This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Michael E. Tabaka,
Filed April 17, 2007
Isanti County District Court
File No. K0-03-531
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jeffrey R. Edblad, Isanti County
Attorney, Isanti County Courthouse,
John M. Stuart, State Public
Defender, Suzanne M. Senecal-Hill, Assistant Public Defender,
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of aiding and abetting the manufacture of a controlled substance, conspiring to manufacture a controlled substance, and possession of a controlled substance, arguing that (1) the evidence was insufficient to support the convictions, (2) the district court improperly admitted Spreigl evidence, (3) the prosecutor committed misconduct in his closing argument, and (4) the district court improperly admitted portions of the testimony of an investigator with the sheriff’s department. We conclude that the district court did not err by admitting the Spreigl evidence, that the prosecutor’s misconduct was harmless error, that there was no error in the admission of the investigator’s testimony, and that the evidence was sufficient to support the conviction of possession of a controlled substance. We conclude, however, that the evidence was insufficient to support the aiding-and-abetting and the conspiracy convictions. We therefore affirm in part, reverse in part, and remand for re-sentencing.
On April 21, 2003, the Isanti County Sheriff’s Department received a complaint of a strong chemical odor coming from appellant Michael Tabaka’s property. Investigator Timothy Akers and several other officers were dispatched to investigate. A driveway approximately one-eighth of a mile long runs through a wooded area on Tabaka’s property and leads to a house and a pole barn. The officers drove to the pole barn, outside of which they saw and spoke with three people, who said that they were waiting for Tabaka’s son.
Akers entered the pole barn and found Tabaka and an unidentified woman, who gave Akers what was later determined to be a false name. While inside the barn, Akers could smell anhydrous ammonia, a chemical that is used in the manufacture of methamphetamine. Akers asked Tabaka for permission to search the barn; Tabaka agreed and signed a “permission to search” card. As Akers walked around the barn, he discovered two 20-pound propane-gas tanks that had been modified to accommodate anhydrous ammonia. Akers testified that he observed a “bluish purple” discoloration of the brass fittings of the tanks, which indicated the presence of anhydrous ammonia; a monitor confirmed this observation. Akers also discovered a large hose that could be used to draw anhydrous ammonia from a larger “mother tank”—which can be found in some farm fields—into the smaller 20-pound tanks found in the pole barn. Akers testified that this procedure is necessary because it is illegal to purchase anhydrous ammonia in small tanks.
Akers testified that when he asked Tabaka about the two tanks and the hose, he replied that he knew that the tanks and the hose were in the barn, and he had moved them while cleaning, but that he “really didn’t think too much of them.” Further, Akers testified that during their discussion, Tabaka became “very nervous and agitated” and was “sweating profusely.” Akers instructed one of the other officers to transport Tabaka to the jail.
After Tabaka was arrested, Akers continued his search of the barn and discovered a back room, in which he found a radio tuned to the sheriff’s radio frequency and a television set connected to a closed-circuit camera that was focused on the driveway leading to the pole barn. Inside a closed cabinet, Akers found items commonly used in the manufacture of methamphetamine, as well as three glass containers filled with chemicals. Testing later confirmed that two of the containers contained ephedrine or pseudoephedrine and that the third container contained 28.5 grams of methamphetamine. Finally, Akers found a complete “portable meth lab” with an “HCL generator,” which is used to make constituent ingredients into methamphetamine.
Tabaka was charged with aiding and abetting the manufacture of a controlled substance, in violation of Minn. Stat. §§ 152.021, subd. 2a, 609.05, subd. 1 (2002); first-degree conspiracy to manufacture a controlled substance, in violation of Minn. Stat. §§ 152.021, subd. 2a, .096, subd. 1 (2002); and first-degree possession of a controlled substance, in violation of Minn. Stat. § 152.021, subd. 2 (2002). At trial, in addition to Akers’s testimony and the evidence seized from the barn, the state sought to introduce several Spreigl incidents as evidence. After a hearing, the district court permitted the state to introduce evidence of only one incident, in which Tabaka was charged with fifth-degree controlled-substance crime: in November 2002, the police stopped a vehicle in which Tabaka was a passenger; the police searched Tabaka and discovered a digital scale and several plastic baggies containing a white powder that was later determined to be .06 grams of methamphetamine.
