State of Minnesota, Respondent, vs. Charles Raymond Morrow, Jr., Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-126

 

State of Minnesota,
Respondent,
 
vs.
 
Charles Raymond Morrow, Jr.,
Appellant.

 

Filed December 7, 2004

Affirmed

Stoneburner, Judge

 

McLeod County District Court

File No. K303565

 

Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael Junge, McLeod County Attorney, McLeod County Courthouse, Suite 112, 830 East Eleventh Street, Glencoe, MN 55336 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            On appeal from conviction of first-degree controlled-substance crime, appellant Charles Raymond Morrow, Jr., argues that the search of the vehicle in which he claims only to have been a passenger was illegal, circumstantial evidence was insufficient to support his conviction, destruction of some of the items found in the vehicle violated his right to due process, and the court abused its discretion in evidentiary rulings.  We affirm.

FACTS

 

            A McLeod county woman who was tending flowers in her rural yard heard "a metal sound when something is bumping" at about 10:30 a.m. one April morning.  She looked across County Road 9 and observed a truck in the field.  She saw one man near the truck and offered to call law enforcement, but the man did not accept.  McLeod deputy sheriff Matt Rolf arrived at the scene shortly after 10:30 a.m. and saw the pickup truck in the middle of a plowed field.  A shoeless man with blood on his arm, later identified as appellant, walked toward Rolf.  Rolf observed a couple of shoe impressions in the mud near the scene as well as a lot of sock impressions.

            Rolf checked appellant's driver's license and found that his driving privileges were cancelled as inimical to public safety.  Appellant told Rolf that he was only a passenger in the truck, a person named Roger Weishalla had been driving, and they were going to Mankato to pick up an engine.  Appellant said that as they were driving, the truck suddenly jerked and went off the road.  Appellant said he was thrown from the truck through the passenger window, cutting his arm and losing a shoe, but neither he nor Weishalla were seriously injured.  When they failed to start or move the truck, Weishalla got a ride to get help while appellant stayed with the truck. 

            Rolf attempted unsuccessfully to contact the registered owner of the truck, Heath Stolp, or the alleged driver Weishalla, to determine what to do with the vehicle.  Lester Prairie police chief Robert Carlson arrived at the scene to assist Rolf, followed by sheriff's department patrol sergeant Alan Liepold. 

            Rolf and Liepold testified that the policy of the sheriff's department under circumstances such as this is to arrest the suspected unlicensed driver and impound the vehicle after an inventory search to check for valuables and any damage to the vehicle.  Liepold conducted the inventory and at the same time was looking for some type of evidence to determine whether or not appellant was the driver.  Liepold found one muddy Reebok shoe in the passenger side of the truck, but never found the other shoe.  Liepold observed a path all around the pickup that had sock prints and Reebok shoeprints.  Liepold compared the shoe from the cab with the shoeprints and believed it to be a match.  Liepold did not determine whether the shoe fit appellant.  In the back of the pickup, Liepold found a black bag that Liepold unzipped.  Inside he observed two black lockboxes.  Liepold also observed hazardous chemicals in the back of the pickup, which prompted him to stop the inventory search and back away from the truck.

            Appellant was arrested for driving after cancellation.  The keys to the truck were found in appellant's pant's pocket.  Carlson transported appellant to the jail.  When Carlson searched his vehicle at the end of his shift pursuant to his normal practice, he discovered two small keys on the floor of the backseat where appellant had been seated.  These keys were later determined to fit the lockboxes found in the back of the pickup.

            The truck was towed to the McLeod County highway department in Glencoe.  The topper blew off of the truck during the towing process.  Officer Jake May, a narcotics agent for the Southwest Metro Drug Task Force, went to the highway department, looked into the now fully exposed back of the truck and observed what he believed to be a working methamphetamine lab.  A search warrant was obtained after which May and another officer trained in handling chemicals involved in methamphetamine labs conducted a search, including a search of the lockboxes.  A Stearns county citation for driving after cancellation issued to appellant was found in one lockbox in proximity to substances that tested positive for pseudoephedrine (an ingredient in methamphetamine) and methamphetamine.  All of the items found in the pickup were inventoried and photographed.  Some of the evidence was sent to the BCA for testing, but items considered hazardous were destroyed by a company experienced in the handling of such hazardous chemicals.

            Appellant was originally charged with first-degree manufacture, third- and fifth-degree possession of a controlled substance, and transportation of anhydrous ammonia in an unlawful container.  Prior to trial, the state amended the complaint to charge only first-degree possession of a controlled substance.  Appellant's pretrial motions to dismiss or in the alternative to suppress evidence found in the truck were denied.

            Appellant testified at trial that he never looked in the back of the truck, was not aware of any of the items found in the truck, and that Weishalla could have removed the traffic citation from appellant's jacket pocket earlier that morning and placed it in one of the lockboxes.  Although the citation was for a truck with the same license-plate number as the pickup involved in this incident, neither appellant nor the officer who issued the citation was sure that the same truck was involved in both incidents.  Appellant testified that about two hours elapsed between the time the truck went into the field and Rolf's arrival at the scene.  Appellant testified that Weishalla left the keys to the pickup in the truck with appellant, but appellant denied ever seeing the keys to the lockboxes.  Appellant testified that he was wearing loafers, not Reeboks at the time of the accident.  Weishalla did not testify.  Appellant was found guilty and sentenced.  This appeal followed.

