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This opinion will be unpublished and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
A17-1159

State of Minnesota,
Respondent,

vs.

Brock Dupree Lam Seawright,
Appellant.

Filed May 29, 2018
Affirmed
Kirk, Judge

Hennepin County District Court
File No. 27-CR-16-19030

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, C hief Appellate Public Defender, Stan Keillor, Special Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Hooten, Judge; and Stauber,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his conviction and sentence for third-degree sale of a narcotic,
arguing that (1) his due -process rights were violated by the state’s failure to collect
additional evidence, (2) trial errors had a cumulative prejudicial effect and denied him a
fair trial, (3) the district court abused its discretion by denying his motion for a downward
durational departure, and (4) the district court committed a clerical error when it imposed
a 51-month, rather than a 49-month, sentence. We affirm the conviction and sentence.
FACTS
Appellant Brock Dupree Lam Seawright was charged with third-degree sale of a
narcotic in violation of Minn. Stat. § 152.023, subd. 1(1) (2014), after he sold crack cocaine
to an undercover officer in May 2016. A jury trial was held.
At trial, an undercov er officer with the Minneapolis Police Department ’s
Community Response Team (CRT) -Narcotics Unit testified that an undercover drug -
buying operation involves sending an undercover officer in to a target area to purchase
narcotics. An undercover operation also utilizes surveillance officers to surveil the dealer,
as well as an undercover officer to ensure officer safety , a take-down officer to arrest the
dealer if necessary and to serve as uniformed backup in case something goes awry, and a
case agent who is in charge of directing the undercover operation.
During the operation, the undercover officer wears a recording device so that he can
be heard by the other officers . After a drug purchase, the undercover officer provides a
description of the dealer thro ugh the recording device so that the surveillance team can

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monitor the dealer and so that the take-down officer can later stop and identify the dealer.
The undercover officer uses “prerecorded buy money” to purchase the narcotics.
The undercover officer testified that between noon and 2:00 p.m. on May 5, 2016,
he participated in an undercover drug-buying operation at Lake Street and Fifth Avenue in
Minneapolis. The case agent provided him with a recording device and prerecorded buy
money for the operation. During the operation, the undercover officer approached a man
and asked him if he had any “work,” which is slang for crack cocaine. That man crossed
Lake Street and approached a second man, a black male, who was wearing a red and blue
Twin’s hat, a white muscle shirt, blue jeans , and tennis shoes. 1 The undercover o fficer
identified appellant in the courtroom as the second man.
Appellant then approached the undercover officer on foot , and the undercover
officer asked appellant if he had any “work.” Appellant said he did and agreed to sell the
undercover officer $40 of crack cocaine . They then walked into a parking lot, the
undercover officer gave appellant the prerecorded buy money, and appellant handed the
undercover officer a small amount of crack cocaine. During their interaction, appellant
identified himself as “Brock” and pointed to a tattoo on his forearm that said “Brock.”
Appellant also gave the undercover officer his telephone number so that the undercover
officer could contact him to purchase more drugs.
Approximately 20 seconds after purchasing the cocaine, the undercover officer
described appellant’s appearance into the recording device. The undercover officer then

1 The undercover officer also testified that the Twins hat was dark blue but acknowledged
that he described it as black in his report.

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left the area , and the surveillance officers continued to monitor appellant. Later, the
undercover officer viewed surveillance photographs and appellant’s Department of Motor
Vehicle Services (DVS) photograph and verified that the y depicted the person who sold
him the crack cocaine.
The undercover officer testified that the prerecorded buy money was not recovered,
because recovering it could have compromised his safety and revealed his identity. When
the CRT receives multiple complaints regarding a n area, it conducts multiple undercover
details in that area over a week or month using the same undercover officer.
The case agent testified at trial that he conducted surveillance and observed the
undercover officer from an unmarked vehicle during the operation. The case agent
observed the undercover officer ’s interaction with the first man, then with appellant, and
listened to their conversations through the recording device. The case agent described
appellant as a b lack male wearing a blue Minnesota Twins baseball cap, white tank top,
blue jeans, and red shoes. The case agent did not observe the actual drug sale because the
undercover officer and appellant went around the corner of a building out of his sight. The
case agent identified appellant in the courtroom as the person who discussed the drug sale
and disappeared around the corner with the undercover officer.
Immediately after the drug buy, the case agent took photographs of appellant. He
also continued to surveil appellant for about 10-15 minutes after the undercover officer left
the area before asking the take-down officer, in a marked squad car , to stop and identify
appellant. The case agent observed the stop to ensure that the take-down officer identified
the correct person.