Tabaka’s defense at trial consisted solely of the introduction of a certified copy of his son’s conviction of an attempted controlled-substance crime. The jury convicted Tabaka on all three counts. The district court sentenced Tabaka to 81 months’ imprisonment, which was at the low end of the presumptive sentencing range. This appeal follows.
D E C I S I O N
argues that the evidence was insufficient to support any of his convictions. When considering a claim of insufficiency of
the evidence, this court painstakingly reviews the record to determine whether
the evidence, when viewed in the light most favorable to the conviction,
permitted the fact-finder to find the defendant guilty. State v.
Webb, 440 N.W.2d 426, 430 (
Although circumstantial evidence is
entitled to the same weight as direct evidence, convictions based solely on
circumstantial evidence warrant greater scrutiny. State v.
Jones, 516 N.W.2d 545, 549 (
A. Aiding and Abetting the Manufacture of a Controlled Substance
Tabaka first argues that the
evidence was insufficient to prove beyond a reasonable doubt that he aided and
abetted the manufacture of a controlled substance. A defendant may be held liable for the crimes
of a principal if he aided or abetted the principal in the commission of the
crime. Minn. Stat. § 609.05, subd.
1 (2002). To establish aiding-and-abetting
liability, the state must prove that a defendant played a “knowing role” in the
crime and took no steps to thwart its commission. Ostrem,
535 N.W.2d at 924. But active
participation in the overt act that constitutes the substantive offense is not
evidence of a defendant’s knowledge, inaction, or passive acquiescence is not
sufficient to establish aiding-and-abetting liability. Ostrem,
535 N.W.2d at 924. Thus, evidence of the
defendant’s mere presence at the scene of the crime, without more, is not
argues that although the state’s evidence may support a finding that he
acquiesced in the manufacture of a controlled substance, methamphetamine, in
his pole barn, it is insufficient to establish that he aided and abetted that
manufacture. We agree. In State
v. Kessler, the police found drug paraphernalia, including scales, Zig-Zag
papers, marijuana, and a number of marijuana plants in the common areas of the
home that Kessler shared with his wife; Kessler claimed that the materials were
his wife’s and that he did not know that they were in his home.
The state attempts to distinguish Kessler by arguing that because the defendant there presumably could not evict his wife, his knowledge of her illicit activities amounted to mere acquiescence. But we conclude that neither Tabaka’s failure to evict the controlled-substance manufacturers nor his alleged knowledge of the manufacturing operation is sufficient to establish that he aided and abetted the manufacture of a controlled substance. See Ostrem, 535 N.W.2d at 924 (noting that inaction, knowledge, or passive acquiescence is not sufficient to establish aiding-and-abetting liability).
The state argues also that allowing the manufacture of a controlled substance in one’s pole barn is akin to handing a person a loaded weapon knowing that the person intends to use it to commit murder or to driving a person to a convenience store knowing that he intends to commit armed robbery. But in these examples, the aider and abettor took an affirmative action (handing the principal a gun, driving the principal to the store) with knowledge of the principal’s intent. Here, there is no evidence that Tabaka took any similar affirmative action.
The state introduced evidence of a sophisticated manufacturing operation—complete with a police-band radio and a surveillance camera—in Tabaka’s pole barn. Because the manufacture of methamphetamine took place in Tabaka’s pole barn, the jury was entitled to infer that he knew of that activity. But even if we assume, as we must, that Tabaka knew that methamphetamine was being manufactured on his property, there is no evidence that Tabaka played a “knowing role” in the manufacture. See id. As in Kessler, the state did not establish here that Tabaka took any affirmative action that evidenced an intent to manufacture methamphetamine. We conclude, therefore, that there was insufficient evidence to convict him of aiding and abetting the manufacture of a controlled substance, and we reverse that conviction.
