This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-01-111

 

 

State of Minnesota,

Respondent,

 

vs.

 

Nick John Block,

Appellant.

 

 

Filed December 18, 2001

Affirmed
Foley, Judge
*

 

Ramsey County District Court

File No. K300820

 

 

Mike Hatch, Attorney General, 525 Park Avenue, Suite 500, St. Paul, MN  55103; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Foley, Judge.


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges his conviction of two counts of second-degree controlled substance crime for possession of methamphetamine and cocaine.  Appellant argues that the district court abused its discretion in excluding reverse-Spreigl evidence that his passenger was charged with sale of methamphetamine 17 days after the stop of appellant’s vehicle.  Appellant also contends that there was insufficient evidence to support his conviction because it did not establish that he, rather than the passenger, possessed the drugs in the trunk of the car, to which the passenger had equal access.  Appellant also asserts these arguments in his pro se supplemental brief.  We affirm. 

FACTS

            On October 31, 1999, at approximately 12:20 a.m., Officer Thomas Perzichilli stopped a vehicle after it failed to signal a turn.  Appellant Nick Block was identified as the driver and owner of the vehicle.  Jesse Rosillo occupied the front passenger seat.  The officer testified he did not know appellant, but recognized Rosillo from prior contacts and knew that Rosillo was an active burglar.  While appellant was looking for his proof of car insurance, the officer noticed a marijuana cigarette in the vehicle's ashtray and rubber Halloween masks and a dark-blue jacket in the back seat.  Approximately 45 minutes earlier, the officer had learned from a police radio call that two males in masks were prowling around homes and looking in windows nearby.   

            When appellant exited the vehicle, the officer noticed that appellant’s shoes were covered with mud and dirt.  The officer did not remember if appellant had been wearing a jacket, but did recall that Rosillo wore a leather jacket and also had mud and dirt on his shoes.  After Rosillo gave his consent, the officer searched Rosillo and found just over $2,000 in cash and a Motorola cellular telephone on his person. 

            After appellant gave his consent, the officer searched the vehicle and found two marijuana cigarettes in the ashtray.  The officer either used the keys or a button inside the glove box to open the trunk.  In the trunk, the officer discovered a leather jacket that partially covered a brown corduroy bag.  The officer also could see the inside pocket of the jacket, which contained two screwdrivers, some cash, a Nokia cellular telephone, and three plastic bags containing what appeared to be controlled substances.  Also in the jacket, the officer found a Motorola cellular telephone battery.  The brown bag contained items that the officer described as burglary tools.  Testimony later established that an entry titled "mom" in the Nokia cellular telephone contained the telephone number of appellant's mother.  Subsequent crime lab tests established that the plastic bags contained 16.3 grams of methamphetamine and 12.7 grams of cocaine. 

            Appellant sought to introduce evidence that Rosillo was arrested and charged with first-degree sale of a controlled substance, methamphetamine, 17 days after this incident.  The district court refused to admit the reverse-Spreigl evidence.  It concluded that the evidence was not relevant to the present case because the Rosillo incident involved “crossing drugs over a fence into a compost pit,” and it occurred two weeks after the date of the charged offense.  The jury subsequently convicted appellant of both charges of possession of a controlled substance. 

D E C I S I O N

I.

 

            The district court has broad discretion in evidentiary rulings.  State v. Greenleaf,591 N.W.2d 488, 504 (Minn. 1999), cert. denied, 529 U.S. 863 (1999).  Appellate courts defer to the district court’s evidentiary rulings and will not overturn the ruling absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  This court will not reverse based on an erroneous evidentiary ruling if we are satisfied beyond a reasonable doubt that the jury would have reached the same verdict if the district court had admitted the evidence.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).

Under Minn. R. Evid. 404(b), "a defendant may seek to introduce evidence that a third person * * * committed the crime of which defendant is accused."  Woodruff v. State, 608 N.W.2d 881, 885 (Minn. 2000) (citation omitted).  This type of evidence is generally referred to as reverse-Spreigl evidence.  State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997).  A court will admit reverse-Spreigl evidence if the defendant demonstrates

(1)  by clear and convincing evidence that the third party participated in the reverse-Spreigl incident;

(2)  that the reverse-Spreigl incident is relevant and material to defendant's case; and

(3)  that the probative value of the reverse-Spreigl evidence outweighs its potential for unfair prejudice.

 

Woodruff, 608 N.W.2d at 885. 

Appellant agues that the district court abused its discretion by denying his offer of reverse-Spreigl evidence.  The proposed evidence established that Rosillo was arrested and charged with the first-degree sale of a controlled substance (methamphetamine) 17 days after the present incident.  The district court found that the evidence of Rosillo's sale of a controlled substance was likely clear and convincing.  The court, however, concluded that the evidence was not relevant because the incident occurred almost two weeks after the charged offense and lacked similarity to that offense.  The district court did not consider whether the probative value of the reverse-Spreigl evidence outweighed its potential for unfair prejudice.  We agree that the evidence was likely clear and convincing.  We disagree, however, with the district court's conclusion that the Rosillo incident was not relevant. 

            In determining relevancy, Spreigl evidence

need not be identical in every way to the charged crime, but must instead be sufficiently or substantially similar to the charged offense-determined by time, place and modus operandi. 

