A05-506

State of Minnesota,

Respondent,

vs.

Khat Dara,

Appellant.

Filed March 21, 2006

Affirmed

Worke, Judge

Lyon County District Court

File No. K5-04-729

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

Richard R. Maes, Lyon County Attorney, Courthouse, 607 West Main Street, Marshall, MN 56258 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

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

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

WORKE, Judge

On appeal from conviction for fifth-degree controlled substance offense, appellant Khat Dara argues that the district court abused its discretion in (1) admitting police testimony suggesting that appellant could have been selling the cocaine found in his apartment when appellant was charged only with a possession offense, and (2) in denying his motion for a mistrial after the arresting officer testimony referred to inculpatory statements appellant made after his arrest but before he was given a Miranda warning. We affirm.

D E C I S I O N

Admission of Testimony

“Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that the appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted). Even if an evidentiary ruling is in error, a reversal is warranted only when there is a reasonably possibility that the error significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

Appellant argues that the district court abused its discretion by allowing the detective to testify regarding evidence that implied appellant sold drugs. In August 2004, while investigating another crime, a detective received information from an informant that drugs were present at an apartment in the city of Marshall. The detective followed up on the tip and identified appellant as the occupant of the apartment. A search warrant was executed on the apartment with detectives looking for drugs in the freezer, and a purse belonging to the informant. During trial, the prosecutor questioned the detective regarding the amount of cocaine found in appellant’s freezer. When the prosecutor questioned the detective regarding the amount of drugs typically involved in a sale of cocaine, defense counsel objected, arguing that the information was not relevant because this was not a sale case. The district court overruled the objection and allowed brief testimony from the detective on the issue. The detective testified that “[f]requently they are sold in one-gram increments. Also, the typical amount that is sold is what is called an eight-ball, which is 2.75 grams, and that—amounts can range up to half a pound.” Appellant also argues that the detective’s testimony regarding the digital scale and plastic bags seized pursuant to the search warrant indicated that he sold narcotics.

A review of the evidence shows there is no reasonably possibility that the error, if any, significantly affected the jury’s decision to convict appellant. The other evidence against appellant was more than sufficient to convict him. The detective received information from an informant that appellant had drugs in the freezer in his apartment. During the execution of a valid search warrant, drugs were found in the freezer in appellant’s apartment. The detectives also seized a digital scale, a police scanner, plastic bags, a small amount of marijuana, and more than $9,000 in cash from various places throughout appellant’s apartment. At the time the search warrant was executed, appellant was the only person listed on the apartment lease. Appellant was not charged with the sale of cocaine, and even if the district court erred by admitting the testimony, that error does not warrant reversal.

Appellant also claims that a portion of the prosecutor’s closing argument proves that admission of the packaging and sale testimony was not harmless. In his closing argument, the prosecutor stated:

There are some other items in this case. You have the scale, the baggies, a considerable amount of cash. Now, as I said, this is not a sale case, but it was particularly odd that people who were just renting this apartment, were going to be there for a short period of time, when they go in and execute the search warrant, they find over $5,000 on a shelf in [appellant’s] room, with a couple caps over it. It would appear that most of these, or at least what’s pictured are hundred-dollar bills, there might be some other denominations, but you know, why it is that you have all that cash there? . . .

You had another $4,000 combined there. So, I think those are other factors that you can look at as a jury to determine whether or not [appellant] possessed in this case 1.6 grams of cocaine.

A prosecutor’s closing argument, however, must be taken as a whole to determine if it provides a basis for reversal. See State v. Gulbrandsen, 238 Minn. 508, 509, 57 N.W.2d 419, 421 (1953). Thus, though portions of the argument may have been improper, the prosecutor did not commit reversible error. First, the defense did not object during closing argument, thus forfeiting the right to have the issue considered on appeal. State v. Lloyd, 310 N.W.2d 463, 465 (Minn. 1981). Second, the failure to object implies that the defense found nothing improper in the argument. State v. Marquetti, 322 N.W.2d 316, 318 (Minn. 1982). Finally, the less serious nature of the conduct challenged here requires that, for reversal, “the misconduct likely played a substantial part in influencing the jury to convict.” State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983). As in Daniels, this standard was not met here.

Denial of Motion for Mistrial

Appellant also argues that the district court violated his right to a fair trial by denying his motion for a mistrial. When reviewing a denial of a motion for a mistrial, this court applies an abuse-of-discretion standard. State v. Long, 562 N.W.2d 292, 296 (Minn. 1997). “[T]he [district] court is in the best position to determine whether any harm has resulted from the particular violation and the extent to which this harm can be eliminated or otherwise alleviated.” State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). “In exercising this discretion the [district court] should take into account: (1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors. Id. Here, appellant moved for a mistrial because the detective’s testimony included statements appellant made while he was in custody but prior to being read his Miranda rights. These statements—that the cash found in the apartment was saved up from appellant’s employment and that the other individual found in the apartment did not live there—were not included in the detective’s police report.

Appellant is not entitled to relief. First, there was no prosecutorial misconduct. While prosecutors must be cautious of what their witnesses’ testimony will be at trial, the record in this case shows that the prosecutor did not have knowledge of the information prior to trial as it was not contained in the police report. Second, the statements did not prejudice appellant. After defense counsel objected, the evidence was stricken and the jurors were directed to disregard the testimony. Finally, defense counsel did not request a continuance; rather, appellant chose to move forward with a curative instruction from the court. Based on these reasons, the district court did not abuse its discretion in denying appellant’s motion for a mistrial.

Affirmed.