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This opinion will be unpublished and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
A16-1959

State of Minnesota,
Respondent,

vs.

Terry Lee West,
Appellant.

Filed November 6, 2017
Affirmed
Bjorkman, Judge

Polk County District Court
File No. 60-CR-11-1260

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Richard Kenly, Backus, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
For the second time, appellant challenges multiple controlled-substance convictions
based on events that occurred in mid-2011. In December 2013, this court reversed his

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convictions based on improper denial of an omnibus hearing. On remand, a jury once again
convicted appellant of third -degree and fifth -degree sale of a con trolled substance, and
fifth-degree possession of a controlled substance. He now argues that (1) the district court
erred by not suppressing (a) two custodial statements that he made without receiving a
Miranda warning, ( b) evidence obtained when police executed a search warrant at his
residence, and (c) his testimony from his initial sentencing hearing ; (2) the district court
abused its discretion by admitting audio and video recordings made during a controlled
purchase; (3) the district court erred by imposing a mandatory minimum sentence under
Minn. Stat. § 609.11 (2010); and (4) the district court abused its discretion by denying his
request for a continuance to enable his expert witness to testify. We affirm.
FACTS
On May 20, 2011, police met with an informant who said that appellant Terry West
was supplying him with marijuana for resale each month. That same day, police worked
with the informant to complete a controlled purchase of marijuana at West’s residence.
Through audio and video recordings, police observed West give the informant two handfuls
of marijuana and tell him he could pay for it later.
On June 1, based on the controlled purchase and the details the informant supplied,
police obtained and executed a sea rch warrant for West’s residence and surrounding
property. During the search, police discovered and seized more than 6,000 grams of usable
marijuana, additional physical evidence consistent with the cultivation and sale of
marijuana, and firearms and ammu nition. Police also questioned West briefly without

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giving a Miranda warning, eliciting incriminating statements regarding the controlled
purchase, then arrested him.
West was subsequently charged with (1) conspiring to commit third -degree sale of
a contr olled substance , (2) third-degree sale of a controlled substance , (3) fifth -degree
possession of a controlled substance , (4) fifth -degree sale of a controlled substance , and
(5) two counts of selling a controlled substance without affixing a tax stamp.
Twice while West was in jail, a police investigator met with West to serve him with
property receipts or forfeiture notices. Each time, West became upset and made
incriminating statements to the investigator. The investigator did not provide a Miranda
warning but told West that he would not discuss his case.
After several substitutions of defense counsel and various pretrial motions, the
district court determined that West waived his right to an omnibus hearing. West thereafter
waived his right to a jury trial, the state dismissed the conspiracy and tax -stamp charges,
and the three remaining controlled -substance charges were submitted to the district court
on a stipulated record. The district court found West guilty and conducted a sentencing
hearing to determine whether West possessed a firearm at the time of the offenses,
triggering a mandatory minimum sentence under Minn. Stat. § 609.11. West el ected to
testify at the hearing. He addressed both his firearms collection and his marijuana business,
including the controlled purchase.
Shortly after the sentencing hearing, the state charged West with perjury based on
his testimony. At the perjury trial, the district court admitted the recordings of the
controlled purchase , the physical and photographic evidence from the search of West’s

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residence, and West’s statements to police at the time of the search and while he was in
jail. A jury found West guilty, and we affirmed his perjury conviction. State v. West ,
No. A16-0614 (Minn. App. Jan. 30, 2017).
In the meantime, West appealed his controlled -substance convictions, challenging
the district court’s determination that he had waived his right to an omnibus hearing. We
reversed and remanded, instructing the district court to permit West to file a suppression
motion and, if any evidence were to be suppressed, to vacate West’s conviction and
conduct a new trial. State v. West , No. A13 -0198 (Minn. App. Dec. 30, 2013), review
denied (Minn. Mar. 18, 2014).
On remand, West moved to suppress the evidence obta ined from the execution of
the search warrant, as well as his statements to la w enforcement at the time of the search
and while he was in jail. The district court conducted an omnibus hearing , denied West’s
motion to suppress the warrant and his jail statements, granted West’s motion to exclude
statements he made at the time of the search, and ordered a new trial.
West subsequently moved to “exclude” from the new trial his testimony from the
prior sentencing hearing. The district court conducted a second omnibus hearing and
denied the motion. West again waived his right to a jury trial and agreed to submit the
controlled-substance charges to the court on the testimony and exhibits from the perjury
trial. The district court found West guilty of all three charges and determined that he
possessed firearms at the time of two of the offenses. The district court sentenced West to
36 months’ imprisonment. West appeals.