 

State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998).  Additionally, "relevant evidence" is defined as

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 

Minn. R. Evid. 401.  Here, Rosillo was charged with the first-degree sale of methamphetamine.  Under the facts of this case, we conclude that a sale of methamphetamines, in the same county, and only 17 days after the officer found 16.3 grams of methamphetamine in a vehicle in which Rosillo was a passenger, is sufficiently similar in time, place, and modus operandi to be relevant for reverse-Spreigl purposes.  

            Moreover, contrary to the state's argument, Rosillo's subsequent arrest for the sale of a controlled substance is relevant to whether appellant knowingly possessed the controlled substance on October 31.  The officer found a relatively large quantity of drugs in the jacket in the trunk.  The officer testified that methamphetamine is commonly sold in quantities of a quarter gram to a gram, or an eighth or sixteenth of an ounce, and that cocaine sells in quantities of a quarter gram to a gram.  The officer explained that drug users buy small quantities of drugs because they often do not have money to purchase in bulk and further testified that an ounce contains 28 grams.  The jacket contained 29 grams total, or more than eight times an eighth of an ounce, which was the largest commonly sold quantity described by the officer.  Based on the officer's testimony, a reasonable person might conclude that such a large quantity of drugs was meant for sale rather than for use.  Thus, if the evidence showed that Rosillo later engaged in selling the same type of drugs, a reasonable person might conclude that the drugs in the trunk belonged to Rosillo.  In other words, the evidence has some “tendency” to make it less probable that appellant knew of the drugs than without that evidence.  See Minn. R. Evid. 401 (stating relevant evidence has “any tendency” to make a fact more or less probable than without the evidence). 

            We conclude that the district court abused its discretion by refusing to admit the reverse-Spreigl evidence because the evidence met the "any tendency" test of Minn. R. Evid. 401.  But the error was harmless.  A district court's exclusion of defense evidence is harmless only if a reviewing court is

satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.

 

Post, 512 N.W.2d at 102 (footnote omitted).  The error is prejudicial if there is a reasonable possibility that the verdict might have been different if the evidence had been admitted.  Id.  The evidence, as a whole, shows that appellant possessed, or at least constructively possessed, the drugs.  The officer found the jacket in the trunk of appellant’s vehicle.  Rosillo was wearing his jacket, and thus the jacket in the truck presumably belonged to appellant.  In the same pocket of the jacket where the officer found the substances, the officer found a cellular telephone containing an entry entitled “mom” with appellant’s mother’s telephone number entered.  Without knowing what the officer observed inside the trunk, appellant asked him why he was being arrested.  The officer answered because of the narcotics and burglary tools.  In response, appellant stated, "Because there were two-way radios and bolt cutters in a bag, you think we were out doing burglaries."  Therefore, appellant knew the contents of the bag in the trunk.  It is reasonable to infer that appellant also had knowledge of the jacket that partially covered the bag and its contents.  Finally, appellant was able to argue that the drugs belonged to Rosillo and did in fact so argue to the jury.  Considering the totality of the circumstances, we conclude that the reverse-Spreigl evidence would not negate the strong inference that appellant was at least a joint possessor of the controlled substances.  See State v. Denison, 607 N.W.2d 796, 801 (Minn. App. 2000) (concluding wife exercised “at least joint control” over common areas of home where husband kept marijuana).  We conclude there is no reasonable possibility the verdict would have been different if the court had admitted the reverse-Spreigl evidence.

II.

On review of the sufficiency of the evidence claim, this court is limited to a painstaking analysis of the record to determine if the evidence supports the verdict, when viewed in a light most favorable to the conviction.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume 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 court reviews a conviction based on circumstantial evidence with stricter scrutiny, but will find the conviction proper if the circumstances proved are consistent with guilt and inconsistent with any other rational theory.  State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).

A person is guilty of possession of a controlled substance if he knew the nature of the substance and physically or constructively possessed it.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  The state may prove constructive possession by showing that (1) the controlled substance was found in an area under the defendant's control and that others normally did not have access to the area; or (2) if others had access to the area containing the controlled substance, the evidence indicates a strong probability that the defendant exercised dominion and control over the area.  Id.at 105, 226 N.W.2d at 611.   A reviewing court looks at the totality of the circumstances in determining whether or not constructive possession has been proved.  State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).

Appellant argues that he was not aware his vehicle contained the controlled substances.  But the evidence, as a whole, supports a contrary inference.   The officer found the jacket containing the substances in a vehicle owned and driven by appellant, and appellant exercised dominion and control over the vehicle, including the trunk.  Appellant knew the contents of the bag that was partially covered by the jacket and a person may possess a controlled substance alone or with another person.  Denison, 607 N.W.2d at 799 (citing Comm'r of Revenue v. Fort, 479 N.W.2d 43, 46 (Minn. 1992)).  Thus, Rosillo's possession of the substances does not preclude a finding that appellant also possessed the substances. 

Because the evidence showed the controlled substances were located in the trunk of appellant’s vehicle, an area over which appellant likely exercised at least joint control, if not exclusive control, the jury could reasonably infer that appellant possessed the controlled substance.  We find that the circumstantial evidence is sufficient to prove appellant’s possession or constructive possession of the methamphetamines and cocaine. 

Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.