State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0634

State of Minnesota,
Respondent,

vs.

Courtney Victor Prude,
Appellant.

Filed March 4, 2019
Affirmed
Hooten, Judge

St. Louis County District Court
File No. 69DU-CR-17-336

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Christopher J. Pinkert, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Charles F. Clippert, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Rodenberg, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant challenges his conviction for aiding and abetting first-degree sale of a
controlled substance, arguing that: the evidence was insufficient to support his conviction,

2
the judge improperly communicated with the jury outside of his presence, the state failed
to disclose exculpatory evidence, and the state elicited perjured testimony. We affirm.
FACTS
In late January of 2017, police surveilled a house in Duluth and observed evidence
of drug dealing, including repeatedly witnessing Joanne Smith leaving the house and
briefly meeting other individuals on the street within one block of the house . Sergeant
Rodney Wilson observed this behavior and recognized it as indicative of drug dealing
based on his experience. Police conducted this surveillance based on prior information that
heroin was being dealt out of that house, and because police had successfully raided the
same house three times in the preceding 18 months based on suspicion of heroin being sold
there.
After they observed several suspected drug deals, police obtained and executed a
no-knock search warrant for the house. Smith was leaving as police were coming in, and
police took her into custody. When police entered the house, they immedia tely saw
Antonio Johnson running away from the front door towards the bathroom of the residence.
One officer took him into custody. Another officer forced open t he bedroom door and
discovered a ppellant Courtney Victor Prude inside with N.R., who was a heroin user
visiting the house. After taking appellant into custody, police found in the room where he
was arrested: a strap that is commonly used as a tourniquet by intravenous drug users, a
digital scale that appeared to be covered in drug residue, a clear plastic bag, and pieces of
similar plastic bags. Police also found a bag of heroin in the hallway of the apartment, as
well as more suspected heroin throughout the house. In total, police seized 48.9 grams of

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confirmed heroin, 24.685 grams of a confirmed mixture of heroin and fentanyl, and 98
grams total of suspected heroin. Police also discovered $678 in cash in appellant’s
possession and $3,129 in Johnson’s possession.
Police charged appellant with one count of aiding and abetting first-degree sale of a
controlled substance under Minn. Stat. § 152.021 (2016). At trial, Smith testified that: she
drove appellant and Johnson up to Duluth so that they could sell heroin there; she t ook
them to her friend’s house so that both of them could sell heroin there; she personally
conducted heroin deals on behalf of appellant and Johnson; when she got orders for heroin,
appellant sometimes gave her the heroin and sometimes Johnson gave it to her; and in
exchange for running the heroin to customers and bringing back the money to appellant
and/or Johnson, they would give her money or heroin. She also testified that she received
a lesser sentence in exchange for her testimony, but her plea agreement did not impact the
substance of her testimony.
After closing arguments, the jury sent a message to the district court judge asking a
question about “Investigator Shaw.” The trial judge sent the note back through the bailiff
“saying we need clarification on this because there was no Investigator Shaw in this case.”
The jury did not return the question or have any other communications with the judge about
Investigator Shaw . Although the judge did not call in the parties to address the jury’s
question, the judge made a record of the exchange before calling the jury in to read the
verdict.
The jury convicted appellant of the sole charge. The dis trict court sentenced
appellant to an executed guidelines sentence of 105 months. This appeal follows.

