State of Minnesota, Respondent, vs. Jared Joseph Jones, 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This opinion will be unpublished and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

A03-1594

 

State of Minnesota,
Respondent,
 
vs.
 
Jared Joseph Jones,
Appellant.

 

Filed December 7, 2004

Affirmed

Minge, Judge

 

Le Sueur County District Court

File No. KX-02-297

 

 

Mike Hatch, Attorney General, Jocelyn F. Olson, Thomas R. Ragatz, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Brent A. Christian, Le Sueur County Attorney, Le Sueur County Courthouse, 88 South Park Avenue, Le Center, MN 56057 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Randall, Judge; and Willis, Judge.

 

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges his conviction of conspiracy to manufacture methamphetamine on the grounds that (1) the evidence is not adequate to sustain the verdict; (2) the district court abused its discretion in giving a jury instruction on appellant's flight from the jurisdiction; (3) the district court erred in admitting testimony of a non-expert on handwriting and in admitting evidence of an unrelated criminal proceeding in which appellant was charged with manufacture of methamphetamine; and (4) the prosecutor made prejudicial statements in the closing argument.  Because we determine that there is adequate evidence to support the jury verdict, that the jury instruction on flight was not an abuse of discretion, that although the admission of the handwriting evidence and the testimony regarding the other crime was error, it was harmless error, and that the closing argument was not prejudicial, we affirm.

FACTS

 

            Pursuant to a warrant, the Le Sueur County Sheriff's Department searched the home of Lyle Steckman for evidence of a methamphetamine lab.  The officers found appellant Jared Jones, Steckman, and three other individuals in the house.  Appellant, who had been living there for about ten days, was asleep in a basement bedroom.  Appellant was wearing a fanny pack containing numerous items, including handwritten notes listing ingredients and equipment used to manufacture methamphetamine and about 120 small plastic bags, six with methamphetamine residue in them.  Officers also discovered a plastic bag containing methamphetamine on the desk in appellant's basement bedroom.  Elsewhere in the basement they found items which can be used to make methamphetamine, including pseudoephedrine, solvents, hydrogen peroxide, latex gloves, rubbing alcohol, acetone, Red Devil lye, beakers, glassware, iodine, plastic tubing, coffee filters with methamphetamine residue, a hydrogen chloride gas generator, red phosphorus, and D-methamphetamine (unfinished methamphetamine).  With appellant's permission, officers searched appellant's car and found bottles of iodine tincture, another methamphetamine ingredient. 

Appellant told the officers that he had let Steckman use the car that day and did not know anything about the iodine or about anyone manufacturing methamphetamine in the house.  Steckman testified that before appellant moved into the house there were no methamphetamine-related items in the basement, that he had an agreement to give pills to appellant in exchange for methamphetamine, that during the week before appellant's arrest, Steckman bought Sudafed so that appellant could make methamphetamine, and that he and appellant went to a home improvement store together and bought iodine on the night before the police search.

            Appellant's trial was originally scheduled for March 25, 2003.  Appellant failed to appear for trial.  The sheriff's department in Harrison County, Mississippi, later informed Le Sueur County that appellant was in custody.  Appellant was then returned to Minnesota.

            Prior to the trial, the state moved to admit evidence that appellant had fled the jurisdiction before his original trial date.  Appellant argued the evidence of flight was not admissible because a defendant may fail to appear for trial for several reasons, the evidence's prejudicial value far exceeded its probative value, and it would cause the jury to unfairly speculate as to appellant's intent when he failed to appear.  Appellant also stated that a cautionary instruction would not be enough to keep the jury from basing its decision on this one piece of evidence.  The district court ruled that the state could introduce evidence of the defendant's flight and the court would issue a cautionary instruction to the jury at the time the evidence was introduced.  At trial, the district court read a cautionary instruction to the jury regarding flight. Then the officer who returned appellant to Minnesota testified that on the trip back appellant told him he had left Minnesota because appellant's attorney told him he had a 95 to 97 percent chance of being convicted even if he was innocent. 

At trial the prosecutor asked one of the officers to compare appellant's handwriting on a driver's license application to handwriting on notes listing methamphetamine ingredients.  The officer was not qualified as an expert in handwriting. Over objection by appellant, the officer testified that some of the numbers and letters on the writing samples were similar.