D E C I S I O N

 

I.          Search of the truck at the scene

            Appellant first argues that the warrantless search of the truck in the field was unreasonable because the officers were really seeking evidence of a crime.  The district court concluded that Rolf reasonably believed, based on the circumstances, that a crime had been committed and therefore had probable cause to arrest appellant at the scene.  The district court concluded that impoundment of the truck and a warrantless inventory search of the truck were proper.

            Warrantless searches are generally per se unreasonable and prohibited by the Minnesota and United States Constitutions.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  The state has the burden of proof to establish the existence of an exception to the warrant requirement.  State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).  "When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

            The inventory exception to the warrant requirement "permits the police to search a vehicle provided they (1) follow standard procedures in carrying out the search and (2) perform the search, at least in part, for the purpose of obtaining an inventory and not for the sole purpose of investigation."  Ture, 632 N.W.2d at 628. 

            In determining whether an inventory search is reasonable, the threshold inquiry involves the propriety of the impound "since the act of impoundment gives rise to the need for and justification of the inventory.  If impoundment is not necessary, then the concomitant search is unreasonable." State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977).  Appellant argues that the district court erred by concluding that impoundment was proper because the state failed to prove that impoundment was proper under any statute.  But appellant has not provided any authority for the proposition that impoundment must be statutorily authorized to be necessary. 

            "The police will generally be able to justify an inventory when it becomes essential for them to take custody of and responsibility for a vehicle due to the incapacity or absence of the owner, driver, or any responsible passenger."  City of St. Paul v. Myles, 298 Minn. 298, 304, 218 N.W.2d 697, 701 (1974).  Both Rolf and Liepold testified that it is the policy of the sheriff's department to arrest a suspected unlicensed driver and impound the vehicle when no licensed driver is available.  Rolf could not reach the registered owner or the putative driver, and the truck was stuck in a field. 

            But, appellant argues that the state failed to establish that impoundment and an inventory search were conducted according to standard procedures of the sheriff's department, noting that the sheriff's department does not have any written policy for impoundment or inventory of impounded vehicles.  But written policies are not necessary, and the state can meet its burden through testimony that establishes that standard procedures existed and were followed.  State v. Rodewald, 376 N.W.2d 416, 421 (Minn. 1985) (stating testimony of officers was sufficient to show procedures of department).  Although minimal, we conclude that the testimony of Rolf and Liepold was sufficient to establish that the sheriff's department had a policy of impounding vehicles in similar circumstances and conducting an inventory prior to impoundment.  Here the inventory was interrupted by the discovery of dangerous chemicals.  We conclude that the district court correctly determined that impoundment was proper under the circumstances of this case.

            Appellant next argues that because Liepold testified that during the inventory search he was also looking for evidence that would show whether appellant was the driver of the truck the inventory search was not valid.  See State v. Holmes, 569 N.W.2d 181, 187-88 (Minn. 1997) (citing with approval Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741 (1987) for the proposition that searches conducted "in bad faith or for the sole purpose of investigation" are not otherwise valid as inventory searches).  But the relevant holding in Holmes is that an inventory search conducted pursuant to standard procedures and at least in part for the purpose of obtaining an inventory is valid.  Id. at 188.  In this case, Liepold's testimony established that he was conducting an inventory search pursuant to department procedures but was also looking for evidence that would identify the driver.  We conclude that the search was not conducted in bad faith, and the district court did not err by concluding that the inventory search was valid.  The inventory search provided probable cause for the later warranted search.  The district court did not err in denying appellant's motion challenging the legality of the search.

II.        Sufficiency of the evidence

            Appellant asserts that the evidence was insufficient to prove that he knowingly and intentionally possessed the methamphetamine found in the truck.  A reviewing court makes a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary."  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court "will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was proven guilty of the offense charged."  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            A conviction based on circumstantial evidence is subjected to a stricter standard of appellate review.  State v. Race, 383 N.W.2d 656, 662 (Minn. 1986).  The conviction will only be sustained when the reasonable inferences from circumstantial evidence, viewed most favorable to the verdict, are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.  Id. at 661.  When challenging a verdict based on circumstantial evidence, "the defendant must point to evidence within the record that is consistent with a rational theory other than guilt."  State v. Johnson, 616 N.W.2d 720, 726 (Minn. 2000).

            Appellant argues that there was no direct evidence of his possession of methamphetamine.  We disagree.  The fact that appellant denied knowledge of methamphetamine in the truck does not negate the direct evidence that he was found in possession of the truck that contained the methamphetamine.  And the circumstantial evidence is all consistent with the verdict and inconsistent with any rational theory other than guilt.  The abundant circumstantial evidence includes: the lockbox keys found in the squad car after appellant was transported to the jail; a citation issued to appellant found in the lockbox that also contained a controlled substance; the shoeprints around the truck made by one person wearing Reeboks (one of which was found in the truck); appellant in stocking feet; and the timing of Rolf's arrival at the scene soon after a witness heard a noise and saw the truck in the field.  There are no facts in the record that support any rational theory other than appellant's guilt.

