This opinion will be unpublished and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
A15-1459
State of Minnesota,
Respondent,
vs.
Lacy Rose Carlsen,
Appellant.
Filed July 5, 2016
Reversed and remanded
Larkin, Judge
Freeborn County District Court
File No. 24-CR-12-2050
Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, Lauren F. Schoeberl (certified student attorney), St. Paul, Minnesota (for
appellant)
Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges her conviction of fifth-degree controlled-substance crime,
arguing that the district court abused its discretion by allowing the state to elicit testimony
regarding her prior drug use. We agree. And because there is a reasonable possibility that
the testimony significantly affected the verdict, we reverse and remand for a new trial.
FACTS
In November 2012, a concerned citizen reported that she had seen 14 baggies of
methamphetamine in a house in which appellant Lacy Rose Carlsen lived with her
boyfriend, B.E., along with another person and that person’s young son. The citizen
alleged that the methamphetamine was on B.E.’s dresser, which was in a bedroom that B.E.
shared with Carlsen. The police obtained a warrant and searched the house. Officers found
0.01 grams of methamphetamine folded up in a yellow Post-it Note inside of Carlsen’s
purse, which was sitting on the bed in the bedroom that she shared with B.E. Officers did
not find any other methamphetamine in the house. Respondent State of Minnesota charged
Carlsen with fifth-degree controlled-substance crime, and the case was tried to a jury.
At trial, Carlsen testified that she was “positive” there were not any illegal drugs in
her purse. She also testified that her purse did not contain a yellow Post-it Note. Carlsen
testified that Freeborn County Sheriff Deputy Arnold Zuniga visited her in jail the day after
her arrest. After Deputy Zuniga told her that she was going to be charged with a felony
because there was a “small rock” of methamphetamine in her purse, Carlsen called him a
“f-cking liar.” Carlsen testified that a day or two later, Deputy Zuniga again visited her in
jail and told her that she was going to be charged for possessing three grams of
methamphetamine. Carlsen again called him a “f-cking liar.”
Before cross-examining Carlsen, the prosecutor asked the district court to allow
questioning regarding Carlsen’s prior drug use, arguing:
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In the direct examination, [Carlsen] said that there were no
illegal drugs in her purse, and I intend to ask her whether she
used, or was an illegal drug user, and I believe that is an
appropriate question.
....
I intend to ask her in cross-examination whether she is
or was a meth user. And one of the concerns here is that she
has tested positive, even while this case has been pending, and
that that is—that that would be appropriate rebuttal, or
information, to discredit any claim by her that she was not a
meth user at the time that this occurred.
Carlsen objected, arguing that it was “an improper question,” prejudicial, and
irrelevant. The district court ruled as follows: “I’m going to allow the questions. Certainly,
possession of drugs is evidenced by the fact that someone used it. So I will allow you to
inquire, as you suggested.”
The prosecutor questioned Carlsen as follows:
Q: You’ve testified that the meth that was found in this case
was not your meth in that purse; isn’t that right?
A: Yes.
Q: But you don’t deny that you were a meth user, do you?
A: I was not then, a meth user, no.
Q: Before then, you were?
A: Before; not during. Not during any of that time. I was
sober.
Q: You were sober at that time?
A: Yes.
Q: And you acknowledge that you did, at one point, use
methamphetamine?
A: Yes, I have, before that.
Q: So at one—at one point, you knew how to get
methamphetamine, right?
A: Yes, you are correct.
Q: And at—at various times you would have had to keep—
or you would have kept methamphetamine in your purse?
A: No.
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During cross-examination, Carlsen testified that B.E. had a “hot temper” and that
he had kicked her out of the house two nights before the police executed the search warrant.
Carlsen said she left without clothes or her purse and that she stayed with a friend. She
testified that she was gone the entire day before the search and returned to the house
approximately six hours before the search.
In closing arguments, the prosecutor said:
Meth is a highly addictive drug, as Deputy Zuniga
testified to. And the Defendant admitted that she had used the
drug. It’s not surprising that it would be in her purse or that
she would maintain even a small rock of meth in a Post-it Note
in her purse, because even a small rock of meth can be used for
a person to get high. It can be—she could, obviously, use it.