Without objection by appellant, another officer testified on direct examination by the prosecution that appellant had told him about a possible methamphetamine lab allegedly run by a Jack Harmon but that appellant had not been straightforward or honest with law enforcement.  On cross-examination, the officer testified that on the day after the search of Steckman's home, officers searched Jack Harmon's cabin and found precursors for the manufacture of methamphetamine and finished methamphetamine and that information appellant had given law enforcement was accurate.  On redirect examination, without objection by appellant, the officer testified that as a result of the other investigation appellant had been named in a separate complaint as a co-conspirator of Lyle Steckman and Jack Harmon.

D E C I S I O N

 

I.

 

The first issue is whether the evidence of conspiracy is sufficient when the alleged co-conspirator denied any agreement to manufacture methamphetamine.  When this court reviews a claim of insufficiency of the evidence, the court is limited to a "painstaking analysis" of the record to determine whether the evidence, viewed in a light most favorable to the conviction, is sufficient to allow the jurors to reach their verdict.  State v. Webb,440 N.W.2d 426, 430 (Minn. 1989). This court may assume that the jurors believed the state's witnesses and disbelieved any contrary evidence.  State v. Moore,438 N.W.2d 101, 108 (Minn. 1989).

Appellant was charged with conspiracy to manufacture methamphetamine.  Minn. Stat. § 152.096, subd. 1 (2002).  Conspiracy to commit a crime involving controlled substances requires (1) an agreement between two or more people to commit such a crime; and (2) an overt act done in furtherance of the conspiracy.  State v. Pinkerton,628 N.W.2d 159, 162-63 (Minn. App. 2001), review denied (Minn. July 24, 2001).  Proof of a formal agreement is not required for a conspiracy conviction to be upheld.  State v. Hatfield,639 N.W.2d 372, 376 (Minn. 2002).  An agreement may be inferred by circumstantial evidence. State v. Vereb,643 N.W.2d 342, 348 (Minn. App. 2002).  Where the evidence allows an inference of concerted action to accomplish an unlawful result, as where a number of individuals commit separate acts which form parts of a connected whole, an inference of conspiracy is permissible.  State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943).

Appellant both challenges the sufficiency of the evidence and the significance of ambiguous testimony of the co-conspirator, Steckman.  Appellant maintains that even if the jury believed that Steckman gave appellant Sudafed in exchange for methamphetamine, the evidence establishes a buy-sell arrangement, not a conspiracy.  See Hatfield,639 N.W.2d at 377 (Minn. 2002) (overturning a conviction for conspiracy to manufacture methamphetamine because "there was no evidence of a common plan, concerted conduct, or prior involvement with the alleged co-conspirator," so inference of an agreement was not reasonable); see also Pinkerton, 628 N.W.2d at 163 (concluding that "an agreement solely between a seller and a buyer of controlled substances cannot constitute a conspiracy . . . .").

Here, the evidence supports the conclusion that more than a buy-sell arrangement existed.  The evidence produced at trial showed that appellant and Steckman were living in the same house where D-methamphetamine (unfinished methamphetamine) and ingredients for methamphetamine were found.  The fanny pack appellant was wearing at the time of his arrest contained notes listing items used in methamphetamine labs and around 120 small plastic bags of the type used to hold controlled substances.  Six of the small bags in the fanny pack contained white residue, which tested positive for methamphetamine.  When searching appellant's car, officers found three one-gallon jugs of iodine tincture, another ingredient for methamphetamine, which Steckman had testified he and appellant had bought together.  Steckman testified that a week before appellant's arrest he bought Sudafed for appellant to make methamphetamine and that he received methamphetamine from appellant.  Steckman testified that he and appellant bought iodine on the night before the police search.

            Viewing the evidence in the light most favorable to the verdict, we conclude that the jury could reasonably discount Steckman's denial of a conspiracy, infer from his other testimony and the record that Steckman and appellant had an agreement to make methamphetamine, find that appellant had performed an overt act in furtherance of the agreement, and convict appellant of conspiracy to manufacture methamphetamine.

II.

