State of Minnesota, Respondent, vs. Jose Maria Ramon, Jr., Appellant.

State of Minnesota, Respondent, vs. Jose Maria Ramon, Jr., Appellant. A04-968, Court of Appeals Unpublished, March 8, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-968

 

State of Minnesota,

Respondent,

 

vs.

 

Jose Maria Ramon, Jr.,

Appellant.

 

Filed March 8, 2005

Affirmed

Lansing, Judge

 

Le Sueur County District Court

File No. K1-02-253

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Brent Christian, Le Sueur County Attorney, 88 South Park Avenue, P.O. Box 156, Le Center MN 56057 (for respondent)

 

John Stuart, State 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; Lansing, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

Jose Ramon, Jr. challenges the sufficiency and the constitutional validity of the evidence supporting his convictions of three controlled-substance offenses and felon in possession of a firearm.  Because the evidence establishes that Ramon waived his Sixth Amendment right to confront two scientific experts who submitted affidavits identifying seized substances as cocaine and further establishes that Ramon possessed the cocaine, marijuana, and a firearm, we affirm.

F A C T S

The Le Sueur County Sheriff's Department received information that Jose Ramon, Jr. was observed carrying firearms into his apartment.  Because possession of firearms violated the terms of Ramon's probation, the department obtained a search warrant for his apartment and vehicle.  While executing the warrant, an officer found a pistol in the headliner of the vehicle's ceiling.  Another officer entered the apartment's bathroom and discovered, floating in the toilet, several plastic bags containing 11 grams of white powder, which a field test showed to be cocaine.  Another officer discovered on Ramon's person, a metal pipe and a film canister containing a small amount of a green, leafy substance that field-tested positive as marijuana.

Based on the discovery of these controlled substances, the investigator immediately obtained and executed a second warrant to search for cocaine and marijuana.  The freezer contained 145 grams of a green, leafy substance, which field-tested positive as marijuana.  When an officer removed a picture from a bedroom wall, he discovered a blackened window behind it with one broken corner.  From a roof area outside this window, officers confiscated a black bag, which Ramon acknowledged belonged to him.  This bag contained a duct-tape-wrapped package of 280 grams of white powder that field-tested positive for cocaine.  The investigator submitted two samples of white powder to the Bureau of Criminal Apprehension (BCA) to confirm that the substances were cocaine.

The record shows that Ramon knew someone had placed marijuana in his freezer, although he denied that it belonged to him.  He also admitted to knowing that his black bag contained a controlled substance and accurately described how it was packaged and hidden, but he denied ownership of the controlled substance.  Ramon claimed that two other men were responsible for the presence of the gun and drugs, but neither admitted to owning the gun, the cocaine found on the roof, or the marijuana.  One of them admitted to owning the packages of cocaine discovered in the toilet.

At trial, Ramon's attorney and the prosecutor discussed on the record the testimony and affidavits of two expert witnesses from the BCA.  Defense counsel told the court in Ramon's presence that, to avoid the necessity of calling the experts to testify, he would agree to the admission of affidavits to prove the chemical composition of the controlled substances.  He reserved the right to cross-examine the witnesses at a later time if he was not "happy with the affidavits."  The district court accepted this agreement and conditionally admitted evidence in anticipation of receiving the affidavits. 

Several weeks after the bench trial, the prosecution submitted the affidavits.  The defendant did not object to their submission or request an opportunity to cross-examine the witnesses.  The district court formally received the conditional evidence and, after reviewing the record, issued its decision.  The court found Ramon guilty of four offenses: (1) first-degree controlled substance crime, in violation of Minn. Stat. § 152.021, subds. 2(1), 3(a) (2002); (2) second-degree controlled substance crime, in violation of Minn. Stat. § 152.022, subds. 2(1), 3(a) (2002); (3) fifth-degree controlled substance crime, in violation of Minn. Stat. § 152.025, subds. 2(1), 3(a) (2002); and (4) felon in possession of a firearm, in violation of Minn. Stat. § 624.713, subds. 1(b), 2, and Minn. Stat. § 609.11, subd. 5(b) (2002).  The district court sentenced Ramon on the first-degree controlled-substance crime and felon in possession of a firearm, and Ramon appeals.

D E C I S I O N

I

The United States and Minnesota Constitutions both give a criminal defendant the right "to be confronted with the witnesses against him."  U.S. Const. amend. VI; Minn. Const. art I, § 6.  A Confrontation Clause analysis involves mixed questions of fact and law, but we review de novo the ultimate question of whether admitted testimony violates a defendant's constitutional rights.  State v. King, 622 N.W.2d 800, 806 (Minn. 2001).

