may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Melvin Dichion Dase,
Filed July 1, 1997
St. Louis County District Court
File No. K696600013
Alan L. Mitchell, St. Louis County Attorney, Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for Respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.
Melvin Dichion Dase appeals from his conviction of first-degree possession of crack cocaine with intent to sell, arguing the evidence was insufficient to support the jury's verdict and the trial court erred in instructing the jury. We affirm.
Police observed Dase, Hampton, and Judy Garner leave the motel and drive to Hampton's apartment building. The police observed Dase get out of the car and enter the building. Officer James Christensen, who was observing the back of the building, saw Dase exit the back door, run alongside the building, and disappear around the corner. Christensen testified Dase was gone from his sight for approximately five minutes. Christensen testified he heard a door slam and immediately saw Dase come around the corner of the building and reenter the building.
Soon thereafter, the police arrested and searched the three. No drugs or weapons were found. Sergeant Robert Erspamer, however, searched the ground where Dase was last standing and found three cellophane baggies containing crack cocaine.
Meanwhile, Christensen traced Dase's tracks left in the snow around the corner of the building to a cellar door. Christensen opened the cellar door and noticed the tracks led down some stairs to a locked basement door. Christensen testified that the tracks were made by a waffle-style boot. Erspamer testified the prints matched Dase's boots.
Christensen then searched the room with the locked basement door. Christensen testified he saw a four-inch diameter puddle of water just inside that locked basement door. Christensen testified there were no wet footprints leading anywhere else in the basement. Christensen testified he found a plastic bag above the locked basement door containing several smaller baggies of crack cocaine.
The search of Hampton's apartment revealed Dase's suitcase with personal items and clothes. The search of the motel room revealed no clothing or personal items, but an Exacto knife, cellophane baggies, a Money Gram receipt for $1,500, and papers with names and numbers were found.
Dase was convicted of first-degree possession of cocaine with intent to sell and second-degree possession of cocaine. Dase appeals.
A conviction based on circumstantial evidence will be sustained on appeal
when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt.
State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). The jury is in the best position to evaluate circumstantial evidence and its verdict is entitled to deference. Webb, 440 N.W.2d at 430.
A person is guilty of a controlled substance crime in the first degree if the person sells 10 grams or more of cocaine in a 90-day period. Minn. Stat. § 152.021, subd. 1(1) (1996). "Sell" means, in relevant part, to possess with the intent to sell or distribute to another. Minn. Stat. § 152.01, subd. 15a (1996).
Here, there was no direct evidence to show that Dase possessed the cocaine found in the basement room of the apartment building. It is sufficient, however, if the state proved that Dase constructively possessed the cocaine. To do this, the state must prove
(a) that the police found the substance in a place under defendant's exclusive control to which other people did not normally have access, or (b) that, if police found it in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.
State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).
Dase did not have exclusive control over the basement room because the tenants had keys to it. This court, however, looks at the totality of the circumstances to determine whether the defendant had dominion and control over the substance. State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).
The record shows that (1) Dase's suitcase was discovered in Hampton's apartment; (2) Dase's motel room did not look like anyone stayed there; (3) Dase was seen leaving the apartment building and going around the corner where the basement door was located; (4) the snowprints leading from the apartment building door to the basement door matched Dase's boots; (5) there was a puddle of water right inside the basement door; (6) the cocaine was found directly above the puddle inside the basement door; (7) Christensen heard a door slam immediately before Dase came around the corner of the building; and (8) an Exacto knife and cellophane baggies were found in Dase's motel room.
Based on the totality of the circumstances, the jury could conclude that Dase stayed at Hampton's apartment, exercised dominion and control over the cocaine in the basement room, and intended to distribute the cocaine. The circumstantial evidence was sufficient to support the first-degree possession conviction.
2. Dase argues the trial court erred in instructing the jury because it did not define the term "possession" for the first-degree controlled substance charge. The transcript shows that Dase did not request this instruction and did not object to the instructions given. The failure to object to jury instructions precludes appellate review, unless the instructions, or failure to instruct, are plain error. State v. Witucki, 420 N.W.2d 217, 220 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988). We note that the uniform jury instruction for a first-degree controlled substance crime does not define the term "possession." See 10A Minnesota Practice, CRIMJIG 20.25 (Supp. 1996). Thus, we conclude the trial court's instruction was not plain error.