This opinion will be unpublished and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,
Robert Richard Abel,
Clay County District Court
File No. K5-03-60
Mike Hatch, Attorney General, Kimberly R. Parker, Assistant Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, Box 280, Moorhead, MN 56561 (for respondent)
Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On this appeal from his conviction of second-degree possession of methamphetamine, appellant argues that the evidence was not sufficient to prove he possessed a solution containing methamphetamine. He also argues that the trial court committed plain error in failing to instruct the jury on accomplice testimony and the prosecutor committed prejudicial misconduct in closing argument. Because there was sufficient evidence to support the conviction and any error did not affect substantial rights, we affirm.
After the search of his shared apartment revealed a non-functioning methamphetamine laboratory, appellant Robert Richard Abel was charged with first-degree manufacture and second-degree possession of methamphetamine. Abel and his girlfriend, Victoria Anderson, had both consented to the search of their apartment, during which officers observed drug paraphernalia and methamphetamine ingredients in plain view and smelled anhydrous ammonia throughout the apartment. The odor was particularly strong in the shower where the officers found a solution in a blue cooler. A sample of the solution tested positive for nine grams containing methamphetamine. Anderson testified at trial that Abel manufactured methamphetamine, used it himself, and injected her with it. After a jury trial, Abel was convicted of second-degree possession and acquitted of the manufacture charges.
Abel argues that the state’s evidence was insufficient to prove constructive possession of the methamphetamine because the drugs were found in an area that was just as accessible to his girlfriend and her accomplice testimony is the only testimony linking him to the drugs.
In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a 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 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). This is especially true when the resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). We 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 the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
A person is guilty of second-degree possession of a controlled substance if “the person unlawfully possesses one or more mixtures of a total weight of six grams or more containing cocaine, heroin, or methamphetamine.” Minn. Stat. § 152.022, subd. 2(1) (2002). Because there is no evidence that Abel physically possessed a controlled substance at the time of his arrest, to support a conviction of unlawful possession of a controlled substance, the state must show he constructively possessed it. See State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). To establish constructive possession, if the substance was found in an area to which others had access, the state must show there is a strong probability that Abel consciously exercised dominion and control over the substance. See id. at 105, 226 N.W.2d at 611.
The jury may find constructive possession even if the defendant jointly shared a living space with another. State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000), review denied (Minn. June 13, 2000) (court upheld finding of constructive possession where marijuana was found in close proximity to appellant’s personal effects and in areas of the residence over which she likely exercised at least joint dominion and control with her husband); State v. Lozar, 458 N.W.2d 434, 441 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990) (court held that evidence was sufficient to support finding that appellant constructively possessed marijuana where large quantities of it were found in common areas of home that appellant jointly possessed with her husband). Furthermore, Abel may be found guilty of possession, even if he jointly possessed the methamphetamine with Anderson. See, e.g., State v. Wiley, 295 Minn. 411, 412 n.2, 422, 205 N.W.2d 667, 670 n.2, 675-76 (1973) (affirming finding of constructive possession in house shared with girlfriend who pleaded guilty to possession of controlled substance).
Not only Anderson’s testimony, but also Abel’s testimony and the physical evidence, create a strong inference that Abel jointly possessed and had not abandoned the items in the apartment. “A conviction may be based on circumstantial evidence and will be upheld if the reasonable inferences from such evidence are consistent only with the defendant’s guilt and inconsistent with any rational hypothesis except that of his guilt.” State v. Anderson, 379 N.W.2d 70, 75 (Minn. 1985). Abel and Anderson leased the apartment together and resided there during all relevant times. Abel admitted using methamphetamine with Anderson in the apartment the day of the offense. Nine grams of methamphetamine were found in the only bathroom and shower in the apartment. Methamphetamine ingredients, residue, and paraphernalia were found throughout the apartment. Both Abel and Anderson testified regarding the contents and whereabouts of the blue cooler. Although Abel testified that it belonged to Anderson and Anderson testified that they jointly owned it, their credibility was for the jury to decide. See State v. Pippitt, 645 N.W.2d 87, 94 (Minn. 2002).
