minn. Stat. § 15 2.021, subd. 1(1) (2014). The
case was tried to a jury in May 2016. The state called five witnesses: the informant, Agent
Rasmus, Agent Rogers, Agent Diekmann, and a forensic scientist from the state bureau of
criminal apprehension, who testified that she tested and weighed a substance that was 13.8
grams of methamphetamine. Shepersky did not testify.
The jury found Shepersky guilty . The district court sentenced him to 104 months
of imprisonment. Shepersky appeals.
D E C I S I O N
I. Prosecutorial Misconduct
Shepersky argues that the prosecutor engaged in misconduct by eliciting
inadmissible evidence. His argument is based on this portion of the prosecutor’s direct
examination of the confidential informant , which concerns the informant’s
communications with Shepersky shortly before they met at the apartment building:
Q: And did you receive a – a phone call?

A: Yes, I did.

Q: Who did you receive the phone call from?

A: Darrol Shepersky.
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Q: And what did Mr. Shepersky tell you?

A: Told me that he was done meeting. Well, first of
all, he was at his probation officer, so that was what I was
waiting for. And then he called me. And then he said, where
do you want to meet up at, and I said just outside his apartment.

Q: Okay. So Mr. Shepersky chose the meeting
place?

A: Yeah.

Shepersky argues that this evidence is inadmissible and prejudicial because the informant
mentioned a meeting with a probation officer, which suggests that Shepersky previously
had been convicted of a crime.
The right to due process of law includes the right to a fair trial, and the right to a fair
trial includes the absence of prosecutorial misconduct. Spann v. State , 704 N.W.2d 486,
493 (Minn. 2005); State v. Ferguson , 729 N.W.2d 604, 616 (Minn. App. 2007), review
denied (Minn. June 19, 2007). “It is generally misconduct for a prosecutor to ‘knowingly
offer inadmissible evidence for the purpose of bringing it to the jury’s attention.’” State v.
Mosley, 853 N.W.2d 789, 801 (Minn. 2014) (quoting State v. Milton, 821 N.W.2d 789, 804
(Minn. 2012)). “Even if the prosecutor unintentionally elicits” inadmissible evidence, a
defendant may be entitled to a new trial if the inadmissible evidence “prejudiced the
defendant’s case.” State v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974).
The unintentional eliciting of inadmissible evidence may be misconduct because a
prosecutor “has a duty to prepare its witnesses, prior to testifying, to avoid inadmissible or
prejudicial statements,” especially if the district court has made pre-trial rulings that certain
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matters are inadmissible. State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003) (citing
State v. Carlson, 264 N.W.2d 639, 641 (Minn. 1978) (citing State v. Huffstutler, 269 Minn.
153, 155 -56, 130 N.W.2d 347, 348 (1964))). But the admission of inadmissible and
prejudicial evidence is not reversible error if the prosecutor did not intentionally elicit the
testimony, the statement at issue was merely a “passing” reference, and the evidence
supporting guilt was “overwhelming.” State v. Haglund, 267 N.W.2d 503, 505-06 (Minn.
1978). We note that only some of the above -cited caselaw characterizes these principles
as matters of “prosecutorial misconduct.” For purposes of this opinion, we assume without
deciding that the caselaw on which Shepersky relies supports his theory of prosecutorial
misconduct.
Shepersky concedes that he did not object to the informant’s testimony about the
probation officer. Accordingly, this court applies a modified plain-error test. Mosley, 853
N.W.2d at 801. To prevail, Shepersky must establish that there was an error and that the
error is plain. State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006). If Shepersky can
establish a plain error, the burden would shift to the state to show that the plain error did
not affect Shepersky’s substantial rights. Id. “If all three prongs of the test are met, we
may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016) (quotation
omitted).
Shepersky’s argument fails for three reasons. First, it appears that the prosecutor
did not intentionally elicit evidence that Shepersky was on probation. Rather, the
prosecutor asked an open-ended question, and the informant answered it by unnecessarily
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referring to the reason why Shepersky had been unavailable to meet with him before their
telephone call. Second, the prosecutor did not mention or refer to Shepersky’s probationary
status at any subsequent point in the trial. Third, the state’s evidence against Shepersky
was very strong. In short, the state’s witnesses testified that the informant was provided
with $1,000 in cash, had a brief meeting with Shepersky inside the informant’s car, and
immediately thereafter was in possession of methamphetamine but not in possession of the
