STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0260
State of Minnesota,
Respondent,
vs.
Ricky Harry Gruber,
Appellant.
Filed June 8, 2015
Affirmed
Ross, Judge
Washington County District Court
File No. 82-CR-13-789
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Peter J. Orput, Washington County Attorney, Robin M. Wolpert, Assistant County
Attorney, Stillwater, Minnesota (for respondent)
Maura E. Short, Kevin J. Short, Minneapolis, Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Kirk, Judge.
SYLLABUS
Evidence in the form of scientific drug-identification laboratory testing is not
necessary to prove the identity of commercially manufactured pharmaceutical drugs
beyond a reasonable doubt in a prosecution for unlawful possession of legend drugs
under Minnesota Statutes section 151.37, subdivision 1.
OPINION
ROSS, Judge
Deputy Sheriff Ricky Gruber secretly duplicated a key to the pharmaceutical
deposit box at the sheriff’s office where he worked, and a surveillance camera captured
him sneaking in and using the key to open the box and pilfer discarded medicine. A jury
found Gruber guilty of unlawful possession of legend drugs and misconduct by a public
officer. Gruber asks us to reverse his convictions by holding that the district court should
have suppressed evidence, that the state failed to provide him with notice of the officer-
misconduct charge, that the jury did not receive sufficient evidence to prove that he was
acting within his official capacity and that the medicines he stole are legend drugs, and
that the district court received inadmissible evidence. We reject all of Gruber’s arguments
and affirm.
FACTS
The Washington County Sheriff’s Office provides a locked depository box for
members of the public to dispose of their unused pharmaceuticals. The sheriff maintains
the box in a room not accessible to the general public. The deposited medicine
accumulates in a 30-gallon drum inside the box until an assigned deputy unlocks the box,
removes the drum, and incinerates the contents. Ideally, the depository program keeps
discarded drugs from being obtained illegally.
One evening in January 2013 Sergeant Larry Osterman noticed that the door to the
box was unlocked and the drum was missing. The circumstances might suggest that an
authorized deputy had removed the drum and was incinerating the accumulated drugs.
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But when the sergeant returned later, he found that someone had returned the drum partly
full and relocked the box. This indicated that the drum had not been removed for disposal
purposes, and it caused the sergeant to suspect that an unauthorized person had accessed
it. He installed a hidden camera to monitor the room.
Within days the camera captured Deputy Sheriff Ricky Gruber unlocking and
opening the locked box. It recorded Gruber removing the drum from the room and
returning it minutes later. Gruber was assigned to a records-management project—an
assignment that did not include accessing the deposited drugs. No one with authority had
issued Gruber a key to the box or given him permission to open it. A week after Gruber
was recorded accessing the box, supervisors who were watching a live feed from the
camera saw him walk past the box more than once, peering around. They next watched
Gruber approach the box, open it, remove the drum, and carry the drum from the room. A
camera in another room picked up Gruber’s activity. There Gruber rifled through the
drum’s contents, left the camera’s view holding something in his hand, returned within
view empty-handed, and took the drum back to the box.
The deputies confronted Gruber, arresting him.
Gruber cooperated. He made recorded statements after the investigator read him
the Miranda warnings. He admitted that he took drugs from the drum on several
occasions. He acknowledged that he was not supposed to access the box. He disclosed
that he had removed a key from a coworker’s desk, duplicated it, and returned it without
notice. He admitted that he had taken the drugs for his own use and for use by his family.
He knew that some of the drugs required a prescription, and he said that he had been
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prescribed some of the same medicine. He revealed where the investigators would find
drugs that he had taken, and he consented to searches of his office and his car.
Investigating deputies searched and found amoxicillin, hydroxyzine, trazodone, lidocaine,
metformin hydrochloride, tadalafil, vardenafil, and fluoxetine hydrochloride. They also
found phentermine hydrochloride, a controlled substance. Gruber resigned his deputy
position.
The state charged Gruber with fifth-degree possession of a controlled substance,
Minn. Stat. § 152.025, subd. 2(a)(1) (2012), theft of a controlled substance, Minn. Stat.
