Opinion
No. C7-00-2056
Filed December 4, 2001.
Appeal from the District Court, Watonwan County, File No. K500116.
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General and Lamar T. Piper, Watonwan County Attorney (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender (for appellant)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges his conviction of second-degree controlled-substance crime, arguing that (1) circumstantial evidence was insufficient to establish constructive possession; (2) the district court plainly erred by giving a permissive-inference jury instruction; (3) the district court erred by allowing a police officer's testimony involving a question of law; and (4) the prosecutor committed prejudicial misconduct during closing argument by referring to an uncalled witness and by misstating a fact. Because we conclude that there was sufficient evidence to support the verdict, that the district court did not err, and that there was no prejudicial prosecutorial misconduct, we affirm.
FACTS
Following an investigation of possible drug activity at a rented house in St. James, police arrested appellant Jesus Dominguez for possession of a controlled substance after they discovered cocaine in his bedroom.
As part of the investigation, police arranged a controlled drug buy on March 9, 2000, using a police informant. The informant went to the house and asked Delfina Escamilla, appellant's wife, for cocaine. Escamilla disappeared into the ground-floor bedroom, which she shared with appellant, and returned with a packet of cocaine. The informant did not see or hear anyone else in the house.
Later that day, police executed a search warrant at the residence. During the search, Officer James Kotewa found 27 packets of cocaine in a plastic bag on a shelf in the ground-floor bedroom. He testified that the bag was partially visible behind a large drinking glass and that the packets of cocaine appeared to be identical with the packet purchased by the informant. Officer Kotewa also found a larger amount of cocaine in an upstairs bedroom, along with a digital scale and packaging materials. He testified that the individual packets, scale, and packaging materials indicate that the cocaine was intended for sale. The upstairs bedroom was shared by appellant's brother and sister-in-law, Manuel and Eddica Dominguez. Appellant, Escamilla, and Eddica Dominguez were in the house during the search.
A jury found appellant guilty of controlled-substance crime in the second degree, a violation of Minn. Stat. § 152.022, subd. 2(1) (1998). This appeal follows.
DECISION I.
Appellant argues that the circumstantial evidence was insufficient to establish that he had constructive possession of the cocaine found in the ground-floor bedroom. This court will uphold a conviction based on circumstantial evidence "if the reasonable inferences drawn from the evidence are inconsistent with any rational hypothesis except that of the defendant's guilt." State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000). A jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to deference. State v. Morris, 606 N.W.2d 430, 437 (Minn. 2000). When considering a sufficiency-of-circumstantial-evidence claim, this court views the evidence in the light most favorable to the verdict and assumes that the jury believed testimony that supported the verdict and disbelieved testimony that did not. See Gates, 615 N.W.2d at 337; State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999).
Possession of a controlled substance may be physical or constructive. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). Because there is no evidence that appellant physically possessed the cocaine, the state had to prove that he constructively possessed it. See id. To prove constructive possession of a controlled substance, the state must establish
that the police found the substance in a place under defendant's exclusive control to which other people did not normally have access, or * * * that, if police found it in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.
Id. at 105, 226 N.W.2d at 611 (citations omitted). The cocaine was not found in a place under appellant's exclusive control because appellant's wife also had access to the shared ground-floor bedroom. Therefore, the state had to establish a strong probability that appellant consciously exercised dominion and control over the cocaine found there. See id.
Appellant contends that the state did not meet this burden. First, appellant asserts that it is questionable whether the state showed that he knew that there was cocaine in the ground-floor bedroom. But appellant concedes that the jury could have inferred that he knew that the cocaine was in the bedroom from Officer Kotewa's testimony that the plastic bag of cocaine was partially visible behind the glass on the shelf. Although appellant argues that this testimony was contradicted by his own testimony that he did not know about the cocaine, it is the exclusive function of the jury to weigh the credibility of witnesses. See State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998). The jury's verdict indicates that it believed Officer Kotewa's testimony and not appellant's.
Second, appellant argues that the state did not establish that he intended to exercise dominion and control over the cocaine. Appellant interprets the requirement that a defendant "consciously" exercise dominion and control to mean that a defendant must intentionally exercise dominion and control. But appellant cites no Minnesota cases in which a court has added to or replaced "consciously" with some form of "intent," and our review of Minnesota caselaw reveals none. Instead, the supreme court has treated "consciously" as synonymous with "knowingly":
In State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975), * * * we said that to prove constructive possession the state had to show either (a) the substance was in a place under defendant's "exclusive" control to which others did not normally have access, or (b) if in a place where others had access, that the defendant was at the time consciously or knowingly exercising dominion and control over the substance in question.
State v. Robinson, 517 N.W.2d 336, 340 (Minn. 1994) (emphasis added). These terms do not have the same legal meaning as "intentionally." See, e.g., Minn. Stat. § 609.02, subd. 9 (2000) (defining "know" and "intentionally").
