This opinion will be unpublished and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
Travis L. Majerus,
Filed September 18, 2007
Douglas County District Court
File No. K5-05-000862
Lori Swanson, Attorney General, Kelly O’Neill Moller, Keiko Sugisaka, Assistant Attorney Generals, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Karpan, Douglas County Attorney,
Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Travis Majerus guilty of second-degree controlled substance crime and carrying a pistol without a permit. On appeal, Majerus raises three evidentiary issues and challenges the jury instructions. We conclude that the district court properly admitted evidence found in a search, that the testimony related to drug dealing does not entitle Majerus to a new trial, that a police officer’s testimony on Majerus’s possession of a gun was not hearsay and did not violate the Confrontation Clause, and that Majerus was not entitled to jury instructions on lesser-included offenses. Therefore, we affirm.
F A C T S
After obtaining a search warrant, police officers, accompanied by a SWAT team, searched the apartment of Travis Majerus’s girlfriend. The search produced a large amount of cash, small Ziploc bags, a glass pipe, a wooden box containing a methamphetamine pipe and a marijuana pipe, and notepaper with a list of dollar amounts and names.
At about 1:30 a.m., Majerus parked outside the apartment and entered the building. When a police officer approached him, Majerus dropped the backpack he was carrying and began to run. The officer pursued Majerus and caught up with him on a staircase where the SWAT team had stopped him. On the steps next to Majerus’s left hand the officer found a black velvet pouch, which he seized. Testing revealed that the pouch contained about 6.35 grams of methamphetamine. The backpack, which Majerus had dropped, contained a loaded pistol that Majerus did not have a license to carry.
Majerus was charged with second-degree controlled substance crime and carrying a pistol without a permit. After a jury trial, he was convicted and received a fifty-eight-month sentence. In this appeal from conviction, Majerus raises three evidentiary issues and also challenges the jury instructions.
D E C I S I O N
rulings rest within the sound discretion of the district court. State
v. Moua, 678 N.W.2d 29, 37 (
At trial, Majerus filed a motion in limine to exclude the evidence of drug paraphernalia, a hand-written list, and a large amount of cash found in his girlfriend’s apartment. We reject Majerus’s argument that this evidence was irrelevant and unduly prejudicial and hold that the district court did not abuse its discretion when it denied Majerus’s motion.
The evidence was relevant because it
helped to establish Majerus’s knowledge that he possessed methamphetamine. Majerus was charged with second-degree
controlled substance crime, and the state was required to prove that he had
knowledge that he possessed a controlled substance.
The district court could conclude that the probative value of the evidence was not substantially outweighed by the potential for unfair prejudice. Because the evidence established Majerus’s familiarity with drugs, the evidence strongly suggested that Majerus knew he was in possession of methamphetamine, and thus the district court could conclude that the potential for unfair prejudice was low. The evidence was only unfairly prejudicial to the extent it might have suggested that he was a drug dealer. All of the items—including the piece of paper with names and amounts of money listed—could have been used for other purposes. Therefore, the district court did not abuse its discretion when it found that the probative value of the evidence was not substantially outweighed by the potential for unfair prejudice.
The evidence presented at trial, however, went beyond merely describing the items found in the apartment. A police officer testified that the items were “consistent with those that you would find [with] someone who’s dealing in methamphetamine.” Majerus objected to the evidence as unduly prejudicial and requested a curative instruction. The district court overruled the objection but proceeded to give a cautionary instruction.
the officer’s statement arguably involved improper evidence of other crimes, it
does not provide a sufficient basis for reversal. When an error is harmless beyond a reasonable
doubt, a conviction will not be overturned.
State v. Shannon, 583 N.W.2d
579, 585 (
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). A statement is “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Minn. R. Evid. 801(a). A statement is not hearsay if the statement is offered against a party and is the party’s own statement. Minn. R. Evid. 801(d)(2).
During the trial, the prosecutor asked a police officer why a SWAT team was used to assist in conducting the search. The officer explained, “In this case, we had knowledge that the subject was in possession of at least one gun and had made comments about using it.” Majerus objected on hearsay grounds, and the district court overruled the objection. Later, the officer testified that during the search of the apartment they found “an empty pistol case which was of concern, just because we had the information about possibly guns being there.” Majerus did not object to this statement.
Although the officer’s knowledge came from an informant, the officer did not repeat the informant’s out-of-court statements. Unlike in State v. Litzau, 650 N.W.2d 177, 183 (Minn. 2002), and State v. Williams, 525 N.W.2d 538, 544-45 (Minn. 1994), the officer did not testify about what an informant had told the police. Instead, the officer gave factual testimony about the officer’s knowledge to explain why police had used a SWAT team to conduct the search. Because this testimony did not involve an out-of-court statement, it was not hearsay.
Part of the officer’s testimony, however, did involve an out-of-court statement. When the officer testified that the police had knowledge that Majerus had made comments about using a gun, the officer testified about Majerus’s out-of-court statement. This statement, however, was not hearsay because it involved a party admission. See Minn. R. Evid. 801(d)(2) (excluding party’s statements offered against party from definition of hearsay). Because the officer’s testimony was not hearsay, the district court correctly overruled Majerus’s objection.
For similar reasons, we reject the argument that the officer’s testimony violated Majerus’s “rights under the Confrontation Clause because the person who gave [the officer] the information did not testify.” Instead of repeating the out-of-court statements of the informant, the officer testified about his own knowledge. Therefore, the informant was not a witness against Majerus, and Majerus did not have a right to confront the informant. See Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004) (limiting admission of out-of-court statements that are testimonial in nature). The officer did not repeat any statement made by an informant. The only out-of-court statement repeated in the officer’s testimony was Majerus’s statements about using a gun, and this was a party admission. This statement was not testimonial because Majerus would not have reasonably believed the statement was being prepared for litigation. State v. Caulfield, 722 N.W.2d 304, 309 (Minn. 2006). Therefore, we conclude that the officer’s testimony did not deny Majerus the right to be confronted by the witnesses against him.
In addition, we note that even if the officer’s testimony could somehow be construed as repeating the informant’s out-of-court statements, Majerus would not be entitled to a new trial. When officers arrested Majerus, the officers observed his possession of the backpack containing the gun. Thus, the testimony that Majerus possessed a gun could not have reasonably influenced the jury’s decision. See Caulfield, 722 N.W.2d at 314 (discussing standard for harmless error in confrontation-clause cases). Therefore, even if the officer’s testimony was hearsay or violated Majerus’s confrontation-clause rights, it was harmless beyond a reasonable doubt and Majerus is not entitled to a new trial.
review the denial of a lesser-included offense instruction under an abuse-of-discretion
standard. State v. Dahlin, 695 N.W.2d 588, 597 (
requested jury instructions on the lesser-included offenses of third- and fifth-degree
controlled substance crimes. Majerus
contends that he was entitled to these instructions and the district court
abused its discretion by denying his request.
Majerus has provided no basis for concluding that the substance found in
his backpack weighed less than six grams.
Instead, Majerus argues that the jury could have concluded that he
possessed less than six grams of methamphetamine because the substance he
possessed might not have been entirely methamphetamine. The state, however, was only required to show
that Majerus possessed “one or more mixtures”
of a total weight of six or more grams containing methamphetamine.