A05-570

State of Minnesota,

Respondent,

vs.

Richard Dean Hill,

Appellant.

Filed May 16, 2006

Affirmed

Forsberg, Judge*

Pipestone County District Court

File No. K2-03-139

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

James E. O’Neill, Pipestone County Attorney, O’Neill, O’Neill & Barduson, 114 N. Hiawatha, P.O. Box 128, Pipestone, MN 56164 (for respondent)

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Forsberg, Judge.

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

FORSBERG, Judge

Appellant challenges his conviction of first-degree possession of a controlled substance in violation of Minn. Stat. § 152.021, subds. 2(1), 3(b) (2002), arguing that the prosecutor’s comments during the closing argument of his jury trial improperly shifted the burden of proof onto the defense. Because the prosecutor’s comments constituted harmless error, we affirm.

FACTS

On April 25, 2003, Minnesota State Trooper Robert Veldkamp was on routine patrol along a highway when he clocked a vehicle driving in the opposite direction going 56 miles per hour. Something did not seem right about the vehicle, so the trooper turned around to look at the license plate. The vehicle soon stopped along the side of the road. Trooper Veldkamp stopped behind it and approached the driver’s side by foot to see if the passengers needed assistance.

Trooper Veldkamp found three persons in the vehicle: Lori Wilson (Wilson), the driver; appellant Richard Dean Hill, who was seated on the passenger seat; and Wilson’s son, who was in the back seat. During this time, Trooper Veldkamp noticed that appellant was “shaking quite visibly” and appeared “extremely nervous.” Background checks revealed that none of the three had a valid driver’s license. Consequently, Trooper Veldkamp placed the three under arrest, contacted dispatch to tow the vehicle, and began an inventory search of the vehicle.

Trooper Veldkamp began the inventory search in the back seat of the vehicle, where he found several Kmart and Wal-Mart plastic grocery bags, including an open Kmart bag with syringes in it. One syringe inside the Kmart bag had a red substance inside, indicating that it had been used. A Kmart receipt for the purchase of multi-vitamins and B-D insulin syringes was also found in the bag. The receipt indicated that the purchase was made during the afternoon of the stop. Trooper Veldkamp asked if anyone in the vehicle was diabetic and was told no. Trooper Veldkamp also recovered a coat that belonged to appellant from the back seat.

On the front passenger-seat floor, where appellant’s feet had rested, Trooper Veldkamp recovered a Wal-Mart grocery bag containing several items, including compact discs and a Hostess snack-cake box. When he opened the Hostess box, he found a Camel cigarette box, inside of which was methamphetamine wrapped in plastic. He also found methamphetamine wrapped in a “Taco Depot” napkin inside the Hostess box. In all, approximately 56 grams of methamphetamine were found inside the vehicle.

Trooper Veldkamp asked appellant to whom the drugs belonged and appellant told him they were not his. The trooper testified that appellant did not seem surprised to be informed that drugs were found in the vehicle. The trooper continued his search of the vehicle and found another syringe in a radio face-plate box between the driver’s seat and the center console of the vehicle. Residue on the needle indicated that it had been used. During the inventory, the trooper informed appellant that his vehicle would be towed, at which point appellant asked if he could retrieve his groceries from the vehicle.

During appellant’s booking, a county corrections officer observed and photographed needle track marks on the inside of appellant’s elbows. The officer stated that the needle marks were fairly recent because appellant’s left arm was still very bruised and red.

Appellant was charged with one count of first-degree possession of a controlled substance with the intent to distribute in violation of Minn. Stat. § 152.021, subds. 1(1), 3(b) (2002) (count I), and one count of first-degree possession of a controlled substance in violation of Minn. Stat. § 152.021, subds. 2(1), 3(b) (2002) (count II).

After a contested omnibus hearing, the case proceeded to a jury trial. At trial, the defense’s theory of the case was that the driver, Lori Wilson, hid the drugs in the vehicle. Wilson testified that the drugs belonged to appellant, while appellant testified that the drugs did not belong to him.

