State v. Kirst

• Docket Number: A23-1550
• Decision Date: 19 August 2024
• Parties: State of Minnesota, Respondent, v. John Arland Kirst, Appellant.
• Court: Minnesota Court of Appeals

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State of Minnesota, Respondent, v. John Arland Kirst, Appellant.

No. A23-1550

Court of Appeals of Minnesota

August 19, 2024

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Cottonwood County District Court FileNo. 17-CR-21-268.

Keith Ellison, Attorney General, Zuri Balmakund, Assistant Attorney General, St. Paul, Minnesota; and Nick Anderson, Cottonwood County Attorney, Windom, Minnesota (for respondent).

Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant).

Considered and decided by Larson, Presiding Judge; Connolly, Judge; and Reilly, Judge.

REILLY, JUDGE.^[*]

A jury found appellantJohn Arland Kirst guilty of third-degree controlled substance crime after he fled police and a search of his person turned up "crystal shards" suspected to be methamphetamine.On appeal, Kirst argues that the evidence is insufficient to sustain his conviction of third-degree controlled substance crime because the state failed to prove he possessed ten grams or more of methamphetamine.We affirm.

FACTS

The facts below are taken from uncontested testimony and evidence admitted at trial.

On June 7, 2021, Cottonwood County Sheriff's Office drug investigator J.S. noticed a Kawasaki motorcycle being driven and parked around town with "just a piece of cardboard with duct tape on it . . . in the place of where the license plate would normally be."He looked up the driving status of the owner of the motorcycle, discovering that Kirst owned it and had a cancelled driver's license.J.S. shared his observations with the Windom Police Department patrol officers and Cottonwood County Sheriff deputies.

Two days later, on June 9, 2021, Windom Assistant Chief of Police C.H. saw the Kawasaki motorcycle that he had been "informed to be on the lookout for" in the town of Windom.He advised J.A., a deputy with the Cottonwood County Sheriff's Office, that he saw the motorcycle.J.A. then drove to find the motorcycle.After following the motorcycle for several blocks, J.A. initiated a traffic stop.The motorcycle did not stop, and J.A. continued to pursue it for "approximately six minutes" and "[a]bout three miles."During the pursuit, J.A. observed the motorcycle make "multiple dangerous traffic violations."D.M., a deputy with the Cottonwood County Sheriff's Office, was on a call nearby and joined J.A.'s pursuit.D.M. then took the lead on the pursuit.Kirst's motorcycle eventually stopped, and Kirst ran off on foot.D.M. ran after Kirst for about 100 yards.After Kirst briefly resisted, the officers arrested Kirst.

C.H. searched Kirst and found butane lighters and two large baggies containing "[c]rystal-like, large shards" which were located "in his pocket and up his shorts."C.H. testified that, based on his training and experience, he believed the substance to be methamphetamine.J.A. also testified that, based on his training and experience, he believed the "crystal-like substance" to be methamphetamine.

J.A. took the baggies back to the sheriff's office, logged them into evidence, and weighed them.RespondentState of Minnesota introduced trial exhibits 5 and 6, two photos each showing a baggie containing crystal shards on a scale, with the scale reading 14.6 grams and 1.8 grams, respectively.Kirst did not object to the admission of exhibits 5 and 6. J.A. testified that the photos were a true and accurate representation of the suspected methamphetamine he weighed.

Officers sent the baggies to the Minnesota Bureau of Criminal Apprehension (the BCA) for testing.The BCA report concluded that the first bag weighed 14.329 grams and contained methamphetamine.The report noted that the second, smaller bag was "not analyzed."The state charged Kirst with third-degree controlled substance crime in violation of Minn. Stat. § 152.023, subd. 2(a)(1)(2020).

At trial, a BCA forensic scientist testified.She received two pieces of evidence for this case-two "Ziploc bags of white crystalline material."She tested only one of the bags because "from what [she] observed in [the other bag], [she] didn't believe that that would increase the charge."She testified this is standard practice at the BCA.She performed "two spot tests, or color tests," a test in which she"add[ed] a certain chemical or a certain chemical structure" to see what color it turned, which indicated "that the sample could possibly contain methamphetamine."She then performed a confirmatory test using a gas chromatograph mass spectrometer.She testified that, based on both the preliminary and confirmatory tests, she concluded that the substance was methamphetamine.She did not testify about the weight of any of the individual components that she tested.

