This opinion will be unpublished and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
Percy K. Edwards,
Filed December 30, 2003
Robert H. Schumacher, Judge
G. Paul Beaumaster, Rice County Attorney, Nathaniel J. Reitz, Assistant County Attorney, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge; Randall, Judge; and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Percy Kolin Edwards challenges his conviction of first-degree controlled substance crime arguing the trial court denied him a fair trial when it gave a permissive inference instruction over his objection, the evidence against him was the fruit of an illegal stop, and the trial court erred in admitting evidence without a sufficient chain of custody foundation. Edwards has also submitted a supplemental pro se brief arguing the trial court erred in admitting "incriminating statements" that were recorded while he sat alone in a squad car. We reverse and remand.
In July 2002, Julie Bush called the police dispatch center and reported that Edwards was just at her apartment, that he was not supposed to be there, she thought his driver’s license was invalid, and he had left her residence in a blue Chevrolet Beretta. Officers Scott Johnson and Josh Laber responded to the call; while in route, they located the blue Beretta and stopped the vehicle. The police ran a record check and confirmed Edwards’s license had been cancelled. The police arrested Edwards for driving without a valid license.
Because there was no other adult driver present, no proof the car was insured, and some uncertainty as to the car's title, the police decided to impound the car. Officer Sean Scovill conducted an inventory search of Edward’s car. During the search, he found a baggie containing what he suspected was a controlled substance in the car's trunk and an additional baggie containing a possible controlled substance hidden in the car's dashboard area. Edwards was charged with one count of controlled substance in the first degree under Minn. Stat. § 152.021, subd. 2(1) (2000). After a three-day trial, the jury found Edwards guilty.
1. Edwards argues the trial court erred when, over his objection, it gave the following jury instructions:
In determining whether or not it has been proven beyond a reasonable doubt that the Defendant was knowingly in possession of Cocaine, 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 the Defendant was the driver or in control of a passenger automobile and the Cocaine 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 Cocaine.
At oral arguments, the state conceded the trial court erred in giving the instruction.
But in order for Edwards to be entitled to a new trial, the error must be prejudicial. See State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992). The supreme court in Olson reversed appellant's conviction where the trial court gave a permissive inference instruction to the jury. The supreme court stated, "While there undoubtedly was more than enough circumstantial evidence here to support the guilty verdict, we are concerned about the possible impact of the instruction in this case[.] . . .[W]e cannot conclude beyond a reasonable doubt that he would have been convicted in any event." Id. at 216 (emphasis omitted). Here too, despite evidence to support a conviction, we are not convinced beyond a reasonable doubt the error was harmless and thus Edwards is entitled to a new trial.
2. Edwards also argues he was illegally stopped and all the evidence supporting his conviction was obtained as a result of the illegal stop. The legality of a limited investigatory search is a question of law, which is reviewed de novo. State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003).
Generally, even the most insignificant traffic violation provides a sufficient basis for an investigatory stop. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). The traffic violation need not be detectable; rather, "[t]he police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quotation omitted). Further, the court must allow the officer to draw inferences from all the circumstances and must be aware that these inferences might elude the average person. State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989).
"Reasonable articulable suspicion may be based on an informant's tip if police know enough about the informant to believe he or she is credible and the information given to police appears to have some factual basis." State v. Vereb, 643 N.W.2d 342, 346-47 (Minn. App. 2002). When the third party is a private citizen, the information is presumed to be reliable. Marben v. State, Dept. of Pub. Safety, 294 N.W.2d 697, 699 Minn. 1980). The reliability of a third party's statement is increased when the identity of that person is known because the person might be held accountable for their statements. See State v. Davis, 393 N.W.2d 179, 181 (Minn. 1986).
Here, Julie Bush informed the police that Edwards had left her residence in a blue Chevrolet Beretta and she thought he did not have a valid driver's license. Six months before this incident, Johnson had been called to Bush's residence and had learned Edwards did not have a valid driver's license. Based on Bush's tip and Johnson's prior knowledge that Edwards's driver's license was invalid, we conclude there was a reasonable, articulable suspicion of criminal activity that justified the stop of Edwards's vehicle.
3. Edwards also argues the trial court erred in admitting the controlled substances because the state failed to establish a chain of custody accounting for the drugs. Chain of custody issues are left to the sound discretion of the trial court. State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976). In order for evidence to be admissible, the state need only show that it is "reasonably probable that tampering or substitution did not occur." Id. Sufficient testimony was presented at trial that the controlled substances were the same substances recovered from Edwards's car. The trial court did not abuse its discretion in admitting the controlled substances.
4. Finally, Edwards argues in a pro se supplemental brief that the trial court erred in admitting an incriminating statement that he contends the state agreed was not admissible. Appellate courts review a district court’s evidentiary rulings under an abuse of discretion standard. In re Welfare of M.P.Y., 630 N.W.2d 411, 415 (Minn. 2001). The trial court determined the statement was not included in the agreement between the state and Edwards because the state was not aware the statement existed when the agreement was made. Edwards has failed to demonstrate how the trial court abused its discretion in admitting the statement. See State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (stating appellant bears burden of establishing that trial court abused its discretion and that appellant was thereby prejudiced).
Reversed and remanded.