State of Minnesota, Respondent, vs. Michael E. Tabaka, Appellant.

State of Minnesota, Respondent, vs. Michael E. Tabaka, Appellant. A05-1899, Court of Appeals Unpublished, April 17, 2007.

This opinion will be unpublished and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

A05-1899

 

State of Minnesota,

Respondent,

 

vs.

 

Michael E. Tabaka,

Appellant.

 

Filed April 17, 2007

Affirmed in part, reversed in part, and remanded Willis, Judge

 

Isanti County District Court

File No. K0-03-531

 

 

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Jeffrey R. Edblad, Isanti County Attorney, Isanti County Courthouse, 555 18th Avenue Southwest, Cambridge, MN  55008 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his convictions of aiding and abetting the manufacture of a controlled substance, conspiring to manufacture a controlled substance, and possession of a controlled substance, arguing that (1) the evidence was insufficient to support the convictions, (2) the district court improperly admitted Spreigl evidence, (3) the prosecutor committed misconduct in his closing argument, and (4) the district court improperly admitted portions of the testimony of an investigator with the sheriff's department.  We conclude that the district court did not err by admitting the Spreigl evidence, that the prosecutor's misconduct was harmless error, that there was no error in the admission of the investigator's testimony, and that the evidence was sufficient to support the conviction of possession of a controlled substance.  We conclude, however, that the evidence was insufficient to support the aiding-and-abetting and the conspiracy convictions.  We therefore affirm in part, reverse in part, and remand for re-sentencing.  

FACTS

On April 21, 2003, the Isanti County Sheriff's Department received a complaint of a strong chemical odor coming from appellant Michael Tabaka's property.  Investigator Timothy Akers and several other officers were dispatched to investigate.  A driveway approximately one-eighth of a mile long runs through a wooded area on Tabaka's property and leads to a house and a pole barn.  The officers drove to the pole barn, outside of which they saw and spoke with three people, who said that they were waiting for Tabaka's son.

Akers entered the pole barn and found Tabaka and an unidentified woman, who gave Akers what was later determined to be a false name.  While inside the barn, Akers could smell anhydrous ammonia, a chemical that is used in the manufacture of methamphetamine.  Akers asked Tabaka for permission to search the barn; Tabaka agreed and signed a "permission to search" card.  As Akers walked around the barn, he discovered two 20-pound propane-gas tanks that had been modified to accommodate anhydrous ammonia. Akers testified that he observed a "bluish purple" discoloration of the brass fittings of the tanks, which indicated the presence of anhydrous ammonia; a monitor confirmed this observation.  Akers also discovered a large hose that could be used to draw anhydrous ammonia from a larger "mother tank"which can be found in some farm fieldsinto the smaller 20-pound tanks found in the pole barn.  Akers testified that this procedure is necessary because it is illegal to purchase anhydrous ammonia in small tanks.

Akers testified that when he asked Tabaka about the two tanks and the hose, he replied that he knew that the tanks and the hose were in the barn, and he had moved them while cleaning, but that he "really didn't think too much of them."  Further, Akers testified that during their discussion, Tabaka became "very nervous and agitated" and was "sweating profusely."  Akers instructed one of the other officers to transport Tabaka to the jail.

After Tabaka was arrested, Akers continued his search of the barn and discovered a back room, in which he found a radio tuned to the sheriff's radio frequency and a television set connected to a closed-circuit camera that was focused on the driveway leading to the pole barn.  Inside a closed cabinet, Akers found items commonly used in the manufacture of methamphetamine, as well as three glass containers filled with chemicals.  Testing later confirmed that two of the containers contained ephedrine or pseudoephedrine and that the third container contained 28.5 grams of methamphetamine.  Finally, Akers found a complete "portable meth lab" with an "HCL generator," which is used to make constituent ingredients into methamphetamine.

