State of Minnesota, Respondent, vs. Scott Brandon Schulberg, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-95-2709

State of Minnesota,
Respondent,

vs.

Scott Brandon Schulberg,
Appellant.

Filed September 24, 1996
Affirmed in part, Reversed in part, and Remanded
Lansing, Judge

Dakota County District Court
File No. K3951186

James C. Backstrom, Dakota County Attorney, Stuart E. Shapiro, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for Respondent)

Hubert H. Humphrey III, Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101 (for Respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St.MN 55105 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.
U

LANSING, Judge
In an appeal from conviction and sentencing, Scott Schulberg challenges evidentiary rulings, "career offender" sentencing, and an order requiring him to pay public defender's fees. The district court acted within its discretion in its evidentiary rulings and in sentencing, but the record does not demonstrate compliance with statutory procedures in ordering payment of public defender's fees. We affirm in part, reverse in part, and remand.
FACTS

A jury found Scott Schulberg guilty of theft of a motor vehicle, possession of a stolen motor vehicle, and fifth degree controlled substance crime (possession of cocaine). At trial the prosecution presented evidence of five prior convictions, evidence that items in the car Schulberg was driving were stolen and the circumstances of the theft, and marijuana and marijuana seeds taken from containers in the car's center console.
Following conviction the district court sentenced Schulberg as a career offender and required that he reimburse his public defender for providing representation. We address Schulberg's allegations that (1) the evidence was improperly admitted, (2) he should not have been sentenced as a career offender, and (3) statutory procedures were not followed in requiring reimbursement of public defender fees.
D
I

The district court ruled on the admissibility of five prior convictions that occurred between 1990 and 1992: a burglary in Dakota County; three convictions for receiving stolen property in Dakota County involving a stolen car, a television set, and electrical equipment respectively; and receiving stolen property (a bicycle) in Hennepin County. With the exception of the conviction in Hennepin County, each of the prior convictions was admitted. On appeal, Schulberg has not challenged the admissibility of the conviction for receiving a stolen motor vehicle.
Evidence of past crimes, Spreigl evidence, is not admissible to show bad character. State v. Spreigl, 272 Minn. 488, 490-91, 139 N.W.2d 167, 169 (1965). It may be allowed, however, if offered for other specific purposes. Minn. R. Evid. 404(b). The admission of Spreigl evidence is subject to the district court's discretion and a ruling admitting or rejecting the evidence will not be reversed absent a clear abuse of discretion. State v. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994).
The court ruled that the prior convictions were admissible to show a common plan or scheme. To be admissible for this purpose, Spreigl evidence must be relevant and material to the crime being prosecuted. State v. Dewald, 464 N.W.2d 500, 503 (Minn. 1991). Relevant crimes are "similar in some way--either in time, location, or modus operandi--to the charged offense, although this, of course, is not an absolute necessity." State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983).
We conclude that Schulberg's prior convictions are within the range of admissible Spreigl evidence. The three- to four-year period separating the offenses is within an acceptable time range. State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988) (subtracting the time of incarceration when looking at how close in time the offense was to previous crimes). These offenses all occurred in Dakota County, and the one offense from Hennepin County was excluded. Each was an offense against property. We do not believe the district court abused its discretion in ruling that this evidence was relevant and admissible.
The second set of challenged evidentiary rulings allowed evidence and testimony showing that items in the car Schulberg was driving were stolen. These items included a camera, sunglasses, a radar detector, a garage door opener, golf clubs, a mountain bike, tapes, CD's, and a wallet. The court instructed the jury that Schulberg was not charged with the theft of the items and that he could not be convicted solely on a belief that the items were stolen.
Although the district court did not specify the purpose that permitted this exception to the general inadmissibility rule for Spreigl evidence, it could properly be admitted as evidence evincing an absence of mistake. "[W]hen knowledge or intent is an element of the crime, other crimes may be admitted to prove knowledge or intent of the accused." State v. Boykin, 285 Minn. 276, 281, 172 N.W.2d 754, 758 (1969) (citations omitted). Knowledge that the vehicle he was driving was a stolen vehicle is one element of the possession of stolen property offense with which Schulberg was charged. Minn. Stat. §(1994). The fact that the vehicle contained a number of stolen items, including a stolen wallet with a card identifying Schulberg, is probative of Schulberg's knowledge that the vehicle was stolen. An inference of knowledge may be gleaned from the possession of so many stolen items: "It may be possible to be unaware that one has one stolen item; but when he has two stolen items, it is harder to argue that he does not know what is happening." Boykin, 285 Minn. at 282, 172 N.W.2d at 758. Evidence that stolen goods were in the car makes it less likely that Schulberg may have been mistaken in thinking the car itself was not stolen.
While Schulberg may be correct in asserting that some of the testimony establishing that the items were stolen was duplicative and unnecessary, the record does not demonstrate that defense counsel properly objected or attempted to avoid this result through stipulation. Absent stipulation, the evidence of each item's ownership may have been necessary.
The final challenged evidentiary ruling allowed testimony from the arresting officer about the contents of a film canister and a pill bottle found in the center console of the car. The canister contained marijuana residue and the bottle contained marijuana seeds. The officer testified the canister and bottle were next to the film canister containing the cocaine that Schulberg was charged for possessing. At the time the evidence was admitted, the district court instructed the jury that Schulberg had not been charged with an offense related to marijuana, but the court did not state the purpose for which the evidence was being admitted.
Evidence of marijuana possession may not be used to prove that the person in possession consumes or distributes other controlled substances. State v. Dillon, 529 N.W.2d 387, 392 (Minn. App.), rev'd on other grounds, 532 N.W.2d 558 (Minn. 1995). But marijuana possession may have some probative value in demonstrating that the defendant knew the illicit nature of the other substance, particularly when the substances are found in close proximity. Even if the prejudicial effect of the testimony might outweigh its probative value, a new trial would be warranted only if there was a "'reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.'" State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (quoting State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994)). Evidence of marijuana in the car was incidental to the evidence that Schulberg possessed the cocaine and could not have significantly affected the verdict. The canister containing cocaine was within Schulberg's reach on the center console. The police officer saw a crack pipe on the floor of the car. The officer testified that Schulberg unsuccessfully tried to conceal the canister by closing the center console. For these reasons any error in admitting the marijuana was harmless beyond a reasonable doubt.
II

The sentence imposed by the district court reflects the maximum statutory term for a "career offender" convicted of the theft offense charged, 60 months. Schulberg does not dispute that he is a "career offender" as defined by Minn. Stat. §subd. 3 (1994), nor does he dispute that the district court was authorized to impose the 60-month sentence, but he asserts that the sentence is excessive.
It is within the district court's discretion to depart from the sentencing guidelines and a reviewing court will not interfere absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981); see also State v. Gorman, 546 N.W.2d 5, 7 (Minn. 1996) (applying the same standard to career offender sentencing). The district court, after considering all of the evidence presented at the sentencing hearing, acted within its authority and did not abuse its discretion by imposing the maximum statutory sentence. We will not disturb the sentence on appeal.
III

At sentencing, the district court ordered Schulberg to reimburse the public defender at $30 per hour worked on the case. Orders for reimbursement to public defenders are authorized by statute if defendants are "financially able to pay." Minn. Stat. §subd. 1 (1994). We have held that this statute requires a hearing before such an order is granted. State v. Larson, 374 N.W.2d 329, 331 (Minn. App. 1985). Because there was no hearing on Schulberg's ability to pay, we reverse the district court's order for public defender's fees and remand for a hearing on the amount due and Schulberg's ability to pay.
Affirmed in part, reversed in part, and remanded.