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This opinion will be unpublished and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
A17-0086

State of Minnesota,
Respondent,

vs.

Curtis Michael Gould,
Appellant.

Filed November 20, 2017
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Redwood County District Court
File No. 64-CR-14-104

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

Jenna Peterson, Redwood County Attorney, Redwood Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Schellhas,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his conviction of conspiracy to commit first -degree
controlled-substance crime, arguing that the state failed to prove beyond a reasonable doubt
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that he intended to sell drugs and because he abandoned any criminal purpose and made
reasonable efforts to prevent the commission of the crime. Appellant also challenges his
sentence, arguing that he is entitled to be resentenced in accord with the provisions of the
2016 Drug Sentencing Refo rm Act (2016 Minn. Laws ch. 160) (DSRA). Because the
evidence supports the district court’s conclusion that appellant was guilty of conspiring to
commit first-degree controlled-substance crime, we affirm the conviction, but because the
supreme court has determined that the amelioration doctrine applies to defendants whose
cases were not yet final when the DSRA took effect, we reverse appellant’s sentence and
remand for resentencing.
FACTS
On February 12, 2014, H. and M., both off -duty undercover agents of the Brown -
Lyon-Redwood-Renville Drug Task F orce (BLR -DTF), encountered appellant Curtis
Gould and a woman, A., first at one bar, then at another. At the second bar, appellant and
A. sat down at a table with H. and M.
They talked about various topi cs. A. told them she had defrauded the welfare
system. From her use of certain terms, M. inferred that she was or had been engaged in
using and selling drugs. A. also indicated that she could obtain cocaine.
At that point, H. and M. transitioned to on-duty undercover agents. They asked A.
if she could get narcotics. A. said she could, and appellant offered to facilitate the
transaction. The four went to appellant’s apartment, where appellant talked about the cost,
who would pick up the cocaine, and wh o would contact whom. At some point in the
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evening, appellant exchanged phone numbers with H.; he later provided H. with A.’s phone
number.
During the next week, H. exchanged 55 text messages with appellant and 39 with
A. After some vacillation, H. ultimately purchased cocaine that weighed 12.538 grams for
$1,000 from A. in A.’s car. A. was arrested; appellant was arrested later. M. interviewed
appellant in jail.
On February 21, 2014, appellant was charged with one count of conspiracy to
commit first-degree controlled-substance crime. He entered an Alford guilty plea and was
sentenced to a stay of adjudication and placed on probation. Because of probation
violations, the stay was vacated, and appellant was sentenced to a presumptive sentence of
86 months in prison, stayed, with five years of probation. Following another violation, his
probation was revoked, and his sentence was executed.
In 2016, appellant petitioned for postconviction relief. The petition was granted,
and he withdrew his guilty ple a. Following a court trial in August 2016, appellant was
found guilty. He was sentenced to 74 months in prison, which is the presumptive
guidelines sentence for a first -degree controlled -substance offe nse by a person with a
criminal-history score (CHS) of zero.
Appellant filed a direct appeal in January 2017. He challenges his conviction on the
ground that the evidence was insufficient and his sentence on the ground that he is entitled
to be resentenced under State v. Kirby, 899 N.W.2d 485 (Minn. 2017).
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D E C I S I O N
1. Sufficiency of the Evidence
This court applies the same standard to bench trials as to jury trials when reviewing
the sufficiency of the evidence. In re Welfare of M.E.M., 674 N.W.2d 208, 215 (Minn.
App. 2004). That standard, here, is whether the district court, acting with due regard for
the presumption of innocence and the requirement of proof beyond a reasonable doubt,
could reasonably have concluded that appellant was proved guilty of conspiring to commit
first-degree controlled-substance crime. See Bernhardt v. State, 684 N.W.2d 465, 476-77
(Minn. 2004).
Appellant’s own testimony provided a basis for the conclusion that he was guilty of
conspiracy to commit first -degree controlled -substance crime. He testified on direct
examination that: (1) he and H. exchanged phone numbers at the first bar; (2) A., H., and
M. came to his apartment after leaving the second bar and talked about drug dealing; (3) he
continued to text H.; and (4) he volunteered to pick up A.’s children from school while she
was getting the cocaine. On cross-examination, appellant admitted: (1) exchanging a series
of text messages with H. on February 14-19; (2) exchanging voicemail messages with H.;
(3) calling a welfare fraud investigator (WFI) but never calling law enforcement
concerning A.’s drug dealing; (4) talking to H. “about dollar amounts, $2,200.00 for an
ounce of cocaine”; (5) knowing A. “was going to Minne apolis to get these drugs”;
(6) telling H. when A. left to go to Minneapolis, when she was going to be back, and when
she was on her way back with drugs and ready to sell them; (7) passing A.’s information
to H. of his own free will; (8) not being threatened by A.; (9) never calling law enforcement
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about A. selling illegal drugs or wanting to sell illegal drugs; (10) relaying A.’s statements
to H.; and (11) not being threatened or forced by A. to contact H., to leave voicemail
messages on H.’s phone, or to participate in the communication that led to A.’s sale of
drugs to H.
Documentary evidence supports appellant’s testimony. On February 14, appellant
received a text from H. saying, “I’ll deal with . . . just u . . . But I got cash and orders to
fill! Hit me when ur side is good and we will do business,” to which appellant replied,
“Ok, got it.” On Feb ruary 16, H. texted appellant, “I need a price from her [A.]”; and
