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,
Clevelen (NMN) Brogdon,
Filed July 29, 1997
Ramsey County District Court
File No. K796913
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)
Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Schultz, Judge.[*]
On appeal from convictions for controlled substance crimes and possession of a pistol by a felon, Clevelen Brogdon argues that the trial court erred by admitting evidence about the results of urinalysis tests administered to him while he was on probation for a prior conviction. We affirm.
After investigating allegations that appellant Clevelen Brogdon was operating the business he owned, Phalen Bait, as a front for drug trafficking, police obtained warrants to search Brogdon's business, residence, and person. Before executing the search warrants, police conducted surveillance on Phalen Bait. Ramsey County deputy sheriff Michael John Hankee, one of the officers conducting surveillance, saw Brogdon and his six-year-old son arrive by car at Phalen Bait, enter the store, and leave a few minutes later in the same car. Hankee testified that no one was in the car other than Brogdon and the child. Hankee also testified that he did not see anything in Brogdon's hands and that Brogdon did not appear to be carrying anything into or out of the store.
Police stopped Brogdon's car a short time later a few blocks away from Phalen Bait. Hankee testified that on Brogdon's person, he found two pagers, a small bag of marijuana in his left coat pocket, and $802 in cash in his pants pocket. In the back seat of the car, on top of Brogdon's briefcase, Hankee found a black shoulder bag that contained three plastic baggies with cocaine in them. The total weight of the cocaine was about three ounces. Hankee also found a cellular phone in Brogdon's briefcase.
Hankee and other officers involved in the traffic stop then went to search Phalen Bait. Deputy sheriff Peter James Eastman testified that officers found some bags that looked liked fanny packs. Eastman testified that all of the bags, including the one found in the car, appeared to be new and still had stuffing material inside of them. Hankee testified that officers found a pink and black nylon gym bag with two plastic bags that contained marijuana on an upper shelf in the office area of Phalen Bait. One of the plastic bags contained about one-quarter pound of marijuana, and the other plastic bag contained about one-half pound of marijuana. Police identified Brogdon's fingerprint on one of the plastic bags. Officers also found a triple-beam scale and three boxes of plastic sandwich or storage bags in the office area. Officers arrested Raymond Young, who was present when Phalen Bait was searched. Brogdon told officer James Gilbert Braun that Young was not involved and was just watching the store while Brogdon went to pick up his son.
Officers next searched the residence that Brogdon shared with Shelita Glass and their children. In the master-bedroom closet, officers found a safe that contained a trace amount of marijuana, about $800 in cash, a gram scale, and a box of pistol ammunition. A safe in the basement contained two pistols, one of which was loaded and in a gun box, and a plastic bag of miscellaneous ammunition. Police identified Brogdon's fingerprint on the inside of the gun box. Eastman testified that a strong odor of marijuana emanated from the basement safe and that the fact that his canine partner alerted to the safe indicated marijuana or another controlled substance had been inside the safe within the previous 48 hours. In the living and dining room area, police found a cordless or cellular phone and a device made out of a beer can that appeared to be used for smoking crack cocaine, which tested positive for the presence of cocaine.
Hankee testified that the amount of cocaine found in Brogdon's car was a midlevel dealer quantity, that midlevel drug dealers typically carry large amounts of cash on their person, and that the cash in Brogdon's pocket was rolled up and bent in half in the manner in which drug traffickers carry cash. Hankee also testified that it is common for drug dealers to have guns and pagers, to sell multiple kinds of drugs, and to be drug users themselves. Eastman testified that the scale found at Phalen Bait was a type of scale that could be used to weigh marijuana and that he had never seen a scale like that used for weighing fish. He also testified that the scale found in the bedroom safe was a type of scale that could be used to weigh cocaine.
Brogdon testified on his own behalf at trial. He denied knowing about the marijuana or cocaine found during the searches. He denied having marijuana on his person and claimed that police found the small amount of marijuana somewhere in the car, not on his person. Brogdon admitted the bag containing the cocaine came from his store but denied knowing that the bag was even in his car. He speculated that it must have been left behind by someone who was in the car earlier. Brogdon claimed that he used the scale and plastic bags found at Phalen Bait for legitimate business purposes. He denied having access to the safes at his residence and claimed they belonged to relatives.
Brogdon admitted having a 1994 conviction for fifth-degree controlled substance crime. He testified that when the current offense occurred, he was on conditional release for the prior offense and had frequent contact with his probation officer, who made unannounced visits to his home and place of business. He testified that he was busy working two jobs and caring for his family. Brogdon testified that he had no intention to have any involvement with drugs because he was trying to straighten out his life after being released from prison.
