This opinion will be unpublished and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

C8-01-441

 

State of Minnesota,
Respondent,

vs.

James Donald Flaherty,
Appellant.

 

Filed January 15, 2002

Affirmed

Crippen, Judge

Anderson, Judge, dissenting

 

Washington County District Court

File No. K6994787

 

 

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

 

Doug Johnson, Washington County Attorney, Robert J. Molstad, Assistant County Attorney, Washington County Government Center, P.O. Box 6, Stillwater, MN 55082 (for respondent)

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

 

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

 

U N P U B L I S H E D  O P I N I O N

CRIPPEN, Judge

 

            Appellant James Flaherty challenges his conviction of a second-degree controlled substance offense, arguing that the prosecution offered too little evidence at trial to sustain his conviction and that the trial court abused its discretion by not allowing appellant a continuance to locate a witness.  We affirm.

FACTS

 

            On September 8, 1999, Officer Brett Billmeyer stopped appellant for a traffic offense.  As the officer approached the car he smelled marijuana and noticed that appellant and the passenger appeared nervous.  After determining that appellant was the registered owner of the car and that his passenger was James Lackore, the officer issued a citation to appellant for failure to provide proof of insurance.  The officer then told appellant and Lackore that they were free to leave, but asked if there was marijuana in the car.  Appellant said no and consented to a search of the vehicle. 

Police officers found 15 grams of methamphetamine in a sunglasses case on the passenger’s front seat and found more of this substance in a bag located between the center console and the passenger’s seat.  The officers also found a small amount of marijuana as well as pseudoephedrine and Sudafed, precursors to methamphetamine, behind the driver’s seat.  Appellant was charged with (1) aiding and abetting a second-degree possession-of-controlled-substance offense; (2) possessing a small amount of marijuana in a motor vehicle; and (3) failing to provide proof of insurance of a motor vehicle.

            On the day of trial, appellant’s attorney requested a one-week continuance to locate a witness he reported learning about the week before.  Appellant’s attorney notified the court that the new witness would testify that (1) on September 8, 1999, Lackore offered him some methamphetamine, which was in a cloth case; and (2) several months later Lackore admitted to falsely testifying at his trial that the drugs belonged to appellant.  The attorney explained that the witness failed to make two meetings and that his investigator was trying to find him.  The trial court denied appellant’s continuance motion.  At trial, appellant only disputed the aiding and abetting charge.  The jury convicted appellant, and this appeal followed.

D E C I S I O N

 

1.

 

Appellant contends that the evidence at trial was insufficient to sustain a conviction for a second-degree controlled substance offense (aiding and abetting the possession of methamphetamine).  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 will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            Because the methamphetamine was found in appellant’s car and not on his person, the question of whether there was sufficient evidence for appellant’s conviction centers on whether there was proof that appellant constructively possessed the substance.  Appellant was charged with aiding and abetting the possession of more than six grams of methamphetamine.  See Minn. Stat. § 152.022, subd 2 (1) (1998).[1]  A defendant is guilty of involvement in unlawful possession of a controlled substance if, knowing its nature, he consciously possesses the substance, either physically or constructively.  State v. Florine,303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  An individual may constructively possess a controlled substance alone or with others.  State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000).  If the police found the controlled substance in an area to which others had access, constructive possession may be proved if the “evidence indicates a strong probability that the defendant exercised dominion and control over the area.”  Id. at 800.  This court looks at the totality of the circumstances in assessing whether constructive possession has been established.  State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).

            Appellant argues that he did not constructively possess the methamphetamine because it was found on Lackore’s seat and thus he did not exercise dominion and control over the drugs at the time of the stop.  He also contends that his consent to a search suggests that he did not know the drugs were in the car and that his prior conviction for possession of methamphetamine found in his car does not remove reasonable doubt that the drugs found there belonged to Lackore.  He contends that a review of the evidence entitles him to a reversal of his conviction or a new trial.

            The court properly instructed the jury that they could infer that appellant knowingly was involved in possessing methamphetamine if they found him to be in control of the car when the methamphetamine was in the car.  See Minn. Stat. § 152.028, subd. 2 (2000).[2]  Appellant’s counsel did not object to this instruction at trial and does not contest the instruction on appeal.  At trial, appellant did not dispute that he was the driver and the registered owner of the vehicle.  The jury here was allowed to make the statutory-permitted inference that, because the drugs were found in the car he was driving, he knowingly possessed the methamphetamine. 

