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This opinion will be unpublished and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
A17-1252

State of Minnesota,
Respondent,

vs.

Angel Obidio Calix,
Appellant.

Filed June 11, 2018
Affirmed in part, reversed in part, and remanded
Reyes, Judge
Concurring specially, Tracy M. Smith, Judge

Todd County District Court
File No. 77-CR-16-271

Lori Swanson, Attorney General, Edwin Stockmeyer, Assistant Attorney General, St. Paul,
Minnesota; and

Charles Rasmussen, Todd County Attorney, Long Prairie, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presid ing Judge; Reyes, Judge; and T. Smith,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from his conviction of four co unts of first-degree controlled-substance
crime, appellant argues that: (1) the state failed to produce sufficient evidence that he sold

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methamphetamine to a confidential informant; (2) he is entitled to a new trial because the
prosecutor committed prejudicial misconduct during his opening ar gument and direct
examination; and (3) he is entitled to resentencing under the Drug Sentencing Reform Act
(DSRA). We affirm appellant’s convictions, but reverse and remand for resentencing.
FACTS
In December 2015, police arrested H.H. (the informant) for possession of
methamphetamine while she was on probation. To avoid prosecution, she became a paid
confidential informant for the Central Minnesota Drug and Violent Crime Task Force (the
task force). Between December 2015 and Ja nuary 2016, the informant executed four
controlled buys from appellant Angel Obidio Calix, each for one-half ounce of
methamphetamine. The informant completed each controlled buy in appellant’s auto-body
shop or in his home that is attached to his shop.
On March 11, 2016, the task force obtaine d a search warrant for appellant’s auto-
body shop and home, and on March 16, 2016, the task fo rce obtained a warrant for
appellant’s arrest. During the search warra nt’s execution, officers found marijuana,
marijuana paraphernalia, a “bug detector,” 1 and a digital scale, but did not find
methamphetamine. The task force also sei zed $1,000 in cash from appellant’s auto-body
shop. Later that day, Todd County police arrested appellant and seized his car, but found
no evidence of drugs or drug dealing on his person or in his car.

1 A “bug detector” is a device that is able to alert to the presence of, locate, and disable
electronic equipment such as microphones, cameras, and GPS-tracking devices.

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Respondent State of Minnesota charged appe llant with four counts of first-degree
controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 1(1) (2014). The
jury found appellant guilty of all charges. The district court sentenced appellant to
concurrent sentences of 86, 110, 134, and 158 months based on his criminal-history scores
of 0, 2, 4, and 6 points for each count. This appeal follows.
D E C I S I O N
I. The state produced sufficient evidence that appellant sold methamphetamine
to the informant.

Appellant first argues that the state failed to prove beyond a reas onable doubt that
he was the person who sold methamphetamine to the informant because the informant was
unreliable, and her testimony was uncorroborated. We are not persuaded.
When considering a claim of insufficien t evidence, we conduct “a painstaking
review of the record to determine whether the evidence and reasonable inferences drawn
therefrom, viewed in the light most favorable to the verdict, were sufficient to allow the
jury to reach its verdict.” Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017) (quotation
omitted). We assume that “t he jury believed the state’s witnesses and disbelieved any
evidence to the contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation
omitted). And we will not distur b the verdict if, giving due re gard to the presumption of
innocence and to the prosecution’s burden of proving guilt beyond a reasonable doubt, the
jury could reasonably have found the defendant guilty of the charged offense. State v.
Vang, 847 N.W.2d 248, 258 (Minn. 2014) (quotation omitted).

