State v. Gomez, No. A06-2154 (Minn. App. 2/26/2008)

• Court: Minnesota Court of Appeals
• Writing for the Court: Peterson
• Decision Date: 26 February 2008
• Docket Number: No. A07-0227.,No. A06-2154.,A06-2154.,A07-0227.
• Citation: State v. Gomez, No. A06-2154 (Minn. App. 2/26/2008), No. A06-2154., No. A07-0227. (Minn. App. Feb 26, 2008)
• Parties: State of Minnesota, Appellant (A06-2154), Respondent (A07-0227), v. William Gomez, Respondent (A06-2154), Appellant (A07-0227).

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Unpublished Opinion

State of Minnesota, Appellant (A06-2154), Respondent (A07-0227), v. William Gomez, Respondent (A06-2154), Appellant (A07-0227).

No. A06-2154.

No. A07-0227.

Court of Appeals of Minnesota.

Filed February 26, 2008.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).

Appeal from the Renville County District Court, File No. 675-CR-05-206.

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, and David Torgelson, Renville County Attorney, Glen Jacobsen, Assistant County Attorney, (for respondent)

Richard J. Coleman, and Wolanda Shelton, (for appellant)

Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Toussaint, Chief Judge.

UNPUBLISHED OPINION

PETERSON,

Judge.

In this appeal from a conviction of first-degree controlled-substance crime, appellant William Gomez argues that (1) the denial of his posttrial motion for judgment of acquittal should be reversed because there was insufficient circumstantial evidence that he constructively possessed the drugs found in another person's home and because the district court failed to consider evidence developed in a federal investigation, which was not presented to the jury but was known to the court; (2) the district court abused its discretion in refusing to instruct the jury on the doctrine of constructive possession; (3) the district court violated his constitutional right to compel the testimony of a witness by ruling that the person at whose residence the drugs were found, who had pleaded guilty in federal court and was awaiting sentencing for that offense, had a Fifth Amendment privilege excusing her from testifying; and (4) he is entitled to a judgment of acquittal or new trial based on the prosecutor's misrepresentation regarding the anticipated testimony of the homeowner, juror misconduct, and newly discovered evidence. The state appeals from the stay of imposition granted Gomez, arguing that the district court erred in finding that Gomez played a "minor or passive role" in the offense and that he was amenable to treatment. We affirm.

FACTS

On April 23, 2005, members of the CEE-VI Drug Task Force executed a search warrant at the house located at 201 East DePue Avenue in Olivia. The house belonged to Ericka Cantu, who lived there with her two children and appellant William Gomez. One

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son testified that Gomez had lived in the house since November 2003 and that Gomez and Cantu shared the master bedroom.

Officers discovered a number of items in the master bedroom. In a filing cabinet in the bedroom's only closet, there was paperwork that belonged to Gomez, including an insurance card, a department-of-employment card, an insurance contract, and tax documents. The insurance card listed Gomez's address as 201 East DePue Avenue, but other paperwork listed only a post office box. The closet contained both men's and women's clothing. A dresser in the bedroom contained men's and women's clothing in separate drawers.

One officer found a black bag on a shelf in the closet. The bag contained a plastic bag that contained what appeared to the officer to be methamphetamine. A second plastic bag inside the black bag also appeared to the officer to contain a controlled substance. The second plastic bag was larger and had two plastic bags inside it. Analysis showed that the smaller bag contained 26.1 grams of methamphetamine and the larger bag contained 111 grams of methamphetamine and 20.4 grams of cocaine. In one of the dresser drawers, another officer found a bag inside a sock. The bag contained what appeared to be methamphetamine. Although the sock appeared to be a man's sock, the other clothes in the drawer were women's undergarments. Analysis showed that the bag contained 18.7 grams of methamphetamine.

In a kitchen cupboard, an officer found a vacuum sealer and vacuum-sealer bags, which were similar to the bags that contained methamphetamine and cocaine. A small digital scale of a type used to weigh controlled substances was hidden on top of a

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cupboard. The officer also found a bottle of Inosital powder, a substance used to cut cocaine and methamphetamine, in a kitchen cupboard.

Gomez was charged with one count of first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 2(1) (2004) (possession of one or more mixtures of a total weight of 25 grams or more containing cocaine, heroin, or methamphetamine). A jury found Gomez guilty as charged. The district court stayed imposition of Gomez's sentence under Minn. Stat. § 152.152 (2004) and placed him on supervised probation for up to ten years. The state appealed from the sentence, and Gomez appealed from the conviction. This court ordered the two appeals consolidated.

DECISION

The state asserts that this court should affirm the denial of Gomez's new-trial motion because it was made more than 15 days after trial and, therefore, was untimely under Minn. R. Crim. P. 26.04, subd. 1(3). On March 3, 2006, within the 15-day period, Gomez filed a posttrial motion listing several grounds for relief, including the rules governing motions for a judgment of acquittal and a new trial. But he did not file a memorandum specifically explaining the grounds on which he sought relief until May 11, 2006. We need not determine whether the memorandum was timely because, except for a claim of newly discovered evidence, the issues raised by Gomez are issues that can be raised on direct appeal even without a motion for a new trial, and Gomez filed a timely appeal from the judgment of conviction. See Minn. R. Crim. P. 28.02, subd. 11 ("On appeal from a judgment, the court may review any pretrial or trial order or ruling, whether or not a motion for new trial has been made, and may review the denial of a

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motion for new trial or to vacate judgment or for judgment of acquittal, whether ruled upon before or after judgment."); Minn. R. Crim. P. 28.02, subds. 2(1), 4(3) (stating that judgment of conviction becomes final upon imposition of sentence and that appeal must be taken within 90 days of final judgment). The claim of newly discovered evidence was addressed in the May 11 motion papers and considered by the district court and, therefore, may be considered by this court. See Minn. R. Crim. P. 28.02, subd. 11 (stating that court of appeals "may review any other matter as the interests of justice may require.").

I.

Gomez argues that the evidence was insufficient to prove constructive possession and, therefore, the district court should have granted his motion for judgment of acquittal.

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). The reviewing court must assume that the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that

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the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).¹

"[A] conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence." State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). But circumstantial evidence "is entitled to as much weight as other kinds of evidence." Webb, 440 N.W.2d at 430. "The circumstantial evidence must form a complete chain which, in light 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." Id. (quotation omitted).

"A person is guilty of possession of a controlled substance if [he or] she knew the nature of the substance and either physically or constructively possessed it." State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000), review denied (Minn. June 13, 2000). When the controlled substance is not in a place under defendant's exclusive control to which other people did not normally have access, constructive possession requires a showing that "there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it." State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975). This court looks to the totality of the

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circumstances in determining whether constructive possession has been proved. Denison, 607 N.W.2d at 800.

When the search warrant was executed, Gomez had been living in Cantu's home for almost a year and a half. Evidence in the record showed that he and Cantu shared the master bedroom, and, specifically, the closet and dresser where the controlled substances were found. That evidence included the testimony of Cantu's son, documents that belonged to Gomez found in the file cabinet in the bedroom closet, and men's clothing found in the closet and dresser and on a chair.

Gomez argues that because the controlled substances were found in a woman's purse and in a dresser drawer with women's clothing, the only reasonable inference is that the controlled substances belonged to Cantu. Although the controlled substances in the closet were found in a black bag of a type typically used as a woman's purse, nothing about the bag indicated that it was in fact being used as a woman's purse. Rather, it was being used to store controlled substances. Although the methamphetamine in the dresser was in a drawer that contained only women's clothing, at least one other drawer in the dresser contained men's clothing, which indicated that Cantu and Gomez shared the...