B. Conspiracy to Manufacture a Controlled Substance
Tabaka next argues that the evidence
was insufficient to establish that he conspired to manufacture a controlled
substance. To establish such a conspiracy,
the state must prove (1) that there was an agreement to commit a
controlled-substance crime and (2) that one of the parties to that agreement committed
an overt act in furtherance of that conspiracy. State v.
Pinkerton, 628 N.W.2d 159, 162-63 (
on the supreme court’s decision in State
v. Hatfield, 639 N.W.2d at 372, Tabaka argues that the state has not
established the existence of an agreement, noting that the state did not
identify whom he allegedly conspired with. In Hatfield,
the defendant requested that a third party bring a propane tank to the
defendant’s home; there were indications that the propane tank contained
anhydrous ammonia, although the police destroyed the tank without conducting conclusive
supreme court in Hatfield also
rejected the state’s argument that the presence of methamphetamine on Hatfield’s
person and Hatfield’s statement that he had received methamphetamine from
another person were evidence of a conspiracy.
Here, the state argues that the evidence supports a finding that Tabaka participated in a conspiracy (1) because by allowing the manufacturing operation to take place, Tabaka played a “knowing role” in the manufacturing operation and (2) because Tabaka said that he did not acquire the propane tanks himself—someone else was involved. We disagree. Tabaka’s role, “knowing” or otherwise, says nothing about the existence of an agreement. Indeed, the term “knowing role” is from supreme-court caselaw involving aiding-and-abetting liability, not conspiracy. See Ostrem, 535 N.W.2d at 924. Second, as in Hatfield, the presence of the tanks in Tabaka’s barn, regardless of who brought them to the barn, does not establish an agreement; it establishes an overt act. See 639 N.W.2d at 377.
A review of the record shows that methamphetamine was being manufactured in Tabaka’s barn; it also shows that there were several people in and around the pole barn when the police arrived. There was certainly an overt act by someone. But we conclude that the state did not offer sufficient evidence to establish that there was an agreement between Tabaka and at least one other person to manufacture a controlled substance, and we therefore reverse Tabaka’s conspiracy conviction.
Tabaka argues that the evidence is insufficient to sustain his conviction of
possession of a controlled substance. To
establish possession, the state must prove (1) that the defendant
consciously possessed a controlled substance, either directly or constructively,
and (2) that the defendant knew that the material was a controlled substance. State v.
Tabaka argues that the state has failed to prove that he exercised dominion and control over the methamphetamine. Tabaka’s argument is unpersuasive. Given the size of the operation, the jury was entitled to determine that Tabaka knew about the methamphetamine. Additionally, the methamphetamine was found in Tabaka’s pole barn, a barn that Tabaka was cleaning when the police arrived. The evidence is sufficient for the jury to have concluded that Tabaka exercised dominion and control over the methamphetamine—even if he shared that control with those engaged in manufacturing the methamphetamine.
next argues that the district court abused its discretion when it admitted
evidence of the previous incident in which Tabaka was charged with fifth-degree
controlled-substance crime for having in his possession .06 grams of
methamphetamine and a digital scale. The
district court has broad discretion in determining the admissibility of Spreigl evidence, or evidence of prior
bad acts, and will not be reversed unless it abused that discretion. State v.
Scruggs, 421 N.W.2d 707, 715 (
first argues that the Spreigl
evidence was irrelevant. Although prior
bad acts may not be introduced to establish the defendant’s character or that
the defendant acted in conformity with that character, Spreigl evidence may be introduced to prove, inter alia, motive,
knowledge, preparation, intent, plan, identity, or absence of a mistake. See
argues that the evidence is irrelevant under Minnesota Rule of Evidence 401 because
the fact that he possessed a small amount of methamphetamine does not establish
that he knew how to manufacture it, that the small amount of methamphetamine he
possessed does not establish that he knew that there was a manufacturing
operation in his pole barn, and that this prior incident of possession does not
establish that he had a motive to manufacture methamphetamine. But the fact that Tabaka previously possessed
methamphetamine is relevant to show that he knew what methamphetamine is, which
the state had to establish to prove the possession charge. See Florine,
next argues that the Spreigl evidence
should have been excluded under Minnesota Rule of Evidence 403 because its
probative value was outweighed by its potential for unfair prejudice. See
the evidence here was clearly damaging to Tabaka’s case, that prejudice was not
unfair. During Tabaka’s
cross-examination of an officer who arrested Tabaka in November 2002, he emphasized
how small the amount of methamphetamine that he possessed actually was,
mitigating any prejudice he suffered as a result of the introduction of the
evidence. We further note that the
district court gave limiting instructions to the jury three times—before and
during the presentation of the Spreigl
evidence, and then again after closing arguments.
