This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-1087

 

State of Minnesota,

Respondent,

 

vs.

 

Rogelio Tovar,

Appellant.

 

Filed ­­­March 7, 2000

Affirmed

Harten, Judge

 

Lyon County District Court

File No. K7-97-792

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

Richard R. Maes, Lyon County Attorney, Lyon County Courthouse, 607 West Main Street, Marshall, MN 56258 (for respondent)

 

            Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellant challenges his conviction for fifth-degree controlled substance offense, arguing that the district court abused its discretion in admitting hearsay evidence and that the evidence was insufficient to support the jury’s verdict.  Because we see no abuse of discretion and ample evidence to support the verdict, we affirm.

FACTS

Appellant Rogelio Tovar and his wife, Lorena Tovar, rented space in their home to Alfredo Sanchez.  A police informant came to the home, planning to buy from Sanchez one pound of marijuana for $1,000.  A conversation between the informant and appellant’s wife was monitored by two deputies and recorded.  

Ms. Tovar:      Well, Alfredo say that if you want to leave the money and then you want to come back later, until he came back home.  He is in Worthington and he say about three he will be back and then my husband say that he have one, that then he can sell you just half, half a pound.

 

Informant:      He got one though, right here?

 

Ms. Tovar:      Yeah, but I don’t know where is it.

 

Informant:      You don’t know where?

 

Ms. Tovar:      Yeah.  But my husband says he can sell you just half.

 

Informant:      But he is going to sell me one when he comes back?

 

Ms. Tovar:      Well, that is what Alfredo say but it is not Alfredo’s.  So it is my husband’s.

 

Informant:      All right.  Well, I can leave the money for you and then I will be back at three.

 

* * * *

 

Ms. Tovar:      Okay. Because my husband will be here by two-thirty, three.

 

Informant:      Yeah.

 

Ms. Tovar:      And it doesn’t matter if Alfredo is not here but my husband will be here.

 

Informant:      At three?

 

Ms. Tovar:      Yeah.

 

Informant:      All right.

 

Ms. Tovar:      Um-hum.  How much is it?

 

Informant:      A “G.”  All right, I will be back at three.

 

The informant returned to the house at 3:20 p.m. and met appellant, who went upstairs, returned with a bag containing 369 grams (13 ounces) of marijuana, and gave the bag to the informant.  This transaction was not recorded because the monitor attached to the informant was not working.

            Appellant was later arrested and charged with fifth-degree controlled substance crime.  At trial, his wife was called as a witness for the defense.  She testified that she told the informant only during a phone conversation, not in person, that he could leave the money.  She also testified to telling the informant: (1) that Alfredo was in Worthington, (2) that her husband said that “he have one but he can sell you half but I don’t know where it is at”; (3) that “[Alfredo] would be back at three but it [the marijuana] is not his, it is my husband’s”; (4) that when the informant returned, she went into Alfredo’s room, got the bag of marijuana, and gave it to her husband; (5) that she told her husband, “Alfredo just say that ‘Give that package to the man.’;” and (6) that her husband was going to ask her what the package was but she didn’t have time because her children were crying.

After her testimony, the prosecution sought to introduce the tape for impeachment purposes.  Over the objection of the defense on hearsay grounds, the tape was admitted.

            The informant testified that he returned to appellant’s house a little after three because Ms. Tovar had said appellant would be back then, that he met appellant in the kitchen, and that “[appellant] went upstairs, got the marijuana, came back down and gave it to me.  I looked at it, saw that it looked like a pound of marijuana and left.”  When asked where appellant was while the informant looked at the marijuana, the informant testified, “Right beside me in the kitchen.”

The jury found appellant guilty of fifth-degree controlled substance crime.  He challenges his conviction, arguing that the district court abused its discretion in admitting the tape and that the state did not meet its burden of proving appellant’s guilt  beyond a reasonable doubt. 

D E C I S I O N

 

1.         Admission of the Tape

            Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  The prosecution sought to introduce the tape to impeach appellant’s wife’s testimony that she had made certain statements only over the phone when in fact she had made them in person; the truth of the statements was not at issue.  During the testimony offered by the deputy who had monitored the taped conversation, the judge explained to the jury:

            [T]here is an exclusion of evidence as to something being hearsay as what somebody was told by another person and the statement that is going to be—what I anticipate the answer to be from talking with counsel is I will permit the answer to the question but it does not prove the matter asserted in that out-of-court statement but merely to show that the statement was made.

 

Thus, by the time the jury heard the tape, it had already heard testimony of its contents from both participants and testimony from a non-participant, and been told that the non-participant’s testimony was admitted only to show the conversation took place.   We find no abuse of discretion in admitting the tape.

Moreover, even if the tape had been wrongly admitted, its admission would not have affected the verdict.  If the trial court has erred in admitting evidence, the reviewing court determines whether 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).[1]

             The evidence was merely a tape of a conversation about which the two participants had already testified in detail; it corroborated their accounts of what they said to each other and showed only that appellant’s wife erred when she testified that she said certain things only over the phone when she actually said them in person.  But the jury learned nothing new from the tape.  There was no reasonable possibility that the tape significantly affected the verdict.

2.         Sufficiency of the Evidence

            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  A conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  A jury, however, is in the best position to evaluate circumstantial evidence and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

            Appellant contends that the evidence is insufficient to prove that he knew what was in the bag he handed to the informant.  But the testimony of appellant’s wife, the informant, and the deputies, and the circumstance of appellant’s handing over a bag to an individual who had previously paid $1,000 for a pound of marijuana, support the jury’s verdict. 

Appellant relies on Jones to argue that his conviction must be overturned because the evidence supports a rational theory other than that of his guilt.  Jones is readily distinguishable.  In Jones, the defendant allegedly assisted in the crime by supplying the perpetrator with the gun and the bicycle ridden to the crime scene and by identifying the victim.  516 N.W.2d at 549.  But evidence supported alternatives to these allegations: the perpetrator had used the gun and had access to the apartment where it was kept, defendant’s bike was a different color, and the victim’s identity was obvious, as he was a white man, six feet four inches and 290 pounds, in a group of Southeast Asians.  

Here, appellant’s alternative theory, i.e. that he simply took a bag his wife handed him, heard her tell him that their tenant had said to give the bag to the informant, and handed the bag to the informant, all without knowing the contents of the bag, was unsupported evidence.  Instead, there was substantial evidence supporting the state’s case, and the jury believed that evidence.  There is no basis for overturning the verdict.

            Affirmed.



[1] Appellant argues that the standard is whether the verdict was “surely unattributable” to the erroneously admitted evidence, citing State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998).  Appellant misconstrues the Keeton holding that “If the verdict actually rendered was surely unattributable to the errors, the errors are harmless,” to mean that errors are harmless only if the verdict is “surely unattributable” to them.