This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1377
State of Minnesota,
Respondent,
vs.
Kunta Kinta Viverette,
Appellant.
Filed June 22, 2015
Affirmed
Kirk, Judge
Hennepin County District Court
File No. 27-CR-13-24720
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Kirk, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
KIRK, Judge
In this appeal following his conviction of first-degree controlled substance
possession, appellant challenges the search warrant and raises several arguments
regarding the administration of his trial. We affirm.
FACTS
On July 30, 2013, law enforcement executed a search warrant based on
information from a confidential reliable informant (CRI). Officers found appellant Kunta
Kinta Viverette in the apartment’s west bedroom and “eight large bags of suspected
cocaine,” cash, and documents in appellant’s name in the west bedroom closet. They
also found “two small bindles of suspected crack cocaine” in the pocket of men’s
sweatpants in the west bedroom.
Respondent State of Minnesota initially charged appellant with one count of first-
degree controlled substance possession and one count of fifth-degree controlled substance
possession, but dismissed the fifth-degree charge on the first day of trial. After the jury
found him guilty of the first-degree charge, appellant moved for a judgment of acquittal
or, in the alternative, to vacate the judgment and order a new trial. The district court
denied appellant’s motions. This appeal follows.
DECISION
I. The district court did not err by denying appellant’s motion to suppress.
Appellant first argues that the district court erred by denying his motion to
suppress because the search warrant did not establish probable cause. The United States
2
and Minnesota Constitutions protect citizens from unreasonable searches and seizures
and provide that no warrant shall issue without a showing of probable cause. U.S. Const.
amend. IV; Minn. Const. art. I, § 10. Generally, a search of a residence is valid only if a
neutral and detached magistrate issues a warrant supported by probable cause. See Minn.
Stat. § 626.08 (2012); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). When
reviewing whether a search warrant is supported by probable cause, this court gives
“great deference to the issuing judge’s finding of probable cause” and seeks only to
“ensur[e] that the issuing judge had a substantial basis for concluding that probable cause
existed.” State v. McGrath, 706 N.W.2d 532, 539 (Minn. App. 2005), review denied
(Minn. Feb. 22, 2006). In doing so, the reviewing court considers the totality of the
circumstances. State v. Jenkins, 782 N.W.2d 211, 223 (Minn. 2010).
Hennepin County Sheriff’s Deputy Jason Hughes applied for a search warrant for
the apartment after receiving information from a CRI that appellant “was involved in
trafficking large quantities of cocaine in the Minneapolis area.” The CRI had observed
appellant in possession of cocaine at the apartment and told Deputy Hughes that appellant
“sells narcotics at all times of the day and night and does not follow a set schedule for
these crimes.” The CRI further explained that appellant was staying at the apartment
with his girlfriend, whose last name was Hall. Deputy Hughes stated that officers had
spoken with the apartment’s management, who had seen appellant at the apartment
complex in the past. The officers viewed a video showing someone matching appellant’s
description entering the building with the key fob for the specific apartment, which they
also confirmed was occupied by Michelle Hall. Finally, Deputy Hughes checked
3
appellant’s criminal history and learned that he had been “arrested in the past for
narcotics crimes as well as weapons possession charges.”
When a search warrant is based on an informant’s tip, the supporting “affidavit
must provide the magistrate with adequate information from which he can personally
assess the informant’s credibility.” State v. Siegfried, 274 N.W.2d 113, 114 (Minn.
1978). The issuing judge must consider the informant’s basis of knowledge and veracity.
State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998) (citing Illinois v. Gates, 462 U.S. 213,
238, 103 S. Ct. 2317, 2332 (1983)). But veracity and basis of knowledge are “closely
intertwined issues” and are not “separate and independent requirements.” State v.
Holiday, 749 N.W.2d 833, 840 (Minn. App. 2008) (citing Gates, 462 U.S. at 230, 103
S. Ct. at 2328).
This court has set forth six factors for evaluating “the reliability of an informant
who is confidential but not anonymous to police.” State v. Ward, 580 N.W.2d 67, 71
(Minn. App. 1998). Under these factors, an informant is deemed reliable if the informant
(1) is a first-time citizen informant not involved in the criminal underworld; (2) has
previously given police correct information; (3) gives information sufficiently
corroborated by police; (4) comes forward voluntarily to identify a suspect with no
motive to falsify information; (5) participates in a “controlled purchase” in a narcotics
case; or (6) makes a statement against his own penal interest. Id.