§ 609.52, subd. 2(a)(1) (2012), misconduct by a public officer, Minn. Stat. § 609.43(2)
(2012), and unlawful possession of legend drugs, Minn. Stat. § 151.37, subd. 1 (2012).
“Legend drugs” are medications that require a prescription under federal law. Minn. Stat.
§ 151.01, subd. 17 (2012). One clause of the misconduct-of-a-public-officer statute
criminalizes actions by a public officer done in his official capacity in excess of his
lawful authority. Minn. Stat. § 609.43(2). The charging section of the criminal complaint
against Gruber included the statutory language of this clause, but the complaint outlined
the supporting facts only in its statement of probable cause.
Gruber pleaded not guilty. Before trial he argued that the deputies lacked probable
cause for his arrest, and he moved the district court to suppress his statements and all
drugs discovered in searches after the arrest. He also moved the court to dismiss the
charge of misconduct by a public officer, contending that he was not acting in his official
capacity when the thefts occurred. The district court denied these motions.
4
The parties submitted proposed jury instructions. The state’s proposed instruction
on the misconduct-by-a-public-officer charge defined the lawful authority that Gruber
exceeded, describing his lawful authority as a peace officer’s statutory authority to
prevent and detect crime, to enforce criminal laws, and to arrest offenders. And the
instruction identified Gruber’s alleged misconduct as his accessing and taking drugs from
the depository box without permission. The state maintained that the instruction was
proper because Gruber had known that his theft-related behavior was the relevant
misconduct as early as the pretrial motion to dismiss, when the parties debated whether
Gruber committed the theft in his official capacity. The district court concluded that
Gruber had sufficient notice of the charged misconduct and gave the instruction.
The jury found Gruber guilty of gross-misdemeanor misconduct by a public
officer and misdemeanor possession of a legend drug. It acquitted him of the charges of
possession and theft of controlled substances, both felonies. The jury explained in a note
to the district court that it believed that Gruber had in fact committed theft, but it found
that the state failed to prove that he knew that the substances he stole were controlled
substances. Gruber moved to vacate the judgment, and the district court denied the
motion.
Gruber appeals.
ISSUES
I. Did the deputies have probable cause to arrest Gruber?
II. Did Gruber receive constitutionally sufficient notice of the charge of misconduct
by a public officer?
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III. Did the jury receive sufficient evidence to find that Gruber acted in his official
capacity and exceeded his lawful authority when he accessed the pharmaceutical
depository box and removed drugs without permission?
IV. Did the district court abuse its discretion by admitting into evidence portions of
the Washington County Sheriff’s Department Manual?
V. Did the district court abuse its discretion by refusing to strike Sergeant Osterman’s
testimony characterizing Gruber’s acts as “wrong”?
VI. Did the state provide sufficient evidence to identify certain pills recovered from
Gruber without offering evidence of chemical testing?
VII. Were the identified pills “legend drugs”?
ANALYSIS
Gruber offers various bases for us to reverse his conviction. He maintains that the
district court should have excluded all evidence collected after his arrest because the
deputies lacked probable cause to arrest him. He maintains that he was improperly
convicted of misconduct by a public officer because the criminal complaint did not allege
any specific misconduct. He also argues that the state failed to introduce sufficient
evidence to prove all the elements and that two evidentiary errors undermine the
conviction on that count. And Gruber contends finally that the state failed to introduce
sufficient evidence to prove that he possessed legend drugs because the state did not
chemically test the drugs and expert testimony failed to prove that the drugs require a
prescription. None of Gruber’s arguments lead us to reverse.
I
We are not convinced by Gruber’s argument that deputies lacked probable cause
to arrest him and that, because the arrest was illegal, the district court was bound to
6
suppress the resulting evidence. Gruber is correct that the federal and state constitutions
protect persons from unreasonable warrantless searches and seizures. U.S. Const. amend.