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Appellant argues that the informant’s te stimony was unreliable because she was a
chronic methamphetamine user, had multiple felony drug convictions, lied to her probation
agent about her drug use to avoid a probation violation, and had a motive to lie. The
informant herself admitted to each of these facts during her di rect examination. But she
also testified that she was atte nding outpatient drug treatment at the time of trial and had
ultimately agreed to be an informant because it would discredit her name in the drug world
and block future opportunities to purchase drugs and relapse. She was “tired of that life.”
It is the exclusive function of the jury to weigh the credibility of witnesses because
it is in the best position to do so. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010);
State v. Pippitt , 645 N.W.2d 87, 94 (Minn. 2002). Because our review is rooted in the
assumption that “the jury believed the state’ s witnesses and disbelieved any evidence to
the contrary[,]” Caldwell, 803 N.W.2d at 384, we dec line to undermine the jury’s
credibility determination of the informant.
Appellant also argues that, because the informant’s testimony was unreliable, the
state’s evidence was insufficien t to sustain appellant’s convictions absent independent
corroboration. But Minnesota law does not re quire corroboration of a police informant’s
testimony unless the informant is also an accomplice. State v. Hadgu, 681 N.W.2d 30, 34
(Minn. App. 2004), review denied (Minn. Sept. 21, 2004). A person who purchases illegal
drugs cannot be an accomplice of a person charged with selling drugs because each offense
is separate and distinct. State v. Swyningan, 304 Minn. 552, 555-56, 229 N.W.2d 29, 32-
33 (1975). The informant did not aid appella nt in distributing the methamphetamine.
Instead, she was the buyer. Th e state did not have to provide evidence corroborating the

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informant’s testimony and appellant’s arguments attacking the sufficiency of the state’s
evidence fail.
II. Appellant’s prosecutorial-misconduct claims fail.
Appellant argues that the prosecutor comm itted prejudicial misc onduct, violating
his right to a fair trial, by: (1) questioning a task-force investigator about the reliability of
the informant’s testimony; (2) commenting on the reliability of the informant’s testimony
during his opening argument; and (3) eliciting evidence of appellant’s prior bad acts.
Appellant did not object to the prosecutor’s questions and comments at trial. We
review unobjected-to prosecutorial misconduc t under a modified plain-error standard.
Caldwell v. State , 886 N.W.2d 491, 501 n.6 (Minn. 2016); State v. Ramey , 721 N.W.2d
294, 302 (Minn. 2006). “Under this modified test, the defendant has the burden to prove
the existence of an error that is plain.” State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017).
An error occurs and is plain if it violates precedent, a rule, or a standard of conduct, or if it
is obvious “conduct the prosecutor should know is improper.” Ramey, 721 N.W.2d at 299-
300, 302. If prosecutorial misconduct amounts to plain or obvious error, the burden shifts
to the state to demonstrate that the plain er ror did not affect the defendant’s substantial
rights. Parker, 901 N.W.2d at 926. But if the defendant does not prove that the state
plainly erred, our analysis ends. State v. Milton, 821 N.W.2d 789, 804 (Minn. 2012).
A. The witness’s vouching testimony.
Appellant first argues that the prosecutor elicited impermissible testimony from the
task-force investigator that vouched for the informant’s credibility. We disagree.

6
One witness may not vouch for the credibility of another because it would interfere
with the jury’s duty to assess credibility. State v. Blanche , 696 N.W.2d 351, 374 (Minn.
2005). Improper vouching testimony is testimony that another witness is telling the truth
or testimony that one believes one witness over another. State v. Ferguson, 581 N.W.2d
824, 836 (Minn. 1998).
Here, the prosecutor asked the investigat or for background information about
controlled buys and what ge nerally makes a confidential informant reliable. The
investigator testified that a confidential informant is deemed reliable when the task force
verifies the informant’s info rmation through independent means, including other people,
its own observations, and precau tionary measures such as searching the informant before
and after the controlled buy and requiring the informant to wear a wire during the controlled
buy. None of this testimony specifically referred to the informant in this case.
The investigator’s statements do not co nstitute impermissible vouching testimony,
and their admission was not error, much less e rror that was plain, b ecause the statements
were made in the context of ho w the task force determines wh en an informant is reliable
for purposes of their controlled buys. We also note that plain error cannot be established
absent binding precedent. State v. Jones, 753 N.W.2d 677, 689 (Minn. 2008). Caselaw
does not expressly prohibit the admission of statements about an informant’s reliability in
the context of their duties as an informant. And, contrary to appellant’s assertion, veracity
and truthfulness are not synonymous with relia bility. As such, thes e statements did not
constitute vouching.

