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This opinion will be unpublished and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
A17-1593

State of Minnesota,
Respondent,

vs.

Brianne Joy Peterson,
Appellant.

Filed September 4, 2018
Affirmed
Bjorkman, Judge

St. Louis County District Court
File No. 69VI-CR-16-613

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

Mark S. Rubin, St. Louis County Attorney, Sharon Chadwick, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Renée Bergeron, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, 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
Appellant challenges her first-degree controlled-substance conviction, arguing that
she is entitled to a new trial because the district court erroneously admitted (1) an officer’s

2
identification testimony that flowed from an impermissibly suggestive procedure and
(2) photographs of text messages between appellant and an informant that lacked
foundation. We affirm.
FACTS
On December 6, 2015, law -enforcement officers with the Boundary Waters Drug
Task Force arrested B.L. after she tried to buy methamphetamine from an informant. The
task force offered B.L. an opportunity to work as an informant in exchange for charging
consideration, and she agreed to do so. On January 28, 2016, a task-force member told her
that she had until the end of the day to set up a controlled buy or she would be dismissed
from the informant program. B.L. responded that she would set up a transaction with her
former intimate partner, P.S.1
Through a series of text messages, P.S. agreed to sell B.L. a “half zip”2 for $1,000.
P.S. told B.L. that appellant Brianne Peterson would facilitate the transaction. Peterson
then exchanged text messages with B.L., ultimately telling B.L. to meet her in the women’s
restroom of a local store. The two met in a restroom stall where B.L. gave Peterson $1,000
for what later was determined to be just under 12 grams of methamphetamine.
Task-force members conducted surveillance from the store’s parking lot. Sergeant
Steven Borchers was in one unmarked vehicle, and Officer Katherine Kral and Deputy
Ryan Smith were in another. A Chevy truck pulled into the parking lot and B.L. went into

1 P.S. was a suspected methamphetamine dealer in the area, and the task force was aware
of him.

2 A “half zip” is one-half ounce of methamphetamine.

3
the store. Neither the passenger nor the driver left the truck. B.L. received a text message
from Peterson stating that she did not have the methamphetamine on her. The truck then
left the lot, and B.L. returned to Deputy Smith and Officer Kral’s vehicle.
The truck returned and both Sergeant Borchers and Deputy Smith saw someone exit
and go into the store. B.L. re-entered the store after receiving another text from Peterson,
and the transaction occurred. Although the task force had fitted B.L. with both audio and
video recording devices , only the audio device worked, and only during part of the
controlled buy. Deputy Smith and Officer Kral heard only muffled female voices and what
they perceived to be the counting of money.
After the controlled buy, the officers allowed Peterson to leave in the truck. B.L.
returned to Deputy Smith and Officer Kral ’s vehicle and handed them a small baggie
containing the methamphetamine. During the debriefing session back at the sheriff’s
office, Deputy Smith took photographs of the text messages that B.L. and Peterson
exchanged leading up to the controlled buy.
Peterson was subsequently charged with two first -degree controlled -substance
offenses. Prior to trial, Peterson moved to exclude the text messages and Sergeant
Borchers’s testimony identifying her as the person who entered the store right before the
controlled buy. The district court denied the motion s, and the jury found Peterson guilty
as charged. The district court denied Peterson’s motion for a sentencing departure, and

4
imposed a 74-month executed sentence on one count of first -degree controlled-substance
crime.3 Peterson appeals.
D E C I S I O N
I. The district court did not err by admitting Sergeant Borchers’s identification
testimony.

Admission of identification evidence “violates due process if the procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” State v. Hooks, 752 N.W.2d 79, 8 3-84 (Minn. App. 2008) (quotation
omitted). This court “review[s] de novo whether a defendant has been denied due process.”
Id. at 83.
Peterson asserts that Sergeant Borchers’s pretrial and in-court identifications denied
her due process because they were tainted by an impermissibly suggestive identification
procedure. In analyzing suggestive-identification claims, we conduct a two -part test. Id.
at 84. First, we ask whether the identification procedure was impermissibly suggestive.
Id. This determination commonly turns on whether a defendant has been unfairly singled
out by law enforcement . State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). The
constitutional concern flowing from roundly criticized single photograph line-ups is that
“police influence rather than the witness’s own reasoning and recollection led to the
witness’s identification of the defendant.” Hooks, 752 N.W.2d at 84 ; see also State v.