The jury also could have based its verdict on circumstantial evidence that (1) the methamphetamine was found in appellant’s car in an area where he could access it; (2) appellant exhibited nervous conduct when stopped; (3) the two bottles of pseudoephedrine and a bottle of Sudafed, which are used to make methamphetamine, were found behind appellant’s seat; and (4) appellant was previously convicted of possession of methamphetamine resulting from a traffic stop where he was the driver and Lackore was the passenger. 

Although a conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence,” circumstantial evidence is still entitled to the same weight as direct evidence.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted).  The circumstantial evidence must form a complete chain that leads directly to the guilt of the defendant and excludes, beyond a reasonable doubt, any reasonable inference other than guilt.  Jones, 516 N.W.2d at 549.  Viewing the evidence in a light most favorable to the conviction, the circumstantial evidence here, including the inference permitted by statute, is sufficient to allow the jurors to reach a guilty verdict.  As a result, we cannot disturb the jury’s verdict on appeal.

2.

 

Appellant claims that the trial court abused its discretion by denying his request for a one-week continuance to obtain the testimony he believed to be available from a witness who had recently reported observations to him. This court will not reverse a conviction based on a denial of a motion for a continuance unless the denial is a clear abuse of discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).  And we must determine whether, in light of the circumstances before the trial court at the time the motion for continuance was made, the decision prejudiced the defendant by materially affecting the outcome of the trial.  State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980).

Continuances should not be granted upon the verbal statements of counsel, made as were those in question, or upon the mere suspicion that absent witnesses may be needed at the trial.  A substantial reason for a continuance must be properly shown. 

 

State v. Fay, 88 Minn. 269, 270, 92 N.W. 978, 979 (1903).

            The trial court found that appellant would not be prejudiced by the denial because he could still locate the witness.  Furthermore, the court held that appellant’s evidence regarding the missing witness was not sufficient to justify further delaying the 13-month-old case. The United States and Minnesota constitutions guarantee a criminal defendant the right to compulsory process for obtaining witnesses in the defendant’s favor.  U.S. Const. amend. VI.; Minn. Const. art. I, § 6; State v. King,414 N.W.2d 214, 219 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).  In determining if a trial court’s denial of a continuance to locate a witness violated a defendant’s constitutional rights, this court focuses on whether the defendant can find the missing witness within a reasonable time and whether the witness can provide favorable, noncumulative evidence.  King, 414 N.W.2d at 219.

Appellant’s attorney claimed that he could find the witness within a reasonable time because he had the witness’s address and telephone number and had arranged two meetings with him.  But the address and telephone number belonged to the witness’s parents, who indicated that their son had not resided at their home for two or three weeks and that they did not know where he was currently living.  The attorney also informed the court that the witness failed to attend the two scheduled meetings and failed to return the attorney’s numerous phone messages.  Appellant’s attorney explained that his investigator was looking for the witness and that, in spite of his lack of success in this search, appellant’s attorney wanted a further opportunity to “try and track this guy down.” 

Appellant’s attorney admitted that the witness’s failure to cooperate was obviously “not a good sign with regards to how he views the case.”  Furthermore, although the attorney reiterated what the witness told him on the phone regarding passenger Lackore, he offered no additional proof that the witness, if found and successfully brought to court, would testify in a manner confirming what he had said over the phone.  See State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984) (affirming the trial court’s denial of a one-to-two-week continuance so defendant could persuade uncooperative witnesses to testify because defendant made no offer of proof on testimony and did not explain why witnesses would cooperate if given more time).  Moreover, we note the legitimacy of the trial court’s suspicion regarding the merit of appellant’s attempt to get a continuance on the day of trial, based on a surprise witness’s alleged exonerating testimony. 

The record does not permit us to determine that the trial court abused its discretion or violated appellant’s constitutional rights in denying a one-week continuance.

Affirmed.

 


G. BARRY ANDERSON, Judge (dissenting)

            I respectfully dissent.  Because I conclude the district court abused its discretion when it denied appellant’s motion for a continuance to obtain a potentially exculpatory witness, I would reverse and remand for a new trial.