IV; Minn. Const. art. I, § 10. And it is true that evidence resulting from an unreasonable
seizure must be excluded. State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012). But police
may arrest a person without a warrant if they have probable cause to believe that the
person either already committed or was committing a crime. Beck v. Ohio, 379 U.S. 89,
91, 85 S. Ct. 223, 225 (1964). We review whether probable cause existed de novo. State
v. Milton, 821 N.W.2d 789, 798 (Minn. 2012).
We are satisfied that the deputies had probable cause to arrest Gruber. Officers
have probable cause to arrest if they know of objective facts or circumstances that would
“lead a person of ordinary care and prudence to entertain an honest and strong suspicion
that the [suspected] person . . . is guilty of a crime.” State v. Carlson, 267 N.W.2d 170,
173 (Minn. 1978); see also Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800
(2003) (“[T]he substance of all the definitions of probable cause is a reasonable ground
for belief of guilt.” (quotation omitted)); Minn. Stat. § 629.34, subd. 1(a), (c)(5) (2014)
(permitting warrantless arrest on probable cause for gross misdemeanor violations of the
statute prohibiting theft). We assess probable cause by considering the totality of the
circumstances. State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005). We will therefore
consider what circumstances were known to the deputies before they arrested Gruber.
At the time the deputies arrested Gruber, they were aware of circumstances that
would lead any reasonable person to strongly suspect that Gruber had either just
committed a theft or attempted to commit a theft. Theft occurs when a person
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“intentionally and without claim of right takes, uses, transfers, conceals or retains
possession of movable property of another without the other’s consent and with intent to
deprive the owner permanently of possession of the property.” Minn. Stat. § 609.52,
subd. 2(a)(1). And a criminal attempt occurs when a person who intends to commit a
crime takes a substantial step toward committing it. Minn. Stat. § 609.17, subd. 1 (2012).
Immediately before Gruber’s arrest, the arresting deputies knew that Gruber lacked
authority to access the locked box and the pharmaceutical drum secured inside it. They
knew that no one with authority had given Gruber a key to access the pharmaceuticals.
They knew that about three weeks earlier someone secretly opened the box, removed the
drum of pharmaceuticals, and later replaced the drum. They knew that a week before the
arrest, Gruber unlocked the box, opened it, removed the drum, and returned the drum
minutes later. And when they arrested Gruber, they had just watched him engaging in
apparently criminal behavior: he had waited until late in the work day and entered the
room where the pharmaceuticals are kept; he looked around several times; he unlocked
and opened the box; he removed the 30-gallon drum of pharmaceuticals; he carried the
drum to another room; he rummaged through the medications in the drum; he left the
room carrying something in his hand; he returned to the room with nothing in his hand;
and he replaced the drum in its original place. It is inconceivable from these
circumstances that a reasonable police officer would not suspect Gruber of theft or
attempted theft from the drug depository. Because probable cause supports the arrest, the
district court correctly denied Gruber’s motion to suppress the resulting evidence.
8
II
Gruber also does not persuade us that the state violated his constitutional rights by
failing to give him notice of the charge of misconduct by a public officer. The
Constitution requires the state to inform a defendant of the “nature and cause of the
accusation” against him. U.S. Const. amends. VI, XIV. The state meets this requirement
“if the charging instrument contains such descriptions of the offense charged as will
enable him to make his defense and to plead the judgment in bar of any further
prosecution for the same crime.” State v. Chauvin, 723 N.W.2d 20, 29–30 (Minn. 2006)
(quotation omitted). The specificity required depends on whether the statute cited in the
charge includes all elements of the charged offense. State v. Oman, 265 Minn. 277, 282–
83, 121 N.W.2d 616, 620–21 (1963); see, e.g., State v. LaValla, 278 Minn. 63, 66, 153
N.W.2d 135, 137 (1967) (requiring additional facts for a burglary charge because
burglary can be committed in various ways). We review de novo whether a complaint
sufficiently informed the appellant of the nature and cause of the accusations against him.
See State v. Bias, 419 N.W.2d 480, 486 (Minn. 1988).
Gruber cites to three purported defects in the complaint. None compels reversal.