Even if intent were an element of constructive possession, there was sufficient evidence for the jury to conclude that appellant intended to exercise dominion and control over the cocaine. Manuel Dominguez testified that two days before the execution of the search warrant, he put the plastic bag with cocaine in the ground-floor bedroom. Although he also testified that the cocaine was his, the jury was free to reject that part of his testimony. See State v. Johnson, 568 N.W.2d 426, 436 (Minn. 1998) (stating that jury may believe part and reject part of witness's testimony). Appellant testified that he was home during those two days. The cocaine remained in the bedroom until it was seized by police. These facts are sufficient to allow the jury to reasonably conclude that appellant intentionally, as well as consciously, exercised dominion and control over the cocaine in the bedroom.
Finally, appellant argues that even if the jury could infer that appellant controlled the cocaine, an equally rational hypothesis is that Escamilla alone, or with Manuel Dominguez, exercised dominion and control over the cocaine. But appellant's theory of innocence does not require reversal of a verdict "so long as the evidence taken as a whole makes such theories seem unreasonable." See State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995). Appellant was at home for the two days that the cocaine was in the ground-floor bedroom; the cocaine was partially visible on an eye-level shelf in the bedroom; and appellant shared the bedroom with Escamilla. From these facts, the only reasonable theory is that appellant exercised, with Escamilla, dominion and control over the cocaine. See State v. LaBarre, 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972) (stating that constructive possession may be exclusive or shared).
II.
After closing arguments, the district court gave the jury a permissive-inference instruction, to which appellant did not object. A party's failure to object to a jury instruction at trial waives the right to appeal that issue unless "there was plain error affecting substantial rights." State v. Gustafson, 610 N.W.2d 314, 318-19 (Minn. 2000) (citations omitted). To establish plain error, the party must show (1) there was error, (2) the error was plain, and (3) the error affected the party's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted). Appellant argues that the district court's instruction was plain error.
The district court gave the jury both oral and written versions of the instruction. Appellant contends that the oral version materially misstated the law. The oral version stated:
In determining whether or not it has been proved beyond a reasonable doubt that the Defendant was in knowing possession of cocaine you should consider all the evidence presented. The law allows, but does not require you to find knowing possession from proof beyond a reasonable doubt that if the cocaine was present in an open room or other public place under circumstances which evidence an intent by one or more persons present to unlawfully present and package the cocaine for sale.
If you find reasonable doubt you may, but are not required to, find that each person in close proximity was in possession of the cocaine.
The oral version does not match the written version, which provides:
In determining whether or not it has been proved beyond a reasonable doubt that the defendant was in knowing possession of cocaine you should consider all the evidence presented. The law allows, but does not require you to find knowing possession from proof beyond a reasonable doubt that if the cocaine was present in open view in a room, other than a public place, under circumstances which evidenced an intent by one or more persons present to unlawfully mix, compound, package or otherwise prepare the cocaine for sale. If you so find beyond a reasonable doubt, you may, but are not required to, find that each person in close proximity to the cocaine knowingly possessed it.
(Emphasis added.) The written version is substantially identical with the model permissive-inference instruction in 10 Minnesota Practice, CRIMJIG 20.55 (1999), which is derived from Minnesota's permissive-inference statute. See Minn. Stat. § 152.028, subd. 1 (1998). As appellant points out, the oral version mistakenly (1) referred to "an open room or other public place" instead of "open view in a room, other than a public place," and (2) stated "find reasonable doubt" instead of "find beyond a reasonable doubt."
We do not reach the merits of this argument because appellant's substantial rights were not affected. In determining whether an error was prejudicial, this court must consider the evidence and decide "whether there is a reasonable possibility that a reasonable jury might have reached a different result if the error * * * had not been committed." State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995) (citations omitted). Here, there is strong evidence that appellant constructively possessed the cocaine in the bedroom. Manuel Dominguez testified that he put the cocaine in the bedroom, Officer Kotewa testified that that the cocaine was partially visible on the eye-level shelf, appellant testified that he was at home during the two days that the cocaine was in the bedroom, and it is undisputed that appellant shared the bedroom with Escamilla. After considering the strength of this constructive-possession evidence and carefully reviewing the entire record, we see no reasonable possibility that the jury would have reached a different result had the district court not erred in its oral version of the permissive-inference instruction or, indeed, had not given the instruction at all. Appellant does not meet his "heavy burden of showing that there is a reasonable likelihood that the error had a significant effect on the verdict." See State v. Patterson, 587 N.W.2d 45, 52 (Minn. 1998) (quotation omitted).
In light of our analysis, we do not address appellant's claims that no reasonable jury could make the inference permitted by the instruction and that the instruction unfairly emphasized one factor relating to possession.
III.
Appellant argues that the district court erred by admitting a portion of the testimony of Officer Kotewa, who testified as an expert witness at trial. The admission of expert testimony is generally within the broad discretion of the district court. State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999). This court will reverse a ruling on the admissibility of evidence only if the district court abused its discretion and the ruling resulted in prejudice. State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).
