State of Minnesota, Respondent, vs. John H. Ohlin, Appellant.

State of Minnesota, Respondent, vs. John H. Ohlin, Appellant. A06-1312, Court of Appeals Unpublished Decision, November 20, 2007

This opinion will be unpublished and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

A06-1312

 

State of Minnesota,

Respondent,

 

vs.

 

John H. Ohlin,

Appellant.

 

Filed November 20, 2007

Affirmed

Shumaker, Judge

 

Crow Wing County District Court

File No. K1-05-1259

 

 

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and

 

Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

 

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant contends on appeal that the evidence was insufficient to support his convictions of controlled-substance crimes.  He also raises additional issues in his pro se brief.  Because the evidence was sufficient to support the convictions and because the pro se issues either duplicate the principal issues on appeal or lack support in the record and by legal authority, we affirm.

FACTS

            At the time of his arrest, appellant John H. Ohlin was being investigated for narcotics crimes in Crow Wing County.  On May 17, 2005, as officers were attempting to execute a search warrant in connection with their investigation, they located a blue van known to be driven by Ohlin. 

            Crow Wing County Deputy Sheriff Andrew Galles, a senior investigator with the narcotics unit, saw Ohlin and a second man leave a residence and get into the van.  Officers followed the van and stopped it in a Brainerd alleyway.  When they approached the van, Ohlin got out of the driver's side and was holding a black cloth bag.  Deputy Galles ordered him to walk backwards towards him.  Ohlin then dropped the bag.  After handcuffing Ohlin, Deputy Galles examined the bag, which was secured with a small padlock on the zippers. 

            Deputy Galles opened the bag and found several items, including a Camel cigarette box that contained two small plastic baggies.  Each plastic baggie was marked with a small colored sticker dot, and the sticker dot had a letter or number written on it.  The bag also contained a piece of paper with numerous small sticker dots of various colors.  Deputy Galles testified these dots were commonly used to identify the weight of drugs in a container, like a plastic bag. 

            Inside each of the plastic baggies was a crystalline rock substance.  Testing by a forensic scientist from the Minnesota Bureau of Criminal Apprehension confirmed that the substance was methamphetamine.  At trial, the forensic scientist explained she tested the contents of one of the plastic baggies, and this testing revealed that the bag contained 13.2 grams of methamphetamine.  Deputy Galles testified that, in his opinion, this amount of methamphetamine was not consistent with possession for personal use.  His testimony was unequivocal; he stated, "It's not a user amount.  That is, no doubt in my mind, for sale amount." 

            Deputy Galles also discovered in the black cloth bag additional plastic baggies, one of which was marked with a sticker dot.  Both Deputy Galles and another officer testified that plastic baggies are commonly used to package methamphetamine. 

            There were also two scales inside the bag.  One scale was a digital scale engraved with the letters "J" and "O."  At trial, Deputy Galles testified that both drug users and drug sellers used scales.  He explained, however, that digital scales were very accurate, and given their accuracy, they were commonly used by individuals who sell methamphetamine.  The second scale was a manual scale, the bowl of which contained a white residue.  Deputy Galles testified that the items found in the black cloth bag, such as the empty plastic baggies, scales, and sheet of sticker dots, were consistent with the sale of methamphetamine. 

            According to Deputy Galles, other items in the black cloth bag were connected to drug use.  For instance, he explained, the bag contained three syringes, which are commonly used to inject meth; a butane lighter that can be used to vaporize meth; and a metal spoon, which is used to liquify methamphetamine.  Deputy Galles testified that, in his experience, people who sell methamphetamine also use it. 

            Lastly, Deputy Galles found two prescription bottles in the bag.  One of the prescription bottles bore the name "C. L." and held eight pills.  After he was transported to jail and booked, Ohlin asked Deputy Galles for the pills and indicated he had the pills for medical reasons.  These eight pills were examined by the forensic scientist from the Minnesota Bureau of Criminal Apprehension.  At Ohlin's trial, the forensic scientist explained that she could identify the pills from their markings.  Based on her examination of the pills, she concluded that the eight pills contained acetaminophen and codeine.  She testified that codeine is a schedule III drug. 