Tabaka was charged with aiding and abetting the manufacture of a controlled substance, in violation of Minn. Stat. §§ 152.021, subd. 2a, 609.05, subd. 1 (2002); first-degree conspiracy to manufacture a controlled substance, in violation of Minn. Stat. §§ 152.021, subd. 2a, .096, subd. 1 (2002); and first-degree possession of a controlled substance, in violation of Minn. Stat. § 152.021, subd. 2 (2002).  At trial, in addition to Akers's testimony and the evidence seized from the barn, the state sought to introduce several Spreigl incidents as evidence.  After a hearing, the district court permitted the state to introduce evidence of only one incident, in which Tabaka was charged with fifth-degree controlled-substance crime:  in November 2002, the police stopped a vehicle in which Tabaka was a passenger; the police searched Tabaka and discovered a digital scale and several plastic baggies containing a white powder that was later determined to be .06 grams of methamphetamine.

Tabaka's defense at trial consisted solely of the introduction of a certified copy of his son's conviction of an attempted controlled-substance crime.  The jury convicted Tabaka on all three counts.  The district court sentenced Tabaka to 81 months' imprisonment, which was at the low end of the presumptive sentencing range.  This appeal follows.

D E C I S I O N

I.

Tabaka argues that the evidence was insufficient to support any of his convictions.  When considering a claim of insufficiency of the evidence, this court painstakingly reviews the record to determine whether the evidence, when viewed in the light most favorable to the conviction, permitted the fact-finder to find the defendant guilty.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court cannot retry the facts.  State v. Sheldon, 391 N.W.2d 537, 539 (Minn. App. 1986).  On review, we must assume that the fact-finder credited the testimony of the state's witnesses but discredited any conflicting testimony.  Id.

            Although circumstantial evidence is entitled to the same weight as direct evidence, convictions based solely on circumstantial evidence warrant greater scrutiny.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  Thus, such a conviction will be upheld only when the evidence considered as a whole compels the conclusion that the defendant was guilty and excludes, beyond a reasonable doubt, any inconsistent conclusion.  Id. But factual inconsistencies or the possibility of innocence is not enough to overturn a guilty verdict, as long as the evidence makes those theories seem unreasonable.  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).

A.         Aiding and Abetting the Manufacture of a Controlled Substance

            Tabaka first argues that the evidence was insufficient to prove beyond a reasonable doubt that he aided and abetted the manufacture of a controlled substance.  A defendant may be held liable for the crimes of a principal if he aided or abetted the principal in the commission of the crime.  Minn. Stat. § 609.05, subd. 1 (2002).  To establish aiding-and-abetting liability, the state must prove that a defendant played a "knowing role" in the crime and took no steps to thwart its commission.  Ostrem, 535 N.W.2d at 924.  But active participation in the overt act that constitutes the substantive offense is not required.  Id. The jury may infer the necessary intent from considering factors such as the defendant's presence at the scene of the crime, the defendant's close association with the principal before and after the crime, the defendant's lack of objection or surprise under the circumstances, and the defendant's flight from the scene of the crime with the principal.  State v. Swanson, 707 N.W.2d 645, 659 (Minn. 2006).

But evidence of a defendant's knowledge, inaction, or passive acquiescence is not sufficient to establish aiding-and-abetting liability.  Ostrem, 535 N.W.2d at 924.  Thus, evidence of the defendant's mere presence at the scene of the crime, without more, is not sufficient.  Id. To sustain a conviction of aiding and abetting the manufacture of a controlled substance, the state must establish that a defendant took "affirmative action" in support of the underlying offense.  State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991).

Tabaka argues that although the state's evidence may support a finding that he acquiesced in the manufacture of a controlled substance, methamphetamine, in his pole barn, it is insufficient to establish that he aided and abetted that manufacture.  We agree.  In State v. Kessler, the police found drug paraphernalia, including scales, Zig-Zag papers, marijuana, and a number of marijuana plants in the common areas of the home that Kessler shared with his wife; Kessler claimed that the materials were his wife's and that he did not know that they were in his home.  Id. at 538.  Kessler was charged with aiding and abetting the sale of a controlled substance[1] for his alleged involvement in the cultivation of the marijuana.  Id.  On review of the district court's decision not to dismiss the complaint for lack of probable cause, this court determined that to prove that a defendant aided and abetted the manufacture of a controlled substance, the state must demonstrate that the defendant took some affirmative action to participate in the offense.  Id. at 542.  Although agreeing that the evidence of the items in Kessler's home was relevant to establish that he possessed the marijuana, this court determined that the charge of aiding and abetting the sale of a controlled substance should be dismissed because the state offered no evidence that Kessler "took any affirmative action which evinces an intent to manufacture or sell a controlled substance."  Id.