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D E C I S I O N
I. The district court did not err by denying West’s motions to suppress.

“When reviewing a district court’s pretrial order on a motion to suppress evidence,
[appellate courts] review the district court’s factual findings under a clearly erroneous
standard and the district court’s legal determinations de novo.” State v. Gauster , 7 52
N.W.2d 496, 502 (Minn. 2008) (quotation omitted).
West argues that the district court erred by not suppressing his two jail statements,
evidence obtained from the warranted search , and his sentencing testimony. We address
each argument in turn.
A. West’s Jail Statements
West argues that the district court erred by failing to suppress the incriminating
statements he made to police while in jail because he was not given a Miranda warning.1
“Statements made by a suspect during custodial interrogation are generally inadmissible
unless the suspect is first given a Miranda warning.” State v. Edrozo , 578 N.W.2d 719,
724 (Minn. 1998). But a Miranda warning is required only if a suspect “is both in custody
and subject to interrogation.” State v. Thompson, 788 N.W.2d 485, 491 (Minn. 2010). We
determine whether an individual was interrogated by independently examining the totality

1 The state’s appellate brief suggests in a footnote that West is collaterally estopped from
raising this argument because it was decided adversely to him in the perjury case. The
state does not substantively analyze the collateral-estoppel factors or address critical
distinctions between the perjury case and this controlled-substance case. Accordingly, we
decline to consider collateral estoppel.

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of the circumstances based on the facts as found by the district court. State v. Jackson, 351
N.W.2d 352, 355 (Minn. 1984).
Interrogation includes both express questioning and “its functional equivalent,”
meaning “any words or actions on the part of the police (other than those normally
attendant to arrest and custody) tha t the police should know are reasonably likely to elicit
an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01,
100 S. Ct. 1682, 1689-90 (1980). Indeed, “e ven express questions are not always
interrogation” if not reaso nably likely to elicit a response that is incriminating. State v.
Tibiatowski, 590 N.W.2d 305, 309 (Minn. 1999). The crux of the inquiry is whether, from
the suspect’s perspective, the police conduct reflects “a measure of compulsion above and
beyond that inherent in custody itself.” Edrozo, 578 N.W.2d at 724-25.
The district court made the following findings regarding West’s interactions with
the investigator. When the investigator met with West at the jail on June 13 to serve him
with property recei pts or forfeiture notices , West spontaneously began to talk about his
case. The investigator told West he did not want to talk about the case without West’s
lawyer present and offered to organize a meeting with West’s lawyer. But West continued
to talk to the investigator and made incriminating statements. The investigator returned on
June 30 with another property receipt. This time he brought an audio recorder. When West
again began to speak about his case, the investigator repeated his caution and reiterated his
willingness to organize a meeting with West and his lawye r. West continued to make
incriminating statements, which the investigator recorded.

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West contends that these circumstances amount to interrogation because the
investigator “hoped the disclosures would be incriminating” and operated a hidden recorder
during the second jail encounter . We are not persuaded. A police officer does not
interrogate a suspect simply by hoping , or even planning for the possibility, that he will
incriminate himself. See id. at 725 (upholding admission of statements defendant made to
a fellow suspect while they were left alone with a hidden recording device). And while
West was tired and upset at the time of the conversations, nothing in the record indicates
that the investigator caused or took advantage of West ’s condition by asking about his
alleged offenses. On this record, we conclude that the investigator did not subject West to
interrogation, so no Miranda warning was required. Accordingly, the district court did not
err in denying West’s motion to suppress his incriminating statements to the investigator.2
B. Search Warrant

When reviewing the decision to issue a search warrant, we consider only whether
the issuing judge had “a substantial basis for concluding that probable cause existed.” State
v. Fawcett, 884 N.W.2d 380, 384 (Minn. 2016) (quotation omitted). Our review is limited
to the information in the warrant application and the supporting affidavit. Id. at 384-85.
We consider the totality of the circumstances alleged to determine whether “there is a fair
probability that contraband or evidence of a crime will be found in a particular place. ”
State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998) (quotation omitted). We defer to the

2 West also argues, without any supporting legal authority , that the district court erred in
relying on the jail statements in determining West’s guilt. This argument fails because the
district court did not err in declining to suppress those statements.