Wilson testified that on the day of the arrest she saw appellant inject methamphetamine using a syringe in a gas-station parking lot. Wilson testified that the two ran some errands in the city of Marshall, and then traveled to Willmar where appellant dropped her off at Wal-Mart and returned a half hour later. Wilson testified that they were going to the city of Willmar because appellant said he wanted to meet a friend and “hook up,” which she took to mean that appellant was going to “hook up” with some methamphetamine. The two next went to a grocery store where Wilson testified she bought chips and soda and appellant bought snack cakes and a sandwich. Wilson testified that the two then went to Kmart where appellant purchased vitamins and the syringes.

Wilson then testified that appellant stopped at a gas station on their way home. At this point, Wilson testified that she realized that there was methamphetamine in the vehicle and that she saw appellant take the drugs out of his pocket and place them in the snack-cakes box.

Appellant testified that the drugs did not belong to him and to his recollection Wilson purchased all the items in the Wal-Mart grocery bag containing the drugs. He stated that he did not know that methamphetamine was in the Hostess snack-cakes box until the trooper told him during the search of his vehicle. He indicated he was not the only one with access to the vehicle’s interior. Appellant stated that he was shaking when the officer pulled them over because he gets cold easily, not from any use of methamphetamine, which thins the blood and lowers body temperature. He stated that the insulin needles did not belong to him, and denied using drugs that day. Appellant admitted using methamphetamine, but said that the last time he shot up was at a motel the night before the arrest.

The state called Trooper Veldkamp, who had inventoried appellant’s vehicle, to testify. On cross-examination, defense counsel asked Trooper Veldkamp about various items found in the vehicle and whether and why each item was or was not sent to the Bureau of Criminal Apprehension (BCA) lab for fingerprint analysis. The defense counsel asked about groceries found in the back seat, a Kmart bag in which syringes were found, a box of Camel cigarettes, a Taco Depot napkin, and compact-disc cases. The deputy indicated that the cigarette box and Taco Depot napkin were sent to the lab for fingerprinting, but that the other items were not because the fingerprinting would have been unreliable given the number of persons that could have handled the items. In the case of the syringes, the deputy indicated that such items were not tested for fingerprints because of safety concerns.

On re-direct examination, the prosecutor asked Trooper Veldkamp if the defense had requested that any additional items be examined for fingerprints. Trooper Veldkamp indicated that the defense had not.

In its closing argument, the prosecution stated:

We anticipate the defense is going to try to make a large point out of this fingerprint issue you heard about. That’s a non-issue. The defense has the ability to get fingerprints off everything, too. All they have to do is ask. They want ‘em, ask for ‘em. Don’t sit there and, you know, tell the officer that he messed up because he didn’t get fingerprints on something that 80 other people touched. All they have to do is ask. And, according to Trooper Veldkamp, no one ever asked. So the fact that those—every item here was not tested and you cannot—if any of you say yes, this is Mr. Hill’s fingerprint on here or no, everybody else fingerprints is on there but Mr. Hill’s has no bearing on the case. Fingerprints are not dispositive. This is not CSI. You don’t find fingerprints on everything that can track you right to somebody. And if this case—if they would have, we would have hoped the defense would have came forward and said give us that because we can prove our innocence. We can show you’re wrong. And it didn’t happen.

Following the prosecution’s closing argument, defense counsel requested to approach the bench, (apparently) to object to the prosecution’s statement, and an off-the-record conference was held. During its closing argument, the defense argued that the existing fingerprint evidence was inconclusive and that the defense could not have requested that the BCA conduct fingerprint analysis of the untested items found in appellant’s vehicle. Defense counsel then stated that the defense would have to pay a private expert for any testing done.

Following closing arguments, the district court instructed the jury that it is the state’s burden to show guilt beyond a reasonable doubt and that the defendant does not have to prove his innocence. Following jury instructions, defense counsel made a record of its earlier objection to the prosecution’s argument regarding fingerprinting, arguing that it improperly shifted the burden of proof at trial. The jury found appellant not guilty of count I and guilty of count II. The defense then moved for a mistrial based on prosecutorial misconduct, but the district court denied the motion. This appeal follows.

D E C I S I O N

Appellant raises one issue on appeal. Appellant contends that the prosecutor committed misconduct by stating in its closing argument that it hoped the defendant “would have came forward and said give us [the fingerprint analysis it was seeking] because we can prove our innocence.” Appellant argues that the statement inappropriately shifted the burden to appellant to prove his innocence at trial.