III.       Destruction of evidence

            Appellant claims that exculpatory evidence from the truck was intentionally destroyed by the state, violating his right to due process.  The district court found that "[t]he possible exculpatory value of the destroyed evidence is, at best, minimal."

            "When constitutional issues involving due process are raised, this court reviews the trial court's legal conclusions de novo."  State v. Heath, 685 N.W.2d 48, 55 (Minn. App. 2004).  Reversible error is established if the destruction of evidence was intentional, and also had an apparent exculpatory value before it was destroyed.  Id.  If a defendant can do no more than claim that the destroyed evidence might have exonerated him, a due process violation can only be established by showing bad faith by the state.  Arizona v. Youngblood, 488 U.S. 51, 57-8, 109 S. Ct. 333, 337 (1988).

            This court recently acknowledged that ingredients used in the manufacture of methamphetamine are extremely dangerous, and state and federal laws authorize the destruction of such evidence.  Heath, 685 N.W.2d at 56.  Appellant argues that the state acted in bad faith, but the record establishes that each item destroyed was destroyed because of its dangerous characteristic or because the item had been in contact with a dangerous substance.  Appellant does not advance any argument about the exculpatory value of the destroyed evidence on appeal.  He asserts only that "[b]ecause it cannot be said with any degree of certainty that [appellant] was not prejudiced by the intentional and selective destruction of potentially exculpatory evidence, his conviction must be reversed."  We disagree.  Appellant has failed to show any exculpatory value of the evidence destroyed and has not established that the state acted in bad faith. 

IV.       Evidentiary rulings

            "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).

            a.         Evidence about items used in manufacture of methamphetamine

            Appellant was only tried on the charge of possession of methamphetamine.  The state was allowed to introduce evidence about the price of methamphetamine, the dangerous, hazardous material found in the truck, and the three-page inventory report from the search warrant.  Appellant argues that this evidence was irrelevant and highly prejudicial because it suggested that he was a drug dealer, a methamphetamine manufacturer, and a danger to public safety. 

            The state argues that it was appellant's refusal to stipulate to foundation testimony regarding chain of custody of substances or the integrity of the crime scene that required introduction of the inventory sheets and testimony that no one added anything or took anything away from the pickup.  And testimony about the dangerous and toxic items found was necessary to explain why some items were eventually removed from the pickup.  Evidence of the price of methamphetamine on the street was relevant, the state argues, to provide the jury with perspective as to the amount and value of controlled substance involved.  We conclude that the disputed evidence was sufficiently relevant to prevent its admission from being an abuse of discretion.  And appellant has failed to show actual prejudice.

            b.         Impeachment with prior conviction for possession of marijuana

            Appellant argues that under Minn. R. Evid. 609(a)(1), his 1992 conviction for possession of marijuana was only admissible for impeachment purposes if the probative value of the conviction outweighed its prejudicial effect, and the district court erred by failing to consider the factors required to make such a determination.  See State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) (holding that district court must consider five factors to determine whether probative value of conviction outweighs prejudicial effect: (1) impeachment value; (2) date of conviction and subsequent history; (3) similarity with charged crime; (4) importance of defendant's testimony; and (5) centrality of credibility issue).  In this case, the district court erred by failing to address the Jones factors.  But we have held that failure to make a record of a Jones-factor analysis is harmless error if the conviction could have been admitted after a proper application of the Jones factors.  State v. Vanhouse, 634 N.W.2d 715, 721 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

            Appellant claimed to be an innocent dupe who, for unexplained reasons, was set up by Weishalla, and at trial appellant denied having used drugs.  The prior conviction for possession of marijuana had impeachment value.  Although the conviction was over ten years old, appellant's release from probation was within ten years, making the conviction admissible under the time limit contained in Minn. R. Evid. 609(b) (stating evidence of conviction not admissible if period of more than ten years has elapsed since date of conviction or of release from confinement imposed for that conviction, whichever is later).  The crimes are similar but not identical because different controlled substances are involved.  And despite the danger of some prejudice, Minnesota courts have allowed impeachment by prior conviction of similar crimes.  Id. at 720.  Finally, the district court gave a cautionary instruction to the jury that they could consider
 

whether the kind of crime committed indicates the likelihood the witness is telling or not telling the truth . . . you must be especially careful to consider any previous conviction only as it may affect the weight of the defendant's testimony.  You must not consider any previous conviction as evidence of guilt of the offense for which he is on trial today.

 

Under these circumstances the admission of the prior conviction was not unduly prejudicial.  Admission of the conviction did not prevent appellant from testifying, and his credibility was the central issue at trial.  Because the conviction would have been admissible under the Jones-factor analysis, the district court's failure to make a record of the Jones-factor analysis was harmless error, and the district court did not abuse its discretion by allowing appellant to be impeached with the conviction.

            Affirmed.