Under the second reliability factor, “an informant’s reliability may be
demonstrated where the informant has previously given police correct information, but
the affidavit must explicitly state this to be the case.” Id. Deputy Hughes’s affidavit
4
stated that the CRI had “provided information to local law enforcement officers regarding
narcotics traffickers . . . in the past” and had “provided information that ha[d] led to the
seizure of large amounts of narcotics as well as weapons.” An affidavit need not include
specific details regarding the informant’s past veracity and “a simple statement that the
informant has been reliable in the past” is enough to establish the informant’s reliability.
State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004). Because the affidavit states that
the informant had been reliable in the past, the second reliability factor was met and there
was sufficient evidence of the informant’s reliability. See id.; State v. Wiley, 366 N.W.2d
265, 269 (Minn. 1985) (concluding that the affidavit’s statement that the informant had
“been used over several years successfully” provided sufficient evidence of the
informant’s reliability).
Contrary to appellant’s assertion, law enforcement was not required to “conduct
significant investigation to corroborate” the CRI’s tip. See Ward, 580 N.W.2d at 71
(stating that police corroboration is only one way to establish reliability). But here,
officers spoke to apartment management and viewed a surveillance video that
corroborated appellant’s presence at the apartment, and they confirmed that the apartment
was occupied by Michelle Hall, as the informant had suggested. “[C]orroboration of
even minor details can lend credence to the informant’s information where the police
know the identity of the informant.” Id. (quotation omitted). In a totality-of-the-
circumstances analysis, the “minimal corroboration” here, although unnecessary,
supports the district court’s finding of probable cause. See State v. McCloskey, 453
5
N.W.2d 700, 704 (Minn. 1990); see also Wiley, 366 N.W.2d at 269 (stating that even
corroboration of non-key details can “lend credence to the informant’s tip”).
The affidavit also provides a sufficient basis of knowledge. “Recent personal
observation of incriminating conduct has traditionally been the preferred basis for an
informant’s knowledge.” Wiley, 366 N.W.2d at 269. The CRI observed appellant in
possession of cocaine at the apartment and told Deputy Hughes that appellant “sells
narcotics at all times of the day and night and does not follow a set schedule for these
crimes.” The CRI’s tip was based on personal observation, and appellant provides no
citation in support of his argument that the tip “was not sufficiently detailed.” The
informant was not required to purchase drugs from appellant to gain a sufficient basis of
knowledge or reliability. See Ward, 580 N.W.2d at 71 (listing a controlled purchase as
only one way to establish an informant’s reliability).
Based on the totality of the circumstances, we conclude that the search-warrant
application established the CRI’s basis of knowledge and reliability. In addition, the
application established “a fair probability that contraband or evidence of a crime” would
be found in the apartment. See Wiley, 366 N.W.2d at 268 (quoting Gates, 462 U.S. at
238, 103 S. Ct. at 2332). Therefore, the issuing judge had a substantial basis to conclude
that the search warrant was supported by probable cause, see McGrath, 706 N.W.2d at
539, and the district court did not err by denying appellant’s motion to suppress.
Appellant also argues that the district court should have granted his motion to
suppress because the search warrant did not support an unannounced entry. But appellant
only argued below that the search warrant was not supported by probable cause and that a
6
Franks hearing was needed to assess the search warrant’s validity. See Franks v.
Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978). Because appellant did not
argue below that the unannounced entry was unlawful and the record was not sufficiently
developed for our review, we decline to consider this issue on appeal. See Roby v. State,
547 N.W.2d 354, 357 (Minn. 1996) (“This court generally will not decide issues which
were not raised before the district court, including constitutional questions of criminal
procedure.”).
II. The district court did not abuse its discretion by limiting appellant’s
questioning during voir dire.
The United States and Minnesota Constitutions guarantee the right to a trial by an
impartial jury. U.S. Const. amend. VI; Minn. Const. art. I, § 6. “This right includes the
ability to conduct ‘an adequate voir dire to identify unqualified jurors.’” State v. Greer,
635 N.W.2d 82, 87 (Minn. 2001) (quoting Morgan v. Illinois, 504 U.S. 719, 729, 112
S. Ct. 2222, 2230 (1992)). But district courts may restrict or prohibit repetitious,
irrelevant, or improper questions. Id. (citing Minn. R. Crim. P. 26.02 cmt.). We review
the district court’s voir-dire decisions for an abuse of discretion. Id. “[I]t is an abuse of
discretion for the [district] court to frustrate the purposes of voir dire by preventing
discovery of bases for challenge or inhibiting a defendant’s ability to make an informed
exercise of peremptory challenges.” Id.
At the start of voir dire, the district court told the prospective jurors that the state
had the burden to prove appellant’s guilt beyond a reasonable doubt. The district court
also explained that appellant was presumed innocent and that the jury should not be
7
prejudiced against him due to his arrest or criminal charge. The district court then asked
the prospective jurors whether they agreed that the defendant was presumed innocent,
that the state had the burden to prove his guilt, and that they could apply the law as
instructed by the district court. The jurors responded affirmatively to all three questions.