Abel argues that it would be absurd to base guilt on possession of an un-useable mixture. The statute does not require that Abel be linked to six grams of “useable” methamphetamine, and the cases he cites do not stand for that proposition. The plain language of the statute makes one guilty for possessing one or more “mixtures” with a total weight of six grams “containing” methamphetamine. Minn. Stat. § 152.022, subd. 2(1); see State v. Wukawitz, 662 N.W.2d 517, 525 (Minn. 2003) (setting out rules for interpreting statutes). The uncontroverted test results of the sample taken from the cooler were “9.0 grams containing methamphetamine.” See State v. Olhausen, 681 N.W.2d 21, 28 (Minn. 2004) (requiring scientific testing to establish requisite weight for criminal offense). This court has no basis to conclude that criminalizing possession of mixtures containing methamphetamine is absurd.
Appellant argues that the trial court committed reversible error by failing to give the instruction on accomplice testimony.
Trial courts are allowed “considerable latitude” in the selection of language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). But Minnesota law requires that the accomplice testimony instruction “be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the defendant's crime.” State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989); see Minn. Stat. § 634.04 (2002).
Here, there is no dispute that Anderson was an accomplice, and the state concedes that the trial court’s failure to give the accomplice-testimony instruction was plain error. For plain error to be reversible error, however, it must affect substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An objected-to-error affects substantial rights if it is prejudicial and affects the outcome of the case. Id. at 741. Corroborating evidence may consist of (1) physical evidence associated with the crime; (2) the testimony of eyewitnesses and experts at trial; (3) inadequacies and admissions in a defendant’s testimony; and (4) suspicious and unexplained conduct of an accused before or after the crime. State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000).
Here, other than Anderson’s testimony, the evidence linking Abel to the constructive possession of the cooler and its contents is (1) the lease and his admission that he lived in the apartment with Anderson; (2) admission that he regularly used methamphetamine, knew of the cooler, and knew he did not want anything to do with it; (3) admission that he did methamphetamine with Anderson at the apartment on the day before the search; (4) expert testimony that the apartment was a methamphetamine lab; (5) physical evidence of methamphetamine, its use and manufacture throughout the apartment, and 6) Abel’s questionable credibility in his explanations of his sources for drugs and knowledge of Anderson’s role in manufacturing. In short, there was more than sufficient evidence, absent Anderson’s testimony, for the jury to find Abel guilty of possession.
Appellate courts reviewing claims of prosecutorial misconduct “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). There are two distinct standards for prosecutorial misconduct; serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while for less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. (quoting State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).
Defense counsel objected to the prosecutor’s comment in closing argument that Abel had no reaction when they found the cooler in the shower. The trial court sustained the objection and immediately instructed the jury that the state, not Abel, had the burden of proof. Additionally, the jury was instructed about the burden of proof by the court before closing arguments and that burden was clarified by both counsel during their closing arguments. Insofar as the prosecutor’s comment suggests that Abel did not have the right to remain silent, it did not implicate his due process rights because any silence occurred during the consent search and before his arrest. Cf. Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976) (holding that the use, for impeachment purposes, of the defendant’s silence at time of arrest and after receiving Miranda warnings, violates due process). Therefore, the comment by the prosecutor does not constitute serious misconduct and would not have affected the outcome.
With no objection from the defense, the prosecutor repeatedly called Abel a liar during the closing argument and once vouched for Anderson’s credibility. The record reflects that the prosecutor improperly gave his personal opinion that Abel is a liar. See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (holding that it is improper for a prosecutor to inject a personal opinion as to the defendant’s credibility). The backdrop for the opinion, however, was Abel’s own admissions at trial that he had provided false information to police officers in this case and had been convicted on another occasion for telling a falsehood. Although misconduct is not harmless if there is a reasonable possibility that the misconduct played a significant or substantial role in persuading the jury to convict, State v. Van Wagner, 504 N.W.2d 746, 749 (Minn. 1993), given the lack of objection to these comments, Abel’s admission that he had lied on two occasions, and the general jury instructions leaving the credibility decisions to the jury, the prosecutor’s comments did not play a significant role. Further, the jury’s split verdict reflects its independent determinations regarding Abel’s credibility. Therefore, the error was harmless because it cannot be said to have played a significant role in persuading the jury to convict.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.