State of Minnesota, Respondent, vs. Travis L. Majerus, Appellant.

State of Minnesota, Respondent, vs. Travis L. Majerus, Appellant. A06-906Court of Appeals Unpublished Decision, September 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-906

 

State of Minnesota,

Respondent,

 

vs.

 

Travis L. Majerus,

Appellant.

 

Filed September 18, 2007

Affirmed

Lansing, Judge

 

Douglas County District Court

File No. K5-05-000862

 

Lori Swanson, Attorney General, Kelly O'Neill Moller, Keiko Sugisaka, Assistant Attorney Generals, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Christopher Karpan, Douglas County Attorney, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)

 

Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Travis Majerus guilty of second-degree controlled substance crime and carrying a pistol without a permit.  On appeal, Majerus raises three evidentiary issues and challenges the jury instructions.  We conclude that the district court properly admitted evidence found in a search, that the testimony related to drug dealing does not entitle Majerus to a new trial, that a police officer's testimony on Majerus's possession of a gun was not hearsay and did not violate the Confrontation Clause, and that Majerus was not entitled to jury instructions on lesser-included offenses.  Therefore, we affirm.

F A C T S

            After obtaining a search warrant, police officers, accompanied by a SWAT team, searched the apartment of Travis Majerus's girlfriend.  The search produced a large amount of cash, small Ziploc bags, a glass pipe, a wooden box containing a methamphetamine pipe and a marijuana pipe, and notepaper with a list of dollar amounts and names.

            At about 1:30 a.m., Majerus parked outside the apartment and entered the building.  When a police officer approached him, Majerus dropped the backpack he was carrying and began to run.  The officer pursued Majerus and caught up with him on a staircase where the SWAT team had stopped him.  On the steps next to Majerus's left hand the officer found a black velvet pouch, which he seized.  Testing revealed that the pouch contained about 6.35 grams of methamphetamine.  The backpack, which Majerus had dropped, contained a loaded pistol that Majerus did not have a license to carry.

            Majerus was charged with second-degree controlled substance crime and carrying a pistol without a permit.  After a jury trial, he was convicted and received a fifty-eight-month sentence.  In this appeal from conviction, Majerus raises three evidentiary issues and also challenges the jury instructions. 

D E C I S I O N

I

            Evidentiary rulings rest within the sound discretion of the district court.  State v. Moua, 678 N.W.2d 29, 37 (Minn. 2004).  A district court may admit evidence only if it is relevant.  Minn. R. Evid. 402.  Evidence is relevant if it has "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. Evid. 401.  Evidence is inadmissible, however, if the probative value of the evidence is substantially outweighed by the potential for unfair prejudice.  Minn. R. Evid. 403.  We review the district court's evidentiary rulings under an abuse-of-discretion standard.  State v. McArthur, 730 N.W.2d 44, 51 (Minn. 2007).

            At trial, Majerus filed a motion in limine to exclude the evidence of drug paraphernalia, a hand-written list, and a large amount of cash found in his girlfriend's apartment.  We reject Majerus's argument that this evidence was irrelevant and unduly prejudicial and hold that the district court did not abuse its discretion when it denied Majerus's motion. 

            The evidence was relevant because it helped to establish Majerus's knowledge that he possessed methamphetamine.  Majerus was charged with second-degree controlled substance crime, and the state was required to prove that he had knowledge that he possessed a controlled substance.  See State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (requiring knowledge).  The district court could reasonably conclude that the presence of the drug-related items in the apartment that Majerus shared with his girlfriend made it more likely that Majerus knew that the substance in his backpack was methamphetamine.  Therefore, the district court did not abuse its discretion by concluding that the evidence was relevant.

            The district court could conclude that the probative value of the evidence was not substantially outweighed by the potential for unfair prejudice.  Because the evidence established Majerus's familiarity with drugs, the evidence strongly suggested that Majerus knew he was in possession of methamphetamine, and thus the district court could conclude that the potential for unfair prejudice was low.  The evidence was only unfairly prejudicial to the extent it might have suggested that he was a drug dealer.  All of the itemsincluding the piece of paper with names and amounts of money listedcould have been used for other purposes.  Therefore, the district court did not abuse its discretion when it found that the probative value of the evidence was not substantially outweighed by the potential for unfair prejudice.

II

            The evidence presented at trial, however, went beyond merely describing the items found in the apartment.  A police officer testified that the items were "consistent with those that you would find [with] someone who's dealing in methamphetamine."  Majerus objected to the evidence as unduly prejudicial and requested a curative instruction.  The district court overruled the objection but proceeded to give a cautionary instruction.

            Although the officer's statement arguably involved improper evidence of other crimes, it does not provide a sufficient basis for reversal.  When an error is harmless beyond a reasonable doubt, a conviction will not be overturned.  State v. Shannon, 583 N.W.2d 579, 585 (Minn. 1998).  Improper evidence of other crimes is harmless if there is no reasonable possibility that the evidence significantly affected the verdict.  State v. Asfeld, 662 N.W.2d 534, 544 (Minn. 2003).  In this case, the record contains strong evidence that Majerus possessed the drugs and knew he possessed the drugs.  Because the evidence of possession was overwhelming, no reasonable possibility exists that the testimony about dealing methamphetamine significantly affected the verdict.  Therefore, Majerus is not entitled to a new trial.