Carlsen’s attorney argued that Carlsen did not know where the methamphetamine
came from, but Carlsen knew that she did not put it in her purse and that she did not know
it was in her purse. Carlsen’s attorney suggested Deputy Zuniga and B.E. had an
opportunity to place the methamphetamine in Carlsen’s purse.
Before the jury returned its verdict, the district court made the following record:
The jury went out for deliberations at just a couple minutes
before three. At . . . 3:40 the bailiff stopped in my chambers
and said the jury is split and they want to know what to do.
And I told the bailiff, “Tell them to keep on deliberating.” And
I also told the bailiff, “If they have any other questions, they
need to write it down so we can go in session and address it.”
The jury found Carlsen guilty. The district court stayed imposition of sentence and
placed Carlsen on probation. This appeal follows.
DECISION
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Carlsen argues that the district court erred by allowing evidence regarding her prior
drug use. The admission of evidence of other crimes or bad acts, so-called Spreigl
evidence, is reviewed for an abuse of discretion. State v. Clark, 738 N.W.2d 316, 345
(Minn. 2007). When such evidence is erroneously admitted, this court must determine
whether there is a reasonable possibility that the wrongfully admitted evidence
significantly affected the verdict. State v. Fardan, 773 N.W.2d 303, 320 (Minn. 2009). If
such a possibility exists, then the error is prejudicial and a new trial is required. Id.
Spreigl evidence is inadmissible to prove that a defendant acted in conformity with
her character. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d
167, 169 (1965). “The overarching concern behind excluding such evidence is that it might
be used for an improper purpose, such as suggesting that the defendant has a propensity to
commit the crime or that the defendant is a proper candidate for punishment for his or her
past acts.” Fardan, 773 N.W.2d at 315 (quotations omitted). But the evidence may be
admissible for other purposes, such as to prove motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b).
There are five requirements for admission of other-acts evidence:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indicate what the evidence will be
offered to prove; (3) there must be clear and convincing
evidence that the defendant participated in the prior act; (4) the
evidence must be relevant and material to the state’s case; and
(5) the probative value of the evidence must not be outweighed
by its potential prejudice to the defendant.
State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006).
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“When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt
should be given to the defendant and the evidence should be excluded.” State v. Kennedy,
585 N.W.2d 385, 389 (Minn. 1998). If the evidence is allowed, “[a]s a general rule, even
absent a request by the defense, [limiting instructions] should be given prior to the
admission of [the] 404(b) evidence and again at the end of trial to help ensure that the jury
does not use the evidence for an improper purpose.” State v. Bauer, 598 N.W.2d 352, 365
(Minn. 1999).
In this case, the district court allowed testimony regarding Carlsen’s prior
methamphetamine use on the impermissible ground that it showed that she had a propensity
to possess methamphetamine, reasoning that “possession of drugs is evidenced by the fact
that someone used it.” See Fardan, 773 N.W.2d at 315 (stating that an improper purpose
includes “suggesting that the defendant has a propensity to commit the crime”). Moreover,
the district court did not provide limiting instructions. Nonetheless, the state contends that
the district court did not abuse its discretion because Carlsen opened the door to evidence
regarding her past methamphetamine use.
Opening the door occurs when one party by introducing certain
material creates in the opponent a right to respond with
material that would otherwise have been inadmissible. The
doctrine is essentially one of fairness and common sense, based
on the proposition that one party should not have an unfair
advantage and that the factfinder should not be presented with
a misleading or distorted representation of reality.
State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (citations and quotations omitted).
The state argues that it did not anticipate having to introduce evidence regarding
Carlsen’s past methamphetamine use until Carlsen opened the door to that evidence by
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telling the jury during her opening statement that the police “burst” through her door even
though she had never been convicted of a felony and that it was such a small amount of
methamphetamine that the police did not bother testing the Post-it Note for fingerprints,
eliciting police testimony that the drugs in her purse had a street value of one dollar, and
testifying that she was “[p]ositive” there were no drugs in her purse when the police entered
the residence. The state contends that “[t]he prosecutor was entitled to present evidence to
counter [Carlsen’s] claim that she would have no reason to possess ‘that tiny bit of meth’
with a street value of about one dollar.”