            Once Deputy Galles indicated he had found apparent controlled substances in the black cloth bag, Sergeant Mike Bestul placed Ohlin under arrest and searched him.  Sergeant Bestul found $1,587 in cash inside Ohlin's inner jacket pocket.  He noted that this cash was in several different denominations and was not in a wallet.  Sergeant Bestul also found a wallet and a checkbook, neither of which contained any money; some small plastic baggies, including one that contained a white residue of an undetermined nature; and some other items, like keys and a day planner. 

            Officers also searched the blue van that Ohlin was driving, where they found a black cloth briefcase.  The briefcase held two-way radios, which, according to Deputy Galles' testimony, are typically used by individuals selling drugs as a means of communicating with a lookout.  There was another digital scale in the briefcase, but no fingerprints were recovered from it.  The briefcase also contained a piece of paper with several handwritten dollar figures and May and March dates.  Deputy Galles believed the paper to be an "owe sheet," which is used to indicate who owes money for drugs.  He admitted that he did not know whose handwriting was on the supposed owe sheet and that it appeared to have two forms of handwriting on it.  No weapon was found on Ohlin or in the blue van. 

            Based on this evidence, the jury found Ohlin guilty of first-degree controlled substance offense, sale; second-degree controlled substance offense, possession; and fifth-degree controlled substance offense, possession.  The district court sentenced Ohlin to 153 months in prison for the first-degree controlled substance offense and to a concurrent sentence of 20 months in prison for the fifth-degree controlled substance offense.  The district court did not sentence Ohlin on the second-degree controlled substance offense.  This appeal followed. 

D E C I S I O N

            In considering a claim of insufficient evidence, our review is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did."  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court "will not disturb the verdict if the jury, while acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense, given the facts in evidence and the legitimate inferences that could be drawn therefrom."  State v. Crow, 730 N.W.2d 272, 280 (Minn. 2007).  The fact-finder has the exclusive function of judging witness credibility.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  We, therefore, assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary."  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  Overturning a jury verdict is a heavy burden for a defendant.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).

Fifth-degree Controlled Substance Offense

            In Minnesota, a person commits a fifth-degree controlled substance crime if he unlawfully possesses a controlled substance classified in schedules I-IV.  Minn. Stat. § 152.025, subd. 2(1) (2004).  Ohlin challenges his conviction for fifth-degree controlled substance offense on two grounds.  First, he argues that the state's evidence is not sufficient to prove beyond a reasonable doubt that the eight pills were a controlled substance, because the state failed to perform scientific tests on the pills.  Second, he asserts that the evidence is not sufficient to prove beyond a reasonable doubt that his possession of the pills was unlawful. 

            At trial, the state's expert, a forensic scientist, testified she was able to identify the pills from their markings.  She testified that the pills contained acetaminophen and codeine, and she identified codeine as a schedule III drug.  Ohlin claims scientific testing is required to establish that the pills were a controlled substance, and alleges that evidence of markings on the pills is insufficient to support his conviction.

            The Minnesota Supreme Court "ha[s] not prescribed minimum evidentiary requirements in identification cases, preferring to examine the sufficiency of the evidence on a case-by-case basis." State v. Vail, 274 N.W.2d 127, 134 (Minn. 1979).  Cases addressing scientific testing stand more for the proposition that testing must be accurate and precise than for the proposition that scientific testing is required to identify a controlled substance.  See State v. Robinson, 517 N.W.2d 336, 338-39 (Minn. 1994) (concluding that the evidence was not sufficient to prove beyond a reasonable doubt that the total weight of a mixture containing the controlled substance equaled or exceeded 10 grams, where the state relied on random sample testing and did not test at least 10 grams of the mixture); Vail, 274 N.W.2d at 133-34 (concluding that additional circumstantial evidence was not sufficient to prove that a seized material was marijuana, where the trial court found that the scientific tests were inadequate to identify the material); see also Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 526 (Minn. 2007) ("[W]hen the state's case depends substantially on ‘scientific' evidence, we have concluded that the state must show a high degree of accuracy and precision with regard to the scientific tests it employs."  In the absence of scientific testing, circumstantial evidence and officer testimony may be presented to the jury to identify a substance.  State v. Olhausen, 681 N.W.2d 21, 28-29 (Minn. 2004). 

