State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0346

State of Minnesota,
Respondent,

vs.

Curtis Lee Brame,
Appellant.

Filed May 10, 2021
Affirmed
Florey, Judge

Douglas County District Court
File No. 21-CR-18-1531

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Chad M. Larson, Douglas County Attorney, Alexandria, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jason R. Steffen, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Reilly, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
This is a direct appeal from a final judgment of conviction that was stayed fo r
postconviction proceedings. Appellant argues that the state failed to present sufficient
evidence to sustain his conviction for third-degree sale of a controlled substance. Appellant
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also argues that the district court abused its discretion by denying his petition for
postconviction relief without an evidentiary hearing . Because there was sufficient
evidence to convict Brame of third -degree sale of a controlled substance and because
Brame did not allege sufficient facts to support his ineffective-assistance-of-counsel claim
to warrant an evidentiary hearing, we affirm.
FACTS
Appellant Curtis Lee Brame was found guilty by a jury of third -degree sale of a
controlled substance, felony domestic assault, and fifth -degree possession of a controlled
substance. Brame was sentenced to 39 -months in prison on the controlled-substance-sale
charge.
At trial, Brame’s girlfriend, B.B., testified that Brame stayed at B.B.’s home in
Alexandria for eight or nine days at the end of August 2018 . B.B. explained that during
that time, Brame began to threaten her and to “[slap her] in the face” and told her that if
she said anything to the police, he would kill her and her grandchildren. B.B. testified that
Brame was a member of the gang Vice Lords. B.B. also testified to telling two of her co-
workers that she was concerned about Brame and that she had a “restraining order” against
him.
B.B. testified that on August 28 , Brame and another man and woman were in her
garage “smoking pot, drinking, and doing drugs.” The woman was “shooting [drugs] with
a needle.” B.B. testified that she did not use methamphetamine, cocaine, or heroin. Brame
was talking to a pregnant woman who had “showed up and was buying drugs” from Brame.
As to the sale of drugs she testified:
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[Prosecutor]: Did you observe any drugs in your house?

[B.B.]: Yes.

[Prosecutor]: Did you observe [Brame] sell any drugs in your
house?

[B.B.]: Yes.

[Prosecutor]: Please describe what you saw.

[B.B.]: He had a little flat scale thing, and he was sitting
at my dining room table and, like, breaking it up
and putting it in little bags and stuff.

[Prosecutor]: Breaking what up?

[B.B.]: A chunk that he said was drugs. Heroin, I think,
is what he said. I'm pretty sure he told me that it
was heroin.

[Prosecutor]: Okay. And did you see him sell that substance to
anybody?

[B.B.]: Yes, I seen him give it to the -- well, I seen him
give it to the [pregnant woman] that was there.
But I guess I didn't see him get money , but I
assumed that that's what they were doing.

Later in his examination, the prosecutor asked B.B. if appellant used the scale “to measure
out methamphetamine,” and she responded “Yes.”
B.B. testified that at some point that night Brame asked her “to hold the drugs in
[her] bra” because “he didn’t trust” the woman who was in the garage. B.B. explained that
after Brame went to sleep, she placed the drugs in the side pocket of a speaker and left to
call 911. She testified that she was “terrified . . . [o]f what [Brame] would do.”
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The two officers who arrested Brame testified that B.B. told them that she had to
hold the drugs for Brame so he would not get caught with them, there was a bag of drugs
in the speaker, and there was a scale on the dining-room table. One of the officers testified
that he collected the digital scale from the dining-room table and a plastic baggie containing
five smaller plastic baggies of suspected drugs from the speaker pocket.
The suspected drugs were sent to the Minnesota Bureau of Criminal Apprehension
(BCA) for forensic analysis. A forensic scientist from the BCA testified that one of the
baggies contained methamphetamine and the other four baggies contained a mixture of
heroin and other substances . A second forensic scientist from the BCA testified that a
DNA profile that matched Brame’s DNA profile was found on two of the baggies
containing the identified narcotic drugs.
Brame testified that on August 28 he was “smoking marijuana and drinking” with
the man and the woman in B.B.’s garage. Brame denied that he sold methamphetamine
and heroin and that the drugs found in the speaker were his.
The jury convicted Brame of third -degree sale of a controlled sub stance, felony
domestic assault, and fifth-degree possession of a controlled substance, and acquitted him
of one count of felony domestic assault. Brame filed a direct appeal, and then moved to
stay the appeal to remand to the district court for postconviction proceedings. In September
2020, Brame filed a petition for postconviction relief, arguing ineffective assistance of trial
counsel. The district court denied the motion without a hearing. In October 2020, this
court issued an order dissolving the stay, and reinstating the appeal.
This appeal follows.
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DECISION
I. The state proved beyond a reasonable doubt that Brame sold one or more
mixtures containing a narcotic drug.