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D E C I S I O N
I. The evidence is sufficient to support the jury’s verdict.
“In reviewing a claim of insufficiency of the evidence, we make a pa instaking
review of the record, to ascertain[ ] whether, given the facts in the record and the legitimate
inferences that can be drawn from those facts, a jury could reasonably conclude that the
defendant was guilty of the offense charged.” State v. Flowers , 788 N.W.2d 120, 133
(Minn. 2010) (quotations omitted). “We will not disturb a verdict [i]f the jury, acting with
due regard for the presumption of innocence and for the necessity of overcoming it by
proof beyond a reasonable doubt, could reasonably conclude t hat [the] defendant was
proven guilty of the offense charged.” Id. (quotation omitted).
When reviewing a conviction based on circumstantial evidence, we apply a two-
step analysis. State v. Harris, 895 N.W.2d 592, 598 –601 (Minn. 2017). The first step i s
to identify the circumstances proved “by resolving all questions of fact in favor of the jury’s
verdict,” in deference to the jury ’s credibility determinations. Id. at 600. “In identifying
the circumstances proved, we defer to the jury ’s acceptance of the proof of these
circumstances and rejection of evidence in the record that conflicted with the circumstances
proved by the State. ” State v. Sterling , 834 N.W.2d 162, 175 (Minn. 2013) (internal
quotations omitted). This includes “assuming that the jury believed the state’s witnesses
and disbelieved any evidence to the contrary. ” State v. Moore , 438 N.W.2d 101, 108
(Minn. 1989). Second, we independently consider the “reasonable inferences that can be
drawn from the circumstances proved. ” Harris, 895 N.W.2d at 601 . “To sustain the
conviction, the circumstances proved, when viewed as a whole, must be consistent with a

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reasonable inference that the accused is guilty and inconsistent with any rational hypothesis
except that of guilt. ” Id. Accomplice liability for a crime attaches when an individual
“intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the
other to commit the crime.” Minn. Stat. § 609.05 (2016).
We begin by noting that respondent appears to concede th at the circumstantial -
evidence standard of review should apply in this case. But “it is the responsibility of
appellate courts to decide cases in accordance with law, and that responsibility is not to be
‘diluted by counsel’s oversights, lack of research, failure to specify issues or to cite relevant
authorities.’” State v. Hannuksela , 452 N.W.2d 668, 673 n.7 (Minn. 1990). And here,
because there is direct evidence that appellant committed the crime he was convicted of,
we need not apply the circumstanti al-evidence standard of review. State v. Horst , 880
N.W.2d 24, 39 (Minn. 2016) (“[W]hen a disputed element is sufficiently proven by direct
evidence alone, as it is here, it is the traditional standard, rather than the circumstantial -
evidence standard, that governs.”).
Under this standard, the evidence is sufficient to uphold the jury’s verdict.
Appellant argues that he was just present at the drug house, that he did not assist Johnson
in selling the heroin , and that mere presence is insufficient to aid a nd abet the s ale of
controlled substances. He also argues that the evidence does not rule out the possibility
that appellant could have been selling simulated controlled substances and not selling
heroin.
But Smith testified that she received heroin from appellant and gave him the money
she received following a sale; this is direct evidence that appellant was selling heroin and

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was not selling simulated controlled substances . Smith also testified that in the few days
before the raid she facilitated the sale of over 20 grams of heroin for appellant and Johnson.
Smith’s testimony is corroborated by the drug paraphernalia in the room where Prude was
arrested, the significant amount of heroin found in the apartment, the multiple heroin users
in the apartment at the time of the arrest, and the large amount of cash Prude had when he
was arrested. We hold that this direct evidence is sufficient for the jury to have reasonably
concluded that appellant was guilty of the charged crime.1
II. There is no need to reconstruct a record of the district court’s communication
with the jury.

Appellant argues that the district court erred when it answered the jury’s question
about “Investigator Shaw” outside his presence and that we should remand appellant’s case
so that the district court can reconstruct a record of the exchange.
“A defendant’s constitutional right to be present is grounded in the Confrontation
Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth
Amendment.” Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005) (citing United States v.
Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 1484 (1985)). “Our court has recognized that
Minn. R. Crim. P. 26.03, subd. 1(1), requiring defendant ’s presence ‘at every stage of the

1 But even if the circumstantial -evidence standard of review applied , appellant’s
sufficiency argument would sti ll fail. Under the first step, b ecause we presume that the
jury believed the state ’s witnesses, the circumstances proved include: appellant, through
Smith, sold more than 20 grams of heroin, he was selling actual heroin and not a simulated
controlled-substance, he had a large amount of cash on his person, and he was found in a
bedroom with multiple items of drug paraphernalia . These circumstances proved are
sufficient to rule out both of appellant ’s alternate hypotheses , as well as any other
reasonable hypothesis other than guilt. See Moore, 438 N.W.2d at 108.