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B. The prosecutor’s vouching comments.
Appellant also argues that the prosecutor made impermissible vouching comments
during his opening argument. Appellant focuses on two of the prosecutor’s comments:
[T]he State will present eviden ce that the buys took place
between a confidential, reliable informant and the defendant.
. . .
And, finally, too, we’ll have the confidential reliable informant
testify. There will be testimony as to the drug task force using
CRIs. It’s common. And I think you’ll learn that these
confidential reliable informants have a past. They – they – they
know the trade. They’re – they’re familiar with it. And that’s
why the task force uses them.

“A prosecutor may not personally endor se the credibility of a witness.” State v.
Fields, 730 N.W.2d 777, 786 (Minn. 2007). Howe ver, the state is free to argue that a
particular witness is or is not credible, which is not a personal endorsement of the witness’s
testimony. Id. The prosecutor’s statements referred to the testimony of a confidential,
reliable informant, which is a term commonly used by police in drug transactions, and was
not a personal endorsement of the informan t’s credibility. The prosecutor’s comments
during his opening argument were not plain error.
C. Prior-misconduct test imony about appellant.
Appellant argues that the prosecutor elicited inadmissible testimony from the
informant in the form of Spreigl evidence of prior misconduct to which the state failed to
provide prior notice in accordance with Minn. R. Evid. 404(b). The state argues that the
evidence is non-Spreigl evidence that provided the jury with contextual information about
the investigation.

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During the prosecutor’s direct examination of the informant, he asked her how she
knew appellant:
Q: Okay. And were you just friends over these last four
years or –
A: Yeah. It was – it was a drug-sex relationship.
Q: With – with the defendant?
A: Yes.
Q: And what do you mean by that?
A: I mean, I would go over th ere and exchange sex for
drugs.

Evidence concerning events triggering a police investig ation of a defendant are
admissible to provide the jury with the context fo r the investigation. State v. Ali , 855
N.W.2d 235, 249 (Minn. 2014); State v. Griller, 583 N.W.2d 736, 743 (Minn. 1998). In
Griller, the supreme court held that the distri ct court did not abus e its discretion in
admitting both testimony about a letter sent to the Sioux Falls Police Department that
initiated the police investigation of appellant for murder and the content of the police
interviews with the appellant’s neighbors. Id. at 743. The court reasoned that the testimony
“provided the jury with the context necessary to explain how the investigation against
Griller began and why the police were excavating [Griller’s] backyard.” Id. And in State
v. Czech, the supreme court held that the district court did not err in refusing to redact a
tape recording that indicated that the defend ant was involved in other crimes because the
prosecutor was entitled to provid e the jury with th e context of the r ecorded conversation
between the defendant and undercover agents. 343 N.W.2d 854, 856 (Minn. 1984).
Here, the task-force investigator testified that the task force began its investigation
of appellant after the informant was arrested and provided the task force with information

9
about the identity of he r methamphetamine dealer. Appellant’s defense centered on the
contention that he was never involved in the drug trade and had not been the person who
sold methamphetamine to the informant. Ab sent the informant’s testimony that provided
context about how she knew appellant, the jury might have wondered why the task force
had trusted her tip to the task force that appellant was the person who had sold her
methamphetamine prior to her work as an in formant. Under these facts, we discern no
error in the prosecutor eliciting testimony from the informant of prior misconduct because
the evidence was admissible and relevant to provide the context of the initiation of the
investigation.
III. Appellant is entitled to resentencing under the DSRA.
Finally, appellant argues that he is en titled to resentencing under the DSRA. The
state agrees, as do we.
In 2016, the legislature passed, and the governor signed into law, the DSRA. See
2016 Minn. Laws ch. 160, at 576-92. The DSRA modified various statutory provisions of
the guidelines to make certain pr esumptive sentences less severe. See 2016 Minn. Laws
ch. 160, § 18(b), at 591. Section 18 of the DSRA provides that the section “is effective the
day following final enactment.” 2016 Minn. Laws ch. 160, § 18, at 591. Because the
governor signed the DSRA into law on May 22, 2016, section 18 became effective on May
23, 2016. See 2016 Minn. Laws ch. 160, at 592.
In State v. Kirby, 899 N.W.2d 485 (Minn. 2017), the supreme court held that section
18 of the DSRA applies to cr imes committed before May 23, 2016, the effective date of
that section, so long as three requirements are satisfied:

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(1) there is no statement by the Legislature that clearly
establishes the Legislature’s intent to abrogate the amelioration
doctrine; (2) the amendment mitigates punishment; and
(3) final judgment has not been entered as of the date the
amendment takes effect.

