This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Javier Mauricio Diaz Campos,
Filed June 20, 2000
Kandiyohi County District Court
File No. K29613
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Boyd Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of second-degree possession of a controlled substance, appellant Javier Mauricio Diaz Campos challenges the sufficiency of the evidence to prove that he possessed drugs. He also argues that he should have been granted a mistrial because the prosecutor elicited inadmissible evidence about a controlled drug buy. We affirm.
Willmar police officer Michael Markkanen obtained a search warrant for apartment 201 at Fairview Apartments in Willmar, Minnesota. Markkanen was looking for an individual known as Pelon. When police executed the search warrant on November 17, 1995, no one was in the apartment, but police found several documents identifying appellant as one of the people renting the apartment.
In a kitchen cupboard, police found plastic bags of cocaine hidden in a roll of wallpaper or shelf paper and in a roll of tinfoil. In a kitchen drawer, police found a couple of small bindles of cocaine rolled up in a Texas lottery ticket. The total weight of the cocaine was 22 grams. Police found a 4.1-pound brick of marijuana in a duffel bag in a bedroom closet. An identification tag on the duffel bag listed the name Adan Perez and a Willmar telephone number. Police also found a notepad that they determined was a record of drug transactions. The notepad contained a series of numbers labeled G, indicating weight, and a series of numbers labeled with the Spanish word for debit.
An arrest warrant was issued for appellant early in 1996. After he turned himself in to police in September 1998, appellant was charged by complaint with one count each of second-degree possession of a controlled substance in violation of Minn. Stat. § 152.022, subd. 2(1) (1994), and fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025, subd. 2(1) (1994).
Police had obtained the search warrant for the apartment as a result of a controlled buy by a confidential reliable informant (CRI). The CRI informed police that he had purchased one gram of cocaine from an individual known as Pelon at the apartment and that during the purchase, he saw two plastic baggies containing about three ounces of cocaine. The trial court granted appellant’s pretrial motion to exclude evidence about the controlled buy.
The following exchange occurred at trial during the prosecutor’s examination of Markkanen:
Q. Then, Officer, if you will, please describe the execution of that warrant at 1209 Northwest 24th Street, Apartment 201. Why did you go there?
A. Approximately within the last three days prior to November 17, 1995, I had conducted a controlled buy of cocaine with a –
[Defense counsel]: Object –
A. – confidential reliable informant.
The Court: Please –
[Defense counsel]: Objection.
The Court: I would like to hear from the attorneys at the bench please.
During the bench conference, the trial court stated that the pretrial ruling excluded evidence about the controlled buy. The prosecutor stated that she had not intended to elicit evidence about the controlled buy. The trial court denied appellant’s motion for a mistrial, directed the prosecutor to explain to Markkanen that he should not refer to the controlled buy, and instructed the jury as follows:
The Court has sustained an objection and the jury at this time is ordered to disregard the last response in its entirety. You are not to consider the last response in any way concerning this matter. I will allow [the prosecutor] to continue her examination, but the last response is stricken from the record. It does not constitute any of the evidence in this trial and must be disregarded by the jury.
Appellant testified at trial that his legal name is Javier Mauricio Diaz Campos and admitted using the names Adan Perez, Jr., and Luis Alberto Tobias as aliases. He claimed that he used the aliases because he did not have legal papers to be in the United States, and he needed to support his family. He denied ever going by the name Pelon, and he denied that anyone had ever called him Pelon. He testified that Pelon is the Spanish word for bald and that he had never been bald.
Appellant testified that he moved into Fairview Apartments in September 1995. He was unemployed during November 1995 and did all of the cooking and cleaning in the apartment during that time. Appellant testified that many relatives and friends had access to his apartment.
Appellant denied owning the drugs found in his apartment. But he admitted owning the duffel bag in which the marijuana was found, and he admitted that the handwriting on the notepad was his but denied that the notes referred to drug transactions.
The apartment building manager testified that he rented the apartment to appellant and Midian Perez. The lease was signed by Midian Perez and Javier Diaz. The manager testified that after a tenant moves out of an apartment and before a new tenant moves in, anything left behind by the old tenant anywhere in the apartment is removed. The manager also testified that the apartments are unfurnished, so an apartment is completely empty when a tenant moves in.
A jury found appellant guilty as charged. The trial court denied appellant’s motion for a new trial and sentenced him on the second-degree controlled substance offense. This appeal is from the conviction.
D E C I S I O N
1. This court will not reverse the trial court’s denial of a motion for a mistrial absent an abuse of discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). A conviction will not be reversed based on a prosecutor’s unintentional elicitation of inadmissible evidence unless the evidence caused prejudice to defendant. State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978). When determining whether erroneously admitted evidence prejudiced defendant,
the question is whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict; to put it another way, if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted, then the error in admitting the evidence was prejudicial error.