D E C I S I O N
Brogdon objects to the prosecutor cross-examining him about the results of two urinalysis tests administered during his probation. The trial court allowed the evidence for impeachment purposes. A urinalysis test administered on February 23, 1996, five days before the current offense, showed cocaine in Brogdon's system. A urinalysis test administered in December 1995 showed marijuana in Brogdon's system.
The evidence about the results of the urinalysis tests was admissible under Minn. R. Evid. 404(a)(1), which allows character evidence about the accused to rebut evidence of a pertinent character trait presented by the accused. Brogdon argues that he did not place his character for using drugs in issue by denying involvement with drugs. See State v. Martin, 256 N.W.2d 85, 86 (Minn. 1977) (defendant's denial during direct examination that he used drugs did not place his character for using drugs in issue); State v. Flowers, 262 Minn. 164, 165, 170, 114 N.W.2d 78, 79, 82 (1962) (defendant's statement that he had never struck or kicked any man did not open door to cross-examination about specific violent acts by defendant).
But Brogdon's testimony went beyond a general denial that he used drugs. Brogdon's testimony about trying to straighten his life out, care for his family, and working two jobs was intended to persuade the jury that Brogdon had learned his lesson after his first controlled substance conviction and was no longer the type of person who would be involved with drugs. By testifying about a lifestyle incompatible with drug involvement, Brogdon placed his character for using drugs in issue. See State v. Stewart, 276 N.W.2d 51, 54 (Minn. 1979) (when defense presented evidence about defendant's nonviolent nature, threatening letter written by defendant to prosecutor was admissible); State v. Nunn, 399 N.W.2d 193, 196 (Minn. App. 1987) (when defendant's testimony about his prior guilty pleas was designed to lead jury to conclude that defendant was the type of person who would admit his guilt if he were guilty, defendant exposed himself to cross-examination about other possible motives for his guilty plea), review denied (Minn. Mar. 13, 1987).
Finally, even if the trial court erred in admitting evidence about the urinalysis test results, Brogdon is not entitled to reversal of his conviction unless he was prejudiced by the error. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).
[T]he question is whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict; to put it another way, if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted, then the error in admitting the evidence was prejudicial error.
State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).
Brogdon was convicted of illegal possession and sale of cocaine and illegal possession of marijuana. A person "sells" a controlled substance if he possesses the substance with the intent "to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture." Minn. Stat. § 152.01, subd. 15(a) (1), (3) (1994). Intent to sell may be proved by evidence that the controlled substance appeared to be packaged for sale and that defendant possessed a large amount of cash and a type of scale known to be used by drug dealers. State v. Blahowski, 499 N.W.2d 521, 524 (Minn. App. 1993), review denied (Minn. June 22, 1993). Brogdon also was convicted of possession of a pistol by a felon in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (1994).
The evidence against Brogdon was very strong. Police found a small bag of marijuana on Brogdon's person and a bag containing about three ounces of cocaine on the back seat of Brogdon's car on top of his briefcase. Brogdon admitted that the bag containing cocaine came from his store. Brogdon and his six-year-old son were the only people in the car when it was stopped. At Brogdon's place of business, police found about three-quarters of a pound of marijuana packaged in plastic bags and three boxes of plastic bags and a type of scale used for weighing marijuana. Brogdon's fingerprint was identified on one of the plastic bags containing marijuana. In safes at Brogdon's residence, police found a type of scale used for weighing cocaine, guns, and $800 in cash. The odor emanating from the basement safe indicated that a controlled substance had been inside the safe within the previous 48 hours. Brogdon's fingerprint was identified on the inside of a box containing one of the guns. A device that appeared to be used for smoking crack cocaine and tested positive for the presence of cocaine was found in the living room/dining room area.
Hankee testified that the amount of cocaine found in Brogdon's car was a midlevel dealer quantity, that midlevel drug dealers typically carry large amounts of cash on their person, and that the cash in Brogdon's pocket was rolled up and bent in half in the manner in which drug traffickers carry cash. Hankee also testified that it is common for drug dealers to have guns and pagers, to sell multiple kinds of drugs, and to be drug users themselves. Given the strength of the evidence against Brogdon, there is not a reasonable possibility that the verdict would have been more favorable to him had the evidence about the urinalysis test results been excluded.
We have considered the arguments raised by Brogdon in his pro se brief and find them unpersuasive.
[ ]*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.