next argues that the prosecutor committed misconduct during his closing
argument. A prosecutor is a “minister of
justice” and must guard the defendant’s rights as well as protect public
safety. State v. Salitros, 499 N.W.2d 815, 817 (
objected at trial to only some of the prosecutor’s statements that he now complains
of on appeal. We, therefore, apply two standards
A. Alleged Dilution of the State’s Burden of Proof
Tabaka first argues that the prosecutor improperly diluted the state’s burden of proof by introducing the jury to the principle of “Ockham’s razor.” The prosecutor, after telling the jury that he had been a member of a military intelligence unit, argued that when he was faced with “some pretty tricky, complex, devious schemes,” the Army taught him to apply Ockham’s razor, which, the prosecutor stated, holds that “the simplest and most logical explanation is always the correct one.” The prosecutor then explained that Ockham’s razor is similar to the cliché that “[i]f it looks like a duck, it walks like a duck,” then it is a duck. Tabaka did not object to this argument, and we therefore review it under the plain-error standard.
of the burden of proof are highly improper and, if established, are misconduct.
v. Hunt, 615 N.W.2d 294, 302 (
B. Shifting the Burden of Proof
Tabaka next argues that the prosecutor attempted to shift the burden of proof in his argument. Specifically, Tabaka complains of these portions of the prosecutor’s argument:
What evidence do you have of any other methamphetamine possessors, users, being anywhere that methamphetamine? You got none. You got some woman who was apparently a little bit dishonest walking around with [Tabaka], but the only person seen in that pole shed, the only testimony you have of a methamphetamine user being near methamphetamine or at least someone that possesses it . . . is him. He’s the only one.
. . .
He’s the only person we have any evidence of, any evidence that was close to that lab at the time in question. . . . I’m not asking you to speculate, I’m asking you to use the evidence. What evidence is there anybody else had methamphetamine. There’s none. Just use the evidence, follow the instructions and find him guilty.
Tabaka objected at trial only to the portion of the above argument stating that Tabaka was the only person close to the lab when he was arrested, which, Tabaka argued, was a misstatement of the evidence, and the district court sustained that objection.
is misconduct for the prosecutor to comment on the fact that the defense called
no witnesses. State v. Gassler, 505 N.W.2d 62, 69 (
Here, Tabaka’s sole defense at trial was the introduction of a certified copy of his son’s conviction of an attempted controlled-substance crime; Tabaka also referred during closing argument to his son’s conviction and to the fact that the people who were discovered around the pole barn were waiting for his son. Tabaka’s apparent defense was that someone else, namely his son, was responsible for the offenses with which Tabaka was charged. The prosecutor’s argument rebutted this defense and was not misconduct.
C. Misuse of Prior Bad Act Evidence
Finally, Tabaka argues that the prosecutor committed misconduct by misusing the Spreigl evidence in his closing argument. Because Tabaka objected at trial to only some of the statements he now complains of on appeal, we again apply two standards of review.
