STATE OF MINNESOTA

IN COURT OF APPEALS

A05-379

State of Minnesota,
Respondent,

vs.

Jeronimo Lara,
Appellant.

Filed March 21, 2006

Affirmed

Wright, Judge

Scott County District Court

File No. 2002-10836

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

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

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center, JC340, 200 Fourth Avenue West, Shakopee, MN 55379-1380 (for respondent)

Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

WRIGHT, Judge

Appellant challenges his conviction of first-degree possession of methamphetamine, arguing that the district court abused its discretion in admitting expert testimony that appellant had been distributing methamphetamine from his home and had possessed drugs in his vehicle. Because admitting this testimony was not plain error, we affirm.

FACTS

Acting on a citizen tip, members of the Jordan Police Department began surveillance at appellant Jeronimo Lara’s residence to investigate suspected drug activity involving methamphetamine. After observing a number of people come and go quickly from Lara’s residence, Police Chief Robert Malz directed officers to stop a vehicle leaving the scene. The officers stopped the vehicle and identified passenger Earl Miller. A police dog found methamphetamine in the vehicle. When questioned by police, Miller advised that the methamphetamine had been supplied by Lara, who was carrying it in his jacket pocket. The officers then approached Lara to arrest him. Lara, who was holding a leather jacket at the time, dropped it on the ground. The officers searched the jacket and retrieved a large quantity of methamphetamine from the pocket.

Lara was charged with one count of first-degree possession of methamphetamine, a violation of Minn. Stat. § 152.021, subd. 2(1) (2002). At the subsequent jury trial, because Miller was not available to testify, the district court suppressed Miller’s statements about Lara and instructed the jury not to speculate about the circumstances surrounding Lara’s arrest. On direct examination, Chief Malz testified regarding his education, training, and experience as a police officer and narcotics investigator. Regarding his observations of Lara, Chief Malz testified that he

observed several people come up to the residence. Mr. Lara was standing out in his front yard, and people would come, greet him a minute or two, then they would leave, and during that period of time, probably seven to eight people while I was watching his house came and left.

Chief Malz stated that a K-9 officer was called to the scene and his dog “hit” or “gave an alert” on Lara’s vehicle. But drugs were not found in the vehicle. The prosecutor then asked, “Being a K-9 officer, do you know why the dog might alert on something and there [are] no drugs there?” Malz replied:

It is not uncommon. If a vehicle—in some cases, if drugs are put into a vehicle, in this case, it was underneath where a backwards spare tire is kept, [the dog] hit on the back door, it is like having an onion in a Tupperware container for a week and then taking the onion out. [The dog’s] sense of smell is so that he would still be able to smell that there had been drugs there.

Chief Malz also testified that the weight of the methamphetamine seized was 129.2 grams, and the street value of one gram of methamphetamine is approximately $100.

On cross-examination, Lara’s counsel questioned Chief Malz as to whether the number of people he observed approaching Lara’s residence was unusual or caused Chief Malz to be suspicious, to which he answered, “Yes.” On redirect examination, the prosecutor asked: “[B]ased on your training and experience, when you see that kind of activity, what does that indicate to you as a law enforcement officer?” Chief Malz responded, “A large amount of people coming and going out of a residence in short periods of time would indicate that drugs are being distributed.” Lara’s counsel did not object to this line of questioning by the prosecutor or request a curative instruction. The jury found Lara guilty, and this appeal followed.

D E C I S I O N

Although he did not object to Chief Malz’s testimony at trial, Lara now argues that the district court abused its discretion by failing to exclude the following two aspects of Chief Malz’s expert testimony: (1) that Lara’s actions indicated that drugs were being distributed, and (2) that, because drugs had been in Lara’s vehicle, the dog alerted on it in the absence of drugs. Lara maintains that, because the testimony was irrelevant and highly prejudicial, he was deprived of a fair trial. A district court’s decision regarding the admission of expert testimony rests within its sound discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). Absent a clear abuse of discretion, we will not reverse. Id.

By failing to object to an alleged trial error, a criminal defendant ordinarily forfeits the right to have the alleged error reviewed on appeal. State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994). When evidence is admitted without objection, we review the district court’s decision for plain error. Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under this standard, the defendant must establish the existence of an error that was plain and that affected substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).

As a preliminary matter, we note that the state did not seek to qualify Chief Malz as an expert or refer to him as such. But because of his training and experience, Chief Malz’s testimony on the subjects at issue here arguably qualifies as expert testimony. Regarding expert testimony, Minn. R. Evid. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Chief Malz is a trained narcotics investigator and a K-9 officer. It was Chief Malz’s specialized training and experience on which he based the opinion testimony at issue here. Thus, for the purpose of conducting our plain-error analysis, we consider Chief Malz’s testimony to be expert testimony.