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issuing judge’s determination of probable cause . State v. Holiday, 749 N.W.2d 833, 839
(Minn. App. 2008).
West argues that the search warrant was invalid because it was based on stale
information. The “freshness of the information” in a warrant application bears on probable
cause. Souto, 578 N.W.2d at 747. Indications of “ongoing criminal activity” remain fresh
for a longer period of time than a single instance of criminal conduct . Id. at 750. For
example, a span of weeks between initial information of illegal activity and the warrant
application is permissible when the activity involves “ repeated sales of drugs.” State v.
Cavegn, 356 N.W.2d 671, 673 (Minn. 1984) (quotation omitted).
West contends that the information pol ice gleaned from the informant and the
controlled purchase on May 20 was stale by June 1 because there was no evidence of an
ongoing criminal operation. We disagree. The warrant application contains a detailed
description of precisely such an operation . The informant told the police officers that he
had been selling marijuana for ten years. He indicated that he stopped obtaining marijuana
from his prior source “one or two years ago” and had “recently” been buying from West
on a monthly basis. The same day, the informant obtained marijuana from West during a
controlled purchase that police captured on a portable recording device. During the
purchase, West gave the informant two handfuls of what was subsequently confirmed to
be marijuana, telling him that he could pay for it later. Also visible in the room during the
sale was what appeared to be a growing marijuana plant.
This information indicates an ongoing operation in which West regularly, over the
course of one or two years, sold the informant substantial quantities of marijuana for resale.

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We note t he informant supplied much of the information against his own penal interest.
See Souto, 578 N.W.2d at 750 (stating that admissions against interest bolster an
informant’s credibility). And his description of his drug partnership with West was
corroborated when, during the controlled purchase, West readily provided a substantial
quantity of marijuana to the informant and trusted the informant to pay for it at a later date.
See Holiday, 749 N.W.2 d at 841 (stating that corroboration of even minor details “ lends
credence to an informant’s tip and is relevant to the probable -cause determination”). In
sum, the totality of the circumstances presented in the warrant application amply establish
probable cause to believe that West had been engaged in ongoing drug sales before and on
May 20, such that police were reasonably likely to find evidence of that criminal activity
on June 1. The district court did not err in denying West’s motion to suppress evid ence
obtained in the execution of the search warrant.
C. West’s Sentencing Testimony

A defendant’ s trial testimony generally is admissible against him in later
proceedings. Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 2010 (1968) .
But i f t he defendant’s prior testimony “was compelled by the admission of illegal
evidence,” it should be suppressed. State v. Clark, 296 N.W.2d 372, 375 (Minn. 1980).
West argues that he was compelled to testify at his sentencing hearing because
“illegal evidence” was admitted at his first trial. He points to the statement he made to law
enforcement at the time of the search agreeing that he had “fronted” marijuana to the
informant during the controlled purchase; the statement was suppressed on remand because
it was obtained in violation of Miranda. We agree with the district court that the admission

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of this evidence did not compel West’s sentencing testimony . Indeed, West’s own
arguments belie his claim of compulsion. Most notably, West contends that he testified at
the sentencing hearing to “convince [the district court] that he did not possess firearms for
the purpose of drug dealing.” The earlier admission of his unlawfully obtained statement
about providing marijuana to the informant had no bearing on that purpose. On this record,
we discern no error in the admission of West’s testimony from the sentencing hearing.3
II. West waived his challenge to the admission of audio and video recordings of
the controlled purchase.

Generally, we review a district court’s evidentiary rulings for an abuse of discretion.
State v. Atkinson , 774 N.W.2d 584, 589 (Minn. 2009) . A defendant appealing the
admission of evidence has the burden to show both error and resulting prejudice. State v.
Burrell, 772 N.W.2d 459, 465 (Minn. 2009). West gives only cursory treatment to his
evidentiary challenge in his brief, offering neither legal argument nor supporting authority.
Mere assertion of error is insufficient to preserve the issue for appeal. See Brooks v. State,
897 N.W.2d 811, 818 -19 (Minn. App. 2017), review denied (Minn. Aug. 8, 2017). We
conclude that West has waived this evidentiary challenge.
III. The district court did not err by imposing a three -year sentence based on
West’s possession of firearms at the time of his offenses.