Appellant’s attorney later had the following exchange with a potential juror:
DEFENSE ATTORNEY: Do you think it’s possible for
someone to be falsely accused?
PROSPECTIVE JUROR: Yes.
DEFENSE ATTORNEY: And why do you think that is?
PROSECUTOR: Objection, Your Honor. Improper
voir dire.
The district court found the defense attorney’s questioning to be “objectionable” because
it (1) clouded the court’s instruction regarding the presumption of innocence, (2) put forth
the defense strategy that appellant had been falsely accused, and (3) asked “jurors to put
themselves in the situation of being accused.”
Appellant argues that the district court improperly prevented him from questioning
jurors about their views toward law enforcement. See State v. Ritter, 719 N.W.2d 216,
221 (Minn. App. 2006) (holding that the district court abused its discretion by not
allowing the defense to ask any questions about potential biases toward law
enforcement). But the district court only prevented appellant from asking potential jurors
about false accusations. As the district court found, appellant’s questioning was similar
to the questions in State v. Owens, where the defendant attempted to ask whether
someone could be arrested and charged for a crime he did not commit and whether the
potential jurors had ever been blamed for something they did not do. 373 N.W.2d 313,
8
315 (Minn. 1985). The supreme court concluded that the district court’s disallowance of
these questions did not prevent the defendant “from discovering bases for challenge for
cause or gaining knowledge to enable an informed exercise of peremptory challenges”
and that the district court did not abuse its discretion. Id. (quotation marks omitted).
As in Owens, the district court did not prevent appellant from discovering bases
for challenge or from exercising informed peremptory challenges. The district court
instructed the prospective jurors regarding the presumption of innocence and the burden
of proof, see id., and allowed appellant to ask other questions on voir dire regarding
whether potential jurors felt comfortable in applying the presumption of innocence. The
district court also allowed appellant to inquire about potential jurors’ views toward law
enforcement. Because the district court did not prevent appellant from discovering bases
for challenge or exercising informed peremptory challenges, it did not abuse its discretion
in prohibiting the challenged questioning. See Greer, 635 N.W.2d at 87.
III. The district court’s refusal to allow appellant to introduce certain evidence
regarding his alternative-perpetrator defense did not violate appellant’s due-
process rights.
The district court allowed appellant to present an alternative-perpetrator defense at
trial. Appellant testified that he did not have a place to live after being released from
prison in April 2013. He stayed several places before T.E. told him that he could stay at
a friend’s apartment. Appellant started staying at the apartment around July 20. He
testified that T.E. let him into the apartment and that he never had his own key. On July
29, 2013, appellant and his girlfriend fell asleep on the couch. At some point, T.E.
arrived at the apartment and went into the main bedroom for about five minutes. T.E.
9
then told appellant that he and his girlfriend could stay in the bedroom. Officers found
appellant and his girlfriend in that bedroom when executing the search warrant.
Appellant testified that T.E. might have set him up.
Appellant argues that four of the district court’s evidentiary decisions regarding
his alternative-perpetrator defense violated his due-process rights. The due-process
clauses in the United States and Minnesota Constitutions provide criminal defendants
with the rights to be treated fairly and to present a complete defense. State v. Richards,
495 N.W.2d 187, 191 (Minn. 1992) (citing California v. Trombetta, 467 U.S. 479, 485,
104 S. Ct. 2528, 2532 (1984)). “Alternative perpetrator evidence is admissible if it has
an inherent tendency to connect the alternative party with the commission of the crime.”
State v. Jones, 678 N.W.2d 1, 16 (Minn. 2004). The district court’s decision to exclude
evidence supporting the defendant’s alternative-perpetrator theory violates due process if
it “significantly undermines fundamental elements of the defendant’s defense.” Id.
(quotation omitted). But, like all other types of exculpatory evidence, evidence
supporting the alternative-perpetrator theory must be admissible under the ordinary rules
of evidence. Id. “Evidentiary rulings rest within the sound discretion of the [district]
court and will not be reversed absent a clear abuse of discretion.” State v. Amos, 658
N.W.2d 201, 203 (Minn. 2003).
A. Nature of the Investigation
On cross-examination, appellant’s attorney asked Deputy Hughes several
questions about the “independent investigation” that he conducted after receiving
information from the CRI. She also asked several questions about other techniques that
10
Deputy Hughes could have used, including dog sniffs, trash pulls, and controlled buys,
and asked whether Deputy Hughes had witnessed high foot traffic or hand-to-hand
transactions or found a drug-transaction ledger in the apartment. The district court
sustained the prosecutor’s objections to each question about other techniques on
relevance grounds. The district court explained that these questions addressed the
validity of the search warrant, an issue that had already been fully litigated, and were not
helpful to the jury in determining whether appellant committed first-degree possession.