A defendant may waive an evidentiary protection, even a fundamental constitutional protection, by failing to object to the admission of the evidence at trial.  State v. Blom, 682 N.W.2d 578, 617 (Minn. 2004); see also United States v. Mezzanatto, 513 U.S. 196, 201, 115 S. Ct. 797, 801 (1995).  ("A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution.").  Specifically, a defendant may waive his right of confrontation.  State v. Worthy, 583 N.W.2d 270, 277-78 (Minn. 1998) (holding that when defendant voluntarily absents himself from trial, he waives his right under Confrontation Clause to be present at trial); State v. Jones, 311 Minn. 176, 182, 247 N.W.2d 427, 431 (1976) (noting defendant waives right under Confrontation Clause to be present at trial if his conduct is disorderly); see also Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969) (observing that defendant, in submitting valid guilty plea, waives his right to confront his accusers).  A waiver is "an intentional relinquishment of a known right or privilege, and its validity depends . . . upon the particular facts and circumstances surrounding the case."  Blom, 682 N.W.2d at 617 (quoting State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990)).  Waiver need not be explicit; a court may infer a waiver from a defendant's conduct.  Id.

Ramon contends that the district court violated his constitutional right of confrontation by accepting into evidence the affidavits from the expert witnesses that identified the controlled substance.  This argument fails because four circumstances establish Ramon's waiver of his right-of-confrontation challenge.  First, defense counsel's initiation, on the record, of the agreement to admit the two affidavits without the testimony of the expert witnesses amounts to invited error.  "A defendant should not be permitted to court error in order to preserve a basis for appeal and thus force the state into the cumbersome necessity of a new trial."  State v. Kortness, 284 Minn. 555, 558, 170 N.W.2d 210, 213 (1969) (quotation omitted); see also McAlpine v. Fid. & Cas. Co.,134 Minn. 192, 199, 158 N.W. 967, 970 (1916) ("The settled general rule is that a party cannot avail himself of invited error.").  Because "it was the attorney for the defendant who requested the trial judge's action[,] defendant will not now be heard to attack that action."  Majerus v. Guelsow, 262 Minn. 1, 11, 113 N.W.2d 450, 457 (1962).  To allow Ramon to successfully challenge the admission of evidence to which he stipulated would permit litigants unilaterally to insert grounds for appeal into an otherwise properly conducted trial.

Second, although Ramon asserts that his trial attorney could not waive his right because it is personal to him as the defendant, he was present when his attorney stipulated to the admission of the affidavits.  Thus, Ramon had an opportunity to preserve his constitutional right and elected not to do so.  See State v. Provost,490 N.W.2d 93, 97 (Minn. 1992) (recognizing that if defendant is present when his attorney submits guilty plea, he need not personally consent to trial strategy). 

We reject Ramon's argument that the state must establish personal waiver of his right of confrontation.  Although there are some rights that counsel "cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer hasand must havefull authority to manage the conduct of the trial.  The adversary process could not function effectively if every tactical decision required client approval."  Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S. Ct. 646, 657 (1988).  Although no Minnesota court has explicitly stated that a defendant's attorney may waive his right of confrontation, we find guidance in the approach of several other jurisdictions, which do permit this form of waiver if the defendant does not indicate disagreement with the decision.  See, e.g., United States v. Aptt, 354 F.3d 1269, 1282 (10th Cir. 2004)(examining similar evidentiary exclusion and concluding that defense counsel may properly waive right of confrontation); United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980) ("[C]ounsel in a criminal case may waive his client's Sixth Amendment right of confrontation . . . so long as the defendant does not dissent from his attorney's decision and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy."); Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1st Cir. 1954) ("[W]here an accused is represented by counsel, we do not see why counsel, in his presence and on his behalf, may not make an effective waiver of [the right of confrontation].").  Because the decision to permit the affidavits was a legitimate strategy to expedite the proceedings and because Ramon did not dissent from this decision, the stipulation was an effective waiver of Ramon's right.

Third, the prosecution relied on the defense stipulation to submit the two affidavits.  The record shows that at least one of the two witnesses was available to testify on the day of trial, but the defense counsel stated that personal testimony was unnecessary.  The assurances of the defense attorney caused the prosecution not to call the expert witnesses to testify.  To permit Ramon to now challenge this stipulation subverts reasoned trial procedure.

Fourth, the district court did not deprive Ramon of the opportunity to exercise his confrontation right; Ramon simply chose not to exercise it.  The district court acceded to Ramon's request to allow submission of the affidavits without testimony and acknowledged that Ramon could later cross-examine the witnesses if he were dissatisfied with the affidavits.  Ramon chose not to object to the affidavits or request an opportunity to cross-examine the witnesses despite having roughly two months between the submission of the affidavits and the issuance of the decision.  Ramon's failure to object or say that he was not "happy with the affidavits" removed the minor contingency on the stipulation.  For these reasons we conclude that Ramon waived his right of confrontation. 

II

In a challenge to the sufficiency of the evidence, our role is limited to ascertaining whether the jury could reasonably find the defendant guilty beyond a reasonable doubt, given the facts in evidence and the legitimate inferences which could be drawn from those facts.  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  We carefully review the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the fact-finder to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). 

            Ramon raises two challenges to the sufficiency of the evidence:  the adequacy of the identification of the marijuana found in the freezer and the sufficiency of the evidence to support a finding that he possessed the controlled substances and firearm.