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The take -down officer testified that the case agent provided a desc ription of
appellant’s appearance and location and directed him to stop and identify appellant. The
take-down officer testified that his only purpose in stopping appellant was to identify him,
and that he did so by viewing appellant’s driver’s license or state ID card. The take-down
officer conducted a pat-down search of appellant for weapons, but did not seize anything
and did not arrest him. The take -down officer provided appellant’s identification
information to the case agent.
The jury found appell ant guilty of the charged offense. Appellant was later
sentenced to 51 months in prison.
This appeal follows.
D E C I S I O N
I. The state did not violate appellant’s right to due process by failing to collect
additional evidence.

Appellant asserts that the state violated his due -process rights by failing to search
him to recover the prerecorded buy money or additional drugs. But appellant does not
develop this argument or assert what, if any, relief he is entitled to. And, under Minnesota
law, a law enforcement officer does not violate a suspect’s due-process rights by failing to
collect evidence, even if the suspect believes that the additional evidence would have
strengthened the state’s case. State v. Krosch , 642 N. W.2d 713, 718 -19 (Minn. 2002)
(noting that due process is not implicated when the state fails to collect evidence).
Appellant also acknowledges that the state is not generally sanctioned for failing to
preserve evidence it did not seize. See State v. Jenkins, 782 N.W.2d 211, 235 (Minn. 2010)

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(“The duty to preserve evidence only applies to evidence that is actually collected during
the investigation of the crime because it would be illogical to require the [s]tate to preserve
evidence it does not possess.” (quotation omitted)).
Ultimately, appellant asserts that the state’s witnesses were not credible because the
state did not present sufficient corroborating evidence to support their testimony that he
was the person who sold the crack cocaine to the undercover officer. Appellant argues that
because the state’s witnesses did not recover the prerecorded buy money , they failed to
conduct a sufficient undercover investigation, and the state could not prove that he was the
seller. But the record contains ample evidence identifying appellant as the seller. And in
order to find appellant guilty, the jury necessarily found that the state’s witnesses, and their
undercover investigation indicating that appellant was the seller, were credible. We defer
to the jury’s credibility determinations. State v. Watkins, 840 N.W.2d 21, 31 (Minn. 2013)
(“[I]t is the function of the fact-finder, not this court, to make credibility determinations.”).
II. Appellant is not entitled to a new trial based on the state’s alleged trial errors.
Appellant alleges several errors by the state at trial, and argues that the cumulative
effect of these errors was prejudicial, and that he was thus denied his right to a fair trial .
The state argues that appellant has not p roven any error, and that even if appellant proved
the alleged errors, there is no evidence that appellant was prejudiced or denied a fair trial.
An appellant is entitled to a new trial if the cumulative effect of trial errors
effectively denied the appellant a fair trial. State v. Jackson, 714 N.W.2d 681, 698 (Minn.
2006). “Cumulative error exists when the cumulative effect of the errors and indiscretions,
none of which alone might have been enough to tip the scales, operate to the defendant’s

