This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Mario Acosta,




Filed August 15, 2000


Anderson, Judge


Rice County District Court

File No. K3981080


Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


G. Paul Beaumaster, Rice County Attorney, 218 NW Third Street, Faribault, MN  55021 (for respondent)


John Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Mario Acosta, convicted by a jury of controlled substance possession, claims the district court committed reversible error by giving a jury instruction that  allowed the jury to infer possession of controlled substances from proof, beyond a reasonable doubt, that he was the driver of the vehicle where police found the controlled substance.  Appellant also claims ineffective assistance of counsel.  We hold that appellant has not proven ineffective assistance of counsel, and, because the jury instruction twice advised the jurors that the inference of possession was not required, and expressly cautioned that they should consider all the evidence, we find no error and affirm.


            In February 1997 Faribault Police Officer Mark Dorsey responded to a dispatch report of a person slumped over in a vehicle parked about a mile from the city.   Dorsey found the car, engine running, and saw appellant Mario Acosta asleep or passed out at the wheel.  After Dorsey spent a couple of minutes trying to rouse appellant, appellant sat up, appeared disoriented, said he thought he was in Iowa, and told Dorsey that the car belonged to his girlfriend.  Appellant failed several field sobriety tests.  Dorsey arrested appellant and arranged to have the car towed.  Before authorities towed the car, officers performed a quick inventory search to log items of value, but found the car filled only with dirty clothes and garbage.  In the course of this cursory search, an officer noticed a pair of balled-up men’s athletic socks underneath the driver’s seat.        

            At the jail, appellant refused to take an implied consent test.  State Trooper Brad Anderson, trained in drug recognition, administered another series of sobriety tests.  Appellant failed those tests as well, and became alternately restless and fidgety, then despondent.  Appellant nevertheless maintained that he had not been drinking or using drugs, and had no medical problems, except that his lungs hurt.  Anderson observed that appellant’s tongue was brown and green and checked a number of vital signs.  Based on all of his observations, Anderson concluded that appellant was under the influence of one or two drugs: cannabis (marijuana or its synthetic counterpart), phencyclidine (PCP), or both.

            Officers searched the car again at the impound lot.  After a drug dog “hit” on the trunk and wheel well, officers obtained consent from both appellant and his girlfriend to conduct a full search of the car.  During this third search, officers found two brownish rock-like substances in plastic bags rolled up in the men’s socks found earlier underneath the driver’s seat.  Forensic testing of the substance showed 96.9 grams of amphetamine.   

The state charged appellant with, among other things, committing a second-degree controlled substance crime in violation of Minn. Stat. § 152.022, subd. 2(3) (1996) (possession of over 50 grams of substance containing amphetamine).  At trial, appellant’s girlfriend testified that appellant had the car a day-and-a-half before his arrest, and that only he and she had access to the car before he borrowed it.  Appellant explained to the jury that his condition on the day of the arrest was due to sleepiness and his unfamiliarity with the city of Faribault.  Appellant denied using or possessing alcohol or drugs.   

            The district court gave a “permissive inference” jury instruction based on 10A Minnesota Practice CRIMJIG 20.58 (1990).  That instruction advised the jury to consider all the evidence and allowed, but did not require, the jury to find knowing possession from proof beyond a reasonable doubt that appellant was the driver of the car in which the amphetamine was found.  The jury returned guilty verdicts, and the district court imposed a presumptive 68-month sentence for the second-degree controlled substance conviction.  Appellant challenges that conviction and asks for a new trial, claiming that the court’s jury instruction constitutes reversible error.  By pro-se supplemental brief, appellant alleges ineffective assistance of counsel.




            Appellant did not object to the jury instruction at issue.  Generally, appellate courts will not review for error an issue that was not objected to at trial.  State v. Hage, 595 N.W.2d 200, 204 (Minn. 1999).  Even without an objection, however, we may consider the issue where there is (1) error; (2) that is plain; and (3) the error affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); Minn. R. Crim. P. 31.02.  If these three prongs are met, we may then assess whether we should address the error to ensure fairness and the integrity of the judicial proceedings.  Hage, 595 N.W.2d at 204.  Appellant argues that the “permissive inference” instruction highlighted the fact that appellant was in the car where drugs were found, overshadowing other relevant factors that tended to show his innocence.  Appellant contends that it cannot be said, beyond a reasonable doubt, that but for this error he would have been convicted, and asks this court to reverse and order a new trial.          