He first argues that the complaint failed to enumerate the relevant clause of
Minnesota Statutes section 609.43. That statute enumerates four clauses, any one of
which constitutes a crime. Gruber is correct that the complaint does not enumerate the
relevant clause, but the objection is empty. Although the complaint does not enumerate
the charged clause, it includes an almost verbatim recitation of the second clause, which
establishes that a crime occurs when a police officer, “in the capacity of such officer or
9
employee, does an act knowing it is in excess of lawful authority or knowing it is
forbidden by law to be done in that capacity.” Minn. Stat. § 609.43(2). We therefore
reject Gruber’s contention that the complaint improperly failed to identify the charge
against him.
Gruber argues second that the complaint failed to include an element of that
offense because it did not cite any statute defining his “lawful authority” referred to in the
charging clause. What is “lawful authority” under the second clause of section 609.43
depends on “statutes [that] define or describe a public official’s authority,” and an
indictment under the clause must therefore allege that the officer exceeded a statutory
limit on his authority. State v. Serstock, 402 N.W.2d 514, 517–19 (Minn. 1987). Gruber is
correct that the criminal complaint cited no statute defining his allegedly exceeded lawful
authority.
This was error. But identifying the error in the complaint does not end our
analysis. We apply a harmless-error test if a complaint is inadequate. Chauvin, 723
N.W.2d at 30; see also Minn. R. Crim. P. 17.02, subd. 3 (indicating no reversal for non-
prejudicial omission of citation). “Unless there is actual proof that defendant has in fact
been misled as to the charge brought against him, to his prejudice, it is not ground for
invalidating the conviction after a fair trial.” State v. Clark, 270 Minn. 538, 552, 134
N.W.2d 857, 867 (1965). The record informs us that the error did not mislead Gruber or
leave him to defend in the dark. The state identified a statutory definition of Gruber’s
authority as a peace officer in its proposed jury instructions ten days before Gruber’s
trial. And the pretrial litigation informs us that Gruber knew this basis of the claim before
10
the trial began. Also dispositive, he fails even to attempt to show how the complaint’s
omission prejudiced him.
Gruber contends third that the complaint failed to identify the factual basis for the
charge because it did not specify the act constituting his offense. The parties agreed to a
jury instruction setting out the alleged offending act as “entering a secured drug bin,
examining the contents of the bin, and removing items from the bin.” This agreement
captures the essence of the conduct detailed in the complaint’s statement of probable
cause. And the complaint refers to no other possible course of offending conduct.
Gruber’s arguments supporting his pretrial motion confirm that he fully understood that
the charge focused on his improperly accessing and stealing from the depository box. It is
true that the charging section does not specify the misconduct and that the state before
trial once identified the misconduct only as “theft or illegal possession of a controlled
substance or legend drug.” But the state is not limited to this recitation, particularly given
the singular course of conduct involved in this case, the complaint’s statement of
probable cause, and the repeated pretrial references by both parties to Gruber’s accessing
the drum and taking drugs from it. The complaint sufficiently identified the factual basis
for the charge. And even if it had not, again Gruber fails to express how the alleged lack
of more particular notice hindered his defense. Because no prejudice arose from the
alleged error, any error is at most harmless.
III
Gruber argues that the jury received insufficient evidence to find that he engaged
in misconduct as a public officer. We thoroughly review the record to determine whether
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the evidence supports the conviction. State v. Thomas, 590 N.W.2d 755, 757 (Minn.
1999). We will uphold the verdict if the evidence, viewed in the light most favorable to
the verdict, would allow a reasonable jury to find the defendant guilty beyond a
reasonable doubt. Id. at 757–58.
Gruber first says that the evidence does not prove that he exceeded his lawful
authority. Gruber, a peace officer at the time of his offense, was “charged with the
prevention and detection of crime and the enforcement of the general criminal laws of the
state and [had] the full power of arrest.” Minn. Stat. § 626.84, subd. 1(c)(1) (2012).
Gruber admitted, and other witnesses confirmed, that he was not authorized to access the
depository box. Because Gruber’s law-enforcement authority and assigned duties did not
include any role in the drug-disposal program and he was not authorized to access the
depository box, a reasonable jury could find that his surreptitious access exceeded his
lawful crime-fighting authority.