            There is a long line of Minnesota appellate decisions featuring criminal defendants seeking continuances to obtain exculpatory witnesses.  See, e.g., State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980); State v. Annis, 308 Minn. 232, 236, 241 N.W.2d 482, 485 (1976); State v. Holmes, 281 Minn. 294, 295, 161 N.W.2d 650, 651 (1968); State v. Ingraham, 118 Minn. 13, 15-16, 136 N.W. 258, 259 (1912); State v. King, 414 N.W.2d 214, 217 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988); State v. Aziz, No. C8-99-910, 2000 WL 1100222, at *2 (Minn. App. Aug. 8, 2000); State v. Smith, No. C3-98-1484, 1999 WL 203505, at *1 (Minn. App. Apr. 13, 1999), review denied (Minn. June 29, 1999); State v. Fox, No. C3-95-1535, 1996 WL 291611, at *1 (Minn. App. June 4, 1996), review denied (Minn. July 10, 1996); State v. Bourcy, Nos. C8-95-1482, C5-95-1505, 1996 WL 291514, at *2 (Minn. App. June 4, 1996).         

There is an equally long line of Minnesota appellate decisions affirming rejection of continuance requests.  Turnipseed, 297 N.W.2d at 311-12; Annis, 308 Minn. at 236, 241 N.W.2d at 485; Holmes, 281 Minn. at 295, 161 N.W.2d at 651; Ingraham, 118 Minn. at 15-16, 136 N.W. at 259; King, 414 N.W.2d at 220; Aziz, 2000 WL 1100222, at *3; Smith, 1999 WL 203505, at *2; Fox, 1996 WL 291611, at *3; Bourcy, 1996 WL 291514, at *4.          

            But the limited nature of the request before the court, combined with significant indicia of reliability, lead, however reluctantly, to the conclusion that an abuse of discretion occurred here and that a new trial should be granted.

            The majority correctly identifies the legal standard by noting that we must review a district court’s decision to grant or deny a continuance under an abuse-of-discretion standard:

Abuse of discretion may be found if, in light of the circumstances before the trial court at the time the motion was made, the court’s decision prejudiced the defendant by materially affecting the outcome of the trial.

 

State v. Buschkopf, 373 N.W.2d 756, 769 (Minn. 1985) (citations omitted), abrogated on other grounds, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990); King, 414 N.W.2d at 220 (“Under this standard we evaluate whether it appeared at the time of the motion that denial would prejudice the defendant.”).[1]

Relevant considerations tending to show prejudice are whether the defendant can show through an offer of proof at the time of the motion, that “the witness would soon be found or would testify favorably for him.”  King, 414 N.W.2d at 220.  Moreover, “[a]n initial consideration in reviewing the denial of a continuance is whether the trial court had granted any previous motions for continuance by appellant.”  State v. Sanders, 598 N.W.2d 650, 654 (Minn. 1999) (citation omitted).  Nevertheless, “[a] defendant may not demand a continuance to delay the proceedings * * * .”  Id. at 655 (quotation and citations omitted).  These considerations, however, are not exclusive, and therefore the absence or presence of these considerations need not be dispositive in this case.     

            A review of the circumstances surrounding the continuance request at issue here is appropriate.  Appellant’s offer of proof in connection with the requested one-week continuance revealed that on the Wednesday or Thursday before appellant’s trial, which was scheduled to start on Monday, counsel spoke with a Rusty Danklaw on the telephone.  Danklaw revealed to appellant’s counsel that on the day of appellant’s arrest for possession of methamphetamine, Danklaw observed Lacklore, the passenger, possessing methamphetamine stored in a “cloth case.”  Several months later, Lacklore allegedly told Danklaw that he had “gone to court and had blamed [appellant] for possession of methamphetamine” and that he had “gotten off as a result of blaming [appellant].”

            Understanding the significance of Danklaw’s revelation, appellant’s attorney immediately called the prosecutor to notify him of Danklaw’s allegations.  Appellant’s attorney arranged a meeting with appellant and Danklaw at his office that Friday, three days before the trial.  Danklaw failed to attend the Friday appointment and also did not attend a re-scheduled appointment two days later, one day before the trial.  On Monday, the day of the trial, appellant’s attorney arranged for an investigator to visit Danklaw’s apparent residence in Farmington, Minnesota; Danklaw was not found, and his parents told the investigator that Danklaw was living somewhere in Burnsville, Minnesota.  On the second day of the trial, appellant’s attorney’s investigator was still attempting to locate Danklaw in Burnsville.