            In 1992, the Minnesota Supreme Court twice addressed the propriety of “permissive inference” jury instructions.  In State v. Olson, police arrested the defendant outside a farm house based on an outstanding warrant, and when they accompanied him into the house so he could retrieve some clothes, the officers saw marijuana and drug paraphernalia in open view.  Id. at 213.  The officers took Olson to jail, obtained a search warrant, ultimately found more marijuana in the house and barn.  Id. at 213-14.  The instruction given in Olson “permit[ted] the factfinder to infer knowing possession of the controlled substance by each person in close proximity to the controlled substance when the controlled substance was found.”  Id. at 215 (citing Minn. Stat. § 152.028, subd. 1 (1990)).  The supreme court explained that the “wiser course” may be “to avoid as much as possible the giving of instructions on particular kinds of evidence, especially inferences.”  Olson, 482 N.W.2d at 216.  By footnote, the supreme court suggested that a properly balanced instruction would include factors such as whether the defendant was the owner of the premises where the drug was found; whether the defendant had exclusive control over the area where the drug was found; the defendant’s proximity to the drug at the time of the arrest; the number of people, if any, present when the drug was found; the defendant’s relationship with those people; and defendant’s conduct at the time the drugs were found.  Id. at 216 n.3.

            The instruction in Olson was not balanced, but instead “singled out and unfairly emphasized one factor * * * thereby suggesting to the jury that in the court’s opinion that factor was of greater importance than other relevant factors,” and the court did not expressly inform the jury that they were not required to draw the inference.  Id.  Adding to the supreme court’s concern was the prosecutor’s emphasis in closing argument, that a statutory inference was at issue.  Id.  The supreme court reversed and ordered a new trial, holding that it could not conclude, beyond a reasonable doubt, that Olson would have been convicted had it not been for the permissive inference instruction.  Id.  

            The supreme court reached a different conclusion in State v. LaBatte, 482 N.W.2d 217 (Minn. 1992).  There, during a lawful traffic stop, police spotted a plastic bag containing cocaine on the driver’s seat.  Id. at 217.  When asked if it belonged to him, defendant LaBatte, the driver, admitted he was “in a big jam.”  Id. at 218.   The trial court instructed the jury that it could “infer knowing possession of [the controlled substance found in the automobile] by the driver or person in control of the automobile when the [controlled substance] was in the automobile.”  Id.  The prosecutor in LaBatte, as in Olson, argued that the inference was statutory.  Id. at 218.  The supreme court held that the instruction constituted error, but determined that the error was not prejudicial.  Id.  The supreme court relied on factors not present in Olson: the drugs were found on the driver’s seat, and LaBatte’s conduct at the scene was highly indicative of guilt.  Id.

            In this case, the district court’s jury instruction differs from those in Olson and LaBatte.  The court instructed:

In determining whether or not it has been proved beyond a reasonable doubt that [appellant] was in knowing possession of amphetamine, you should consider all the evidence presented.  The law allows, but does not require, you to find knowing possession from proof beyond a reasonable doubt that [appellant] was the driver or in physical control of a passenger automobile and amphetamine was present in the automobile.  


If you so find beyond a reasonable doubt, you may, but are not required to, find that the defendant knowingly possessed amphetamine.


            It is “well settled” that the district court’s charge to the jury must be read as a whole, and if, when that is done, it correctly states the law in language that can be understood by the jury, there is no reversible error.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  Appellant does not argue that the instruction incorrectly states the law.  The instruction is consistent with Minn. Stat. § 152.028, subd. 2 (1996), which allows the factfinder to draw an inference of drug possession from control of the automobile where the drugs are found.  Read as a whole, the permissive inference instruction given in this case could be understood by the jury, and is superior to the instructions given in Olson and LaBatte.  The instruction here advised the jury that they “should consider all the evidence presented,” and twice advised the jury that they were “not required” to draw any inference as to possession.  Moreover, the prosecutor in this case commendably did not argue that the permissive inference was statutory, but instead emphasized that the jury was not required to draw any inference.      

We conclude, beyond a reasonable doubt, that appellant would have been convicted even if the permissive inference instruction had not been given.  Police recovered the amphetamine from underneath the very seat where they found appellant passed out and exhibiting behavior consistent with drug use.  The testimony of appellant’s girlfriend suggested that he had exclusive control over the car before his arrest.  While an argument can be made that the better practice might have been to administer a completely balanced jury instruction that recited all the relevant factors bearing on possession, the instruction here hardly amounts to plain error affecting appellant’s substantial rights.   Because appellant’s substantial rights were not affected, we make no inquiry into the fairness and integrity of the judicial proceedings.



            By pro se supplemental brief, appellant generally complains that his trial attorney was deficient for failing to file, as a matter of trial strategy, a motion to dismiss for destruction of evidence after learning that police accidentally destroyed the videotape of appellant’s arrest.  In assessing whether a defendant’s counsel was deficient, this court does not review matters of trial strategy.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).  Accordingly, appellant has failed to meet his burden of proving that his counsel’s performance was deficient, that is, that it fell below an objective standard of reasonableness.  See id.  (enunciating the standard).[1]


[1] We also note that generally ineffective assistance of counsel claims should be raised in a postconviction petition for relief, rather than on direct appeal.  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).