When a substance is not scientifically tested, "circumstantial evidence and officer testimony may be presented to the jury to attempt to prove the identity of the substance."  State v. Olhausen, 681 N.W.2d 21, 28-29 (Minn. 2004) (concluding that circumstantial evidence that defendant possessed controlled substance was sufficient to uphold verdict).  Nonscientific evidence may be sufficient to identify a controlled substance.  Id. at 28.

The record contains sufficient evidence to support the court's identification of the green, leafy substance in the freezer as marijuana.  First, an officer with twenty-two years of experience identified the marijuana, and the court may properly consider his experience and knowledge in reaching its conclusion.  Second, the officer field-tested the substance, and it tested positive as marijuana.  Third, Ramon admitted that the substance was marijuana.  Although a defendant's "own personal belief of and representations of the substance as a controlled substance" may alone be insufficient to prove the identity of the substance, Id. at 27, in these circumstances, it confirms the identification.

A person is guilty of possession of a controlled substance if he knows the nature of the substance and either physically or constructively possesses it.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  An individual may constructively possess a controlled substance alone or with others.  State v. Denison, 607 N.W.2d 796, 799-800 (Minn. App. 2000) (finding constructive possession when marijuana was found in close proximity to defendant's personal effects and in areas of residence over which she likely exercised at least joint dominion and control), review denied (Minn. June 13, 2000); see also State v. Wiley, 295 Minn. 411, 422, 205 N.W.2d 667, 675-76 (1973) (finding defendant, who possessed controlled substance jointly with his girlfriend, guilty of possession).  When the controlled substance is found somewhere other than a place under defendant's exclusive control or a place normally inaccessible to others, constructive possession requires a showing that "there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it."  Florine, 303 Minn. at 105, 226 N.W.2d at 611.  We examine the totality of the circumstances in determining whether the state has proven constructive possession.  Denison, 607 N.W.2d at 800.

The evidence supports a finding that Ramon constructively possessed the cocaine found on the roof.  The record shows that Ramon knew the package contained a controlled substance and that he instructed the owner of the cocaine to place it in Ramon's black bag.  Ramon admitted that he knew where the cocaine was located in the apartment.  The cocaine's location suggests the involvement of Ramon, who was the only resident occupant of the apartment:  the window from which the cocaine was thrown was both blackened and hidden from view by a picture.  The district court could reasonably conclude that Ramon had dominion and control over the black bag and its contents.

Significantly, one of Ramon's two guests admitted owning the cocaine found in the toilet.  But the ownership of the controlled substance does not negate Ramon's criminal possession of the cocaine.  See State v. Cusick, 387 N.W.2d 179, 180-81 (Minn. 1986) (finding sufficient evidence for constructive possession when police discovered cocaine next to driver's wallet in front seat of car, even though driver's girlfriend owned car, used cocaine, and testified that cocaine was hers); see also Minn. Stat. § 152.028, subd. 2 (2002) ("The presence of a controlled substance in a passenger automobile permits the factfinder to infer knowing possession of the controlled substance by the driver or person in control of the automobile when the controlled substance was in the automobile.").  Even though Ramon indicated he had no knowledge of the cocaine when he permitted the owner to enter his home, the district court could have disbelieved his testimony and inferred from the other evidence that Ramon was aware of the cocaine.  See State v. Pippitt, 645 N.W. 2nd 87, 94 (Minn. 2002) (noting that fact-finder has discretion to weigh credibility).  Allowing a guest to bring cocaine into one's home may establish control and dominion sufficient for constructive possession.

With respect to possession of the marijuana in the freezer, Ramon knew of it and knew its location in his apartment.  He acquiesced to its presence in his home.  Given the evidence that he had marijuana and a pipe on his person, the district court could reasonably have concluded that he likewise had control of the marijuana in the freezer. 

Finally, Ramon challenges the sufficiency of the evidence to support his conviction of felon in possession of a firearm.  Although Ramon indicated the firearm belonged to another, he nonetheless constructively possessed it.  The gun was hidden in his vehicle and, although others were sometimes in the vehicle, he exercised predominant control over it.  The gun's hiding place further suggests that Ramon exercised control over it.  The ceiling panel in which it was hidden was not a standard part of the vehicle; rather, a person could reach it only by prying open the edge of the headliner.  Although the officer did not observe any alteration on the passenger side, he did state that the driver's side of the headliner was altered to allow access to the firearm.  As the owner of the car, Ramon had control over the driver side and any object reachable from that side.  At the very least, the district court could reasonably infer that the permanent changes to the vehicle necessary to hide the firearm required the participation or knowledge of the vehicle's owner.  Ramon accurately described the gun and described where police could find the gun.  This knowledge suggests that he had sufficient control over the firearm to establish constructive possession.

The district court had a sufficient evidentiary basis for reaching its conclusion that Ramon possessed the controlled substances and the firearm. 

            Affirmed.