State of Minnesota, Respondent, vs. Raleigh Joe Blonigen, Appellant.

State of Minnesota, Respondent, vs. Raleigh Joe Blonigen, Appellant. A05-1623, Court of Appeals Unpublished, September 26, 2006.

This opinion will be unpublished and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

A05-1623

 

 

State of Minnesota,

Respondent,

 

vs.

 

Raleigh Joe Blonigen,

Appellant.

 

 

Filed September 26, 2006

Affirmed

Toussaint, Chief Judge

 

Mille Lacs County District Court

File No. K5-03-1082

 

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Janice S. Kolb, Mille Lacs County Attorney, Mille Lacs County Courthouse, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Raleigh Joe Blonigen challenges his conviction of fifth-degree controlled-substance offense, arguing that he is entitled to a new trial.  Because the evidence was sufficient to support the conviction, the prosecutor's misstatements of the evidence were not plain error, and there were no irregularities warranting a new trial, we affirm.

FACTS

Appellant was pulled over on August 22, 2003, for running a red light.   The officer activated overhead emergency lights and a siren and shined his floodlight into the vehicle.  Still, appellant continued driving for about a quarter of a mile before pulling over.  While the vehicle was in motion, but illuminated by the floodlight, the officer observed the driver and passenger leaning down and toward the front and center of the vehicle. 

The officer testified that, after appellant stopped the vehicle, "the driver's side door opened very quickly."  The officer thought that the driver was possibly going to flee the scene and yelled at the driver to close the door.  Appellant explained to the officer that his brakes were out and he was leaning toward the center of the vehicle to down-shift the vehicle to a stop.  The officer observed the vehicle was an automatic transmission and the gearshift was not in the middle or lower center of the front of the vehicle. 

Appellant was arrested for driving after cancellation of his driver's license.   Because the passenger's identification could not be verified, he also was detained.  The officers searched the vehicle and located a syringe under the radio in the front and center of the vehicle.   A quick test was positive for amphetamine base; a later test established that the substance was methamphetamine.   

Appellant was tried, and the jury found him guilty of fifth-degree possession of a controlled substance.  Appellant moved for a new trial and, subsequently, for a Schwartz hearing.  Both motions were denied.

D E C I S I O N

I.

 

              In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court views the evidence in the light most favorable to the verdict to determine whether the facts in the record and any other legitimate inferences would permit a jury to conclude that the defendant was guilty beyond a reasonable doubt.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).

              Appellant's conviction was based on the jury's finding that he constructively possessed a syringe containing methamphetamine that was hidden under his vehicle's front console.  The state had the burden to prove that appellant consciously possessed the illegal substance, either physically or constructively, and that he had actual knowledge of the nature of the illegal substance.  See State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (stating that "state must prove that defendant consciously possessed, either physically or constructively, the substance and that defendant had actual knowledge of the nature of the substance").

The purpose of the constructive-possession doctrine is to include within the possession statute those cases in which the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it up to the time of the arrest. . . .  [I]n order to prove constructive possession, the state should have to show (a) that the police found the substance in a place under defendant's exclusive control to which other people did not normally have access, or (b) that, if police found it in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.

 

Id.at 104-05, 226 N.W.2d at 610-11. "Proximity is an important consideration in assessing constructive possession." State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000) (citation omitted), review denied (Minn. Jan. 16, 2001). "Moreover, constructive possession need not be exclusive but may be shared." Id. (citing State v. LaBarre, 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972)).

The record supports a finding that appellant consciously exercised dominion and control over the syringe. The syringe was (1) in his car while he was driving the car, (2) concealed, and (3) within his reach.  Although the passenger was also in proximity of the syringe, appellant continued to drive the vehicle despite the officer's lights and siren, all the while reaching down toward the area where the syringe was found.  The jury was the judge of appellant's credibility and apparently did not believe that appellant's explanations for his furtive movements were reasonable.[1]  Viewing the evidence in the light most favorable to the verdict, the evidence was sufficient to permit a jury to conclude that there was proof beyond a reasonable doubt that the defendant was guilty of constructive possession of the syringe.

