Hubert H. Humphrey III, Attorney General, Ann M. Offermann, Asst. Attorney General, 525 Park St., Suite 200, St. Paul, MN 55103 (for Respondent)

Raymond F. Schmitz, Olmsted County Attorney, 151 4th Street S.E., Rochester, MN 55904 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.

Appellant challenges (1) the denial of his motion to disclose the identity of the informant whose information lead to the issuance of a search warrant, and (2) the trial court's admission of two packets of marijuana, $900 in cash, and a pager, all seized from appellant during the execution of a search warrant. Because we find that the trial court did not abuse its discretion, we affirm.

A search of appellant yielded two small bags of marijuana, $900 in cash, and a pager. Police also found three handguns in a box in the attic of appellant's residence (two .22 caliber guns and one .25 caliber gun). Access to the attic was just outside the master bedroom. They also found a loaded .22 caliber handgun on a shelf in a linen closet next to the bedroom where appellant's two children slept, a telephone book with bullet holes, and several spent shell casings in the basement. One of the handguns was determined to be stolen. Appellant was arrested and charged with receiving stolen property, being a felon in possession of a firearm, two counts of child endangerment, and possession of a small amount of marijuana.

At the omnibus hearing, appellant moved for disclosure of the CRI and for an in camera investigation of the CRI's statements. Appellant argued that he could not have sold cocaine to the CRI because he was away from his residence during part of the 72 hours. At the time, appellant was on a home monitoring program through the local adult detention facility. Monitoring logs supplied to the court indicated that appellant was away from his home for approximately 16 and a half hours of the 72-hour period. Thus, he was at home for approximately 55 and a half hours. The trial court denied appellant's motion, finding that appellant's inquiry as to the CRI's identity was mere speculation and that appellant failed to make a prima facie showing of false statements in the affidavit.

Appellant pleaded guilty to a petty misdemeanor charge of drug possession for the two bags of marijuana. The trial court denied appellant's motion to exclude evidence of the marijuana in his trial on the remaining charges. Appellant then moved to exclude any conclusions or testimony related to drug dealing or drug trafficking. This motion was also denied.

At trial, a police officer testified that he spoke with appellant while the other officers searched the house. After another officer stated he had found "guns," appellant was asked if there were any guns in the house; appellant admitted that there were four guns in the home: three .22 caliber guns and one .25 caliber gun. Appellant's statement was made before the caliber of the guns was determined and before the fourth gun was located.

Appellant's wife testified that appellant's cousin stayed in the basement that was furnished with a bed, dresser, couch, and coffee table, and that no one could miss seeing that someone lived in the basement. She also testified that the guns did not belong to appellant, but belonged to his cousin and that appellant did not know the guns were present in the house because she had worked out a secret agreement with his cousin.

One officer was in appellant's basement while executing the search warrant, and did not recall a bed in the basement or the appearance that someone was staying there. Three other Rochester police officers involved in the search warrant also testified to their role and their findings in the execution of the search warrant.

The jury found appellant guilty of possessing a firearm and reckless endangerment of a child and not guilty of receiving stolen property.

We review the trial court's refusal to disclose the identity of a CRI under the abuse of discretion standard. See State v. Brunes, 373 N.W.2d 381, 384 (Minn. App. 1985) (revelation of an informant's identity may be called for at the trial court's discretion), review denied (Minn. Oct. 11, 1985). In seeking the disclosure of the CRI, appellant argues that he is entitled to challenge the truth and accuracy of the search warrant. Appellant fails, however, to recognize the requirements necessary to go behind the face of a warrant and obtain the disclosure of unnamed informants.

A defendant has a limited right to the identity of a CRI to challenge the probable cause supporting a search warrant if (1) the defendant makes a prima facie showing at the omnibus hearing that the affidavit serving as the basis for the search warrant contained material false statements, and (2) disclosure is necessary to establish probable cause. State v. Luciow, 308 Minn. 6, 13-14, 240 N.W.2d 833, 839 (1976); State v. Brunes, 373 N.W.2d 381, 384 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). A determination to disclose the identity of a CRI depends on the court's weighing of competing interests. State v. Moore, 438 N.W.2d 101, 106 (Minn. 1989); Luciow, 308 Minn. at 15, 240 N.W.2d at 839.

To make a prima facie showing, appellant supplied an affidavit stating that he did not make any drug sales from his residence and that he was absent from his residence at various times during the 72-hour period in which the CRI claimed appellant had sold him cocaine. These statements fail to show that the affidavit supporting the search warrant contained false statements. A defendant has the burden of establishing the need for disclosure of the informant's identity, and while a lesser showing is needed to justify an in camera inquiry, the defendant must show something more than mere speculation that examination might be helpful. Moore at 106; see also State v. Lewis, 270 N.W.2d 891, 895-96 (Minn. 1978) (holding that a defendant who offers nothing more than his own conclusionary affidavit does not make the necessary evidentiary showing).

In addition, the state has a strong interest in protecting the identity of informants in the drug world. State v. Smith, 448 N.W.2d 550, 556 (Minn. App. 1989), review denied (Minn. Dec. 29, 1989). The trial court balanced appellant's interest in revealing the CRI's identity against the state's interest in protecting it and found the state's interest to be greater. The trial court did not abuse its discretion by refusing to disclose the identity of the CRI or hold an in camera review.

2. Admission of Evidence

"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984) (citation omitted). Relevant evidence is:

[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Minn. R. Evidence 401 (emphasis added).

Appellant argues that the trial court erred by admitting the pager, $900 in cash, and two packets of marijuana seized from appellant because he was not on trial for a drug offense. After hearing the state argue that excluding the marijuana would change reality, allow appellant to clean up the incident, and change the context of the search and the charges, the trial court denied appellant's motion to exclude the evidence. The trial court held that evidence or testimony relating to drugs and drug trafficking was relevant to the issue of why guns were at appellant's home. In addition, the fact that appellant possessed a pager, money, and marijuana on his person does provide a context for the charges and the surrounding events. The trial court did not abuse its discretion in admitting these challenged items into evidence.

Appellant cites State v. Butenhoff, 484 N.W.2d 60, 62 (Minn. App. 1992), review denied (Minn. May 15, 1992), to argue that evidence of a defendant's prior misconduct is not admissible to prove defendant's character in order to show conformity therewith. Appellant claims that admitting the challenged evidence enabled the jury to infer appellant's predisposition to the remaining offenses. Other than seeking admission of the marijuana, the state offers no evidence or testimony related to drugs. Because the two packets of marijuana, the pager, and the $900 in cash seized from the appellant are not evidence of prior misconduct, but evidence seized as part of the additional charged offenses, and because there was no mention of appellant's guilty plea to possession, this argument also fails.

Finally, appellant's argument that the evidence admitted was highly prejudicial and prevented the jury from making a clear decision regarding appellant's guilt is without merit. The fact that the jury found appellant guilty of possessing a firearm and of reckless endangerment of a child, but acquitted appellant on the charge of receiving stolen property, demonstrates that the jury was able to make a clear decision about appellant's guilt despite admission of the evidence. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (when "jury has acquitted the appellant of some counts, but convicted the appellant of others, we view the verdicts as an _indica[tion] that the members of the jury were not unduly inflamed_ * * *").

Affirmed.