            Here, it is difficult to conclude that the district court’s continuance denial did not prejudice appellant, because Danklaw’s absence materially affected the outcome of the trial.  The jury found appellant guilty of possession of methamphetamine.  The methamphetamine was found in a case on the passenger’s, Lackore’s, seat and appellant’s defense theory was that appellant did not knowingly possess the methamphetamine because he did not have control over the area where the drugs were found.  Danklaw’s testimony, if admissible, certainly could have created a reasonable doubt in the jury’s mind that appellant was not guilty of possession of methamphetamine.[2]

            In addition, there is no evidence in the record that appellant’s counsel was dilatory or negligent in the preparation of his case; rather, the record suggests appellant and Danklaw unexpectedly notified him that Danklaw was willing to testify only five to six days before the trial was to begin.  The record suggests that appellant’s counsel took all necessary steps to secure Danklaw and that he was still attempting to locate Danklaw on the day of the trial.  See United States v. Little, 567 F.2d 346, 348, 349 (8th Cir. 1977) (two relevant considerations to determine whether a defendant’s due process rights are violated when a district court denies a continuance are the “diligence of the party requesting the continuance” and whether “[s]udden exigencies and unforeseen circumstances militate in favor of [the continuance]”); see also Weise v. Comm’r of Pub. Safety, 370 N.W.2d 676, 678 (Minn. App. 1985).   

Appellant’s counsel also promptly notified both the prosecutor and the court of the recent development, and immediately attempted to move for a continuance.  Cf. State v. Beveridge, 277 N.W.2d 198, 199 (Minn. 1979) (“One who waits until the day of trial before moving for a continuance ought to have a good explanation for the delay.”).  Although, as the district court stated, “this very situation is one which could be easily fabricated by the defendant,” there is no evidence in the record that the story was actually fabricated or even any evidence tending to suggest fabrication.  Indeed, the reverse is true in the sense that as an officer of the court, appellant’s counsel actually spoke with the witness and reported to the court via an offer of proof what the witness would testify to if he could be found.  Although I acknowledge that appellant exacerbated the delays associated with this case by leaving the jurisdiction for six months, the continuance sought here was not for an indefinite period and was not sought for the purpose of some ill-defined and vague investigation; rather, counsel for appellant requested a one-week continuance in an effort to find a witness whose testimony goes to the very heart of this case of constructive possession, an offense for which appellant was convicted and ultimately sentenced to a presumptive 58-month executed prison term.

            Under these circumstances, and given the indicia of reliability associated with counsel’s offer of proof, I believe the district court abused its discretion by denying appellant’s request for a continuance, and, therefore, I respectfully dissent.

 

 



[1] A person is guilty of a second-degree controlled substance crime if the person unlawfully possesses six grams of methamphetamine or more.

 

[2]                      The presence of a controlled substance in a passenger automobile permits the factfinder to infer knowing possession of the controlled substance by the driver or person in control of the automobile when the controlled substance was in the automobile.  This inference may only be made if the defendant is charged with violating section 152.021, 152.022, 152.023, or 152.0261.

 

[The following notes are from the dissenting opinion.]

[1] King, 414 N.W.2d at 217, lays out a two-part standard, first suggesting a focus on whether the constitutional right “to have compulsory process for obtaining witnesses” is satisfied, and second, an abuse-of-discretion standard.  Subsequent decisions of this court have tended to merge these inquiries into a single test.  Aziz, 2000 WL 1100222, at *2; Bourcy, 1996 WL 291514, at *2.  I agree that the district court’s decision here does not implicate appellant’s constitutional rights and, therefore, a focus on the more limited question whether the district court’s decision was an abuse of discretion is appropriate.

 

[2] This distinguishes this case from cases such as State v. Bell, 275 Minn. 541, 543, 146 N.W.2d 597, 599 (Minn. 1966), where the defendant requested a continuance to locate a witness.  In Bell, the supreme court found that “[t]here was no showing at trial as to what [the witness’s] testimony would be.”  Id.