III

            Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  Minn. R. Evid. 801(c).  A statement is "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion."  Minn. R. Evid. 801(a).  A statement is not hearsay if the statement is offered against a party and is the party's own statement.  Minn. R. Evid. 801(d)(2).

            During the trial, the prosecutor asked a police officer why a SWAT team was used to assist in conducting the search.  The officer explained, "In this case, we had knowledge that the subject was in possession of at least one gun and had made comments about using it."  Majerus objected on hearsay grounds, and the district court overruled the objection.  Later, the officer testified that during the search of the apartment they found "an empty pistol case which was of concern, just because we had the information about possibly guns being there."  Majerus did not object to this statement.

            Although the officer's knowledge came from an informant, the officer did not repeat the informant's out-of-court statements.  Unlike in State v. Litzau, 650 N.W.2d 177, 183 (Minn. 2002), and State v. Williams, 525 N.W.2d 538, 544-45 (Minn. 1994), the officer did not testify about what an informant had told the police.  Instead, the officer gave factual testimony about the officer's knowledge to explain why police had used a SWAT team to conduct the search.  Because this testimony did not involve an out-of-court statement, it was not hearsay.

            Part of the officer's testimony, however, did involve an out-of-court statement.  When the officer testified that the police had knowledge that Majerus had made comments about using a gun, the officer testified about Majerus's out-of-court statement.  This statement, however, was not hearsay because it involved a party admission.  See Minn. R. Evid. 801(d)(2) (excluding party's statements offered against party from definition of hearsay).  Because the officer's testimony was not hearsay, the district court correctly overruled Majerus's objection.

            For similar reasons, we reject the argument that the officer's testimony violated Majerus's "rights under the Confrontation Clause because the person who gave [the officer] the information did not testify."  Instead of repeating the out-of-court statements of the informant, the officer testified about his own knowledge.  Therefore, the informant was not a witness against Majerus, and Majerus did not have a right to confront the informant.  See Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004) (limiting admission of out-of-court statements that are testimonial in nature).  The officer did not repeat any statement made by an informant.  The only out-of-court statement repeated in the officer's testimony was Majerus's statements about using a gun, and this was a party admission.  This statement was not testimonial because Majerus would not have reasonably believed the statement was being prepared for litigation.  State v. Caulfield, 722 N.W.2d 304, 309 (Minn. 2006).  Therefore, we conclude that the officer's testimony did not deny Majerus the right to be confronted by the witnesses against him.

            In addition, we note that even if the officer's testimony could somehow be construed as repeating the informant's out-of-court statements, Majerus would not be entitled to a new trial.  When officers arrested Majerus, the officers observed his possession of the backpack containing the gun.  Thus, the testimony that Majerus possessed a gun could not have reasonably influenced the jury's decision.  See Caulfield, 722 N.W.2d at 314 (discussing standard for harmless error in confrontation-clause cases).  Therefore, even if the officer's testimony was hearsay or violated Majerus's confrontation-clause rights, it was harmless beyond a reasonable doubt and Majerus is not entitled to a new trial.

IV

            We review the denial of a lesser-included offense instruction under an abuse-of-discretion standard.  State v. Dahlin, 695 N.W.2d 588, 597 (Minn. 2005).  But if "the evidence warrants a requested lesser-included offense instruction, the district court mustgive it."  State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2005).  A lesser-included-offense instruction is warranted if (1) the lesser offense is included in the higher charge, (2) the evidence provides a rational basis for acquitting the defendant of the offense charged, and (3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense.  Dahlin, 695 N.W.2d at 595.  When deciding whether a lesser-included-offense instruction is warranted, district courts cannot weigh conflicting evidence or make witness credibility determinations.  Hannon, 703 N.W.2d. at 510.  We review the record in "the light most favorable" to the requesting party to determine whether the district court abused its discretion in refusing the instruction.  Id.

            Majerus requested jury instructions on the lesser-included offenses of third- and fifth-degree controlled substance crimes.  Majerus contends that he was entitled to these instructions and the district court abused its discretion by denying his request.  Majerus has provided no basis for concluding that the substance found in his backpack weighed less than six grams.  Instead, Majerus argues that the jury could have concluded that he possessed less than six grams of methamphetamine because the substance he possessed might not have been entirely methamphetamine.  The state, however, was only required to show that Majerus possessed "one or more mixtures" of a total weight of six or more grams containing methamphetamine.  Minn. Stat. § 152.022, subd. 2(1) (2004) (emphasis added).  The record contains no basis for concluding that the substance Majerus possessed was not a "mixture."  Therefore, as a matter of law, Majerus has presented no rational basis for convicting him of a lesser offense while acquitting of a greater offense.  The district court properly refused to instruct the jury on the lesser-included offenses.

            Affirmed.