            The state attempts to distinguish Kessler by arguing that because the defendant there presumably could not evict his wife, his knowledge of her illicit activities amounted to mere acquiescence.  But we conclude that neither Tabaka's failure to evict the controlled-substance manufacturers nor his alleged knowledge of the manufacturing operation is sufficient to establish that he aided and abetted the manufacture of a controlled substance.  See Ostrem, 535 N.W.2d at 924 (noting that inaction, knowledge, or passive acquiescence is not sufficient to establish aiding-and-abetting liability).

The state argues also that allowing the manufacture of a controlled substance in one's pole barn is akin to handing a person a loaded weapon knowing that the person intends to use it to commit murder or to driving a person to a convenience store knowing that he intends to commit armed robbery.  But in these examples, the aider and abettor took an affirmative action (handing the principal a gun, driving the principal to the store) with knowledge of the principal's intent.  Here, there is no evidence that Tabaka took any similar affirmative action.

            The state introduced evidence of a sophisticated manufacturing operationcomplete with a police-band radio and a surveillance camerain Tabaka's pole barn.  Because the manufacture of methamphetamine took place in Tabaka's pole barn, the jury was entitled to infer that he knew of that activity.  But even if we assume, as we must, that Tabaka knew that methamphetamine was being manufactured on his property, there is no evidence that Tabaka played a "knowing role" in the manufacture.  See id.  As in Kessler, the state did not establish here that Tabaka took any affirmative action that evidenced an intent to manufacture methamphetamine.  We conclude, therefore, that there was insufficient evidence to convict him of aiding and abetting the manufacture of a controlled substance, and we reverse that conviction.

            B.         Conspiracy to Manufacture a Controlled Substance

            Tabaka next argues that the evidence was insufficient to establish that he conspired to manufacture a controlled substance.  To establish such a conspiracy, the state must prove (1) that there was an agreement to commit a controlled-substance crime and (2) that one of the parties to that agreement committed an overt act in furtherance of that conspiracy.  State v. Pinkerton, 628 N.W.2d 159, 162-63 (Minn. App. 2001), review denied (Minn. July 24, 2001).  A formal agreement is not required, and the state must present only objective evidence of an agreementevidence of a subjective "meeting of the minds" is not necessary.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  The existence of an agreement may be inferred.  Pinkerton, 628 N.W. 2.d at 164.  But a defendant's mere association with a person who is engaged in illegal activity is not sufficient.  Id.

Relying on the supreme court's decision in State v. Hatfield, 639 N.W.2d at 372, Tabaka argues that the state has not established the existence of an agreement, noting that the state did not identify whom he allegedly conspired with.  In Hatfield, the defendant requested that a third party bring a propane tank to the defendant's home; there were indications that the propane tank contained anhydrous ammonia, although the police destroyed the tank without conducting conclusive testing.  Id. at 374-75.  In considering the relevance of the third party's knowledge of the contents of the tank to the existence of an agreement, the supreme court concluded that "where there was no evidence of a common plan, concerted conduct, or prior involvement with the alleged co-conspiratorany inference of an agreement from knowledge, standing alone, is simply not reasonable."  Id. at 377.

The supreme court in Hatfield also rejected the state's argument that the presence of methamphetamine on Hatfield's person and Hatfield's statement that he had received methamphetamine from another person were evidence of a conspiracy.  Id. at 377-78.  The presence of methamphetamine, the supreme court concluded, was relevant to Hatfield's knowledge and to the overt-act requirement but was not probative of the existence of an agreement.  Id. at 377.  Thus, because the state's evidence established only that the third party brought a tank and a cooler to Hatfield's home at Hatfield's request and that Hatfield possessed methamphetamine, an agreement had not been established.  Id. at 378.

Here, the state argues that the evidence supports a finding that Tabaka participated in a conspiracy (1) because by allowing the manufacturing operation to take place, Tabaka played a "knowing role" in the manufacturing operation and (2) because Tabaka said that he did not acquire the propane tanks himselfsomeone else was involved. We disagree.  Tabaka's role, "knowing" or otherwise, says nothing about the existence of an agreement.  Indeed, the term "knowing role" is from supreme-court caselaw involving aiding-and-abetting liability, not conspiracy.  See Ostrem, 535 N.W.2d at 924.  Second, as in Hatfield, the presence of the tanks in Tabaka's barn, regardless of who brought them to the barn, does not establish an agreement; it establishes an overt act.  See 639 N.W.2d at 377.