Gruber argues second that the state failed to prove that he was acting in his official
capacity when he took the drugs. He emphasizes that his misconduct was not directly
related to his assignment and occurred late in the day when few of his colleagues were
working. He reasons that, because he lacked authority to enter the pharmaceutical box, he
could not have accessed the box in his official capacity. But “official capacity” is a
broader concept than statutory authority; it refers to all of a public employee’s
responsibilities in serving the public interest. State v. Ford, 397 N.W.2d 875, 879 (Minn.
1986). Ford is instructive. In Ford, the supreme court held that a teacher had been acting
in his official capacity when he used “the authority of his position implicitly to persuade
12
[students] to acquiesce” to his sexual advances. Id. at 880. This holding contradicts
Gruber’s reasoning. Under Gruber’s approach, we would deem all criminal behavior as
falling outside of an official’s “official capacity” because, presumably, no official’s
assignment includes engaging in crime. We of course reject this approach. Like the Ford
defendant, Gruber used his official position of trust to accomplish his misconduct. He
relied on his position to obtain a key, to access the room in the nonpublic area of the
sheriff’s office, and to enter the depository box on multiple occasions without notice.
Gruber’s various opportunities to access the box resulted only from his official position.
The jury received sufficient evidence to find that Gruber acted in his official capacity
when he accessed the box.
IV
Gruber argues unconvincingly that we should reverse because the district court
improperly admitted documentary and testimonial evidence about five clauses of the
sheriff’s department policy manual. We review the district court’s evidentiary rulings for
abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). Gruber argues
that the evidence was irrelevant and confused the jury. Evidence is relevant if it tends to
make a material fact more or less probable, and relevant evidence is generally admissible.
Minn. R. Evid. 401, 402. The district court may in its discretion nevertheless exclude
relevant evidence if its probative value is substantially outweighed by the risk of unfair
prejudice or the risk of misleading the jury. Minn. R. Evid. 403. Gruber has the burden of
showing error and resulting prejudice. Amos, 658 N.W.2d at 203.
13
Gruber fails to show error. He argues that the policy manual was irrelevant
because the charge of misconduct by a public officer concerned only whether he
exceeded his statutory authority, not whether he violated department policy. But the
policy was relevant to prove Gruber’s mens rea for the crime. The controlling statute
establishes a crime only when a person “does an act knowing it is in excess of lawful
authority.” Minn. Stat. § 609.43(2) (emphasis added); see also State v. Andersen, 370
N.W.2d 653, 662 (Minn. App. 1985). Gruber’s knowledge of his responsibilities,
including those identified in the manual, was relevant to whether he knew that his acts
exceeded his authority. The district court deemed the policy relevant on other grounds,
which we need not address in light of our holding on this rationale.
Gruber contends that even if the manual was relevant, it had little probative value
because he had already admitted to violating the department rules. He argues that the
manual confused the jury by suggesting a violation of department policy would be
enough to find him guilty. But the district court acted within its discretion by weighing
the competing concerns under rule 403 and determining that, despite Gruber’s stipulation
of wrongdoing, the policy evidence was more probative than prejudicial. Gruber makes
only a conclusory assertion of jury confusion, never explaining why the jury was likely
confused. And even if the district court had improperly admitted the evidence, Gruber has
failed to meet his burden of showing that the error affected the verdict. See State v. Vang,
774 N.W.2d 566, 576 (Minn. 2009).
The district court did not commit prejudicial error by allowing the jury to see the
policy manual and allowing the prosecutor to question a witness about it.
14
V
Gruber also argues that the district court abused its discretion by allowing the state
to elicit testimony from Sergeant Osterman regarding what conduct officers are permitted
to engage in. We do not accept Gruber’s characterization that the sergeant effectively
testified that Gruber was guilty of misconduct by a public officer. The record indicates
that Sergeant Osterman did not declare Gruber’s guilt; he instead testified that sworn
police officers are not supposed to take controlled substances without a prescription or
commit theft and that theft is wrong and against the law. He also testified that he was
concerned that someone had taken and duplicated a key and that it was “obviously
wrong” for anyone to do so.
