This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1517

 

State of Minnesota,

Respondent,

 

vs.

 

Kevin Lee Huck,

Appellant

 

 

Filed July 18, 2006

Affirmed

Parker, Judge*

 

Stearns County District Court

File No. K4-04-5283

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Parker, Judge.

 

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            On appeal from conviction of third-degree controlled-substance crime, appellant argues that (1) the district court committed plain error in allowing the arresting officer to testify as to which of the vehicle’s occupants he believed possessed the methamphetamine found in the car, and (2) he did not receive effective assistance of counsel.   Because we conclude that the district court did not err, and that appellant failed to establish a basis to reverse the conviction for ineffective assistance of counsel, we affirm.

D E C I S I O N

            Appellant Kevin Lee Huck argues that the district court committed plain error in allowing the arresting officer to testify as to which of the car’s occupants he believed possessed the methamphetamine found in the car.  Appellant did not object to the question or answer at trial.  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  If a defendant does not object to evidence in the district court, he “is deemed to have forfeited his right to have the issue considered on appeal.”  State v. Wellman, 341 N.W.2d 561, 564 (Minn. 1983).  The Minnesota Supreme Court has adopted a three-prong test for plain error to determine whether the court should review an unobjected-to error.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Under the test, “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” Id.  If this test is met, the court must consider “whether it should address the error to ensure fairness and the integrity of the judicial proceedings.”  Id. 

             At trial, the arresting officer was asked, “Based on your training and experience and your discovery of the evidence found in the car and on the defendant, who did you believe possessed these drugs?”  The officer responded, “The defendant.”  Appellant argues that the officer’s testimony infringed upon the jury’s job to determine facts and judge a witness’s credibility.  A review of the evidence shows that there is no reasonable possibility that even if the question rose to the level of plain error, it could significantly affect the jury’s decision to convict appellant. 

            To be admissible, expert testimony must be helpful to the jury.  Minn. R. Evid. 702.  The officer was not asked to apply the facts of this case to the legal definition of constructive possession, and his experience in dealing with individuals who possess controlled substances and their attempts to hide or conceal the drugs are factors that are probably outside the scope of the average juror’s experience.  Further, the evidence as a whole pointed overwhelmingly to appellant as the possessor of the drugs.  Based on the record and the evidence of appellant’s guilt, there was no reasonable likelihood that the officer’s testimony as to who he believed possessed the drugs had a substantial affect on the outcome of the case.

            Finally, in his pro se supplemental brief, appellant argues that he did not receive effective assistance of counsel at trial.  To support a claim of ineffective assistance of counsel,

[t]he defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

            Appellant argues that his trial attorney’s failure to call witnesses on his behalf was gross failure on his attorney’s part to represent appellant to the best of his abilities.  Generally, an ineffective-assistance-of-counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.  See Robinson v. State, 567 N.W.2d 491, 494 & n.3 (Minn. 1997); Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997).  A postconviction hearing provides the court with “additional facts to explain the attorney’s decisions,” so as to properly consider whether a counsel’s performance was deficient.  Black, 560 N.W.2d at 85 n.1.  Because the record before us is devoid of the information needed to explain the attorney’s decisions, we decline to reach the merits of this issue; however, appellant’s right to pursue an ineffective-assistance-of-counsel claim in a petition for postconviction relief is preserved.

            Affirmed.



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