This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
a/k/a Dolores Padilla-Gomez,
Filed February 25, 2003
Nobles County District Court
File No. K801623
Mike Hatch, Attorney General, Lisa A. Crum, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, Minnesota 55103 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Hudson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of fourth-degree controlled-substance crime, contending that admission of Spreigl evidence denied him the right to a fair trial and that there is insufficient evidence to support his conviction. Because the trial court did not plainly err and the evidence at trial was sufficient to support appellant’s conviction, we affirm.
Brown agreed to buy cocaine from appellant as part of a Worthington Police Department investigation. Brown, facing charges for forgery of stolen checks, had volunteered to assist in drug investigations, and was not promised anything by the police for her participation. Officers searched Brown and her car, fitted her with a recording device, and gave her $200 in cash to buy an “8-ball,” a slang term for 3.5 grams or one-eighth of an ounce of cocaine. Brown drove to appellant’s house and asked to buy cocaine. Appellant told her to come back in 30 minutes. When Brown returned, appellant told her to meet him at an apartment complex nearby. When Brown arrived, appellant walked over to her car and Brown handed him the $200. Appellant entered the building with the money and returned a few minutes later with a plastic bag containing the cocaine. Apparently appellant did not have an entire “8-ball,” but told Brown he could get more later that evening.
The police, who had followed Brown, observed appellant reach inside of Brown’s car, although they did not see anything change hands between Brown and appellant. Brown turned over the cocaine to the investigating officer who again searched Brown and her car. Lab testing confirmed that the substance Brown purchased from appellant was 1.7 grams of cocaine.
The state kept Brown’s identity secret until trial. The complaint and police report refer to Brown as “CI” (confidential informant). The documents stated that the identity of the “CI” would be revealed “in a court of law at a designated location.” At trial, Officer Troy Appel (Appel) testified that he worked with Brown in her capacity as an informant and that, prior to the controlled buy from appellant, Brown purchased cocaine approximately eight times from appellant. Defense counsel objected to this testimony on the basis of hearsay. The trial court initially sustained the objection, but then overruled it. Appel further testified that Brown bought cocaine from appellant at his house, and that Brown did not need to give advance notice. Appellant raised no further objection to this testimony. Brown also testified that she had purchased cocaine from appellant on five or six other occasions. Appellant raised no objection to this testimony. The trial court did not strike the prior bad acts testimony or read a cautionary Spreigl instruction. The jury found appellant guilty. This appeal followed.
Appellant argues that he was deprived of a fair trial because the trial court erroneously allowed evidence of prior bad acts. Appellant contends that it was plain error for the trial court to allow evidence of his prior drug sales because the evidence was unduly prejudicial. We disagree.
At trial, two state witnesses testified about prior drug transactions between appellant and Brown. But prior to trial, appellant did not move to suppress this evidence, nor did appellant object to its admission at trial pursuant to Minn. R. Evid. Rule 404(b), governing character evidence. This court will generally not consider matters not argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Appellant did raise a hearsay objection to Appel’s testimony, but not a 404(b) Spreigl objection. Therefore, appellant has failed to adequately preserve this issue for appeal.
Nevertheless, this court will consider a waived issue if (1) there is error; (2) that is plain; and (3) that affects substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “Plain error” is “clear” or “obvious” and affects substantial rights where there is a “reasonable likelihood” that the error substantially impacted the verdict. State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002). A defendant bears a “heavy burden” of persuasion when demonstrating that plain error affected substantial rights. State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001). Even if a defendant satisfies all three factors, this court exercises its discretion to address an unobjected-to error where fairness and integrity of the judicial system require our attention. Griller, 583 N.W.2d at 740.
Upon review of the record, we note that the state did not provide appellant with written pretrial notice of its intention to present Spreigl evidence at trial. Minn. R. Crim. P. 7.02; State v. Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995). Failure to provide such notice can result in reversible error requiring a new trial. See State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). The obvious purpose of the notice requirement is to avoid surprise to the defendant by giving him time to prepare a defense. State v. Grilli, 304 Minn. 80, 86, 230 N.W.2d 445, 450 (1975). Absent a formal written notice under rule 7.02, the state may still satisfy the notice requirement through substantial compliance.
Here, the state substantially complied with the notice requirement because Brown's statements concerning her prior drug transactions with appellant are referred to in the complaint as well as one of the police reports, putting appellant on notice of potential Spreigl use by the state, and allowing appellant adequate time to prepare a defense. See Bolte, 530 N.W.2d at 199 (finding substantial compliance where Spreigl incident mentioned in police reports, evidence of Spreigl incident seized from defendant’s house, and state only realized relevance of evidence after start of trial); Wanglie v. State, 398 N.W.2d 54, 57-58 (Minn. App. 1986) (finding substantial compliance where incidents referenced in complaint, defense had access to statements and documents concerning Spreigl incidents, and defense well-acquainted with these). Because the state substantially complied with the notice requirement, the trial court’s admission of the Spreigl evidence does not constitute plain error.