Brame argues the state failed to present sufficient evidence to sustain his conviction
for third-degree sale of a controlled substance . He asserts that the only evidence that the
substance was a narcotic drug was based on a non -expert witness’s testimony and other
circumstantial evidence and that the state offered only circumstan tial evidence that the
substance he was charged with selling was a controlled substance because the alleged drugs
were not recovered.
In considering a claim of insufficient evidence, we analyze the record to determine
whether the evidence, when viewed in the light most favorable to the conviction, is
sufficient to allow the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d
426, 430 (Minn. 1989). We will not distur b the verdict when the fact -finder, acting with
due regard for the presumption of innocence and the requirement of proof beyond a
reasonable doubt, could reasonably conclude that the defendant was guilty of the charged
offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). We review “the facts
in evidence and the legitimate inferences which could be drawn from those facts” in
reviewing the sufficiency of the evidence. State v. Robinson , 604 N.W.2d 355, 365 -66
(Minn. 2000).
When a conviction i s based on circumstantial evidence, however, we apply
“heightened scrutiny.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). We first
identify the circumstances proved in support of the conviction, giving deference to “the
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jury’s acceptance of the proof of these circumstances as well as to the jury’s rejection of
evidence in the record that conflicted with the circumstances proved by the state.” State v.
Hanson, 800 N.W.2d 618, 622 (Minn. 2011). Second, we “ determine whether the
circumstances prov ed are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt.” State v. Silvernail , 831 N.W.2d 594, 599 (Minn. 2013)
(quotations omitted). In making this determination, “we do not review each circumstance
proved in isolation” but instead consider the circumstances as a whole. State v. Andersen,
784 N.W.2d 320, 332 (Minn. 2010).
“A person is guilty of controlled substance crime in the third degree if . . . the person
unlawfully sells one or more mixtures containing a narcotic drug.” Minn. Stat. § 152.023,
subd. 1(1) (2020). In this context, “sell” means:
(1) to sell, give away, barter, deliver, exchange, distribute
or dispose of to another, or to manufacture; or

(2) to offer or agree to perform an act listed in clause (1);
or

(3) to possess with intent to perform an act listed in clause
(1).

Minn. Stat. § 152.01 subd. 15a (2020).

Here, the following circumstances were proved : (1) Brame was staying in B.B.’s
home and stored drugs in her home; (2) B.B. observed Brame selling drugs; (3) B.B. saw
Brame break up “a chunk that h e said was drugs” on her dining -room table, use a digi tal
scale to measure out the substance, and divided it into “little bags ;” Brame told B.B. that
the substance was “drugs,” specifically heroin; (4) B.B. saw Brame give those drugs to the
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pregnant woman in her garage; (5) B.B. saw the other woman “shooting [drugs] with a
needle in the garage; (6) Brame gave B.B. five baggies containing drugs to hide in her bra;
(7) B.B. removed the baggies of drugs and hid them in the pocket of a speaker in her home;
(8) the BCA forensic scientist testified that one of the baggies contained methamphetamine,
and the other four baggies contained heroin. The BCA also confirmed that Brame’s DNA
was present on two of the baggies; (9) Brame assaulted B. B. and threatened to kill her if
she went to the police; (10) the police found the digital scale and the baggies of drugs in
the locations described by B.B.; and (11) Brame initially admitted that the pregnant woman
had been at B.B.’s house but denied this at trial.
Brame argues that the state did not meet its burden of proof “becau se the only
evidence that Brame sold a narcotic drug on the date in question was the testimony of a
single non-expert witness,” and no physical evidence was presented to corroborate B.B.’s
testimony. We disagree.
Minnesota courts “have not prescribed minimum requirements in [drug]
identification cases, preferring to examine the sufficiency of the evidence on a case -by-
case basis.” State v. Vail , 274 N.W.2d 127, 134 (Minn. 1979); see State v. Gruber , 864
N.W.2d 628 , 639 (Minn. App. 2015). Courts have recognized that the identity of a
suspected controlled substance “may be proved directly with scientific evidence or, in
certain situations, circumstantially with scientific or nonscientific evidence.” Roberts v.
State, 856 N.W.2d 287, 292 (Minn. App. 2014) , review denied (Minn. Jan. 28, 2015); see
State v. Olhausen , 681 N.W.2d 21, 22, 28 (Minn. 2004) (holding that “non -scientific
evidence presented at trial relating to the identity and weight of a controlled substance was
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sufficient to sustain respondent's first-degree controlled substance crime conviction”); see
also In re J.R.M., 653 N.W.2d 207, 210-11 (Minn. App. 2002) (holding that circumstantial
evidence that substance was marijuana was sufficient). “It is well e stablished that a
conviction can rest upon the testimony of a single credible witness.” State v. Bliss , 457
N.W.2d 385, 390 (Minn. 1990); see State v. Hadgu, 681 N.W.2d 30, 34 (Minn. App. 2004)
(recognizing that a drug-sale conviction could be affirmed based solely on a lay witness’s
uncorroborated testimony that th e defendant sold him marijuana) , review denied (Minn.
Sept. 21, 2004).
Viewing the circumstances found by the jury as a whole, we conclude that they are
“consistent with guilt and inconsistent w ith any other rational hypothesis except that of
guilt.” Silvernail, 831 N.W.2d at 599. We therefore affirm Brame’s conviction of third -
degree sale of a controlled substance.
II. The district court did not abuse its discretion by summarily denying Brame’s
postconviction petition without an evidentiary hearing.