II.

 

Prosecutorial misconduct is reversible error "if the misconduct, when considered in light of the whole trial, impaired the defendant's right to a fair trial."  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  When a defendant fails to object to the prosecutorial misconduct at trial, he generally forfeits the right to have the prosecutorial-misconduct claim considered on appeal, but this court can still address the misconduct under the plain-error doctrine.  State v. Mayhorn, ____ N.W.2d ____ (Minn. Aug. 31, 2006) (citation omitted).  Before we review an error for which there was no objection, there must be (1) error, (2) that is plain, and (3) the error must affect substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  If all three prongs are satisfied, we determine whether we should address the error to ensure the fairness and integrity of the judicial proceedings.  Id. (citing Johnson v. United States, 520 U.S. 461 (1997)).

Appellant argues that the prosecutor, in his closing statement, misstated the officer's testimony "about his suspicions when he stopped the vehicle."   The prosecutor misstated the officer's testimony by stating that the officer thought that appellant and his passenger "were hiding drugs."  The officer's actual testimony did not use the word "drugs."  The officer testified, "[N]ormally when I stop a vehicle, people aren't moving around in that nature.  Felt like there was a possibility there was--they were attempting to conceal something or I--I didn't exactly know what was going on."  The officer then testified that he observed appellant possibly attempting to flee the scene.  Appellant also testified that he attempted to quickly exit the vehicle to show the officer that he was not hiding anything. 

The misstatement was not plain error.  The misstatement was closely related both to the actual testimony of the officer, who suspected appellant was hiding and concealing "something" and who observed appellant attempting to flee, and to the actual testimony of appellant, who thought the officer might have suspected he was hiding or concealing something.  Therefore, we conclude the misstatement was not intentional.  The misstatement also did not affect substantial rights because the court instructed the jury that the evidence is what the witnesses say and not what the attorneys say, see State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002) (noting presumption that jurors follow district court's instructions), and the remarks were a very minor part of the overall closing argument, see Powers, 654 N.W.2d at 679 (declining to conclude that objectionable remarks warranted reversal). 

III.

 

Appellant argues that the jury's questions during deliberations and jurors' post-verdict statements to the court indicate irregularities in jury deliberations warranting a new trial.

The jury asked the court two questions during deliberations:  whether all parts of the offense must be proven without a doubt and whether it could have appellant's past criminal record.  The jury received answers approved by the court and attorneys.  Appellant argues that these questions suggest that the jurors were confused but cites no cases in which similar questions warranted a new trial.  There is no indication that the jurors were confused after they received the answers or that they then misapplied the law in reaching their verdict.  Therefore, appellant has not shown an irregularity justifying a new trial.

After the verdict, two jurors reported possible juror misconduct to the court.  The court took their testimony on the alleged misconduct and concluded that the pressure that the jurors experienced fell short of coercion requiring further investigation.  Appellant does not challenge the trial court's denial of a Schwartz hearing and does not ask for a remand for a Schwartz hearing.  The court did not abuse its discretion in concluding that the threshold for a Schwartz hearing was not met.  See id.at 678 (stating that conduct of Schwartz hearing is within sound discretion of trial court).  Therefore, there was no basis for further action by the trial court and there is no basis for overturning the conviction on this appeal.

            Finally, we do not agree with appellant's assertion that his case is "virtually identical" with State v. Langteau, 268 N.W.2d 76 (Minn. 1978).  There, the only witnesses who gave significant evidence at trial were the victim and the defendant, who knew each other; explanations for the act were "left a mystery," id. at 77; the defendant at all times categorically denied any involvement in the crime; and there was no evidence linking the defendant to the crime.  In contrast, methamphetamine was found in appellant's car, and a police officer testified describing appellant's incriminating actions pre- and post-arrest.  Therefore, Langteau does not compel a new trial in this case.  

            Affirmed.

[1]Appellant incorrectly states that "There is no dispute that the brakes were defective."  Although defective brakes could have explained movements in the car, the officer stated only that there was a "distinct possibility" that the car had brake problems.