But Carlsen did not assert that she had no reason to possess such a small amount of
methamphetamine. During opening remarks, Carlsen’s attorney told the jury that it was
such a small amount of methamphetamine that the police did not bother to test the Post-it
Note for fingerprints. This remark does not imply that Carlsen lacked motive to possess
the methamphetamine. Instead, it implies that the police did not gather enough evidence
to prove possession. Moreover, during direct examination, Carlsen did not testify that she
had never used methamphetamine, and she did not explicitly claim that someone planted
it. Instead, she essentially denied the allegations against her, testifying that she was
“[p]ositive” there were not any illegal drugs in her purse. In sum, Carlsen did not obtain
an unfair advantage by presenting the jury with a misleading or distorted representation of
reality and therefore did not open the door to evidence regarding her prior drug use. Cf.
State v. Yang, 644 N.W.2d 808, 817 (Minn. 2002) (concluding that the defendant’s
testimony regarding his fear of a gang created the impression that he was afraid of gangs,
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which “paint[ed] a picture” that was “incomplete” and opened the door to evidence
regarding the defendant’s own gang affiliation).
Because Carlsen pleaded not guilty to the possession charge and demanded a jury
trial, the state should have anticipated that if she testified at trial, she likely would deny
possession. If the state wanted to introduce evidence of Carlsen’s prior methamphetamine
use at trial, it should have provided timely Spreigl notice so the district court could have
conducted a more thorough Spreigl analysis and recognized the need for limiting
instructions if the evidence was admitted.
Under the circumstances here, the district court should not have allowed the state to
cross-examine Carlsen about her prior methamphetamine use. But that conclusion does
not end our analysis. We must also determine whether the error requires a new trial. See
Fardan, 773 N.W.2d at 320 (assessing whether erroneously admitted Spreigl evidence
warranted a new trial). Carlsen is not entitled to a new trial unless there is “a reasonable
possibility that the wrongfully admitted evidence significantly affected the verdict.” Id.
(quotation omitted). The supreme court has considered three factors when determining if
erroneously admitted Spreigl evidence significantly affected a verdict: (1) whether other
evidence was presented on the issue for which Spreigl evidence was offered, (2) whether
the court gave a limiting instruction, and (3) whether the state dwelled on the evidence in
its closing argument. Id. “The defendant bears the burden of demonstrating that [she] was
prejudiced by the admission of the evidence.” Id. (quotation omitted).
In this case, the district court identified the issue of “possession” as the reason for
allowing evidence of Carlsen’s prior methamphetamine use, reasoning that prior use proves
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current possession. Carlsen’s conviction is based on constructive possession. The state
can prove constructive possession by showing: (1) “the police found the substance in a
place under [the] defendant’s exclusive control to which other people did not normally
have access,” or (2) “if police found [the substance] in a place to which others had access,
there is a strong probability (inferable from other evidence) that [the] defendant was at the
time consciously exercising dominion and control over it.” State v. Florine, 303 Minn.
103, 105, 226 N.W.2d 609, 611 (1975). The state presented other evidence of constructive
possession: the methamphetamine was found in Carlsen’s purse and her purse was in her
bedroom. But the district court did not give a limiting instruction. Moreover, the state
dwelled on the evidence in its closing argument, using Carlsen’s prior drug use to frame
its theory of the case. The prosecutor argued, “Meth is a highly addictive drug, as Deputy
Zuniga testified to. And the Defendant admitted that she had used the drug. It’s not
surprising that it would be in her purse . . . .”
In sum, even though the state presented other circumstantial evidence of possession,
given the state’s emphasis on the Spreigl evidence in its closing argument and the absence
of limiting instructions, there is a reasonable possibility that the evidence regarding
Carlsen’s prior methamphetamine use significantly affected the verdict. We therefore
reverse and remand for a new trial without addressing Carlsen’s argument that the district
court erred by having an ex parte communication with the reportedly deadlocked jury.
Reversed and remanded.
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State of Minnesota v. Lacy Rose Carlsen
Combined Opinion