The district court “direct[ed] the defense not to continue to ask a line of questioning
regarding the support for the search warrant in this case.”
Appellant argues that his questions about the “integrity and thoroughness of the
investigation were certainly relevant to whether someone else committed this crime.”
But the district court only limited appellant’s questions regarding the investigation before
the issuance of the search warrant and allowed appellant to inquire about the
investigation during the execution of the search warrant. Because the issuing judge had
previously determined that the search warrant was supported by probable cause, the
sufficiency of the investigation before the issuance of the search warrant was not an issue
for the jury and was irrelevant to the jury’s role in determining whether appellant
possessed the drugs found during the search. See Minn. R. Evid. 401 (“‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.”). The officers’ actions to corroborate the CRI’s tip did
not make appellant’s guilt or innocence more or less likely.
11
The district court did not abuse its discretion in limiting appellant’s questioning
regarding the investigation before the issuance of the search warrant. See Amos, 658
N.W.2d at 203. Even if it did, appellant cannot show that he was prejudiced by the
district court’s ruling. “When an error implicates a constitutional right, we will award a
new trial unless the error is harmless beyond a reasonable doubt. An error is harmless
beyond a reasonable doubt if the jury’s verdict was surely unattributable to the error.”
State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012) (citation and quotation omitted). The
jury convicted appellant of first-degree possession even though he argued that he did not
possess the drugs in the apartment, he had been set up by an alternative perpetrator, and
the police officers conducted a sloppy and incompetent search. Given the strong
evidence of appellant’s guilt, evidence regarding the investigation before the issuance of
the search warrant could not have altered the jury’s verdict.
B. Reverse-Spreigl Evidence
In general, a defendant may “present evidence of other crimes, wrongs, or bad acts
committed by the alleged alternative perpetrator in order to cast reasonable doubt upon
the identification of the defendant as the person who committed the charged crime.”
Jones, 678 N.W.2d at 16. But this reverse-Spreigl evidence is only admissible if the
defendant shows “(1) clear and convincing evidence that the alleged alternative
perpetrator participated in the reverse-Spreigl incident; (2) that the reverse-Spreigl
incident is relevant and material to [the] defendant’s case; and (3) that the probative value
of the evidence outweighs its potential for unfair prejudice.” Id. at 16-17. Here, the
district court denied appellant’s motion to introduce T.E.’s two convictions of fifth-
12
degree controlled substance crime because appellant had not met the second and third
elements.
On appeal, appellant only argues that the reverse-Spreigl evidence was relevant to
the jury’s determination of whether appellant committed the charged offense. Evidence
that T.E. had previously been convicted of fifth-degree controlled substance crimes might
have had some tendency to show that he possessed the cocaine found in the apartment.
See State v. Denison, 607 N.W.2d 796, 801 (Minn. App. 2000), review denied (Minn.
June 13, 2000). But, as the district court found, this evidence could only show that both
T.E. and appellant constructively possessed the cocaine. T.E.’s prior convictions could
not “negate the strong inference” that appellant constructively possessed the cocaine
found in the bedroom where he was staying. See id.
In addition, evidence of prior convictions alone, without testimony regarding the
underlying acts, generally cannot provide clear evidence that the convicted person
committed the acts in question. See State v. Wright, 719 N.W.2d 910, 916 n.1 (Minn.
2006). Because appellant sought only to introduce evidence of T.E.’s prior convictions
and did not show that T.E. committed the underlying offenses or that the offenses were
material to appellant’s possession of the cocaine, the district court did not abuse its
discretion by denying appellant’s motion to introduce reverse-Spreigl evidence.
C. Benefits to the Informant
Deputy Hughes testified on direct that “[a] reliable informant is somebody who
has provided specific information time after time that’s been known to be true and correct
and corroborated by other law enforcement officers and through findings from search
13
warrants.” On cross-examination, Deputy Hughes agreed that some informants are paid
or have criminal records. The prosecutor then argued that the defense had opened the
door to questions about the reliability of the CRI and the substance of the tip. The district
court allowed “very limited” redirect questions regarding the informant’s reliability. In
response, appellant’s attorney asked if she could inquire regarding any benefits the CRI
had received in exchange for the tip. The district court responded: “[A]s I have already
stated, your line of questioning is eliciting inadmissible evidence that goes to a legal issue
for which this jury is not to determine. So if you are asking may you do so, the answer to
that is no.”