Gruber argues that this testimony was not helpful and constituted improper
opinion testimony involving legal analysis. He cites cases in which the supreme court
held that expert testimony was inadmissible because it expressed an opinion about a
defendant’s mens rea or a witness’s truthfulness. See State v. Chambers, 507 N.W.2d
237, 239 (Minn. 1993); State v. Provost, 490 N.W.2d 93, 102–03 (Minn. 1992); State v.
Saldana, 324 N.W.2d 227, 231–32 (Minn. 1982). Those cases do not support his
argument because the sergeant did not opine about Gruber’s mental state or truthfulness.
Courts may admit lay opinion testimony based on the witness’s rational perceptions when
the testimony helps the jury to understand a fact at issue. Minn. R. Evid. 701. Sergeant
Osterman’s testimony relates to material facts. Although the questioning did not elicit
precise testimony, the sergeant’s answers explained that deputies generally understand
that certain acts are prohibited. Sergeant Osterman did not refer to Gruber’s lawful
15
authority under section 609.43(2), and he never stated that Gruber’s acts would violate
that statute.
As to prejudice, the sergeant’s testimony did not significantly affect the verdict.
Even when testimony is inadmissible, we reverse only if “there is a reasonable possibility
that the wrongfully admitted evidence significantly affected the verdict.” State v. Post,
512 N.W.2d 99, 102 n.2 (Minn. 1994). Gruber himself repeatedly described his actions as
“wrong,” in the same way that Sergeant Osterman did. The sergeant’s testimony mirrored
Gruber’s own defense and unlikely influenced the jury any more than Gruber’s own
admissions.
VI
Gruber argues that the state offered insufficient evidence that the medications he
removed from the depository box were actually the “legend drugs” that the state alleged
them to be. He argues that only by chemical testing could the state provide sufficient
evidence allowing the jury to identify the drugs beyond a reasonable doubt.
We reject Gruber’s legal proposition that scientific testing is always required to
identify drugs beyond a reasonable doubt. Three supreme court cases inform this
conclusion.
In the most recent case, State v. Olhausen, so-called “nonscientific” evidence was
sufficient to identify drugs beyond a reasonable doubt. 681 N.W.2d 21, 27–29 (Minn.
2004). The Olhausen court held that the state did not need chemical testing to identify
methamphetamine to prove the sale of methamphetamine after the defendant apparently
destroyed the substance. Id. at 29. In that case, an experienced undercover buyer testified
16
that a package contained methamphetamine, relying on his brief observations before the
seller fled with it. Id. at 24. The witness based his opinion entirely on the substance’s
packaging, rather than on any characteristic of the substance itself. Id. He even testified
that the usual odor of methamphetamine was absent. Id. But he explained that placebos
are rare, and he relayed the seller’s representations that the substance was genuine. Id. at
29. This nonscientific evidence provided a sufficient basis to identify the substance and
convict without chemical testing. Id.
We can counterbalance Olhausen with two other supreme court cases, both relied
on by Gruber. In State v. Robinson, the court rejected the random-sampling method of
testing for cocaine where the total weight of the cocaine was an essential element of the
charged offense. 517 N.W.2d 336, 339 (Minn. 1994). But the Robinson court did not
establish a chemical testing requirement in all drug cases. The court determined only the
unreliability of randomly testing samples from several of many bags of alleged cocaine to
find the identity of all the bags. Id. The court reasoned that the dubious nature of the
substance—criminally mixed cocaine prepared in an industry known for artifice—made
identification by sampling alone presumably unreliable. As that court put it, “The trouble
with determining the required weight of a mixture by extrapolation from random samples
is that the extrapolation does not take into account the fact that, in the case of substances
not homogeneously packaged, drug dealers are known to substitute placebos for the real
thing. Indeed, substitution is apparently common . . . .” Id. For that reason, the court held
that scientifically testing only a sample of the drugs did not produce sufficient evidence
to prove the identity of the whole. Id. at 339–40.