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trial,’ provides a broader right to be present than the right guaranteed by the United States
Constitution.” Id. Pursuant to Minn. R. Crim. P. 26.03 subd. 1(1), “[t]he defendant must
be present at arraignment, plea, and for every stage of the trial ,” which includes: “(f) any
jury questions dealing with evidence or law.” When there has been communication
between the judge and the jury outside the presence of the defendant, “the reviewing court
must look to the substance of the communication to see if the defendan t was prejudiced.”
State v. Petrich, 494 N.W.2d 298, 299 (Minn. App. 1992), review denied (Minn. Feb. 23,
1993). “Reversal is appropriate if it appears that the error affected the outcome of the
case.” Id. at 300.
A reconstructed record is neither necessary nor appropriate in this case. Courts will
sometimes reconstruct records when there is no record of an exchange between the jury
and another person or persons. See, e.g., State v. Martin , 723 N.W.2d 613, 623 (Min n.
2006). But that is not necessary when, as here, a district court makes a contemporaneous
record of any communications with the jury. Id. at 625–26 (“The better practice, and the
practice we expect, is for the court to convene counsel and the defendant in the courtroom
and make a contemporaneous record of all communications with the jury, both those that
are housekeeping and those that are not, so that the record for appeal is clear.”).
The district court should have called the parties and the jury in the courtroom before
responding to the jury’s question. See Petrich , 494 N.W.2d at 299 (“During jury
deliberations, the judge and jury should not communicate except in open court and, where
practicable, in the presence of counsel . . . and in criminal ca ses in the presence of the
defendant.”) (quotation omitted). But given the contemporaneous record the district court

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created, the innocuous nature of the exchange, and the fact that appellant does not even
argue that he was prejudiced by the exchange, it is unclear what a remand for the purpose
of recons tructing a record could possibly accomplish. We therefore affirm b ecause
appellant has failed to meet his burden of establishing an error in the district court ’s
creation of a contemporaneous record.
III. The state did not violate its Brady obligations.
In his one-page pro se supplemental brief, appellant appears to argue that the state
improperly withheld the existence of a plea agreement with a “state witness,” denying him
the right to a fair trial. See generally, Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
1196–97 (1963). We conclude that he must be referring to a plea agreement with either
Smith or N.R. because they were the only non-police witnesses called by the state at trial.
If appellant is referring to the state’s plea agreement with Smith, the state disclosed
the agreement before trial and the attorneys for both parties mentioned the agreement
multiple times at trial. Therefore , the state’s plea agreement with Smith was surely not
withheld under Brady. If appellant is referring to a plea agreement with N.R., no plea
agreement was mentioned at trial because there is nothing in the record to suggest that N.R.
had a plea agreement wi th the state, and the state represen ts that it had no deal with her. 2
Even liberally construing appellant’s claim, we hold that it is without merit.

2 Even if appellant had actual evidence of a deal between the state and N.R., which he does
not argue he has, we would still be unable to grant appellant relief because we do not make
new findings of fact or consider evidence that was not admitted by a district court . See In
re Welfare of M.D.O., 462 N.W.2d 370, 374–75 (Minn. 1990) (holding that the role of the
court of appeals is to correct errors, not to find facts).

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IV. Alleged perjured testimony.
Appellant also makes a cursory argument that N.R.’s testimony was perjured
because she made a few statements at trial that were inconsistent with her earlier statements
to Sergeant Wilson about why she went to the house where ap pellant was arrested. The
most generous interpretation of appellant’s claim is that he is alleging that the prosecutor
committed misconduct by knowingly eliciting false testimony. See Napue v. Illinois, 360
U.S. 264, 269, 79 S. Ct. 1173, 1177 (1959) (requiring reversal of a conviction knowingly
obtained with the state’s use of false evidence) . But appellant provides no proof of
misconduct, and does not even allege that such testimony had a reasonable likelihood of
affecting the judgment of the jury, such that we could possibly reverse his conviction. See
id. at 271, 79 S. Ct. at 1178. And “[a]rguments are forfeited if they are presented in a
summary and conclusory form, do not cite to applicable law, and fail to analyze the law
when claiming that errors of law occurred.” State v. Bursch, 905 N.W.2d 884, 889 (Minn.
App. 2017).
We therefore reject appellant’s argument on the ground that it i s presented in a
summary and conclusive form without applicable citations or legal analysis.
Affirmed.