Appellant argues that the district court prohibited him from exploring whether the
CRI was biased against him. Appellant is correct that cross-examining a witness about
his partiality or bias is always relevant. See State v. Lanz-Terry, 535 N.W.2d 635, 640
(Minn. 1995). But the CRI was not a witness at trial and appellant provides no support
for his assertion that the CRI was somehow “a witness in [absentia].”
The district court did not abuse its discretion in prohibiting appellant’s question
about benefits to the CRI. Even if it did, any error was harmless beyond a reasonable
doubt because the jury convicted appellant after his attorney attacked the CRI’s
credibility throughout the trial and suggested in closing that the CRI may have had a
motive to lie, may have been paid, and may have been trying to avoid prosecution. Given
the evidence presented at trial and the defense attorney’s arguments regarding the CRI’s
credibility, questioning Deputy Hughes about benefits the CRI received would not have
altered the jury’s verdict. See Davis, 820 N.W.2d at 533.
14
D. Disclosure of the Informant’s Identity
“We review a district court order regarding disclosure of a confidential
informant’s identity for an abuse of discretion.” State v. Rambahal, 751 N.W.2d 84, 90
(Minn. 2008). Although the state may withhold a confidential informant’s identity to
protect the informant, it must disclose the identity if that information would be “relevant
and helpful to the defense of an accused.” Id. (quotation omitted). The defendant has the
burden to show that the disclosure is necessary and the necessity is determined “on a
case-by-case basis.” Id.
When determining whether to order disclosure, the district court must consider
whether (1) the confidential informant is a material witness; (2) the confidential
informant’s testimony is material to the issue of guilt; (3) the testimony of the officers is
suspect; and (4) the confidential informant’s testimony “might disclose entrapment.” Id.
(quotation omitted). The district court properly considered these four factors and denied
appellant’s pretrial motion to disclose the CRI’s identity because (1) the CRI was not a
material witness; (2) the CRI’s testimony was not material to the issue of appellant’s
guilt; (3) the testimony of the officers was not suspect; and (4) there was no entrapment
defense.
Appellant argues that the CRI was a material witness because the jury could infer
that Deputy Hughes relied on information from the CRI that appellant possessed drugs.
But the CRI’s information only established probable cause for the search warrant. It did
not provide material information regarding whether appellant possessed the cocaine
found in the apartment. Contrary to appellant’s initial belief, the CRI was not the alleged
15
alternative perpetrator. Because the CRI could not testify that appellant possessed the
cocaine found in the apartment, he was not a material witness. See State v. Medal-
Mendoza, 718 N.W.2d 910, 919-20 (Minn. 2006) (explaining in a plain-error analysis
that disclosure of the confidential informant’s identity was not necessary because the
informant did not witness the crime and his statement was used only to explain the police
investigation, not to suggest that the defendant committed the charged offense); State v.
Marshall, 411 N.W.2d 276, 280 (Minn. App. 1987) (explaining that the defendant failed
to show the need for disclosure when the informants’ information was used to obtain
search warrants and the charges were based on the search results), review denied (Minn.
Oct. 26, 1987).
Because appellant did not meet his burden to require disclosure of the CRI’s
identity, the district court did not abuse its discretion by denying appellant’s disclosure
motion. See Rambahal, 751 N.W.2d at 90.
IV. The district court did not plainly err by admitting evidence during trial.
Appellant next argues that the district court erred by allowing (1) testimony about
the Violent Offender Task Force; (2) officer opinion testimony; (3) testimony suggesting
drug sales; and (4) an excerpt from his jail phone call. Generally, “[e]videntiary rulings
rest within the sound discretion of the [district] court and will not be reversed absent a
clear abuse of discretion.” Amos, 658 N.W.2d at 203. But because appellant did not
challenge the first two issues below, we review the introduction of that evidence for plain
error. See State v. Martinez, 725 N.W.2d 733, 738 (Minn. 2007). Under this test,
appellant must show that (1) there was an error; (2) that was plain; and (3) that affected
16
his substantial rights. See Davis, 820 N.W.2d at 534. If these prongs are met, we then
determine whether to “address the error to ensure fairness and the integrity of the judicial
proceedings.” State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
A. Testimony about the Violent Offender Task Force
At the start of his testimony, Deputy Hughes stated that he worked for Hennepin
County’s Violent Offender Task Force, which “focus[es] on violent crimes and narcotics
investigations.” Deputy Hughes explained that his job included “[l]ocating and
apprehending violent felons, [and] initiating and targeting investigations towards violent
offenders and narcotics traffickers.” Deputy Hughes later testified that he investigated
appellant while working as a member of the task force. A second officer testified that the
role of the task force was to “[b]asically go after the top 50 offenders, go after people that
are, basically, deal with dope and guns, try to take the worst of the worst off the street.”