17
And in State v. Vail, the supreme court first deferred to the district court’s fact-
finding determination that the type of scientific testing in that case was not persuasive
enough to prove the identity of the tested substance as marijuana. 274 N.W.2d 127, 133
(Minn. 1979). The Vail court was left to answer only whether the district court could find
that the identity was proved by the other, nonscientific evidence offered to prove identity
(the total weight of the substance sold, the sale price, and the defendant’s claim that the
substance was “Mexican grade” marijuana). Id. at 133–34. That evidence was held to be
insufficient. Id. at 134. But if Gruber’s contention were correct that testing is always
required to prove the identity of drugs, the Vail court would have ended its analysis
immediately after deferring to the district court’s finding that the evidence of scientific
testing was unconvincing. It did no such thing. Instead, the supreme court summarized
what we are certain remains the controlling law: “We have not prescribed minimum
evidentiary requirements in identification cases, preferring to examine the sufficiency of
the evidence on a case-by-case basis.” Id. In that case, the court considered the probative
value of the nonscientific evidence and concluded that no reasonable jury could deem the
obviously thin evidence sufficient proof that the substance was really marijuana. Id.
The relevant holdings inform us of the following principles: fact finders must
consider and weigh the reliability of the state’s chemical-identity evidence in each case; a
fact finder can reject as unreliable a proffered method of scientific testing; a fact finder
may determine identity of a drug beyond a reasonable doubt based on reliable
nonscientific evidence; and when we address an appellant’s claim of insufficient
chemical-identity evidence, we will uphold the jury’s chemical-identity fact findings
18
unless the findings are clearly erroneous. We therefore consider whether the evidence the
state presented was sufficiently reliable for the jury to identify as “legend drugs” the
drugs that Gruber stole from the depository.
The state showed the jury Gruber’s stolen medicine—various pills. The pills that
Gruber stole were generally kept in prescription bottles or were sealed in commercially
marked blister packaging. The record informs us that the pills could be identified by their
physical characteristics. Some were tablets and some were capsules. They were of
various colors. They bore distinctive pharmaceutical designations in words, letters,
numbers, or some combination of these. Each tablet of the allegedly legend drugs in one
group had a “V” and certain numbers printed on it. Another group of these drugs bore the
designation “TEVA” and specific numbers. The state’s expert witness, Minnesota Bureau
of Criminal Apprehension forensic scientist Sara Goldstrand, testified that she identified
the pills using standard BCA identification procedures. She visually observed and noted
the packaging of each item, opened each bottle, separated the pills based on appearance,
and identified the pills by matching them against images in a professionally accepted
pharmaceutical database. Goldstrand testified that the medication in sealed commercial
packaging had not apparently been tampered with, so she relied on the labels to
determine the contents. She scientifically assessed the phentermine hydrochloride tablets,
testing one of them using gas chromatograph mass spectrometry, because that drug is a
controlled substance. She also identified trazodone tablets, amoxicillin capsules,
hydroxyzine capsules, fluoxetine (Prozac) capsules, and a tube containing lidocaine.
19
Another witness testified that sealed blister packages contained tadalafil tablets,
metformin hydrochloride tablets, and vardenafil tablets.
We are satisfied that the jury had sufficient evidence from which to identify the
legend drugs beyond a reasonable doubt. Unlike in Robinson, here the fact finder was not
considering bundles of powder mixed by criminals in an unregulated industry where
product integrity is always doubtful. And unlike in Vail, the fact finder here did not
determine identity merely based on a market price and the optimistic assessment of the
drug purchaser. Here the jury could see that the tablets and capsules are homogeneously
manufactured; that they are uniformly shaped, colored, and marked specifically so they
can be identified by professionals and nonprofessionals; and that they are commercially
and uniformly marked, packaged, and labeled. The jury also heard from forensic
technicians who identified the specific drugs using the same methods pharmacists use to
identify drugs.
Federal and state courts around the country have taken the same approach,
allowing drug identification by circumstances other than laboratory testing. See Jones v.