The second issue is whether the court erred by instructing the jury that it could infer appellant's consciousness of guilt if it believed appellant fled the jurisdiction before the original date of his trial.  Appellant argues the cautionary instruction before the officer's testimony about appellant's flight and the final jury instructions were so vague as to be unhelpful, confusing, and prejudicial.

            District courts are allowed "considerable latitude" in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  "An instruction is in error if it materially misstates the law."  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).  An appellate court will not generally reverse an error in instructing the jury absent an abuse of discretion.  State v. Oates,611 N.W.2d 580, 584 (Minn. App. 2000), review denied (Minn. Aug. 22, 2000).

The supreme court has stated that instructions on specific types of evidence, particularly inferences, "should be avoided as much as possible" as a general rule.  State v. Olson, 482 N.W.2d 212, 215 (Minn. 1992) (quotation omitted).  Instructions on inferences are generally unnecessary because the parties may argue to the jury about what inferences may be drawn without any jury instruction, so the instruction only lengthens and injects argument into the judge's charge.  Id.  Additionally, this court has noted that only limited support exists in Minnesota for giving an instruction on evidence of flight. Oates, 611 N.W.2d at 585.  But when sufficient proof of an accused's flight exists, the district court may instruct the jury that guilt may be inferred from evidence of flight if other evidence also supports a basis from which guilt may be inferred.  State v. McLaughlin, 250 Minn. 309, 319, 84 N.W.2d 664, 671-72 (1957).  The instruction "should be qualified by a general statement of the countervailing conditions incidental to a comprehensive view of the question."  Id.

            In this case, the district court did not abuse its discretion by giving a jury instruction on the inference of guilt.  First, there was sufficient proof that appellant fled the jurisdiction.  Appellant admitted he left the state on the day trial was to begin.  Second, the court explained in the jury instruction that flight was only one circumstance for the jury to consider in determining appellant's innocence or guilt.  Third, the flight was closely connected to the crime because it occurred when the trial for the crime charged was scheduled to begin.  Fourth, the evidence the officers found when searching the house also supports a basis from which guilt may be inferred.  Because an instruction on flight is appropriate when there is sufficient proof of an accused's flight and the instruction is qualified with an explanation that the jury should consider countervailing factors, giving a jury instruction on appellant's flight was not an abuse of the district court's discretion.

III.

The third question is whether two evidentiary rulings were erroneous, and if so, whether they were so prejudicial as to require that the jury's verdict be set aside. 

A.

The first evidentiary issue is whether the district court erred by permitting the prosecutor to introduce testimony that appellant had been named as a co-conspirator with Lyle Steckman and Jack Harmon in another pending criminal complaint.  Appellant asserts that the other charge had not been proven by clear and convincing evidence and that the state had failed to provide notice to appellant of intent to introduce such evidence.  Although appellant failed to object at trial to the questioning relating to the other pending criminal complaint, this court may consider the issue if there is plain error that affects the defendant's substantial rights.  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).

This issue has several dimensions.  There is a dispute over which party initially raised the existence of the other proceeding in the trial of this case.  There is also a question whether the evidence of that proceeding constitutes so-called Spriegl evidence or is simply further evidence of the criminal conspiracy in this case.  Pressing the issue further, assuming this is Spriegl evidence, there is the subsequent question of whether it was properly admitted.  For purposes of this decision, this court assumes the other matter was first raised by the state, that it was a separate proceeding, that as such it was Spriegl evidence, and finally that the district court improperly admitted the evidence under the Spriegl test.  See State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (setting forth the five-part test for the admission of Spriegl evidence of another crime).

Even with these assumptions in favor of appellant, we still face the basic question of whether the district court's decision to admit the evidence of the other proceeding requires reversal.  To prevail, appellant must show more than error committed by the district court.  Because appellant did not object at trial, appellant must also show that the error was plain and that it affected substantial rights.  Strommen, 648 N.W.2d at 686.  An error affects substantial rights if there is a reasonable likelihood that the error substantially affected the verdict.  Id. at 688.  This is the plain error test.  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).