This officer stated that he also investigated appellant as part of the task force.
Appellant did not object to the officers’ testimonies at trial, but now argues that
their statements regarding the task force were “inflammatory and irrelevant.” We
disagree. The officers’ general statements about the task force were relevant because
they provided context for the investigation. See id. at 743 (“Evidence is admissible to
give jurors the context for an investigation.”). The statements also were not highly
prejudicial because they did not address appellant’s behavior or attack his credibility. See
State v. Strommen, 648 N.W.2d 681, 687 (Minn. 2002) (determining that testimony was
highly prejudicial when it “portrayed [the appellant] as a person of bad character” and
may have led the jury to punish him for other bad acts). Because the challenged
17
testimony provided brief context for the investigation and did not attack appellant
personally, appellant has not shown a clear or obvious error. See id. at 688 (“An error is
plain if it was clear or obvious.” (quotations omitted)).
In addition, appellant has not met his “heavy burden” to show that any error had a
significant effect on the jury’s verdict. See Griller, 583 N.W.2d at 741 (explaining the
requirement that any error must affect substantial rights). Appellant merely speculates
that the jury could have convicted him based on an inference that appellant had engaged
in past criminal behavior. There is no evidence to support this speculation, particularly in
light of the district court’s instructions that appellant should not be presumed guilty due
to his arrest, charging, or trial and that evidence of appellant’s past convictions must be
considered only as affecting his credibility, not as evidence of his guilt of the charged
offense. We presume that the jury followed the district court’s instructions. State v.
Taylor, 650 N.W.2d 190, 207 (Minn. 2002). The officers’ brief explanations of the
Violent Offender Task Force did not significantly affect the jury’s verdict. See Davis,
820 N.W.2d at 535 (concluding that the appellant had not shown a significant effect on
the verdict when the challenged testimony was general in nature, cumulative to other
evidence, corroborated by other evidence, and “only minimally relied on” at trial).
B. Officer Opinion Testimony
At the end of Deputy Hughes’s direct testimony, the prosecutor asked: “Deputy
Hughes, based on your training and experience and all of the evidence recovered at the
scene, who did you believe the nearly eight ounces of cocaine recovered belonged to?”
Deputy Hughes identified appellant. Appellant did not object to this question or answer
18
at trial, but now argues that Deputy Hughes’s opinion testimony was erroneous and
prejudicial.
Appellant argues that Deputy Hughes “[e]ssentially” testified as an expert. But he
cites no caselaw to support this assertion. Even if Deputy Hughes’s opinion testimony
was not helpful to the jury, see Minn. R. Evid. 702, appellant has not met his “heavy
burden” to show that any error affected his substantial rights. See Griller, 583 N.W.2d at
741. The challenged opinion comprises one line of Deputy Hughes’s extensive testimony
over the course of two days, and addresses only why appellant was arrested following the
search. In addition, the jury was instructed that opinion testimony “is entitled to neither
more nor less consideration by you than any other evidence” and that its believability and
weight must be evaluated. There is no evidence that Deputy Hughes’s brief opinion
caused the jury to ignore this instruction or other instructions regarding the presumption
of innocence, the burden of proof, and the jury’s role in judging the credibility of each
witness.
C. Testimony Suggesting Drug Sales
Deputy Hughes also testified generally about the typical user amounts and prices
of cocaine sold on the street. After he described the items law enforcement found when
executing the search warrant, the following exchange took place:
PROSECUTOR: Deputy, you testified that over $5,000 in
cash was recovered from that bedroom. In your training and
experience, is it typical to find large amounts of cash like that
when investigating narcotics crimes?
DEPUTY HUGHES: It is, yes.
PROSECUTOR: And in your training and experience, what
does that amount of cash indicate to you?
19
DEFENSE ATTORNEY: Objection. Relevance.
THE COURT: Overruled.
DEPUTY HUGHES: That a part of the narcotics [was]
already sold off and that that currency is from narcotics sales.
....
PROSECUTOR: Deputy, we saw photographs of the large
amount of cocaine recovered from the closet in eight separate
packages. What did that type of packaging in your training
and experience indicate to you?
DEFENSE ATTORNEY: Objection. Relevance.
THE COURT: Overruled.
DEPUTY HUGHES: Cocaine is often packaged—when it’s
packaged in large quantities, it’s packaged in ounce weights
for sale. Cocaine is generally sold—if it’s sold in larger
amounts, it’s sold in—by the ounce.
Appellant argues that this testimony about drug sales was irrelevant to his first-
degree-possession charge. Appellant is correct that he was charged with first-degree
possession and that a drug sale is not an element of this offense. See Minn. Stat.