cash. This case is similar to Haglund, in which the prosecutor did not intentionally elicit
the testimony, the statement at issue was merely a “passing” reference, and the evidence
supporting guilt was “overwhelming.” See 267 N.W.2d at 505-06. We conclude that the
prosecutor did not commit a plain error that affected Shepersky’s substantial rights.
Thus, Shepersky is not entitled to a new trial on the ground that the prosecutor
committed misconduct by eliciting inadmissible and prejudicial evidence when conducting
a direct examination of the confidential informant.
II. Drug Sentencing Reform Act
Shepersky argues in the alternative that he should be resentenced pursuant to the
2016 Minnesota Drug Sentencing Reform Act (MDSRA), which became effective
August 1, 2016. He does not argue that the district court erred at the time of sentencing in
June 2016. Nonetheless, he asks this court to remand the case to the district court for
resentencing.
Shepersky was convicted of and sentenced for a first -degree controlled-substance
crime. See Minn. Stat. § 152.021, subd. 1(1) (2014). In 2016, the legislature amended the
statutes governing controlled -substance crimes by, among other things, increasing the
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threshold quantities associated with each degree, thereby redu cing the degree of the
offenses associated with some quantities of controlled substances. See 2016 Minn. Laws,
ch. 160, §§ 3-7, at 577-85; see also Minn. Stat. §§ 152.021-.025 (2016). Shepersky asserts
that his conduct would be only a second -degree contr olled-substance crime under the
MDSRA. See Minn. Stat. § 152.022, subd. 1(a)(1) (2016). The presumptive guidelines
sentencing range for second -degree controlled -substance crime for someone with
Shepersky’s criminal history score is 67 to 93 months. Minn. Sent. Guidelines 4.C (2016).
Section 4 of the MDSRA, which amends section 152.022 of the Minnesota Statutes,
states, “This section is effective August 1, 2016, and applies to crimes committed on or
after that date.” 2016 Minn. Laws, ch. 160, § 4, at 581. Notwithstanding this language,
Shepersky argues that the MDSRA applies to his offense, which was committed in
February 2015. This court applies a de novo standard of review to the question whether
the statute applies. State v. Basal, 763 N.W.2d 328, 335 (Minn. App. 2009).
Shepersky cites State v. Coolidge, 282 N.W.2d 511 (Minn. 1979), in support of his
argument. In Coolidge, the appellant was convicted of committing sodomy against a 16-
year-old child and was sentenced to ten years of imprisonment. Id. at 512-13. After his
offending conduct, the legislature amended the relevant statutes by reducing the maximum
punishment for his act to one year of imprisonment. Id. at 514 & 514 n.8. The supreme
court concluded that the appellant was entitled to the benefit of the statutory amendments.
Id. However, in Edstrom v. State, 326 N.W.2d 10 (Minn. 1982), the supreme court clarified
that Coolidge does not apply if it is contrary to the legislature’s intent:
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In Coolidge, we ruled that a statute mitigating punishment is to
be applied to acts committed before its effective date, as long
as no final judgment has been reached, at least absent a
contrary statement of intent by the legislature. In this case the
legislature has clearly indicated its intent that the criminal
sexual conduct statutes have no effect on crimes committed
before the effective date of the act, August 1, 1975.
Id. at 10.
In State v. McDonnell, 686 N.W.2d 841 (Minn. App. 2004), review denied (Minn.
Nov. 16, 2004), this court considered an appellant’s argument that a statutory amendment
should apply to an offense committe d before the effective date of the amendment . Id. at
846. The session law in that case provided that the amendment “is effective August 1,
2003, and appli es to violations committed on or after that date.” Id. at 845-46 (quoting
2003 Minn. Laws 1st Spec. Sess. ch. 2, art. 9, § 1, at 1446). We reasoned that Coolidge
was distinguishable because, in McDonnell, the legislature had clearly stated that the
statutory amendment does not apply to crimes committed before the amendment’s effective
date. Id. Accordingly, we concluded that the statutory amendment did not apply. Id. at
846.
The language of the MDSRA is unambiguous with respect to the effective date of
the act. It provides that, with respect to the amendments in section 4, the MDSRA “ is
effective August 1, 2016, and applies to crimes committed on or after that date.” 2016
Minn. Laws ch. 160, § 4, at 581. This language is practically identical to the language of
the session law in McDonnell. See 686 N.W.2d at 846. For the same reasons we expressed
in McDonnell, the statutory amendments of the MDS RA do not apply to Shepersky ’s
conviction of first-degree controlled-substance crime.
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Thus, Shepersky is not entitled to be resentenced under the MDSRA.
Affirmed.