John K. Carlson, Pine County Attorney, Courthouse, Suite 8, 315 Sixth Street, Pine City, MN 55063 (for Respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.

This appeal is from a judgment of conviction for fifth-degree controlled substance offense and various counts of receiving stolen property. Appellant Douglas Gale Ohlrogge argues that the trial court abused its discretion in failing to further sanction the state's discovery violation, that the evidence is insufficient to support the conviction, and that the trial court erred in calculating the amount of fines and restitution. We affirm in part, reverse in part, and remand.

Because there had been a number of recent cabin burglaries in the area, police invited several victims out to the Hunt property a week after the initial search. A number of victims identified property as having been stolen from them. At trial, defense counsel asked the officer involved in the search whether any of these victims had filed stolen property reports before the search. When the officer's response revealed reports that had not been disclosed to the defense, defense counsel complained about the discovery violation. The trial court concluded that there was no intentional violation, and decided to instruct the jury to disregard any evidence that the victims had filed stolen property reports.

The jury found Ohlrogge guilty on all counts. The trial court sentenced him to a stay of imposition on the controlled substance offense, with 180 days probationary jail time, and a concurrent 90 days probationary jail time, and concurrent jail terms of 90 days on the other counts. The court imposed fines on several of the counts, and ordered Ohlrogge to pay restitution, including $1,500 to one victim's insurer, along with $250 for the insurance deductible.

The trial court has wide discretion in imposing sanctions for a discovery violation. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). In exercising this discretion, the court should take into consideration the reason the disclosure was not made, the extent of the prejudice to the opposing party, the feasibility of rectifying the prejudice by a continuance, and any other relevant factors. Id. This court will reverse only if there has been a clear abuse of discretion. See State v. Daniels, 332 N.W.2d 172, 179 (Minn. 1983).

This court has affirmed a trial court's use of an instruction to disregard undisclosed evidence as a sanction for the state's discovery violation. State v. Ramos, 492 N.W.2d 557, 560 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). The inculpatory evidence that was not disclosed in Ramos was more critical to the case than the stolen property reports that were not disclosed here, evidence that merely closed off one avenue of impeaching some of the state's witnesses. The defense conceded that the violation was not intentional. The trial court's instruction to disregard the undisclosed evidence "sufficiently reduced the chance of prejudice," id., to Ohlrogge that a new trial is not required.

2. Ohlrogge argues that the evidence of his constructive possession of the marijuana and the stolen property was insufficient to support the conviction. In reviewing the sufficiency of the evidence, this court is limited to determining whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably find the defendant guilty. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). This court must view the evidence in the light most favorable to the verdict and assume the jury believed the state's witnesses and disbelieved contrary evidence. Id.

The state presented evidence that Ohlrogge resided, or was at least a habitual visitor, on the Hunt property, that he owned some adjoining land, that he had a key to the pole barn in which the marijuana was found, that the marijuana grow operation required frequent maintenance, that Ohlrogge had walked rapidly away when the marijuana was discovered, giving the appearance of fleeing, and that when questioned after his arrest he said it was "like getting caught with your hand in the cookie jar."

The state may prove constructive possession by establishing that, although the controlled substance was found in a place to which others had access, there is a "strong probability * * * 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). Evidence of constructive possession may be sufficient even though there are co-residents with access to the place in which the controlled substance is found. See, e.g., State v. Lozar, 458 N.W.2d 434, 441 (Minn. App. 1990) (evidence of 50 pounds of marijuana being found in couple's house and garage was sufficient to show constructive possession by wife as well as husband), review denied (Minn. Sept. 28, 1990). The evidence, viewed in the light most favorable to the verdict, is sufficient to prove that Ohlrogge constructively possessed the marijuana.

Ohlrogge also challenges the sufficiency of the evidence to prove that he possessed stolen property. The doctrine of constructive possession also applies to the possession of stolen property. See, e.g., State v. Zgodava, 384 N.W.2d 522, 524 (Minn. App. 1986), review denied (Minn. May 16, 1986). Although others had access to the property on which the stolen property was found, one of the burglary victims saw Ohlrogge driving an ATV to which a stolen mirror was attached. Another confronted Ohlrogge about a starter he thought had been stolen from him, and Ohlrogge simply handed him the starter, without asking any of the other residents of the property.

Possession of stolen property need not be exclusive in order to sustain a conviction, but may be joint. State v. Bagley, 286 Minn. 180, 188, 175 N.W.2d 448, 454 (1970). The evidence was sufficient to show Ohlrogge was at least jointly in possession of the stolen items.

3. Ohlrogge challenges the $3,000 suspended fine imposed on Count IV, and the $1,750 restitution awarded to Randy Broz and his insurer on Count V. Ohlrogge argues that the court could not impose a $3,000 fine on Count IV because it was sentenced as a misdemeanor.

The trial court ruled that the conviction on Count IV had to be treated as a misdemeanor. The maximum fine for a misdemeanor, at the time of the offense, was $700. Minn. Stat. § 609.02, subd. 3 (1994). Therefore, the sentence must be modified to reduce the fine for Count IV to $700.

The court ordered Ohlrogge to pay restitution of $250 to Randy Broz, and $1,500 to his insurer for the stolen Suzuki ATV. At the sentencing hearing, there was some confusion whether the $250 deductible applied to all of Broz's claimed losses, including those not charged in the criminal complaint. The court noted that Ohlrogge could request a restitution hearing on this issue. There is no record of such a hearing being held, and Ohlrogge's claim that the value of the recovered ATV parts should be deducted also requires a further hearing. Therefore, we remand for a restitution hearing.

Affirmed in part, reversed in part, and remanded.