§ 152.021, subd. 2(a)(1) (2012). But the state argues that the testimony was relevant to
the jury’s consideration of appellant’s alternative-perpetrator defense. The state asserts
that no alternative perpetrator would relinquish the large amounts of cocaine and cash
found in the closet merely to set appellant up. The officers found 219 grams of cocaine
in the bedroom closet, well over the 25 grams needed for first-degree possession. See id.
Because the jury could use the evidence about drug sales to analyze appellant’s claim that
he was set up, the evidence was at least minimally relevant to its determination regarding
appellant’s possession of the cocaine. See Minn. R. Evid. 401 (stating that relevant
evidence must only have “any tendency” to make a fact more or less probable). The
district court therefore did not abuse its discretion in allowing this challenged testimony.
20
Even if the district court abused its discretion, appellant has not shown prejudice.
Officers found appellant in the west bedroom and “eight large bags of suspected
cocaine,” cash, and documents in appellant’s name in the west bedroom closet. Officers
also found appellant’s cellphone, other mailings in his name, and a photograph of him in
the room. Given the strong evidence of appellant’s constructive possession, we conclude
that testimony about the cocaine packaging did not significantly affect the jury’s verdict.
See State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994) (explaining that, if the district
court erred in admitting evidence, we must determine “whether there is a reasonable
possibility that the wrongfully admitted evidence significantly affected the verdict”).
D. Excerpt from Jail Phone Call
On the second day of trial, the prosecutor announced that appellant had contacted
his girlfriend the night before in violation of the court’s no-contact order and that the
state had a copy of the jail phone call. The district court denied the state’s request to
introduce the call in its case in chief, finding that the danger of unfair prejudice
outweighed the probative value of the evidence.
On both cross-examination and redirect, appellant denied that he had spoken to
T.E. about his testimony. The prosecutor then asked to introduce the jail call as rebuttal
evidence, and appellant’s attorney objected. The district court agreed with the prosecutor
that appellant’s testimony about not speaking with T.E. was inconsistent with a portion of
the phone call. But the district court limited the rebuttal evidence to the portion of the
call that “is inconsistent and provides context for [appellant’s] statement.” The jury
heard the following portion of the jail phone call:
21
[T.E.] He came, he was there. He was in there when you
were sitting in the hallway. He came . . . He was with me.
We sat there and talked. They asked him the same things, got
him a lawyer and everything. You know they said they can’t
mess with y’all period. You know what I’m saying? They
can’t charge y’all with nothing and the only thing you gotta
do is just, you know, tell the truth. Let them know we was
sleeping on the couch. [T.E.] let us stay the night over there.
(inaudible) He gave us permission to stay that night. And
you know we was on the couch asleep and uh we got up and
went in the room and uh, shit. You know and went to sleep in
the room when nobody wasn’t there. Then shit, we woke up
when the house was getting raided. That’s it. You know
who’s coke? No, you know you don’t sell drugs, I ain’t never
saw him sell no drugs. That’s it. And there ain’t gotta be
nothing else. But I, you know, you know man, you see that
what they trying to do.
Appellant then testified that he talked to T.E. about whether he was coming to trial and
was going to testify, but did not coach T.E. regarding his testimony.
During jury deliberations, the jury requested to hear the phone call again and the
district court played the recording. After the verdict, appellant argued to the district court
that he was entitled to a new trial based on the admission of the phone call. The district
court rejected this argument because the call was introduced for impeachment as directly
contradictory to appellant’s testimony and “was more relevant tha[n] prejudicial.”
“[R]ebuttal evidence is evidence that explains, contradicts, or refutes evidence
elicited by the defense” and may include evidence that is not otherwise admissible. State
v. Gutierrez, 667 N.W.2d 426, 435 (Minn. 2003). “The determination of whether or not
something is appropriate rebuttal evidence rests within the discretion of the [district]
court and will only be reversed upon a showing of a clear abuse of discretion.” Id.
22
Appellant argues that the district court abused its discretion by playing more than
the following portion of the phone call: “[T.E.] He came, he was there. He was in there
when you were sitting in the hallway. He came . . . He was with me. We sat there and
talked. They asked him the same things, got him a lawyer and everything.” But
appellant does not support this assertion and we disagree that the district court abused its
discretion by playing its chosen excerpt. The district court explained that it eliminated
the prejudicial portion of the phone call and “left in enough to provide context for
[appellant’s] statement.” Rebuttal evidence can explain as well as contradict other
evidence. See id.