            The record shows that a forensic scientist with knowledge of controlled substances inspected the pills and identified them from their markings as containing a controlled substance.  There is nothing in the record to contradict this expert testimony or to support a plausible inference that the pills contained anything different from what their markings showed.  Nor has Ohlin shown why it would be improper for an expert witness to rely on pill markings, in lieu of testing, to determine the presence of a controlled substance in a pill found in a prescription bottle and not packaged for sale.  Thus, we hold that the evidence was sufficient to support a finding beyond a reasonable doubt that the pills contained a controlled substance.

Ohlin also contends that the evidence is not sufficient to prove beyond a reasonable doubt that he unlawfully possessed the codeine, because the evidence does not eliminate the rational hypothesis that he had a prescription for codeine and was simply storing it in a prescription bottle with someone else's name on it. 

The statute under which Ohlin was convicted prohibits a person from unlawfully possessing a controlled substance classified in schedules I-IV.  Minn. Stat. § 152.025, subd. 2(1) (2004).  "‘Unlawfully' means selling or possessing a controlled substance in a manner not authorized by law."  Minn. Stat. § 152.01, subd. 20 (2004).  Codeine may be lawfully possessed with a prescription.  See Minn. Stat. § 152.12, subd. 1 (2004) (indicating that doctors may lawfully "prescribe, administer, and dispense a controlled substance included in Schedules II through V."). 

"While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence."  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  "Circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt."  State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).  "The evidence as whole need not exclude all possibility that the defendant is innocent; it must only make such a theory seem unreasonable." State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000) (citing State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985)).  

Here, the evidence shows that the eight pills were kept inside a prescription bottle bearing someone else's name.  The pills were not found in Ohlin's home or in his medicine cabinet.  Rather, the prescription bottle was kept inside a locked black cloth bag, and this locked bag contained methamphetamine and various drug paraphernalia, including syringes, scales, a butane lighter, a metal spoon, plastic baggies, and small colored sticker dots.  The possession of a prescription pill bottle bearing another's name, coupled with the other inculpatory circumstances, provides a basis for the inference of unlawful possession and renders unreasonable the hypothesis that Ohlin's possession as lawful or otherwise innocent.  We hold, therefore, that the evidence is sufficient here to prove beyond a reasonable doubt that Ohlin's possession of the codeine was unlawful.

First-degree Controlled Substance Offense

            Under Minnesota law, a person is guilty of a first-degree controlled substance crime if "on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing . . . methamphetamine."  Minn. Stat. § 152.021, subd. 1(1) (2004).  "Sell" includes possession with the intent to sell.  Minn. Stat. § 152.01, subd. 15a (2004).  Intent to sell or distribute may be proven circumstantially by evidence as to a large quantity of the substance and evidence as to the manner of packaging.  State v. Lozar, 458 N.W.2d 434, 441 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990); see also United States v. Brett, 872 F.2d 1365, 1370 (8th Cir. 1989) (explaining that intent to distribute "may be inferred solely from the possession of a large quantity of drugs").  The presence of a large amount of cash can also be evidence of intent to sell.  See State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987) (holding that the amount of cocaine and cash found in defendant's possession, as well as other supporting evidence, was enough to establish intent element of drug-sale offense), review denied (Minn. Jan. 15, 1988); see also Brett, 872 F.2d at 1370 (indicating that a large amount of unexplained cash, when considered with other evidence of drug dealing, is probative of past drug sales).   