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prejudice by producing a biased jury.” State v. Penkaty , 708 N.W.2d 185, 200 (Minn.
2006) (quoting State v. Johnson, 441 N.W.2d 460, 466 (Minn. 1989)). A new trial is only
awarded “in rare cases.” State v. Fraga, 898 N.W.2d 263, 278 (Minn. 2017). A reviewing
court is “more inclined to order a new trial for cumulative errors in very close factual
cases.” Id. at 279. We consider each of appellant’s arguments in turn.
A. The district court did not abuse its discretion by sustaining the state’s
objections to defense counsel’s cross-examination.
First, appellant argues that the district court abused its discretion by sustaining five
objections made by the prosecutor during defense counsel’s cross -examination of the
state’s witnesses, as the defense attempted to elicit responses that would indicate defects
in the undercover investigation or in the state’s case. Appellant argues that by sustaining
those objections the district court improperly limited cross-examination and prevented him
from impeaching the state’ s witnesses with inconsistencies in their testimony and
weaknesses in the investigation.
“Evidentiary rulings rest within the sound discretion of the [district] court and will
not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden
of establishing that the [district] court abused its discretion and that appellant was thereby
prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). “The
scope of cross -examination is largely left to the discretion of the [district] court,” and is
reviewed for a clear abuse of discretion. State v. Parker , 585 N.W.2d 398, 406 (Minn.
1998).

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A review of the record reveals that defense counsel’s questions were appropriately
objected to and that the district court did not abuse its discretion in sustaining those
objections. On this record, we cannot conclude that the district court improperly limited
cross-examination of the state’s witnesses. Furthermore, even if the rulings were
erroneous, appellant did not show that he was prejudiced by any of them because, in each
instance, defense counsel was able to present the intended points and information to the
jury through other means. Appellant sought to emphas ize inconsistencies in the state’s
witnesses’ testimony and was able to do so.
B. The district court did not err by admitting testimony related to
appellant’s state ID.

Appellant next argues that the district court committed plain error by admitting
unobjected-to hearsay evidence. When evidence is not objected to at trial, appellate review
is forfeited. Fraga, 898 N.W.2d at 276 . However, an appellate court may exercise its
discretion to review the alleged error under the plain -error standard. State v. Griller, 583
N.W.2d 736, 740 (Minn. 1998). “The plain -error rule requires a defendant to establish
(1) an error, (2) that is plain in that it violates or contradicts case law or a rule, and (3) that
the error affects the defendant’s substantial rights.” Fraga, 898 N.W.2d at 277. “An error
affects substantial rights if there is a reasonable likelihood that it substantially affected the
verdict.” Id.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.

9
Evid. 801(c). However, “a statement [by a party -opponent] of which the party has
manifested an adoption or belief in its truth” is not hearsay. Minn. R. Evid. 801(d)(2)(B).
Although he did not object at trial, appellant now argues that it was error for the
district court to allow the take-down and undercover officers to testify about appellant’s
state ID and his DVS photograph because those items were out-of-court written statements
offered for the truth of the matter asserted : that the man pictured was “Brock Seawright.”
Appellant reli es on Florida and Maryland caselaw to support his position that the
identification information on a driver’s license is an out -of-court statement subject to the
hearsay rule. See Jones v. State, 127 So. 3d 622, 624-25 (Fla. Dist. Ct. App. 2013); Gordon
v. State , 66 A.3d 647, 658 (Md. 2013). In both cases, those state courts held that the
identifying information on a driver’s license is an “admission by adoption,” which is not
hearsay under Minn. R. Evid. 801(d)(2)(B). These cases are not precedential in Minnesota,
nor do they support appellant’s argument that the identification testimony here is hearsay.
Appellant argues that the only evide nce tying him to the conviction offense is the
name on the state ID presented to the take-down officer. However, the record includes in-
court identifications of appellant by the undercover officer and case agent , and the state
submitted and published surveillance photographs of appellant taken immediately after the
drug sale to the jury. Thus, even if the identification testimony was inadmissible hearsay,
and its admission plain error , the state presented other strong evidence identifying
appellant, and on this record, there is not a reasonable likelihood that the admission affected
the jury’s verdict or appellant’s substantial rights so as to warrant plain-error review.

