This opinion will be unpublished and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
State of Minnesota,
Kevin Patrick Hancock,
Filed April 11, 2000
Wright County District Court
File No. K4-98-1895
Mike Hatch, Attorney General, Timothy C. Rank, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103 (for respondent)
Thomas L. Iliff, 2372 Leibel St., White Bear Lake, MN 55110 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.
Appellant Kevin Hancock challenges his conviction for first-degree controlled substance offense and possession of stolen property, arguing (1) that the trial court erred in denying his request for disclosure of or an in camera inquiry into the identity of the informant who provided information relied on to obtain a search warrant, (2) that the court erred in allowing the state to produce evidence not disclosed before trial, (3) that the prosecutor committed misconduct by referring to stolen property without introducing it into evidence or providing testimony that it was stolen, (4) that the trial court erred in failing to grant his motion for a new trial, and (5) that the controlled substance statute is unconstitutional because it attaches the same penalties to possession and possession with intent to sell for certain quantities of drugs. Because the claimed errors do not provide a basis for reversing appellant’s conviction, we affirm.
1. Disclosure of Informant
Appellant claims that at his omnibus hearing he made an offer of proof supported by affidavits showing that information provided by one of four informants named in a search warrant application was incorrect. He argues that this witness was a necessary witness and that in order to establish his defense he was entitled to an in camera inquiry regarding the witness or to disclosure of the witness’s identity.
Appellant failed to provide an omnibus hearing transcript for this appeal, and without the transcript this court cannot review the issue. Under the Rules of Criminal Procedure, the record on appeal includes the “transcript of the proceedings, if any,” and “the transcript shall be ordered within 30 days after filing of the notice of appeal.” Minn. R. Crim. P. 28.02, subds. 8, 9. As with a sufficiency-of-the-evidence case where the decision on appeal necessarily depends on review of the evidence produced at trial, resolution of appellant’s claim depends on review of the evidence produced at the omnibus hearing. Without the hearing transcript, this court cannot assess appellant’s offer of proof and the issue is not reviewable by this court. See Hoagland v. State, 518 N.W.2d 531, 534 (Minn. 1994) (“A reviewing court cannot consider a sufficiency of the evidence issue unless provided with a trial transcript.”); State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986) (“[w]ithout a trial transcript, it is impossible to judge the merits of appellant’s case,” which included claims of improper admission of allegedly prejudicial testimony and sufficiency of evidence); see also Minn. R. Civ. App. P. 110.02, subd. 1 (appellant has responsibility to provide court with trial transcript); Setter v. Mauritz, 351 N.W.2d 396, 398 (Minn. App. 1984) (“Since no transcript has been filed, appellants also failed to provide the Court with an adequate record for proper review.”).
2. Evidentiary Rulings
Appellant claims that the trial court erred in allowing the prosecution to “introduce witnesses and exhibits that were not on its court ordered pre-trial lists.” He claims that this error denied him a fair trial, although he does not specify the witnesses or exhibits that were erroneously introduced. See Scruggs v. State, 484 N.W.2d 21, 24 n.1 (Minn. 1992) (defendant’s failure to address claim on appeal deems it waived). The state contends that appellant is referring to the state being permitted to call three witnesses who were not included in its pretrial list: two police officers and an expert on motorcycle parts. The state also contends that the exhibits appellant refers to are three guns contained among a box of nine guns, as well as other exhibits that were never admitted at trial.
Where an appellant claims erroneous admission of evidence, appellant “bears the burden of showing the error and any resulting prejudice.” State v. Greenleaf, 591 N.W.2d 488, 504 (Minn. 1999) (citation omitted), cert. denied, 120 S. Ct. 156 (1999). Appellant has not demonstrated that he was prejudiced by any alleged errors in the trial court’s evidentiary rulings. Neither of the two police officer witnesses who were omitted from the state’s pretrial list testified at trial. The motorcycle parts witness was not listed in the pretrial list because he was offered as a possible rebuttal witness after appellant identified himself as an expert on motorcycle parts. All three witnesses were listed in a supplemental witness list, and the expert was disclosed six days before trial. As to the exhibits, three guns in a box of nine guns were not included in the pretrial list. The other six guns in the box were included in the list and a photograph exhibit of the three guns was included in the pretrial list and was introduced without objection at trial. The other exhibits were not admitted at trial. Under these circumstances, appellant was not prejudiced by the court’s evidentiary rulings, and the court did not abuse its discretion in ruling as it did. See State v. Profit, 591 N.W.2d 451, 470 (Minn. 1999); State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989) (appellate courts typically defer to a trial court’s evidentiary rulings and will not reverse them unless trial court abused its discretion), cert. denied, 120 S. Ct. 153 (1999).
3. Prosecutorial Misconduct
Appellant claims that the prosecutor committed misconduct by referring to exhibits that he “did not intend to introduce” at trial. Appellant claims that the prosecution “paraded a mountain of motorcycle parts before the Jury, which were not introduced as evidence” and “repeatedly referred to stolen motorcycle parts where it did not intend to call the owners of these parts to testify that they were stolen.”
The trial court denied appellant’s prosecutorial misconduct claim. An appellate court reviews such a claim “in light of the whole record and will reverse if the misconduct appears to be inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.” State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).
Appellant makes only two isolated references to the record regarding this claim: a discussion among the trial judge and attorneys pertaining to the court’s requirement that a property owner testify to establish a foundation that the owner’s property was stolen, and the testimony of one witness, Paul Lommel, that his property was not stolen by appellant. Other than these two references, appellant offers no other examples of prosecutorial misconduct. In light of the voluminous record, these two instances do not demonstrate that appellant was prejudiced by any references to stolen property made by the prosecutor. Thus, the trial court did not err in declining to grant a new trial because of alleged prosecutorial misconduct.
4. New Trial
Appellant also argues that the cumulative effect of trial errors requires a new trial in this case. As each of the earlier claims fails to establish trial court error, this catch-all provision does not apply.
Further, in requesting a new trial, appellant alludes to a lack of evidence on specific intent. Circumstantial evidence may support a finding of specific intent. State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996) (intent to commit crime inferred from facts proven), review denied (Minn. Jan. 21, 1997); State v. Borden, 455 N.W.2d 482, 486 (Minn. App. 1990) (“Intent may be inferred by the nature of the act.”), review denied (Minn. July 13, 1990). Given the large quantity of drugs, drug paraphernalia, and stolen property found at appellant’s home, the jury could infer that appellant intended to commit the offenses of which he was found guilty. This claim is without merit.
5. Constitutional Vagueness
Finally, appellant contends that his criminal complaint is unconstitutionally vague in charging the severity of the offense and thereby imposes excessive punishment. “Generally, a constitutional challenge to a statute may not be raised for the first time on appeal.” State v. Thompson, 486 N.W.2d 163, 165 (Minn. App. 1992) (citation omitted); State v. Sorenson, 441 N.W.2d 455, 457 (Minn. App. 1989). The appellate court may consider the issue for the first time on appeal “where justice requires” and where the other party is not unfairly prejudiced. Thompson, 486 N.W.2d at 165. As appellant never raised a constitutional claim to the trial court and has offered no reason why justice would require consideration of the issue by this court, appellant’s argument must fail.