Id. at 490. Because the supreme court’s analysis in Kirby applies to the first and second
requirements as a matter of law, the only question remaining is the third requirement of the
test. See id. at 490-96.
A judgment is final in a criminal case “w hen the district court enters a judgment of
conviction and imposes or stays a sentence.” Minn. R. Crim. P. 28.02, subd. 2(1). Here,
the district court sentenced appellant on April 26, 2017, for the crimes he committed
between December 2015 and January 2016. Sec tion 18 of the DSRA was in force then,
having become effective on Ma y 23, 2016. Thus, final judg ment in appellant’s case had
not been entered as of the date that secti on 18 of the DSRA took effect. The third
requirement of the amelioration doctrine is sa tisfied, which means that section 18 of the
DSRA applies to appellant’s request for resentencing.
The district court sentenced appellant un der the guidelines that were amended by
the DSRA. Under those guidelines, first-degree controlled-substance crime was ranked as
a severity-level-9 offense. Minn. Sent. Guidelines 4.A (2014). The district court sentenced
appellant to presumptive sentences of 86, 110, 134, and 158 mont hs, to be served
concurrently, based on his criminal-history scores of 0, 2, 4, and 6.
First-degree controlled-substance crime is now designated as a severity-level-D8
crime. Minn. Sent. Guidelines 4.C, Drug Offender Grid (2016). Based on appellant’s
criminal-history scores of 0, 2, 4, and 6, the presumptive sentences for his convictions are

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now 65, 85, 105, and 12 5 months. Therefore, appellant is entitled to resentencing under
the DSRA.2
Affirmed in part, reversed in part, and remanded.

2 We need not address appellant’s claim that the district court violated his right to a
unanimous, twelve-person-jury verdict. The original trial transcript received by this court
did not indicate that each of th e twelve jurors affirmed appe llant’s conviction. But that
transcript contained a typographical error, which the court reporter amended in an updated
transcript after the state asked the district court to supplement the record pursuant to Minn.
R. Civ. App. P. 110.05. The corrected transcript shows that each of the twelve jurors
unequivocally affirmed appellant’s guilt. Thereafter, appellant withdrew this argument in
his reply brief.

CS-1

SMITH, TRACY M., Judge (concurring specially)
I concur but write separately only because I believe that law-enforcement testimony
regarding the “reliability” of an informant who testifies at trial comes dangerously closer
to vouching testimony than might be suggested by the opinion of the court. First, the term
“reliability” will often mean and be understood to mean veracity and truthfulness. Second,
although law enforcement certa inly may testify to facts th at corroborate a testifying
informant’s account of events, when law enforcement testifies that it deemed an informant
to be “reliable,” that testimony may in fact be vouching for the witness. Thus, at trial,
proposed law enforcement testimony regarding a testifying informant’s “reliability” must
be carefully scrutinized for possible impermissible vouching, as well as for relevance.
In this case, however, I ag ree that the prosecutor did not engage in prosecutorial
misconduct under the modified plain-error te st by referring to the informant as a
“confidential reliable informant” or by eliciting testimony re garding confidential reliable
informants generally. Both the prosecutor and defense counsel referred to the witness as a
confidential reliable informant or, more typically, as a CRI. 1 Considering that defense
counsel regularly used that term, I think it unlikely that the jury interpreted it as vouching
for the informant’s credibility. And, with respect to the general testimony about how law
enforcement uses informants, I believe that, in context, this testimony was elicited to
explain how law enforcement corroborates controlled buys and not as improper vouching
testimony for the particular testifying inform ant, although the term “reliable” was not

1 The parties referred to th e informant as “confidential, ” which she was during the
investigative phase of the case, but at trial, of course, her identity was public.

CS-2

necessary to the task and coul d have been avoided. For th ese reasons, I agree that the
prosecutor’s unobjected-to use of the term “confidential reliable informant” or CRI, in the
context in this case, did not constitute reversible plain error.