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C. The prosecutor did not commit misconduct.
Appellant argues that the prosecutor committed misconduct during closing
argument. “The prosecutor is an officer of the court charged with the affirmative obligation
to achieve justice and fair adjudication, not merely convictions.” State v. Fields , 730
N.W.2d 777, 782 (Minn. 2007). Acts that “have the effect of materially undermining the
fairness of a trial” may constitute prosecutorial misconduct. Id. Unobjected-to
prosecutorial misconduct is reviewed under a modified plain-error standard. State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If plain error is shown, the burden shifts to
the state to prove that there is no reasonable likelihood that the misconduct had a significant
effect on the verdict. Id. To determine whether the state has met its burden, this court
considers “the strength of the evidence against the defendant, the pervasiveness of the
improper suggestions, and whether the defendant had an opportunity to (or made efforts
to) rebut the improper suggestions.” State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).
Although there was no objection at trial, appellant argues that the prosecutor
committed misconduct by clarifying and misstating testimony during closing argument.
Appellant points to three instances of alleged prosecutorial mi sconduct. First, appellant
accuses the prosecutor of improperly “cleaning up” the undercover officer’s testimony by
clarifying the street value of crack cocaine. A review of the record shows that this was not
prosecutorial misconduct, and that even if it was, it did not significantly affect the verdict
in the face of all the evidence presented so as to warrant modified plain-error review.

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Second, appellant accuses the prosecutor of committing misconduct by attributing
a description of the suspect’s “re d” shoes to the wrong officer. This misstatement is not
significant enough to be prosecutorial misconduct constituting plain error.
Third, appellant takes issue with the prosecutor’s characterization of the undercover
officer and the case agent ’s descri ptions of the suspect’s clothing as “consistent.”
Appellant argues that the officers’ different descriptions of the color of appellant’s shoes
and his Twins hat prohibited the prosecutor from characterizing the descriptions as
consistent. This assertion by the prosecutor was argument, not a misstatement of the
evidence. Appellant acknowledges himself that these distinctions are “subtle.” Again, this
was not prosecutorial misconduct constituting plain error , and even if it was, it was not
significant enough to affect the jury’s verdict so as to warrant modified plain-error review.
On this record, we conclude that: (1) the district court did not abuse its discretion in
sustaining the prosecutor’s objections during the defense’s cross -examination; (2) the
district court did not commit plain error in a dmitting testimony related to appellant’s
identification; and (3) the prosecutor did not commit prosecutorial misconduct. Further,
even if we accept appellant’s allegations of trial errors, appellant has failed to show that
that the cumulative effect of these alleged errors was prejudicial, or that he was denied a
fair trial as a result. Appellant is not entitled to a new trial.
III. The district court did not abuse its discretion by d enying appellant’s motion
for a downward durational departure.

Based on the severity level of this offense and on appellant’s criminal-history score,
this conviction carried a presumptive 57-month prison sentence (49-68 month range). A

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presentence inve stigation (PSI) was conducted and recommended the presumptive
guidelines sentence of 57 months. On April 27, 2017, the district court sentenced appellant
to 51 months in prison.
At the sentencing hearing, appellant moved for a downward durational departure to
the 24-month statutory minimum sentence because of the small amount of crack cocaine
involved in this case. See Minn. Stat. § 152.023, subd. 3(b) (2014) (mandating a 24-month
minimum sentence if the conviction is a subsequent controlled -substance conviction).
Defense counsel argued that it can be inferred that appellant only intended to possess the
drugs for person al use and would not have sold them absent the undercover officer ’s
solicitation. Appellant also argued that he is innocent and that his criminal -history score
is misleading because some of his offenses were committed when he was a juvenile. The
state argued for the 57 -month presumptive guideline sentence, noting appellant’s lengthy
criminal history and his active role in this offense.
The district court concluded that there were no grounds to support a departure
because appellant was convicted of selli ng a cont rolled substance, not possessing it with
intent to sell. The district court stated that it was “going toward the bottom of the box.” In
response to appellant’s argument regarding the small amount of crack cocaine involved in
this case, the district court noted:
I did think about that yesterday as I read through the [PSI]. It
was a small amount that was sold but that’s what a third-degree
sale is and so it’s not smaller than typical. . . . I’m not
convinced that that’s a substantial and compelling basis in this
case.