appellant replied, “I know you need p” and later, “2200 per zipper [ounce] . . . .” Appellant
later texted H. that he should send a moneygram to the Walmart in New Ulm; H. replied,
“I ain’t fronting nothing. . .”; appellant said “[A.] states put x [$] up or no deal.”
Appellant and H. also communicated by voicemail on February 16. Appellant told
H. that A. wanted his “complete shopping list” and that she wanted half the money; later
appellant told H. that
you can hang onto it [the money] til she comes home and then
we’ll meet in a public place with no cameras . . . and then you
guys can do your stuff ah but I need to hear from you if you
wanna do this cuz she’s not putting up her money cuz there’s
no way to trust you, can’t check anything out, I’ve got my
private invest igator buddy [i.e., WFI] checking your phone
number so ah ya know that hasn’t come back yet but ya know
life is life and things change and things take a while so ah ya
know if you want this to work I believe it can happen but you
gotta, you gotta do something, just show an effort, she’s got the
product and I know it. And the reason I know it is I know
where she got it from so call me back—voice to voice.
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Appellant’s references to “we,” to having his “private investigator” check on H., and to
knowing where A. got the drugs all indicate that appellant knew there was an agreement to
commit a crime and had the intent to commit the crime, both elements of a conspiracy
offense. See State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (“[B]oth knowledge of
an agreement and evidence of intent to commit the crime or act that is the object of the
conspiracy” are required for a conspiracy offense.).
On February 18, H. sent appellant a photograph of a pile of money. Appellant
replied, “[N]ext time. L go to msp/st. Paul u will play ball.” On February 19, appellant
said, “[A.] just left . . . [She] mite be a litl late,” and “Have her kids. As sitter. She will
notify me o u.” From appellant’s testimony and his text and voicemail correspondence
with H., the district court could reasonably have concluded that appellant was proven guilty
beyond a reasonable doubt.
Appellant argues that, “[e]ven if there is sufficient evidence that [he] conspired with
[A., he] is nonetheless not liable as a co -conspirator because he abandone d any criminal
purpose and made reasonable efforts to prevent the crime by his actions with [WFI].”
WFI’s testimony defeats this argument.
WFI testified that: (1) appellant had contacted him by phone about A.’s efforts to
use appellant’s identification to get money from money grams her family sent her because
appellant “was concerned that if that would come out that it may look like he was
committing fraud”; (2) appellant contacted him about A. committing “other crimes
potentially um, substance crimes . . . . I believe [appellant] was referring to drugs”;
(3) appellant “said that [A.] was um, dealing drugs and could get anything she wanted from
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the . . . Twin City area”; (4) appellant “had met with um, somebody by the name of Rob,
[i.e., H., who] was continuing to contact [appellant] regarding a drug deal”; (5) when WFI
offered to put appellant in contact with someone in law enforcement who had knowledge
of drug offenses, appellant said WFI could contact law enforcement but appellant “wanted
to remain anonymous”; (6) appellant never indicated that he had called law enforcement
about his concerns with the drug dealing; and (7) appellant did not explain why he wanted
to remain anonymous.
The records of appellant’s communication with H. and A. show that he was
simultaneously telling WFI that he was concerned about the drug dealing and facilitating
communication between A. and H. so the sale could occur. There is no evidence that
appellant abandoned the conspiracy or intended it to fail: he did not contact l aw
enforcement, he continued to act as a go -between for A. and H., he watched A.’s children
so she could get the drugs, he kept H. informed of A.’s progress, and he refrained from
telling WFI or anyone else about the drug sale he knew would occur.
Nothing in the record supports appellant’s assertion that he withdrew from the
conspiracy and tried to prevent the crime. There was sufficient evidence to conclude that
appellant was guilty of conspiracy to commit first-degree controlled-substance crime.
2. Effect of the DSRA on Appellant’s Conviction and Sentence
Appellant argues that he is entitled to be resentenced under the DSRA. A defendant
is required to be resentenced under the DSRA -amended sentencing grid “only if: (1) the
Legislature made no statement that clearly establishes the Legislature’s intent to ab rogate
the amelioration doctrine; (2) the amendment mitigated punishment; and (3) final judgment
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had not been entered as of the date the amendment took effect.” State v. Kirby, 899 N.W.2d
485, 490 (Minn. 2017).
As to the first requirement, Kirby concluded that, in the DSRA, “the Legislature did
not intend to abrogate the amelioration doctrine.” Id. at 491. Thus, the first requirement
is met.
As to the second requirement, the issue is “whether the Legislature reduced the
presumptive sentences from those in the sentencing grid under which [the defendant] was
sentenced.” Id. at 495. In 2014, when appellant committed his crime, the sentencing range
for first-degree controlled substance crime committed by a person with a CHS of zero was
74-103 months, wi th a presumptive sentence of 86 months. Minn. Sent. Guidelines 4.A
(2014). Section 18 of the DSRA, which became effective on May 23, 2016, reduced that
sentencing range to 56 -78 months, with a presumptive sentence of 65 months. Thus, the
DSRA did reduce appellant’s presumptive sentence, and the second requirement is also
met. See Kirby, 899 N.W.2d at 495-96 (“The [DSRA] plainly mitigates punishment” where
it reduced the offender’s presumptive sentencing range “from 138 to 192 months to 110 to
153 months.”).
As to the third requirement, here, as in Kirby, appellant’s conviction was not yet
final on May 23, 2016, so that requirement is also satisfied. See id. at 490. Under Kirby,
appellant is entitled to have his sentence reversed and to be resentenced under the DSRA.
Affirmed in part, reversed in part, and remanded.