3 After the Minnesota Supreme Court released its decision in State v. Kirby, 899 N.W.2d
485 (Minn. 2017), the district court granted Peterson’s motion to modify her sentence to
56 months.

5
Taylor, 594 N.W.2d 158, 161 (Minn. 1999) (stating that the ultimate concern is whether
the police’s procedure influenced the witness’s identification of the defendant).
Second, if the procedure was impermissibly suggestive , we ask whether the
identification was still reliable under the totality of the circumstances. Ostrem, 535 N.W.2d
at 921. In answering that question, we consider (1) the opportunity of the witness to view
the criminal during the crime , (2) the witness’ s level of attention, (3) the accuracy of the
prior description of the defendant by the witness, (4) the witness’s level of certainty at the
photograph display, and (5) the time between the crime and the photo graph display. Id.
But we do not apply the two-part test when there is “no conceivable identification-inducing
interaction between the police and the identifying witness.” Hooks, 752 N.W.2d at 84.
A. The identification procedure was not impermissibly suggestive.
This case does not present the typical suggestive-identification situation where a lay
witness is provided with identifying information by law enforcement; Sergeant Borchers
was both the “witness” who made th e identification and the officer who determined what
identification procedure to use. See id. at 85 (noting that an officer “ who obtains and
observes for himself a driver’ s license photograph to identify for himself the person he
observed committing the i nvestigated crime does not implicate t hat person’s due process
rights” in the same way that a police officer supplying one photograph to an eyewitness
does). Sergeant Borchers testified that he was the task -force commander who approved
and coordinated the controlled buy. And he observed the transaction from the store parking
lot.

6
When Sergeant Borchers arrived at the police station following the controlled buy,
Officer Kral showed him a photograph of Peterson, asking if she was the same person he
saw enter and leave the store around the time of the controlled buy. Sergeant Borchers
affirmed that the suspect he identified was Peterson based on the photograph.
The district court allowed Sergeant Borchers to identify Peterson as the person who
delivered the methamphetamine to B.L. because he had the opportunity to see her during
his surveillance of the controlled buy . And because Sergeant Borchers was in charge of
the investigation, could have looked up Peterson’s photo graph on law -enforcement
computers, and was not likely to be impermissibly influenced by his subordinate, the fact
he was presented with only Peterson’s photograph was not impermissibly suggestive. We
agree with the district court’s reasoning. Because there is “no conceivable identification -
inducing interaction between police and the identifying witness” when the same officer
both establishes the procedure and identifies the suspect, the due -process concern
implicated in single photograph line-ups are not present here. Id.
Peterson attempts to d istinguish Hooks by arguing that the identification process
was impermissibly suggestive since Sergeant Borchers did not retrieve the photo graph
himself. We disagree. Even before the controlled buy, all three task-force officers were
aware that Peterson was a suspect. Sergeant Borchers testified that he would have obtained
Peterson’s photograph himself following the transaction if Officer Kral had not already
done so. As Sergeant Borchers was both an eyewitness to the crime and the lead law-
enforcement officer, we cannot say that he impermissibly influenced himself. Nor do we
conclude that he was impermissibly influenced by the subordinate officer who showed him

7
the photograph. Because Sergeant Borchers’s pretrial identification did not trigger the due-
process concerns that are implicated when law-enforcement officers ask a lay witness to
make an identification, the two-part suggestive-identification test does not apply.
B. The identification was reliable under the totality of the circumstances.
Peterson contends that Sergeant Borchers’s identification testimony was unreliable
because he did not have an adequate opportunity to view Peterson . We disagree. Using
binoculars from a distance of 100-150 feet, Sergeant Borchers saw an individual walk from
the truck into the store. He described the person as slender, dark-haired, between 5’5” and
5’7” tall, and wearing a black skull cap, camoufl age jacket, and dark jeans. This
description was largely accurate, although Sergeant Borchers may have overestimated
Peterson’s height ( B.L. testified it is 5’2”) and mistook her stocking cap and sweatpants
for a skull cap and jeans.
The district court determined that Sergeant Borchers’s testimony established that he
was in a position to sufficiently view Peterson as she entered the store, and the evidence in
the record supports that determination. On this record, we conclude that the totality of the
circumstances show Sergeant Borchers’s identification of Pe terson was reliable. The
district court did not err by admitting Sergeant Borchers’s pretrial and in -court
identifications of Peterson.
II. The district court did not abuse its discretion by admitting photographs of text
messages between Peterson and B.L.