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So I am going to go to the bottom of the box which is 51
months. . . . It’s 34 months served, 17-month parole, credit for
36 days you’ve already served.

“A sentencing court ‘must pronounce a sentence within the applicable range unless
there exist identifiable, substantial, and compelling circumstances’ that distinguish a case
and overcome the presumption in favor of the guidelines sentence.” State v. Soto , 855
N.W.2d 303, 308 (Minn. 2014) (quoting Minn. Sent. Guidelines 2.D.1 (2011)); see also
State v. Best , 449 N.W.2d 426, 427 (Minn. 1989) (holding that “the [district] court has
broad discretion to depart only if aggravating or mitigating circumstances are present”) .
The district court may order a departure from the presumpti ve guidelines sentence if the
case involves “substantial and compelling circumstances” to warrant the departure. State
v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Substantial and compelling circumstances are
those that make a case atypical. Taylor v. State, 670 N.W.2d 584, 589 (Minn. 2003). This
court will only reverse a sentencing court’s refusal to depart in a “rare” case. Kindem, 313
N.W.2d at 7.
When considering a downward durational departure, a district court is limited to
consideration of offense-related factors. State v. Peter, 825 N.W.2d 126, 130 (Minn. App.
2012), review denied (Minn. Feb. 27, 2013). But even if factors are present to supp ort a
downward departure, the district court is not required to depart. State v. Pegel, 795 N.W.2d
251, 253-54 (Minn. App. 2011) (citing State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984)).
Appellant argues that the district court abused its discretion when it denied his
departure motion because he had a “minor or passive” role in this offense. Appellant also
argues that “the nature of his criminal history score” mitigates his offense. Appellant

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asserts that, although his criminal -history points are adult poi nts, they should not be
weighted so heavily against him because some of his offenses were committed when he
was a juvenile.
After hearing the arguments and statements made at the hearing, and after reviewing
the PSI, the district court denied appellant’s departure motion. The district court concluded
that there was not a substantial and compelling reason to depart in this case and sentenced
appellant within the presumptive guideline sentencing range. Here, the district court
properly considered the circumstances of the convict ion offense and concluded that
appellant was not less culpable than the typical person convicted of third -degree sale of a
narcotic. The district court also relied on a properly calculated criminal -history score to
determine the appropriate guideline sentencing range. The district court did not abuse its
discretion by denying appellant’s departure motion.
IV. The district court did not commit a clerical error when it sentenced appellant
to 51 months in prison.

Appellant argues that the district court made a “clerical error” when it imposed a
51-month sentence rather than a 49 -month sentence, which would have been the shortest
sentence within the presumptive guideline sentencing range. Appellant asks this court to
correct the a lleged error. See Minn. R. Crim. P. 28.02, subd. 12 (“If the appellate court
affirms the judgment, it must direct execution of the sentence as pronounced by the district
court or a s modified by the appellate court under Ru le 28.05, subd. 2.”); 28.05, subd. 2
(“The appellate court may review the sentence imposed . . . .”). A “clerical error” is “a
mistake that ordinarily is apparent upon the face of the record and capable of being

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corrected by reference to the record only.” State v. Verdon, 727 N.W.2d 418, 420 (Minn.
App. 2007) (quotation omitted); see also Minn. R. Crim. P. 27.03, subd. 10 (“Clerical
mistakes in a judgment, order, or in the record arising from oversight or omission may be
corrected by the court at any time, or after notice if ordered by the court.”).
On this record, where the district court was aware of the presumptive guideline s
sentencing range, where the court indicated that it would go “toward the bottom of the
box,” and where the signed sentencing order and warrant of co mmitment also reflect the
51-month sentence imposed at the hearing, it is not possible to conclude that there was a
“clerical error.”
Affirmed.