Brame argues that the district court abused its discretion by summarily denying
relief for his claim of ineffective assistance of counsel without an evidentiary hearing. We
review the district court’s factual findings for clear error, its legal conclusions de novo, and
its denial of relief for an abuse of discretion. Sanchez v. State, 890 N.W.2d 716, 719 -20
(Minn. 2017).
“To receive an evide ntiary he aring on a claim of ineffective assistance of . . .
counsel, a defendant is required to allege facts that, if proven by a fair preponderance of
the evidence, would satisfy the two -prong test announced ” in Strickland v. Washington ,
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466 U.S. 668, 687 (1984). State v. Nicks, 831 N.W.2d 493, 504 (Minn. 2013) (quotation
omitted). Specifically, the petitioner must prove both that (1) his counsel’s representation
fell below an objective standard of reasonableness and (2) the result would have been
different but for his counsel’s conduct . Id., see Strickland, 466 U.S. at 687-88. In
determining whether an evidentiary hearing is required, a district court considers the facts
alleged in the petition as true and construes them in the light most favorable to t he
petitioner. Andersen v. State , 913 N.W.2d 417, 422 -23 (Minn. 2018) (quotations and
citations omitted). An evidentiary hearing is not necessary if the petition, files, and record
conclusively show that the petitioner is not entitled to relief. Id. at 422.
Brame argues that his trial counsel’s performance was ineffective in three ways:
(1) he failed to cross-examine B.B. regarding her prior convictions for felony crimes of
dishonesty; (2) he failed to object to prejudicial testimony regarding Brame’s gang
affiliation and elicited more specific information regarding gang affiliation; and (3) he
elicited testimony harmful to Brame during trial. The district court determined:
The record clearly indic ates that [defense counsel] pursued a
reasonable trial strategy, choosing at times unflattering
evidence to bring to the jury in order to answer the charges.
Any reasonably competent attorney under similar
circumstances may have taken the same approach. The record
is also clear that had an alternate strategy been chosen, and
each and every point of contention in the Petition been
addressed, the outcome of the trial likely would not have been
different. The victim’s testimony, while central t o the State’s
case, was made in combination with physical evidence. The
concern about [Brame’s] image in light of testimony of animal
mistreatment, for instance, or the victim’s truthfulness in light
of past convictions already disclosed to the jury, do not speak
to the events for which [Brame] was on trial and are of ancillary
concern.
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Our thorough review of the record supports the district court’s determination that
defense counsel’s performance at trial constituted reasonable trial strategy and did not fall
below an objective standard of reasonableness. See Nicks, 831 N.W.2d at 506 (explaining
that courts give trial counsel wide latitude to make decision regarding trial strategy) ; see
also Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (“We have repeatedly stated that
we generally will not review attacks on counsel’s trial strategy.”). Because Brame has not
met the first prong of the Strickland test, we need not address the second prong.
Viewing the facts presented in the light most favorable to Brame, the record
supports the district court’s determination that Brame did not allege sufficient facts to
warrant an evidentiary hearing on his alleged ineffective -assistance-of-counsel claim .
Therefore, the district court did not abuse its discretion by denying an evidentiary hearing.
Affirmed.