A review of the record shows that methamphetamine was being manufactured in Tabaka's barn; it also shows that there were several people in and around the pole barn when the police arrived.  There was certainly an overt act by someone.  But we conclude that the state did not offer sufficient evidence to establish that there was an agreement between Tabaka and at least one other person to manufacture a controlled substance, and we therefore reverse Tabaka's conspiracy conviction.

C.        Possession

Finally, Tabaka argues that the evidence is insufficient to sustain his conviction of possession of a controlled substance.  To establish possession, the state must prove (1) that the defendant consciously possessed a controlled substance, either directly or constructively, and (2) that the defendant knew that the material was a controlled substance.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  The state may establish constructive possession if it proves that the controlled substance was found in a place over which the defendant exercised exclusive control or that there is a strong probability that the defendant consciously exercised dominion or control over the controlled substance.  303 Minn. at 105, 226 N.W.2d at 611.  The defendant may possess a controlled substance either individually or jointly with another person.  Comm'r of Revenue v. Fort, 479 N.W.2d 43, 46 (Minn. 1992).  But the mere fact that a controlled substance is found in the common areas of a defendant's home is not sufficient.  State v. Lorenz, 368 N.W.2d 284, 288 (Minn. 1985).

Tabaka argues that the state has failed to prove that he exercised dominion and control over the methamphetamine.  Tabaka's argument is unpersuasive.  Given the size of the operation, the jury was entitled to determine that Tabaka knew about the methamphetamine.  Additionally, the methamphetamine was found in Tabaka's pole barn, a barn that Tabaka was cleaning when the police arrived.  The evidence is sufficient for the jury to have concluded that Tabaka exercised dominion and control over the methamphetamineeven if he shared that control with those engaged in manufacturing the methamphetamine.

II.

Tabaka next argues that the district court abused its discretion when it admitted evidence of the previous incident in which Tabaka was charged with fifth-degree controlled-substance crime for having in his possession .06 grams of methamphetamine and a digital scale.  The district court has broad discretion in determining the admissibility of Spreigl evidence, or evidence of prior bad acts, and will not be reversed unless it abused that discretion.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  To prevail on appeal, an appellant must establish an error in admitting the evidence and prejudice caused by that error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  To determine whether the error was prejudicial, this court first decides 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 would have been more favorable to the appellant if the error had not been made, then that error was prejudicial.  Id.

Tabaka first argues that the Spreigl evidence was irrelevant.  Although prior bad acts may not be introduced to establish the defendant's character or that the defendant acted in conformity with that character, Spreigl evidence may be introduced to prove, inter alia, motive, knowledge, preparation, intent, plan, identity, or absence of a mistake. See Minn. R. Evid. 404.  Among other requirements, before the district court may admit Spreigl evidence, it must determine that the evidence is "relevant and material to the state's case."  State v. Ness, 707 N.W.2d 676, 686 (Minn. 2006) (articulating procedural requirements that must be satisfied before Spreigl evidence is admitted).  To determine relevance, the evidence is evaluated in light of "the closeness" between the charged offense and the prior bad act in time, place, and modus operandi.  State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995).  The closer the relationship between the two offenses, the greater the relevance of the evidence.  Id. If the admissibility of the evidence is unclear in the district court's view, the evidence should not be admitted.  Id. at 197.

Tabaka argues that the evidence is irrelevant under Minnesota Rule of Evidence 401 because the fact that he possessed a small amount of methamphetamine does not establish that he knew how to manufacture it, that the small amount of methamphetamine he possessed does not establish that he knew that there was a manufacturing operation in his pole barn, and that this prior incident of possession does not establish that he had a motive to manufacture methamphetamine.  But the fact that Tabaka previously possessed methamphetamine is relevant to show that he knew what methamphetamine is, which the state had to establish to prove the possession charge.  See Florine, 303 Minn. at 104, 226 N.W.2d at 610.  Further, the Spreigl incident occurred approximately six months, a relatively short period of time, before Tabaka's arrest for the offenses of which he was convicted here.  The district court's determination that the evidence was relevant and material to the state's case was not an abuse of discretion.