Appellant contends that the Spreigl evidence was unduly prejudicial, and its admission constitutes plain error and warrants reversal of his conviction. But the record reveals that appellant made no pretrial motions or objected to this evidence at trial. Because the trial court was not given an advance opportunity to consider the admissibility of the suspect testimony, the issue before us is not whether the trial court erred in admitting the testimony, but whether the trial court plainly erred by failing to strike the testimony and give a cautionary instruction, sua sponte. See Vick, 632 N.W.2d at 685. As a general rule, a trial court’s failure to sua sponte strike Spreigl evidence introduced at trial without pretrial notice, or the trial court’s failure to provide a cautionary instruction, is not ordinarily plain error. Id. Additionally, while trial courts are advised, even absent a request, to give a cautionary instruction upon the receipt of Spreigl evidence, failure to do so is not ordinarily reversible error. Id.
Here, we are hard pressed to conclude that the trial court’s failure to independently strike the prior bad acts testimony and read a cautionary instruction, sua sponte, constitutes plain error. First, no pretrial motions were made by appellant to suppress the testimony he now argues is unduly prejudicial, even though appellant was put on notice that the state was likely to present such evidence. Second, appellant did not object at trial to the prior bad acts testimony. Third, because appellant made no pretrial motions, the trial court was not alerted and given an opportunity to consider in advance the admissibility of the prior bad acts testimony. Because appellant did not object to the admission of the Spreigl evidence, we conclude that the trial court’s failure to strike the prior bad acts testimony, or give a cautionary instruction, sua sponte, is not clearly erroneous, and does not constitute plain error.
Even if the Spreigl evidence was unduly prejudicial and its admission erroneous, the error is harmless if, based on review of the entire trial record, there is no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Coonrod, 652 N.W.2d 715, 720 (Minn. App. 2002); see also State v. Oates, 611 N.W.2d 580, 586 (Minn. App. 2000) (concluding that erroneous admission of other crimes evidence may be harmless if the other evidence of guilt is sufficiently strong).
Here, the jury heard from Appel, who organized the controlled buy and operated the recording equipment that monitored the conversations between appellant and Brown. Appel stated that, after he searched Brown and her car, he provided her with $200 to buy an “8-ball.” Brown returned from the sale with a clear plastic bag containing 1.7 grams of cocaine. Appel observed the interaction between Brown and appellant, albeit from a distance. While he was not close enough to see Brown place the actual bills in appellant’s hand or observe appellant place the cocaine in Brown’s hand, the actions Appel saw were consistent with the recorded dialogue and with Brown’s version of the events.
In addition, the jury heard the actual recorded conversation between Brown and appellant where Brown asked appellant, standing in appellant’s doorway, “You got a ball?” The jury also heard the exchange between Brown and appellant after appellant stuck his hand in the window to deliver the cocaine, when Brown asked appellant if that was all the cocaine she would get. Although he did not say the word “cocaine,” appellant replied that he could provide “more,” later that evening.
Finally, the jury heard from Brown herself. Brown told the jury that she had purchased cocaine from appellant during the controlled buy. Her version of the events was consistent with Appel’s version. Brown admitted she previously used drugs and that she had made previous cocaine purchases from appellant. Brown told the jury she was facing criminal forgery charges. Brown said that she chose to act as an informant voluntarily and that her participation as an informant would only result in a report from police to the state that she was a cooperating individual. Appellant cross-examined Brown about her involvement in the controlled buy, her criminal charges, and her previous drug use. Appellant argued in closing that the case turned on Brown’s credibility, or rather, her lack thereof. The jury heard information from both sides, allowing it to weigh Brown’s testimony and determine her believability. As is its province, the jury chose to believe Brown, whose testimony was corroborated by that of experienced police officers.
Even without the prior bad acts testimony, there is ample evidence in the record to support appellant’s conviction. Therefore, the Spreigl evidence did not significantly affect the verdict, and any error in its admission was harmless.
Appellant next claims that the evidence was insufficient to convict him because the state’s case rested on the testimony of Brown, who was not a credible witness. Therefore, appellant contends that his conviction should be reversed. We disagree.
When considering a sufficiency of the evidence challenge, we review the evidence presented at trial to determine whether the jury could reasonably have found the defendant guilty of the crime charge. State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1988). As a reviewing court, we give a great deal of deference to the jury. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992). The weight and credibility to be given the testimony of an individual witness in a criminal trial is within the province of the jury. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987); see also DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984) (the credibility of witnesses and the weight to be given to their testimony are determinations to be made by the factfinder); State v. Best, 370 N.W.2d 691, 694 (Minn. App. 1985) (weighing the credibility of witnesses is the exclusive function of the jury).
Here, Brown testified about her previous drug use, her pending criminal charges, and her involvement with the police as an informant. In addition, appellant was given the opportunity to cross-examine Brown on these issues. The jury was free to either believe or disbelieve Brown’s testimony, and obviously chose to believe Brown. We conclude there is sufficient evidence in the record to support the jury’s verdict.