1. Alleged Misconduct That Was Objected To at Trial
Tabaka first argues that the prosecutor committed misconduct by misusing the Spreigl evidence when he argued that Tabaka was “the only person that had methamphetamine on his person on a prior occasion. The only person we know possess[ed] methamphetamine.” In addition, Tabaka challenges the prosecutor’s argument that the only use for the digital scale that was recovered from Tabaka when he was arrested in 2002 was to manufacture methamphetamine. Tabaka argues that these statements are an improper use of the Spreigl evidence because they “effectively told the jury that, based on [Tabaka’s] previous possession of methamphetamine, he was guilty of the charged offenses.”
is misconduct for a prosecutor to use his closing argument to make Spreigl evidence into “improper
substantive evidence.” State v. Peterson, 530 N.W.2d 843, 848 (
we conclude that this misconduct was harmless error. The state introduced evidence of a large-scale
methamphetamine manufacturing operation and of the fact that there were more
than 28 grams of methamphetamine in the back room of Tabaka’s pole barn. In addition, Tabaka was cleaning the pole barn
when the police arrived to investigate a complaint of a strong chemical odor. Thus, the jury’s conclusion that Tabaka
exercised dominion and control over the methamphetamine and is, therefore, guilty
of possessing a controlled substance is well supported by the evidence. See
2. Alleged Misconduct That Was Not Objected To at Trial
Tabaka argues also that the prosecutor misused the Spreigl evidence when he told the jury that Tabaka is “obviously someone that likes to possess [methamphetamine]” and when the prosecutor rhetorically asked the jury “[w]hat kind of person doesn’t say, hey, what’s this, doesn’t question this overwhelming stench . . . ? I’ll tell you what kind, the kind who carries around methamphetamine and a digital scale.” Tabaka argues further that the prosecutor misused the Spreigl evidence when he argued that “the only testimony you have of a methamphetamine user being near methamphetamine” was testimony of Tabaka’s presence in his pole barn.
Tabaka did not object to these statements, we apply the plain-error standard. Ramey,
721 N.W.2d at 299. By stating that
Tabaka was “someone that likes to possess” methamphetamine and that the only
“kind of person” who does not question a chemical odor is the kind of person who
possesses methamphetamine, the prosecutor was suggesting that the jury should
consider Tabaka’s character when determining whether he committed the current
offenses, which is a plainly improper use of Spreigl evidence. See
argues finally that some of Investigator Akers’s testimony regarding how methamphetamine
is manufactured was improperly admitted, although Tabaka did not object to the
testimony at trial. As we have noted
above, this court considers unobjected-to testimony under the plain-error standard.
Buren v. State, 556 N.W.2d 548, 551 (
Tabaka argues that Investigator Akers’s testimony regarding the possible use of the large hose found in the pole barn to unlawfully acquire anhydrous ammonia and his testimony that methamphetamine manufacturers often steal the ephedrine and pseudoephedrine used to manufacture methamphetamine were impermissible attacks on Tabaka’s character. We disagree. This testimony explained the relevance of the hose and its potential use for obtaining an ingredient used for the manufacture of methamphetamine, and explained the relevance of the presence of the chemicals in Tabaka’s pole barn. It was not an impermissible attack on Tabaka’s character.
Tabaka argues also that Akers’s statement that methamphetamine is “a poison” served only to inflame the jury. The state concedes that Akers’s statement was irrelevant but argues that any error in admitting it was not prejudicial. We agree. The term “a poison” is two words in 48 pages of testimony. Even if the admission of this statement was error, it does not rise to the level of plain error affecting substantial rights.
Tabaka argues that Akers’s testimony that he did not believe everything that Tabaka
told him is impermissible vouching testimony. It is a well-accepted rule that a witness
cannot vouch for or against the credibility of another witness. State v.
In sum, we conclude that the evidence was insufficient as a matter of law to support Tabaka’s convictions of aiding and abetting the manufacture of a controlled substance and of conspiracy to manufacture a controlled substance. We therefore reverse those convictions. We affirm the district court in all other respects, and we remand for re-sentencing.
Affirmed in part, reversed in part, and remanded.
 Minn. Stat. § 152.01, subd. 15a (1990), defined “sell” as “to sell, give away, barter, deliver, exchange, distribute or dispose of to another; or to offer or agree to do the same; or to manufacture.” (Emphasis added.) The current definition of “sell” is essentially the same. See Minn. Stat. § 152.01, subd. 15a (2006).