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This opinion will be unpublished and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
A19-0250

State of Minnesota,
Respondent,

vs.

Joseph Robert Clay,
Appellant.

Filed December 30, 2019
Affirmed
Rodenberg, Judge

Redwood County District Court
File No. 64-CR-18-183

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

Jenna M. Peterson, Redwood County Atto rney, Joseph M. Sanow, Assistant County
Attorney, Redwood Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenber g, Presiding Judge; Ross, Judge; and
Klaphake, Judge.
*

* Retired judge of the Minnesota Court of Ap peals, 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
RODENBERG, Judge
In this direct appeal from appellant Jose ph Clay’s conviction fo r third-degree sale
of a controlled substance, appellant argues that the district court committed plain error by
admitting into evidence an exhib it that identified appellant as a drug dealer and a gang
member. Because we conclude that there was no plain error, we affirm.
FACTS
In January 2018, Agent Me yer of the Brown/Lyon/R edwood/Renville Drug Task
Force arranged for a confidential inform ant (CI) to purchase methamphetamine from
appellant. The CI arranged to meet appellant at appellant’s home in Morgan to purchase
3.5 grams of methamphetamine for $170. As pa rt of the arrangement with the task force,
the CI completed a cooperating individual agreement. The agreement called for disclosure
of information. The CI disclo sed on the written agreement that he sells “[a] couple [of]
grams [of methamphetamine and heroin] every week” and that he uses “heroin, meth,
weed, [and] coke.” The CI also disclosed in the written agreement that he had been arrested
multiple times and had a pending criminal charge at the time he entered into the agreement.
Additionally, the written agreement and disclosure stated that the CI knew that appellant
was a drug dealer and was affiliated with the Native Mob.
After the agreement was signed, police se arched the CI, attached a recording and
transmitting device to the CI’s ankle, and ga ve him $170 in cash to make the controlled-
substance purchase. The CI entered appella nt’s residence while police surveilled.
Appellant provided the CI with a bag containing 3.5 grams of methamphetamine, and the

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CI paid appellant $170. After leaving appe llant’s house, the CI returned to police and
“handed them the dope.”
The state charged appellant with third-de gree sale of a controlled substance in
violation of Minn. Stat. § 152.023, subd. 1(1) (2016). At appellant’s jury trial, the state
called four witnesses, including Agent Meyer and the CI. The state introduced six exhibits
consisting of Facebook and text messages between the CI and appellant, excerpts from the
audio surveillance of the controlled-substa nce buy, and the cooperating individual
agreement which included the CI’s factual disclosures identified above. The cooperating
individual agreement was admitted into evidence with no objection.
Appellant was convicted of third-degree sale of a controlled substance, and the
district court sentenced appellant to 60 months in prison.
This appeal followed.
D E C I S I O N
Appellant argues that the district court committed plain error by permitting the state
to offer the cooperating individual agreement into evidence when the document contained
references to appellant’s gang affiliation and his history of selling drugs.
Because appellant did not object to the admission of the coop erating individual
agreement at trial, we apply the plain-error standard of review. State v. Griller , 583
N.W.2d 736, 740 (Minn. 1998). Under the pl ain-error standard, a defendant must show
“(1) error; (2) that was plain; and (3) that affected substantial rights.” State v. Strommen,
648 N.W.2d 681, 686 (Minn. 2002 ). “An error is plain if it is clear or obvious, which is
typically established if the error contravenes ca se law, a rule, or a st andard of conduct.”

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State v. Webster , 894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted). To meet the
substantial-rights requirement, “[the defendant] bears the burden of establishing that there
is a reasonable likelihood that the absence of the error would have had a significant effect
on the jury’s verdict.” State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016) (quotation omitted).
If all three elements of the plain-error test are met, “we should address the error to ensure
fairness and the integrity of the judicial proceedings” and “will correct the error only if the
fairness, integrity, or public reputation of the judicial proceeding is seriously affected.”
State v. Dobbins, 725 N.W.2d 492, 508 (Minn. 2006) (quotations omitted).
Because appellant did not object to the doc ument in question, the district court was
not called on to decide whether the coopera ting individual agreement should have been
excluded from evidence. We therefore addre ss whether the district court should have
excluded the document sua sponte. State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001). A
district court does not err by failing to sua sponte exclude eviden ce when a defendant’s
failure to object to the evidence may be part of his trial strategy. See State v. Washington,
693 N.W.2d 195, 205 (Minn. 2005) (stating that the supreme court “do[es] not agree that
the district court must, or even should, interfe re with the trial strategy of the defendant”);
see also State v. Carridine, 812 N.W.2d 130, 142 (Minn. 2012) (stating that “[t]he invited
error doctrine does not apply . . . if an error meets the plain error test”).
Here, the cooperating indi vidual agreement set forth the CI’s accusation that
appellant was a drug dealer and gang member, and such accusations were likely
objectionable. But appellant did not object, and for good reason. The very same document
contained even more information reflecting poor ly on the CI. Appella nt’s attorney drew

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the jury’s attention to the cooperating individual agreement by questioning the CI on cross-
examination about the document, including the portions of it containing incriminating
information concerning the CI’s frequent use and sale of illegal drugs, his multiple driving-
while-impaired arrests, and his pending char ges at the time of the agreement. Had
appellant’s counsel sought to have the two now-complained-of comments excised from the
exhibit, this might well have invited the state to seek excising the arguably more-damaging
information about the CI from the document. In his summation, appellant’s attorney
identified among the weaknesses in the state’s case that the CI was not credible and that
the state’s case rested on the CI’s veracity. It is evident to us that appellant’s counsel not
having objected was part of appellant’s trial strategy. From the record, it appears that
appellant deliberately refrained from objecting to the evidence because, when compared to
the two lines regarding appellant, the cooperating individual agreement contained
substantially more informati on helpful to appellant’s defe nse concerning the state’s
primary witness. The district court did not plainly err by refusing to sua sponte exclude
the evidence where the evidence in question was helpful to the defense and the lack of
objection to it was evidently strategic. We see no error, much less error that is plain.
We also note that, even if there was an error and even if that error was plain,
appellant cannot show on this record that the error affected appellant’s substantial rights.
See State v. Mosley, 853 N.W.2d 789, 801-03 (Minn. 20 14) (holding that, even assuming
that plain error occurred, relief is not warranted when the defendant’s substantial rights are
not violated). In determining whether the admissi on of the cooperating individual
agreement affected appellant’s substantial ri ghts, we look to the strength of the state’s

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evidence. Id. at 801. Here, the state made a st rong showing that appellant sold
methamphetamine to the CI. Despite appella nt’s vigorous attacks on the CI’s credibility,
the jury accepted the CI’s version of th e transaction, which was monitored by law
enforcement. At trial, the state provided th e jury with Fa cebook and text exchanges in
which appellant offers to sell methamphetamine and heroin to the CI. Additionally, police
testified that they closely monitored the cont rolled buy, and that “a t all times agents did
have eyes on [the CI] during the purchase.” Police indicated that, immediately after the
purchase, the CI provided th em with a small plastic bag “that contained a crystal-like
substance,” and that the substance tested positive as methampheta mine. The evidence
strongly supports that appellant sold the CI methamphetamine. There is nothing to suggest
that the outcome of the trial was affected in any material way by the two isolated references
in one document to appellant’s drug and gang history.
The district court did not commit plain error by admitting the cooperating individual
agreement into evidence.
Affirmed.