Commonwealth, 331 S.W.3d 249, 253–54 (Ky. 2011) (collecting and discussing cases).
We observe also that relying on visible characteristics of tablets and capsules to identify
drugs is an approach apparently endorsed by federal agencies most responsible for
regulating drugs. Specifically, the United States National Library of Medicine and the
Food and Drug Administration both offer services to assist the public in identifying
medications by imprint, shape, color, and size. Nat’l Library of Med., Pillbox,
http://pillbox.nlm.nih.gov/pillimage/search.php; FDA, Drug Identification,
20
http://www.fda.gov/AboutFDA/CentersOffices/OfficeofMedicalProductsandTobacco/CD
ER/ucm082695; see also FDA, Ctr. for Drug Evaluation & Research, Safety
Considerations for Product Design to Minimize Medication Errors (2012) (draft
guidance).
The matching evidence alone may have been sufficient to convince a jury of the
identity of the drugs beyond a reasonable doubt. The state also corroborated this direct
identification evidence with two forms of circumstantial evidence. The first is the reason
for the drugs’ presence in the sheriff’s office. They arrived through a program
specifically designed for the public to deposit prescription drugs. And the second is
Gruber’s own conduct in collecting and using the drugs. The jury saw a recording of
Gruber’s post-arrest interview in which he stated that he had removed from the
depository three specific drugs: amoxicillin, hydroxy (he could not fully recall this
substance’s name), and lidocaine, which he said he took intending to consume them or to
provide them to members of his family to consume. In other words, the jury learned that
Gruber had personal experience with these drugs and that he so trusted the accuracy of
his own identification of them that he would ingest them himself or supply them to his
family members.
We hold that in a prosecution for unlawful possession of legend drugs under
Minnesota Statutes section 151.37, subdivision 1, laboratory testing is not essential to
identify the drugs beyond a reasonable doubt when reliable nonscientific evidence exists.
And we hold that this sort of reliable evidence supports the verdict here.
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VII
Gruber contends that even if the state identified the drugs, it did not prove that
they are legend drugs because the record lacks evidence that the drugs had been
prescribed. Again, “legend drugs” are medications that, under federal law, may be
dispensed only by prescription. Minn. Stat. § 151.01, subd. 17 (2012). Gruber accurately
indicates that the state’s expert witnesses did not testify that all of the charged legend
drugs require a prescription. But this testimony was unnecessary. Whether an identified
drug requires a prescription is not a fact question; it is a legal question. Drugs requiring a
prescription under federal law include drugs limited by an approved application under
section 505 of the Federal Food, Drug, and Cosmetic Act to “use under the professional
supervision of a practitioner licensed by law to administer such drug.” 21 U.S.C.
§ 353(b)(1) (2012). The U.S. Department of Health and Human Services publishes and
updates a list of all approved drugs. 21 U.S.C. § 355(j)(7)(A) (2011); see also 21 C.F.R.
§ 314.105(a) (2008) (making approval of a new drug application effective when the FDA
issues an approval letter). The department’s publication classifies drugs according to
whether they are approved for use only with a prescription. FDA, Approved Drug
Products with Therapeutic Equivalence Evaluations (“Orange Book”) at vi (2015). And
the list identifies as prescription drugs all six of the medications included in Gruber’s
possession-of-legend-drugs charge, and all of them were introduced into evidence. Id. at
3-24–25 (amoxicillin), 3-190–91 (hydroxyzine), 3-235–36 (metformin hydrochloride),
3-336 (tadalafil), 3-354 (trazodone), 3-361 (vardenafil). The district court did not err by
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determining as a matter of law that the identified substances that Gruber possessed are
prescription drugs.
DECISION
Police had probable cause to arrest Gruber for theft or attempted theft. Gruber was
not prejudiced by any notice deficiency in the complaint charging him with misconduct
by a public officer. The district court’s evidentiary decisions were within its appropriate
discretion. And the state provided sufficient evidence for the jury to identify the drugs
beyond any reasonable doubt.
Affirmed.
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