During cross-examination, defense counsel asked Officer Kotewa whether Manuel Dominguez told police, during an interview after his arrest, that the cocaine belonged to him and not to appellant. On redirect, over defense counsel's objection, Officer Kotewa testified about the basis for his belief that appellant was in possession of the cocaine in the ground-floor bedroom:
Q Does it matter who owned the substance?
A No, sir.
* * * *
A You can still possess and not own it.
* * * *
Q As an officer what are you trained to look for in assessing a possession of a controlled substance case?
A Typically when we establish possession, where it was located, whether it was in plain view, whether someone had a reasonable reason to believe that they saw it and did nothing to report it. You walk in to a room, you see a bag of cocaine sitting at a table in your bedroom and do nothing about it I would establish that as being not only possession of it but having a reasonable expectation of it. You're in possession of it.
It's in your room. It's in with your belongings. That's how I would personally do it. That's not a legal perspective. That's how I see it as being in possession of it.
Appellant contends that the district court erred by admitting this testimony because it went to a question of law and therefore did not help the jury. The primary consideration for determining whether an expert witness's testimony is admissible is whether it will help a jury "to understand the evidence or to determine a fact in issue." Minn.R.Evid. 702; State v. Grecinger, 569 N.W.2d 189, 195 (Minn. 1997). Testimony that involves a legal conclusion generally does not help a jury. State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982).
We agree that the portions of Officer Kotewa's testimony that contained his view of the law of possession of controlled substances did not help the jury. The court alone determines the applicable law. See Hughes v. Quarve Anderson Co., 338 N.W.2d 422, 425 (Minn. 1983). But these portions were a small part of Officer Kotewa's overall testimony, and the district court instructed the jury that it must follow the law as given by the court. After reviewing the trial record, we discern no reasonable probability that the jury's verdict would have been more favorable to appellant if Officer Kotewa's testimony on his view of the law had not been admitted. See State v. Bolte, 530 N.W.2d 191, 198-99 (Minn. 1995) (listing factors of harmless-error analysis).
IV.
Appellant claims that the prosecutor committed prejudicial misconduct during closing argument by referring to an uncalled witness. We note that appellant did not object to any part of the prosecutor's closing argument or ask the district court for a cautionary instruction. Generally, a defendant waives the right to challenge a prosecutor's comments made during closing argument unless the defendant objected or sought a cautionary instruction. State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997). But regardless of a defendant's failure to object, this court may reverse a conviction if the comments were "unduly prejudicial." State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). Improper comment is prejudicial if it likely played a substantial part in influencing the jury to convict. State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988).
During opening argument, the prosecutor told the jury that he would call a deputy sheriff who was present during the execution of the search warrant. The deputy was not called, and during closing argument, the prosecutor explained why:
And I do have one regret and I want to apologize for it. I told you in my opening I was going to call [the deputy] here to talk about how he used [a drug-detection dog] in the search warrant.
I was ready and willing to do that because sometimes how you read the case and how it comes out there in evidence is not the way you expect it, but because [Officer] Kotewa did such a good job of explaining how he found the cocaine I didn't think it necessary to have the [deputy] here. * * * So if you were expecting that * * * I'm sorry, I decided not to use it. I think the evidence is clear enough without the participation of that deputy.
Citing State v. Shupe, 293 Minn. 395, 196 N.W.2d 127 (1972), and State v. Page, 386 N.W.2d 330 (Minn.App. 1986), appellant asserts that it is "long-settled" that it is reversible error for a prosecutor to refer to a witness who was not called. In Shupe, the supreme court held that a prosecutor's comments were prejudicial because of a clear suggestion that an available witness would provide necessary corroborating testimony. 293 Minn. at 396, 196 N.W.2d at 128. In Page, this court held, without analysis, that it was reversible error for a prosecutor to comment on a charge that was not brought against the defendant because a crime victim was unavailable. 386 N.W.2d at 336.
But here, unlike the circumstances in Shupe and Page, the prosecutor did not imply that the deputy would provide missing necessary evidence and did not refer to any charge that was not brought against appellant. Nor did the prosecutor remark on the veracity of Officer Kotewa's testimony. We conclude that it is highly unlikely that the prosecutor's reference to the uncalled deputy had any effect on the jury's verdict.
Appellant also contends that the prosecutor committed prejudicial misconduct by misstating a fact. A prosecutor may not intentionally misstate evidence. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993). The prosecutor commented that appellant did not deny that he knew about the cocaine in the ground-floor bedroom. Appellant claims that this was a misstatement of fact because, in an interview with police, he twice denied knowing that there was cocaine in his room. But the transcript of the interview shows that appellant did not clearly deny that he knew about the cocaine. Because appellant's statement to police is ambiguous at best, we conclude that the prosecutor's comment about appellant's knowledge of the cocaine was not an intentional misstatement of the evidence.