“Whether a defendant is entitled to a new trial because of prosecutorial misconduct is within the discretion of the district court, which is in the best position to appraise the effect of any misconduct.” State v. Tate, 682 N.W.2d 169, 177 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004). “An appellate court will reverse a conviction, or reverse the district court’s denial of a motion for a new trial, on the ground of prosecutorial misconduct only if the misconduct was ‘inexcusable and so serious and prejudicial that a defendant’s right to a fair trial [was] denied.’” Id. (quoting State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996)).

Prosecutorial misconduct occurs when the state appeals to passion or prejudice and distracts the jury from deciding the issue of proof beyond a reasonable doubt. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). When misconduct is alleged, the misconduct must be considered in the context of the parties’ arguments and the entire trial. State v. Powers, 654 N.W.2d 667, 678–79 (Minn. 2003). “Closing arguments should focus on the evidence and any reasonable inferences that can be drawn from the evidence.” Tate, 682 N.W.2d at 178.

It is highly improper and is prosecutorial misconduct to misstate the burden of proof in closing arguments. State v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985). It is misconduct for a prosecutor to divert the jury’s attention from its fundamental role of deciding whether the state has met its burden of proving a defendant guilty beyond a reasonable doubt. See Ashby, 567 N.W.2d at 27. Prosecutors are free, however, to argue that a particular defense or argument has no merit in view of the evidence. State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993). As long as the argument focuses on or highlights evidence that the state believes makes the defense implausible, rather than denigrates the defense, the argument is not improper. State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000).

Here, the prosecutor’s remarks in closing argument constituted misconduct. On one hand, the prosecution was free to rebut the defense’s line of questioning in which the defense sought to insinuate that further fingerprint evidence would have exonerated appellant. See Salitros, 499 N.W.2d at 818. But the prosecutor went beyond this by suggesting that the defense had a duty to request fingerprint testing of other evidence found in his vehicle along with the methamphetamine. Thus, the prosecutor inappropriately shifted the burden of proof onto the defense.

But even when established, prosecutorial misconduct does not in and of itself require a new trial. State v. Scruggs, 421 N.W.2d 707, 715–16 (Minn. 1988). Courts apply a harmless-error analysis to determine whether prosecutorial misconduct warrants a new trial. State v. Caron, 300 Minn. 123, 127–28, 218 N.W.2d 197, 200 (1974). There are two distinct standards for prosecutorial misconduct; serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while for less-serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Powers, 654 N.W.2d at 678 (citing State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).

Even applying the standard for more serious misconduct, we conclude that any misstatement of the burden of proof by the prosecutor was harmless beyond a reasonable doubt. Ample circumstantial evidence existed to convict appellant apart from the prosecutor’s comments. See State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996) (stating that substantial evidence against appellant ensured that alleged misconduct was harmless beyond a reasonable doubt). In addition to the driver’s testimony implicating appellant, the police officer testified that appellant was “shaking quite visibly” when the officer approached the vehicle, a tell-tale sign of methamphetamine use. Appellant’s coat was found in the back seat where the drugs were found, and appellant asked for his groceries, which were found in the back seat of the vehicle before the vehicle was impounded. Needles were found on the passenger’s side of the vehicle where appellant was seated. An officer testified that appellant’s arm looked as though he had injected drugs fairly recently. Appellant admitted using methamphetamine the night before the arrest, which was consistent with his possession that day.

Further, even if the jury perceived the prosecutor’s remarks as shifting the burden of proof to the defendant, the district court instructed the jury on the burden of proof and reminded the jury of its obligation to apply the law as given by the court. At trial, the jury was informed by defense counsel that the state cannot argue that the defense has the burden to produce exonerating evidence. The jury was also instructed as to the proper burden of proof. See State v. McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001) (“[A] prosecutor’s attempts to shift the burden of proof are often nonprejudicial and harmless where, as here, the district court clearly and thoroughly instructed the jury regarding the burden of proof.”); State v. Trimble, 371 N.W.2d 921, 926–27 (Minn. App. 1985) (a prosecutor’s misstatement of the burden of proof will not require reversal if the district court fully instructed the jury on the correct burden of proof), review denied (Minn. Oct. 11, 1985). On these facts, the jury verdict was “surely unattributable” to the prosecutor’s improper argument. Powers, 654 N.W.2d at 678. Consequently, the district court did not abuse its discretion in denying appellant’s motion for a mistrial.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.