State of Minnesota, Respondent, vs. Montalvo Knowles, 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This opinion will be unpublished and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

C1-02-1392

 

State of Minnesota,
Respondent,
 
vs.
 
Montalvo Knowles,
Appellant.

 

Filed June 3, 2003

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. K0014222

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, Ramsey County Government Center West, 50 West Kellogg Boulevard,        St. Paul, MN 55102 (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 Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Appellant Montalvo Knowles challenges his conviction for possession of a firearm by an ineligible person and assault in the second degree, arguing that prejudice resulting from the district court's abuse of discretion in evidentiary rulings entitles him to a new trial.  We affirm.

FACTS

 

            Police responded to a 911 call from Knowles's girlfriend, Tesha Epting, reporting that Knowles threatened her with a gun and pulled her hair.  Epting described the gun and said Knowles held the gun in his right hand and grabbed her with his left hand, then put the gun to her forehead and told her he would kill her.

            Knowles was standing in front of the apartment building when Officer Reginek, the first officer on the scene, arrived.  Officer Reginek arrested Knowles, searched him and placed him in the back of the squad car.  Officer Bolduan was the second officer on the scene.  She waited in Reginek's car with Knowles while Officer Reginek looked for the gun.  He found an operable black and silver .380 High Point semiautomatic gun on the southwest side of the apartment building under a bush.  Ammunition and a scale were found with the gun.  Footprints led to and from the front door of the apartment building to the bush where the gun was found, but the footprints were not compared with Knowles's shoes.

            Officer Bolduan saw the gun and other items where Officer Reginek discovered them and the items were photographed at that location.  Officer Reginek later took the items to the police property room.  No identifiable fingerprints were found on the gun.  Knowles denied having a gun but told officers he had seen a gun in the bushes near the apartment earlier in the week, looked at it, left it there, and told Epting that he had seen the gun.

            Knowles was charged with possession of a firearm by an ineligible person and assault in the second degree.  Officer Reginek was unavailable to testify at trial.  Officer  Bolduan testified about Officer Reginek's actions.  The gun, clip, ammunition, and the scale were admitted into evidence at trial over Knowles's objection to lack of foundation.

            At trial, Knowles wanted to introduce testimony from Donna Knight and Marcus Benson that Epting refused to turn over Knowles's property to them when they called her on Knowles's behalf while Knowles was in jail waiting for trial.  Counsel claimed that the testimony was relevant to show Epting's bias against Knowles.  The district court granted the state's motion to preclude the testimony on the ground that it was not relevant.  A jury convicted Knowles of both charges.  This appeal followed.

D E C I S I O N

 

            Appellate courts largely defer to the district court's evidentiary rulings, which are not overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  The district court is afforded significant discretion with respect to deciding issues of admissibility of particular evidence and is reversed only when such discretion has been abused.  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996). 

            1.         Admission of the gun, clip, ammunition, and scales

            Knowles argues that the district court abused its discretion by admitting the gun, clip, ammunition, and scale because the state failed to show a sufficient chain of custody at trial.  Officer Reginek took the items to the property room.  Knowles argues that Officer Bolduan cannot establish the chain of custody necessary to ensure that the evidence introduced was the actual evidence found at the scene.

The "chain of custody" rule, requiring the prosecution to account for the whereabouts of physical evidence connected with a crime from the time of its seizure to its offer at trial, serves the dual purpose of demonstrating that (1) the evidence offered is the same as that seized, and (2) it is in substantially the same condition.  It insures that the items seized have not been exchanged for others more incriminating, and that they have not been contaminated or altered.

 

State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976) (citations omitted).  Proper chain of custody requires the testimony of continuous possession by each person who had possession, together with testimony by each person that the object remained in substantially the same condition during its presence in his or her possession.  State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982).   But no rigid formula for establishing foundation is necessary to admit a particular item of evidence.  Schram v. Comm'r of Pub. Safety, 359 N.W.2d 632, 634 (Minn. App. 1984).  "In the absence of any indication of substitution, alteration, or other form of tampering, reasonable probative measures are sufficient."  Berendes v. Comm'r of Pub. Safety, 382 N.W.2d 888, 891 (Minn. App. 1986) (citations omitted).  The admissibility of a piece of evidence that is challenged under the chain of custody rule is generally left to the sound discretion of the district judge.  Id.     

            In this case Knowles does not allege substitution or tampering.  Officer Bolduan described the gun she saw at the scene and identified the pictures of the gun that were taken at the scene.  She testified that the gun introduced appeared to be the gun from the scene and that it looked substantially the same, except for some residue left from fingerprinting.  Although the chain of custody was not established due to Officer Reginek's absence, the state established with reasonable probability that no tampering occurred.  We conclude that the district court did not abuse its discretion by determining that foundation was sufficient for admission of the gun and other items found with the gun into evidence.

            2.         Exclusion of Knowles's witnesses

            Knowles alleges that the testimony of Knight and Benson that Epting refused to give them Knowles's property "clearly showed that Epting had a monetary or financial incentive to be gained by her accusation of Knowles."  The state objected to the proposed testimony as irrelevant.  Knowles correctly argues that evidence probative of bias is always relevant.  See Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974).  But the district court found that there was no basis to conclude that this evidence was probative of Epting's bias or credibility.  Because there is no evidence in the record demonstrating that the refusal to turn over the property was based on Epting's making any claim to the property, we cannot say that the district court abused its discretion in excluding the evidence as not probative of bias or credibility and therefore not relevant.

            Furthermore, if the district court has erred in excluding defense evidence, the error is harmless if the reviewing court is

satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e. a reasonable jury) would have reached the same verdict.

 

State v. Post, 512 N.W.2d at 99, 102 (Minn. 1994).  The error is prejudicial if there is a reasonable possibility that the verdict might have been different if the evidence had been admitted.  Id.  In this case, Epting's testimony was consistent with her 911 call and the statement that she gave to police the day after the incident, and these were corroborated by evidence police found at the scene.  The state's evidence was very strong.  And there was evidence in the record that Epting had refused to let Knowles take the television when he left on the night of the altercation, allowing Knowles to cross-examine her on a theory that she fabricated her testimony of an assault due to an interest in his property.  Even if the district court abused its discretion by excluding this evidence, we conclude that any error was harmless.

            Affirmed.