A defendant who possesses a firearm at the time he commits a felony controlled -
substance offense is subject to a mandatory prison sentence of at least three years. Minn.

3 West again asserts without any supporting legal authority that the district court erred in
relying on his sentencing testimony to find him guilty. We disagree b ecause the district
court did not err in denying the motion to suppress this testimony.

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Stat. § 609.11, subds. 5, 9. Possession of a firearm may b e actual or constructive, though
a court considering constructive possession should examine “all aspects of the firearm ,”
including its nature, type, condition, and location relative to the drugs, to determine the
degree to which its presence increased the risk of violence. State v. Royster, 590 N.W.2d
82, 85 (Minn. 1999). Where, as here, the relevant facts are undisputed, application of
Minn. Stat. § 609.11 is a question of law, which we review de novo. See State v. Kolla,
672 N.W.2d 1, 6 (Minn. App. 2003).
The district court found, and West does not dispute, that West constructively
possessed 12 firearms in his residence when police conducted the search. Many of the
firearms were loaded and readily accessible to him at that time, including two loaded pistols
that were within his reach when the police arrived. West simultaneously possessed in an
outbuilding on his property a quantity of marijuana well in excess of the felony threshold
amount. And West does not directly challenge the district court’s fi nding that his
possession of numerous firearms substantially increased the risk of violence.
West contends only that the mandatory minimum sentence should not apply because
there was little or no marijuana—less than the quantity required for a felony—found within
his residence, where he stored the firearms. In essence, he urges this court to read a
proximity requirement into Minn. Stat. § 609.11 in cases of constructive possession. We
expressly declined to do so in Salcido-Perez v. State, 615 N.W.2d 846, 848 (Minn. App.
2000) (citing Royster, 590 N.W.2d at 85), review denied (Minn. Sept. 13, 2000), and West
has identified no legal authority for us to deviate from that holding. Accordingly, we
conclude that the district court did not err by sentencing West under Minn. Stat. § 609.11.

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IV. The district court did not abuse its discretion by denying a trial continuance.

A district court has discretion to grant or deny a trial continuance. State v. Larson,
788 N.W.2d 25, 30 -31 (Minn. 2010). This discretion affords the district court the ability
to control the timing of a trial, which “is critical in ensuring sound judicial administration
and a speedy trial for all criminal defendants. ” State v. Sanders , 598 N.W.2d 650, 655
(Minn. 1999). Factors that weigh against granting a continuance include lack of diligence
in preparing for trial, see State v. Courtney, 696 N.W.2d 73, 82 (Minn. 2005), and previous
continuances granted to the defendant, Sanders, 598 N.W.2d at 654. We will not reverse
a conviction for denial of a continuance unless the district court abused its discretion and
the denial prejudiced the defendant by materially affecting the outcome of the trial. Larson,
788 N.W.2d at 30-31.
West argues that the district court abused its discretion by denying him a trial
continuance to accommodate his expert witness’s schedule. And he asserts that the denial
was prejudicial because it deprived him of “the ability” to have his expert testify. We
consider the district court’s ruling in con text. West’s trial was scheduled to begin on
Monday, April 18, 2016. Counsel’s April 14 continuance request indicated the defense
expert was not available until April 22 . West had already received two trial continuances
due to the same expert witness’s scheduling conflicts. Those continuances and other
scheduling delays had already delayed the trial more than ten months. In denying West’s
third continuance request, the district court reminded West that he had received several
months’ notice of the Apri l 18 trial date. The district court also noted that it provided as
close to a day certain for trial as possible and “it’s up to counsel to make sure that their

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witnesses are lined up and available.” Although the court denied West’s request, it
indicated that it would adjust the trial schedule, if possible, to accommodate West’s expert
witness. But West elected to forgo a jury trial and submit the controlled-substance charges
to the district court based on the record from his perjury trial, without testimony from the
expert witness.
On this record, we discern no abuse of discretion by the district court. Indeed, the
record demonstrates the district court’s repeated efforts to afford West an opportunity to
present expert testimony while also moving West’s protracted case toward a final
resolution and simultaneously maintaining a fair and organized court calendar. Striking
such a balance is exacting and careful work that falls within a district court’s broad
discretion. The district court’s denial of West’s continuance request does not amount to an
abuse of discretion.
Affirmed.