Tabaka next argues that the Spreigl evidence should have been excluded under Minnesota Rule of Evidence 403 because its probative value was outweighed by its potential for unfair prejudice.  See Ness, 707 N.W.2d at 685.  But evidence is not unfairly prejudicial simply because it is damaging to a defendant's case; rather, to be unfairly prejudicial, the evidence must have the potential to induce the fact-finder to convict the defendant for illegitimate reasons.  State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996).

Although the evidence here was clearly damaging to Tabaka's case, that prejudice was not unfair.  During Tabaka's cross-examination of an officer who arrested Tabaka in November 2002, he emphasized how small the amount of methamphetamine that he possessed actually was, mitigating any prejudice he suffered as a result of the introduction of the evidence.  We further note that the district court gave limiting instructions to the jury three timesbefore and during the presentation of the Spreigl evidence, and then again after closing arguments.  See State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998) (noting the presumption that jurors follow the court's instructions).  We conclude that the admission of the Spreigl evidence was not an abuse of the district court's discretion.

III.

Tabaka next argues that the prosecutor committed misconduct during his closing argument.  A prosecutor is a "minister of justice" and must guard the defendant's rights as well as protect public safety.  State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).  When considering a claim that the prosecutor committed misconduct in a closing argument, this court evaluates the argument as a whole.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).

Tabaka objected at trial to only some of the prosecutor's statements that he now complains of on appeal.  We, therefore, apply two standards of review.  See State v. Dobbins, 725 N.W.2d 492, 506 (Minn. 2006).  Prosecutorial misconduct that was objected to is reviewed under the harmless-error standard, and we will reverse unless the misconduct was harmless beyond a reasonable doubt, that is, unless the verdict is surely unattributable to the misconduct.  State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006) (citing State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006)).  Prosecutorial misconduct that was not objected to is analyzed under the plain-error standard.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  Under that standard, a defendant must establish that an error occurred and that the error was plain.  Id. at 302.  If the defendant does so, the burden shifts to the state to establish that the misconduct did not prejudice the defendant's substantial rights.  Id. at 300.  The state meets this burden if it can show that there is no reasonable likelihood that the misconduct had a significant effect on the jury's verdict.  Id. at 302.  If the state fails to meet its burden, then this court "assesses whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings."  Id. 

A.         Alleged Dilution of the State's Burden of Proof

Tabaka first argues that the prosecutor improperly diluted the state's burden of proof by introducing the jury to the principle of "Ockham's razor."  The prosecutor, after telling the jury that he had been a member of a military intelligence unit, argued that when he was faced with "some pretty tricky, complex, devious schemes," the Army taught him to apply Ockham's razor, which, the prosecutor stated, holds that "the simplest and most logical explanation is always the correct one."  The prosecutor then explained that Ockham's razor is similar to the cliché that "[i]f it looks like a duck, it walks like a duck," then it is a duck.  Tabaka did not object to this argument, and we therefore review it under the plain-error standard.

Misstatements of the burden of proof are highly improper and, if established, are misconduct.  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  Tabaka relies on State v. Strommen, in which the supreme court determined that it was misconduct for the prosecutor to tell the jury that when faced with "difficult cases," the best approach is to weigh each story and decide which is more reasonable.  648 N.W.2d 681, 685, 690 (Minn. 2002).  But the prosecutor in Strommen essentially suggested that the jury should apply a preponderance-of-the-evidence standard, which is a clear misstatement of the burden of proof.  Here, the prosecutor employed a crude but accurate description of how to draw an inference from circumstantial evidence.  We further note that the prosecutor acknowledged that the principle of Okham's razor is not the same as proof beyond a reasonable doubt and that the district court gave a proper instruction to the jury regarding proof beyond a reasonable doubt.  We conclude that Tabaka has not demonstrated plain error here.