State v. Post, 512 N.W.2d 99, 104 n.2 (Minn. 1994). The vaguer the testimony, the less significance it has. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).
Nothing in the record indicates that the prosecutor intentionally elicited Markkanen’s testimony about the controlled buy. The question that elicited the improper evidence was not directed to the basis for Markkanen obtaining the search warrant but rather to execution of the search warrant. Therefore, this court must assume the prosecutor elicited the evidence unintentionally. See Haglund, 267 N.W.2d at 506 (when no evidence in record suggested prosecutor had reason to anticipate witness’s reference to defendant’s prior criminal record, court was required to assume elicitation was unintentional).
Markkanen made a single, brief reference to the controlled buy. His vague statement did not indicate where the buy took place or identify the individuals involved in the buy. The trial court instructed the jury to disregard Markkanen’s response in its entirety and not to consider it as evidence. There was no further reference to the controlled buy during trial. We conclude that there is not a reasonable possibility that the verdict might have been more favorable to appellant if Markkanen had not made the statement about the controlled buy. See State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (when “a reference to a defendant's prior record is of a passing nature, * * * a new trial is not warranted because it is extremely unlikely that the evidence in question played a significant role in persuading the jury to convict”). Therefore, appellant was not prejudiced by the erroneously admitted evidence.
Appellant argues that the trial court’s instruction was not effective. But instructing a jury to ignore improperly elicited testimony immediately after it is elicited is effective in curing any potential prejudice because jurors are presumed to follow the court’s instructions. State v. Miller, 573 N.W.2d 661, 675-76 (Minn. 1998).
The trial court did not abuse its discretion by denying appellant’s motion for a mistrial.
2. [A] conviction based on circumstantial evidence will be upheld and such evidence is entitled to as much weight as any other kind of evidence, so long as a detailed review of the record indicates that the reasonable inferences from such evidence are consistent only with the defendant’s guilt and inconsistent with any rational hypothesis except that of guilt.
State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995). “[P]ossibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.” Id.
“In cases involving circumstantial evidence, ‘[a]s in all cases, the jury determines the credibility and weight given to the testimony of individual witnesses.’” State v. Coleman, 560 N.W.2d 717, 722 (Minn. App. 1997) (quoting State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988)). This court “must view the evidence in the light most favorable to the verdict and assume the jury believed the state’s witnesses and disbelieved contrary evidence.” State v. Orfi, 511 N.W.2d 464, 471 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994).
Appellant argues that the evidence was insufficient to prove that he possessed the cocaine and marijuana found in his apartment. When the state is unable to prove actual possession, the conviction can be upheld if the state proves constructive possession. State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975). Constructive possession requires the state to prove that the substance (a) was found in a place that defendant had exclusive control over and to which others did not normally have access, or (b) while found in a place accessible to others, there is a high probability (inferable from other evidence) that defendant at the time consciously exercised dominion and control over it. Id. at 105, 226 N.W.2d at 611. The court considers the totality of the circumstances in determining whether the evidence was sufficient to prove possession. State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).
The cocaine was found tucked in a roll of shelf paper or wallpaper, in a roll of tinfoil, and wrapped in a lottery ticket in a kitchen drawer. Appellant admitted that he did all of the cooking and cleaning in November 1995 because his wife worked outside the home and he did not. The marijuana was found in a duffel bag in a bedroom closet. The duffel bag contained an identification tag with the name Adan Perez, an alias that appellant admitted using, and appellant admitted that he owned the duffel bag. In addition to the drugs, police found a notepad containing what police determined was a record of drug transactions. Appellant admitted that the writing on the notepad was his handwriting.
Appellant contends that many relatives and friends used his apartment and that the drugs could have belonged to one of them. But the drugs were not found in places to which casual guests would be expected to have access, and the jury was not required to believe appellant’s testimony suggesting that relatives lived in or used his apartment as their home. See State v. Simon, 275 N.W.2d 51, 52 (1979) (jury could have accepted defense explanation that defendant's cotenant put LSD in defendant's bedroom without his knowledge or permission but was not bound to do so). The evidence was sufficient to prove appellant possessed the drugs found in his apartment. See id. 275 N.W.2d at 52 (evidence sufficient to prove possession when drugs and items associated with drugs were found in defendant’s bedroom in a mobile home that he shared with another); State v. LaBarre, 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972) (evidence sufficient to prove defendant possessed, either singly or with others, drugs found in bedroom containing papers identifying defendant).
Appellant also argues that the state failed to prove he was Pelon, the person who sold drugs from the apartment. But appellant was convicted of possession, not sale, of a controlled substance.