In addition, appellant fails to show prejudice. Before playing the phone call, the
district court instructed the jury regarding how to weigh witness credibility and explained
that prior inconsistent statements should only be considered for that purpose. The
prosecutor then introduced the phone call through officer testimony without explaining
who appellant called or how the call was recorded. Because neither the prosecutor nor
the phone call identified the call’s recipient, there was no way for the jury to infer, as
appellant contests, that appellant was coaching his girlfriend to testify in a certain manner
and that she declined to testify accordingly. We conclude that the phone call’s relevance
in contradicting appellant’s testimony outweighed any danger of unfair prejudice, see
Minn. R. Evid. 403, and did not substantially affect the jury’s verdict in light of the other
strong evidence of appellant’s guilt, see Post, 512 N.W.2d at 102 n.2.
23
V. The district court did not abuse its discretion by denying appellant’s request
for a jury instruction regarding fifth-degree possession.
The Bureau of Criminal Apprehension (BCA) determined that the officers seized
219 grams of cocaine from the bedroom closet. But the BCA did not test the substance
found in the sweatpants because its “policy is to analyze up to the highest charging
level.” Because the cocaine in the closet met the first-degree charging level and the
cocaine in the sweatpants would not have increased the charging level, the BCA did not
test the other substance “due to resources and time.” Nevertheless, appellant requested a
“lesser-included instruction” for fifth-degree possession based on the drugs found in the
sweatpants. The district court denied appellant’s motion for this instruction.
We review the district court’s denial of a requested lesser-included-offense
instruction for an abuse of discretion. State v. Dahlin, 695 N.W.2d 588, 597 (Minn.
2005). Although the district court must give the requested instruction if warranted, the
failure to do so “is grounds for reversal only if the defendant is prejudiced thereby.” Id.
(quotation omitted). The district court must give the lesser-included-offense instruction
“when 1) the lesser offense is included in the charged offense; 2) the evidence provides a
rational basis for acquitting the defendant of the offense charged; and 3) the evidence
provides a rational basis for convicting the defendant of the lesser-included offense.” Id.
at 598. When making this analysis, the district court must view the evidence in the light
most favorable to the party requesting the instruction and must not weigh the evidence or
make credibility determinations. Id. Here, the district court concluded that the “evidence
does not provide a rational basis for acquitting [appellant] of the offense charged and fails
24
to provide a rational basis for convicting [appellant] of a lesser-included offense of
controlled substance crime in the fifth-degree.”
We agree with the district court that the record evidence provides no rational basis
to convict appellant of fifth-degree possession. Appellant is correct that the amount of
the controlled substance is irrelevant to a fifth-degree-possession conviction. See Minn.
Stat. § 152.025, subd. 2(a) (2012) (stating that a person is guilty for possessing one of the
specified substances). But the state still must show that the defendant possessed one of
the specified substances. See id.; 10A Minnesota Practice, CRIMJIG 20.36 (Supp.
2014). Because the BCA did not test the substance found in the sweatpants, there is no
evidence that it was actually cocaine, and appellant cannot be convicted of fifth-degree
possession.
Appellant argues that the substance’s identity can be established through
circumstantial evidence. See State v. Olhausen, 681 N.W.2d 21, 28-29 (Minn. 2004)
(holding that circumstantial evidence regarding a substance’s identity was sufficient to
uphold the respondent’s convictions for first-degree controlled substance offenses). But
in Olhausen, the state introduced several pieces of evidence regarding the substance’s
identity, including statements from and actions by the respondent and witness testimony,
and the evidence was circumstantial because the respondent had prevented testing. Id. at
26, 28-29. The record here contains no similar “compelling” circumstantial evidence
regarding the identity of the substance in the sweatpants. See id. at 28. The district court
therefore did not abuse its discretion by denying appellant’s requested instruction.
25
In addition, appellant cannot show prejudice. See Dahlin, 695 N.W.2d at 597.
The jury was instructed that, to convict appellant of first-degree possession, it must
conclude that he “knowingly possessed one or more mixtures of a total weight of 25
grams or more containing cocaine.” See Minn. Stat. § 152.021, subd. 2(a)(1). In
convicting appellant of this charge, the jury necessarily rejected appellant’s alternative-
perpetrator defense and determined that he constructively possessed the cocaine in the
closet, which was far more than 25 grams. Contrary to appellant’s assertion, the jury
could not have convicted appellant based on cocaine in the sweatpants alone because it
heard no evidence regarding the weight of the substance in the sweatpants.
VI. Appellant was not deprived of a fair trial.
Finally, appellant argues that the cumulative effect of the trial errors deprived him
of a fair trial. Appellant is entitled to a new trial if cumulative errors denied him a fair
trial. See State v. Jackson, 714 N.W.2d 681, 698 (Minn. 2006). Given our conclusions
above that any errors were harmless beyond a reasonable doubt, appellant is not entitled
to a new trial.
Affirmed.
26