B.         Shifting the Burden of Proof

Tabaka next argues that the prosecutor attempted to shift the burden of proof in his argument.  Specifically, Tabaka complains of these portions of the prosecutor's argument:

What evidence do you have of any other methamphetamine possessors, users, being anywhere that methamphetamine? You got none. You got some woman who was apparently a little bit dishonest walking around with [Tabaka], but the only person seen in that pole shed, the only testimony you have of a methamphetamine user being near methamphetamine or at least someone that possesses it . . . is him. He's the only one.

. . .

 

He's the only person we have any evidence of, any evidence that was close to that lab at the time in question. . . . I'm not asking you to speculate, I'm asking you to use the evidence. What evidence is there anybody else had methamphetamine. There's none. Just use the evidence, follow the instructions and find him guilty.

 

Tabaka objected at trial only to the portion of the above argument stating that Tabaka was the only person close to the lab when he was arrested, which, Tabaka argued, was a misstatement of the evidence, and the district court sustained that objection.

It is misconduct for the prosecutor to comment on the fact that the defense called no witnesses.  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993).  But a prosecutor may challenge a defense's theories.  State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).  In Gassler, the prosecutor argued that although defense counsel had indicated during opening statements that someone else had committed the crime, no evidence was produced identifying that person.  505 N.W.2d at 68.  The supreme court determined that the prosecutor's argument was in rebuttal to the defendant's theory and, thus, was not improper.  Id. at 69.

Here, Tabaka's sole defense at trial was the introduction of a certified copy of his son's conviction of an attempted controlled-substance crime; Tabaka also referred during closing argument to his son's conviction and to the fact that the people who were discovered around the pole barn were waiting for his son.  Tabaka's apparent defense was that someone else, namely his son, was responsible for the offenses with which Tabaka was charged.  The prosecutor's argument rebutted this defense and was not misconduct.

C.        Misuse of Prior Bad Act Evidence

Finally, Tabaka argues that the prosecutor committed misconduct by misusing the Spreigl evidence in his closing argument. Because Tabaka objected at trial to only some of the statements he now complains of on appeal, we again apply two standards of review.

            1.         Alleged Misconduct That Was Objected To at Trial

            Tabaka first argues that the prosecutor committed misconduct by misusing the Spreigl evidence when he argued that Tabaka was "the only person that had methamphetamine on his person on a prior occasion. The only person we know possess[ed] methamphetamine."  In addition, Tabaka challenges the prosecutor's argument that the only use for the digital scale that was recovered from Tabaka when he was arrested in 2002 was to manufacture methamphetamine.  Tabaka argues that these statements are an improper use of the Spreigl evidence because they "effectively told the jury that, based on [Tabaka's] previous possession of methamphetamine, he was guilty of the charged offenses."

It is misconduct for a prosecutor to use his closing argument to make Spreigl evidence into "improper substantive evidence."  State v. Peterson, 530 N.W.2d 843, 848 (Minn. App. 1995).  Spreigl evidence may not be used to establish that a defendant acted in conformity with an alleged character trait.  Minn. R. Evid. 404(a).  Here, the prosecutor essentially argued that because Tabaka possessed methamphetamine in the past, he is guilty of the possession charge now.  And similarly, the prosecutor's argument that the only use of the digital scale was for the manufacturing of methamphetamine suggests that Tabaka was involved in the manufacturing of methamphetamine in the past and, consequently, implies that he is guilty of aiding and abetting the manufacture of methamphetamine now.  Thus, the prosecutor made the Spreigl evidence into "improper substantive evidence" and, therefore, committed misconduct.

But we conclude that this misconduct was harmless error.  The state introduced evidence of a large-scale methamphetamine manufacturing operation and of the fact that there were more than 28 grams of methamphetamine in the back room of Tabaka's pole barn.  In addition, Tabaka was cleaning the pole barn when the police arrived to investigate a complaint of a strong chemical odor.  Thus, the jury's conclusion that Tabaka exercised dominion and control over the methamphetamine and is, therefore, guilty of possessing a controlled substance is well supported by the evidence.  See Florine, 303 Minn. at 104, 226 N.W.2d at 610 (defining constructive possession).  The prosecutor's misconduct is further mitigated by the district court's three limiting instructions to the jury on the proper use and the limitations of Spreigl evidence.  See State v. Shoen, 578 N.W.2d 708, 718 (Minn. 1998) (noting the presumption that a jury follows the court's instructions).  Thus, although the prosecutor's argument was misconduct, we conclude that under the circumstances here, it was harmless beyond a reasonable doubt.