On cross-examination, the BCA forensic scientist explained that she weighed the substance in "[a] weigh boat" and that the BCA's standard operating procedure was to remove the packaging to weigh a controlled substance, but that the procedures did not specify whether it must be weighed in a container or not.The district court admitted into evidence, without objection, the forensic scientist's initial and amended BCA reports concluding that the shards tested contained methamphetamine.

The jury found Kirst guilty of third-degree controlled substance crime, fleeing a peace officer, and driving after cancellation as inimical to public safety.The district court sentenced Kirst to a 45-month prison term for the third-degree controlled substance conviction.

This appeal follows.

DECISION

On appeal, Kirst argues that the state failed to prove beyond a reasonable doubt the nature and weight of the substance is sufficient to sustain his conviction.

The state charged Kirst with third-degree controlled substance crime in violation of Minn. Stat. § 152.023, subd 2(a)(1), under which "[a] person is guilty of controlled substance crime in the third degree if: . . . on one or more occasions within a 90-day period the person unlawfully possesses one or more mixtures of a total weight of ten grams or more containing a narcotic drug other than heroin or fentanyl."The weight of the controlled substance is an essential element of the offense and must be proved beyond a reasonable doubt.State v. Papadakis, 643 N.W.2d 349, 354(Minn.App.2002);see alsoState v. Robinson, 517 N.W.2d 336, 339-40(Minn.1994)(reversing conviction because scientific evidence of weight-an element of the charged offense-was insufficient because of inadequate random sampling);State v. Loveless, 987 N.W.2d 224, 248(Minn.2023)("If an alleged offense depends on proof of a numerical threshold, that threshold is 'an essential element of the offense charged,' which 'must be proven by the state and proven beyond a reasonable doubt.'").Kirst argues that the state did not prove the element of the weight through direct evidence.The state argues that direct evidence supports the conviction, and that circumstantial evidence also "corroborates the identification and weight of the methamphetamine."

Appellate courts"have 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).Scientific evidence is not always required to identify controlled substances beyond a reasonable doubt.State v. Gruber, 864 N.W.2d 628, 638(Minn.App.2015).For example, the state may prove a substance's identity with nonscientific or circumstantial evidence when the substance is unavailable for testing because of the defendant's actions.State v. Olhausen, 681 N.W.2d 21, 27-29(Minn.2004).The state may also satisfy its burden of proof with a combination of scientific evidence, nonscientific evidence, and circumstantial evidence.Vail, 274 N.W.2d at 134(considering both types of evidence but concluding that "'additional factors' simply do not advance the state in satisfying its burden of proof, given the trial court's skepticism of the scientific evidence");see alsoLoveless, 987 N.W.2d at 248.

To assess the sufficiency of the evidence, we"review the evidence to determine 'whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.'"State v. Al-Naseer, 788 N.W.2d 469, 473(Minn.2010)(quotingState v. Moore, 481 N.W.2d 355, 360(Minn.1992)).

Kirst notes that the BCA forensic scientist extrapolated the results of testing three crystals in "distinct pieces" to conclude that all the crystals in the bag contained methamphetamine.But he argues that, because the forensic scientist did not testify which pieces she tested or how much they weighed, the state failed to prove that Kirst possessed ten grams of methamphetamine.

Kirst relies on Robinson to support his position.In Robinson, the defendant was convicted of first-degree controlled substances crime for selling "[ten] grams or more of a cocaine mixture."517 N.W.2d at 337.Law enforcement had found a "bag contain[ing] 13 clear plastic packets, each containing a piece of a white substance" which weighed in total 16.7 grams.Id. at 338.The chemist at trial testified that she"emptied [six] or [seven] of the 13 packets into a container" and tested "samples of the mixture," determining it was "87.6 percent cocaine base."Id.The supreme court noted that, because the state tested "at most [seven]" packets, the state"tested less than [nine] grams of the substance."Id.The state argued that the testing of...