            Ohlin argues that the evidence does not support his conviction for first-degree controlled substance offense under Minn. Stat. § 152.021, subd. 1(1) (2004), because the evidence does not prove beyond a reasonable doubt that he intended to sell the 13.2 grams of methamphetamine.  He points out that there was no evidence of a sale or weapon and the items in the briefcase were not connected to him. 

            Even disregarding the items in the briefcase, there is sufficient evidence to support Ohlin's conviction for the first-degree controlled-substance offense.  Ohlin contends he was a user, not a seller, of methamphetamine.  But the state presented evidence showing that the amount of methamphetamine was consistent with sale and inconsistent with personal use.  Certain items found in the black cloth bag, like the extra baggies and sheet of small colored dots, contradict Ohlin's contention that he was only a user and did not intend to sell the methamphetamine.  It is implausible that a mere personal user would be in possession of items associated with drug sales.  Although there was no evidence directly connecting the large amount of cash found on Ohlin to the sale of drugs, the jury could conclude, particularly in light of the other evidence, that the cash was the product of drug sales.

            This court assumes that the jury believed the state's witnesses and disbelieved evidence that contradicted their testimony, and their verdict is entitled to deference.  Therefore, we hold that the evidence is sufficient to sustain Ohlin's conviction for the first-degree controlled-substance offense.

Ohlin's Pro Se Supplemental Brief

            We have also considered the issues raised by Ohlin's pro se supplemental brief.  Two of the issues raised by Ohlin's pro se brief duplicate the arguments already discussed above.  We address the remaining four issues from Ohlin's pro se supplemental brief here.

            At the outset of our analysis, we note that Ohlin has failed to provide citation to the factual record or to legal authority to support his arguments.  A pro se defendant's assertions are deemed waived if they contain no argument or legal authority to support the allegations.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002); see also State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) ("An assignment of error in a brief based on mere assertion and not supported by argument or authorities . . . is waived unless prejudicial error is obvious on mere inspection.").  Material assertions of fact in a brief must be supported by citation to the record.  Hecker v. Hecker, 543 N.W.2d 678, 681 n.2 (Minn. App. 1996), aff'd 568 N.W.2d 705 (Minn. 1997); see also State v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) (refusing to consider portions of pro se briefs that contain only argument and are not supported by the facts on the record).  Ohlin is not relieved of his duty to provide citations to legal authority and to the factual record simply because he is acting as attorney pro se.  See Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990) ("When an appellant acts as attorney pro se, appellate courts are disposed to disregard defects in the brief, but that does not relieve appellants of the necessity of providing an adequate record and preserving it in a way that will permit review."), review denied (Minn. Apr. 13, 1990). 

            Ohlin takes issue with two jury instructions and argues that the district court erred in instructing the jury on circumstantial evidence and on an element of the first-degree controlled-substance offense.  Ohlin failed to provide any citation to relevant legal authority to support either of these arguments, and he did not cite the factual record to support his claim regarding the jury instruction on an element of the first-degree controlled-substance offense.  He has, therefore, waived these arguments.   

            Ohlin also claims that certain inaccuracies in his criminal-history report violated his constitutional rights.  Ohlin does not contend that inaccuracies existed at the time of sentencing.  Rather, he contends that the inaccuracies contained in the criminal-history report prepared before the trial prevented him from reaching a favorable plea agreement with the prosecution.  Not only is this argument purely speculative, but it is not supported by any citation to the factual record.  Therefore, we do not consider it here. 

            Finally, Ohlin challenges his sentence for the first-degree controlled substance offense and statements made by the district court judge during sentencing.  Ohlin has waived this argument, because he again provides no citation to the factual record or to relevant legal authority.  We note, however, that Ohlin's sentence is within the range provided by the sentencing guidelines for an individual with his criminal history score.  See Minn. Sent. Guidelines IV (providing a sentence ranging from 153 to 163 months for a first-degree controlled substance offense where the offender has a criminal history score of six or more).

            Thus, we conclude that the arguments raised in Ohlin's pro se supplemental brief are either waived or duplicate the issues already raised on appeal by his counsel. 

            Affirmed.