Because he was charged with possession of a controlled substance, not distribution or possession with an intent to distribute, Lara argues that Chief Malz’s testimony was neither helpful nor relevant. In the alternative, Lara contends that, even if helpful and relevant, the testimony was highly prejudicial. Accordingly, Lara argues that it was plainly erroneous to admit the evidence under Minn. R. Evid. 402 (irrelevant evidence inadmissible) or, alternatively, under Minn. R. Evid. 403 (relevant evidence inadmissible if probative value is substantially outweighed by danger of unfair prejudice).

Our review of the record establishes that Chief Malz’s opinion testimony was not erroneously admitted. In discussing the investigation, it was relevant and helpful to the jury to understand why the officers responded to the events they observed. Chief Malz’s testimony also was relevant and helpful to understand why the number of people seen arriving at Lara’s residence and departing quickly aroused his suspicion, particularly in light of the questioning on the issue by Lara’s counsel. Because a determination of unfair prejudice is not based on the legitimate probative force of evidence, but only on the capacity of evidence to persuade by improper means, State v. Cermak, 365 N.W.2d 243, 247 n.2 (Minn. 1985), Lara’s claim of plain error based on unfair prejudice also is unavailing.

Even if the admission of Chief Malz’s testimony could be construed as an obvious error, Lara would be entitled to relief only if the error were “prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741; see State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988) (“Unobjected-to error is plain error only if it seriously affects substantial rights and only if it has an unfair prejudicial impact on the jury’s deliberations.”). Lara has not met this heavy burden.

Chief Malz’s testimony that drugs were previously in the vehicle is not inconsistent with other evidence, including Lara’s testimony that Lara, Miller, and the jacket in which the drugs were found were all in the vehicle at some time during that day. Thus, whether the jacket belonged to Lara or to Miller, as Lara testified, the methamphetamine would have been in the vehicle, which could explain the dog’s response. Viewing the record in its entirety, we conclude that Lara has not established that this testimony had an unfairly prejudicial effect on the outcome of the trial.

Lara’s counsel invited evidence of drug distribution by questioning Chief Malz about the basis for his suspicions of Lara when Lara was under surveillance. In Williams, the defendant was granted a new trial based on the Minnesota Supreme Court’s determination that, among other errors, the prosecutor inappropriately elicited drug-courier-profile testimony. Williams, 525 N.W.2d at 548-49. In so holding, the Williams court reasoned:

Defendant, by the way, did nothing at trial to invite the introduction of this evidence. The evidence was adduced during the state’s case-in-chief. Defendant in her testimony merely claimed that she did not consciously possess the drugs, testimony that clearly did not open the door to the admission of the drug courier profile evidence.

Id. at 548. Thus, the error in Williams that is relevant to our analysis was the admission of drug-courier-profile testimony, especially in light of the fact that the defendant had not opened the door. Id.

Here, the facts are distinguishable from those in Williams. Chief Malz’s testimony did not compare Lara’s behavior to a “profile.” Rather, he opined that his observations indicated that “drugs [were] being distributed.” Furthermore, this testimony elaborated on a subject introduced in questioning by Lara’s counsel. As such, it was only on redirect examination that the prosecutor asked Chief Malz what conclusions he drew from his observations. A defendant should not be permitted to employ a strategy that invites certain testimony to which the defendant does not object and then prevail a on claim that the district court erred by admitting that testimony. State v. Helenbolt, 334 N.W.2d 400, 407 (Minn. 1983).

Finally, Lara argues that the testimony that he sold or possessed “other drugs” led the jury to conclude that he was guilty of possessing the methamphetamine at issue. But Chief Malz’s testimony did not address prior bad acts, as Lara argues. The testimony merely permitted the jury to infer that the methamphetamine at issue here had been in the vehicle and was part of that which Chief Malz believed Lara was possessing. The jury was free to assess Lara’s credibility and reject his testimony that Miller had left the jacket containing methamphetamine worth thousands of dollars unattended in Lara’s vehicle. Indeed, the jury’s rejection of Lara’s testimony is reasonable in light of the evidence that Lara was carrying the jacket containing methamphetamine at the time of his arrest and he told the police that “the stuff” was in the jacket. Given the strong evidence supporting Lara’s guilt, we are not persuaded that Chief Malz’s testimony, even if erroneously admitted, unfairly influenced the jury.

Because Lara fails to meet his burden of establishing that the admission of Chief Malz’s testimony was an obvious error that unfairly persuaded the jury to return a guilty verdict, we affirm.

Affirmed.