District courts have a “considerable [amount of] discretion under Minn. R. Evid.
901(a) in deciding whether evidence has been adequately authenticated or identified.”

8
State v. Dulak, 348 N.W.2d 342, 344 (Minn. 1984). Evidentiary rulings are reviewed “for
an abuse of discretion and any error is subject to harmless error analysis.” State v. Greer,
635 N.W.2d 82, 91 (Minn. 200 1) (citation omitted) . Reversal is warranted when an
evidentiary error “substantially influences the jury to convict.” State v. Loe bach, 310
N.W.2d 58, 64 (Minn. 1981).
To establish that evidence is authentic, the proponent must show that the evidence
is “sufficient to support a finding that the matter in question is what its proponent claims.”
Minn. R. Evid. 901(a). There is no single procedure for authenticating evidence. See State
v. Johnson, 239 N.W.2d 239, 242 (Minn. 1976) (“There can be no rigid formulation of
what showing is necessary in order for a particular item of evidence to be admissible.”).
The rules of evidence provide several examples, including testimony of a knowledgeable
witness “that a matter is what it is claimed to be.” Minn. R. Evid. 901(b)(1). And
authentication can be established through circumstantial evidence. State ex rel. Trimble v.
Hedman, 192 N.W.2d 432, 436 ( Minn. 1971); see also Minn. R. Evid. 901 1977 comm.
cmt. (stating that rule 901(b)(4) indicates that evidence can be authenticated by
circumstantial evidence).
Peterson does not contend that the photo graphs do not accurately reflect the text
messages as they appeared on B.L.’s cell phone. Rather, she argues that B.L.’s testimony
did not provide foundation that the text messages were sent by Peterson. The state asserts
that even though B.L. did not provide authenticating testimony at tri al, the text messages
were authenticated by the “distinctive characteristics , taken in conjunction with [the]
circumstances.” Minn. R. Evid. 901(b)(4). We agree with the state.

9
B.L. testified that she had known Peterson for years. B.L. knew her by the nickname
“Bree,” which is how Peterson’s contact information is labeled in B.L.’s cell phone. B.L.
also knew a great deal about Peterson, including where she lived and her current
relationship with P.S. B.L. testified that she believed that she was commu nicating with
Peterson in the text messages. Her belief is corroborated by the fact Peterson began texting
B.L. to set up the controlled buy directly after P.S. told her that Peterson would facilitate
the transaction. B.L.’s relationship and previous int eractions with Peterson put her in a
good position to recognize Peterson’s communication style.
Moreover, the substance and timing of the text messages correlate with the observed
conduct of Peterson during the controlled buy. In one of t he challenged text messages,
timestamped at 8:49 p.m., Peterson stated that she is in a silver Chevy truck outside the
store. Deputy Smith saw a truck matching this description arrive at 8:35 p.m. A little after
8:50 p.m. , Peterson indicated by text that she was going to get the “half zip” of
methamphetamine. Task-force members observed the truck leave the store parking lot a
few minutes later. At around 9:23 p .m., Peterson texted that she was on her way back to
the store. The same truck returned to the parking lot two minutes later. B.L.—while in
one of the unmarked car s—identified Peterson as she left the truck to go into the store.
Peterson then texted B.L. at 9:29 p.m. and told her to go to the women’s restroom inside.
Seven minutes later, the store’s surveillance system recorded B.L. and Peterson leaving the
restroom together.
In sum, B.L. established she knew Peterson personally and had communicated with
her via text on prior occasions. And the conduct observed by the task force directly tracks

10
the communications between B.L. and Peterson in real time. On this record we conclude
that the district court did not abuse its discretion in ruling that the text messages were
properly authenticated and admitting the photographs depicting the messages.
Affirmed.