Here, the verdict is supported by overwhelming evidence.  The contested testimony consists of one short statement by one witness that appellant had been named as a co-conspirator of Harmon and Steckman in another pending criminal complaint.  The testimony was not mentioned in closing arguments.  Based on the physical evidence linking appellant to the conspiracy charged in this case, Steckman's testimony that he supplied appellant with Sudafed, and testimony that appellant fled the jurisdiction to avoid trial, we conclude the evidence of the other criminal complaint did not substantially affect the verdict.  Because we conclude there is not a reasonable likelihood that the testimony about the other complaint naming appellant affected the verdict, we further conclude the admission of the evidence was not reversible error even if we decide appellant's other arguments regarding this evidence in appellant's favor.

B.

The other evidentiary issue is whether the district court erred in admitting testimony of a nonexpert law enforcement officer comparing two handwriting samples.  "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 lay witness who is familiar with the alleged author's handwriting may authenticate a handwriting sample.  State v. Glidden, 459 N.W.2d 136, 142 (Minn. App. 1990).  For a witness unfamiliar with the alleged author's handwriting to compare handwriting samples and give an opinion regarding authorship, the witness must be qualified as an expert.  Minn. R. Evid. 901(b)(3).  If no expert witness compares handwriting samples in court, the court may permit the jurors to compare the samples on their own.  State v. Houston, 278 Minn. 41, 44, 153 N.W.2d 267, 269 (1967).

Here, a law enforcement officer, who was admittedly not an expert witness, was permitted to compare two handwriting samples on the witness stand.  He compared the receipt from a driver's license application which appellant admitted filling out to handwritten notes listing ingredients for methamphetamine found in a fanny pack at the time of appellant's arrest.  Because he was a lay witness who was unfamiliar with appellant's handwriting, the district court erred in allowing him to compare a document of unknown authorship to a document with the appellant's handwriting.  See Minn. R. Evid. 901(b).  It does not follow that because jurors can assess whether handwriting samples are similar, it is then appropriate for lay witnesses to give their opinions on whether handwriting samples are similar.

The district court ruled that appellant opened the door to the admission of the witness's handwriting comparison because appellant cross-examined the officer as to whether expert handwriting analysis had been done.  However, this question did not open the door to permit the officer to give his opinion on whether handwriting samples were similar because he still lacked the necessary qualifications to give his opinion. 

Because the district court abused its discretion, this court must consider whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.  Here appellant effectively cross-examined the officer, who acknowledged that reasonable lay witnesses could have different opinions on whether the handwriting was similar.  The jurors were allowed to examine the writing samples during their deliberations to determine on their own whether the handwriting was similar.  Additionally, the handwriting evidence does not seem to have played a significant role in determining the verdict because of other evidence in this case supporting appellant's conviction.  Thus, although the district court abused its discretion in admitting the handwriting testimony, we conclude the error was harmless in this case and will not reverse for this reason.

IV.

The final issue is whether the prosecutor committed misconduct by asserting in closing argument that the handwriting on appellant's driver's license application and the handwriting on the notes in the fanny pack were similar.  Over appellant's objection, the prosecutor stated, "I submit to you that the handwriting contained in most of those notes is very similar . . . Again, members of the jury, I submit to you that the handwriting here, you compare, is similar to these notes."

Closing arguments should focus on evidence admitted and reasonable inferences based on the admitted evidence and should not be aimed toward inflaming the passions or prejudices of the jury.  State v. DeWald, 463 N.W.2d 741, 744-45 (Minn. 1990).  If an appellate court does find prosecutorial misconduct, it will be considered harmless error unless the misconduct likely played a substantial part in affecting the jury's verdict or unless the misconduct was unusually serious.  State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002).

Here, the prosecutor's conduct did not amount to prosecutorial misconduct.  First, the prosecutor was describing evidence that had been admitted during the trial.  Second, the prosecutor did not describe the evidence in a manner that improperly characterized appellant or the crime.  Further, the jury acquitted defendant on the first count of manufacturing methamphetamine, indicating that the members of the jury were not unduly prejudiced by the prosecutor's comments.

We conclude that adequate evidence supports the jury verdict, the jury instruction on flight was not an abuse of discretion, and the closing argument was not prejudicial.  We also find the admission of the handwriting evidence and the testimony regarding the other crime was harmless error.  Therefore, we affirm appellant's conviction.

Affirmed.