            2.         Alleged Misconduct That Was Not Objected To at Trial

Tabaka argues also that the prosecutor misused the Spreigl evidence when he told the jury that Tabaka is "obviously someone that likes to possess [methamphetamine]" and when the prosecutor rhetorically asked the jury "[w]hat kind of person doesn't say, hey, what's this, doesn't question this overwhelming stench . . . ?  I'll tell you what kind, the kind who carries around methamphetamine and a digital scale."  Tabaka argues further that the prosecutor misused the Spreigl evidence when he argued that "the only testimony you have of a methamphetamine user being near methamphetamine" was testimony of Tabaka's presence in his pole barn.

Because Tabaka did not object to these statements, we apply the plain-error standard.  Ramey, 721 N.W.2d at 299.  By stating that Tabaka was "someone that likes to possess" methamphetamine and that the only "kind of person" who does not question a chemical odor is the kind of person who possesses methamphetamine, the prosecutor was suggesting that the jury should consider Tabaka's character when determining whether he committed the current offenses, which is a plainly improper use of Spreigl evidence.  See Minn. R. Evid. 404(a).  But although we conclude that this argument is plain error, for the reasons we describe above, we also conclude that there is no reasonable likelihood that the misconduct had a significant effect on the jury's verdict.  Ramey, 721 N.W.2d at 302 (describing the plain-error standard).  Thus, although the prosecutor clearly committed misconduct, under the facts of this case, the misconduct does not warrant a reversal of Tabaka's convictions.

IV.

Tabaka argues finally that some of Investigator Akers's testimony regarding how methamphetamine is manufactured was improperly admitted, although Tabaka did not object to the testimony at trial.  As we have noted above, this court considers unobjected-to testimony under the plain-error standard.  Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996).

Tabaka argues that Investigator Akers's testimony regarding the possible use of the large hose found in the pole barn to unlawfully acquire anhydrous ammonia and his testimony that methamphetamine manufacturers often steal the ephedrine and pseudoephedrine used to manufacture methamphetamine were impermissible attacks on Tabaka's character.  We disagree.  This testimony explained the relevance of the hose and its potential use for obtaining an ingredient used for the manufacture of methamphetamine, and explained the relevance of the presence of the chemicals in Tabaka's pole barn.  It was not an impermissible attack on Tabaka's character.

Tabaka argues also that Akers's statement that methamphetamine is "a poison" served only to inflame the jury.  The state concedes that Akers's statement was irrelevant but argues that any error in admitting it was not prejudicial.  We agree.  The term "a poison" is two words in 48 pages of testimony.  Even if the admission of this statement was error, it does not rise to the level of plain error affecting substantial rights.

Finally, Tabaka argues that Akers's testimony that he did not believe everything that Tabaka told him is impermissible vouching testimony.  It is a well-accepted rule that a witness cannot vouch for or against the credibility of another witness.  State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998).  But it is proper to admit testimony on the truthfulness of another witness's testimony if a party "opens the door" to such testimony.  See State v. Maurer, 491 N.W.2d 661, 662 n.1 (Minn. 1992).  Here, Akers first testified regarding his opinion of Tabaka's honesty in response to defense counsel's question regarding whether Akers believed that Tabaka was "being very honest with [him]."  The defense clearly opened the door to testimony by Akers of his assessment of Tabaka's honesty.  There was no plain error in admitting this testimony.

In sum, we conclude that the evidence was insufficient as a matter of law to support Tabaka's convictions of aiding and abetting the manufacture of a controlled substance and of conspiracy to manufacture a controlled substance.  We therefore reverse those convictions.  We affirm the district court in all other respects, and we remand for re-sentencing.

Affirmed in part, reversed in part, and remanded.

           

[1] Minn. Stat. § 152.01, subd. 15a (1990), defined "sell" as "to sell, give away, barter, deliver, exchange, distribute or dispose of to another; or to offer or agree to do the same; or to manufacture."  (Emphasis added.)  The current definition of "sell" is essentially the same.  See Minn. Stat. § 152.01, subd. 15a (2006).