State v. Porte

• Decision Date: 24 June 2013
• Docket Number: No. A12–1372.,A12–1372.
• Citation: 832 N.W.2d 303
• Parties: STATE of Minnesota, Respondent, v. Elvis Joko PORTE, Appellant.
• Court: Minnesota Court of Appeals

832 N.W.2d 303

STATE of Minnesota, Respondent,

v.Elvis Joko PORTE, Appellant.

No. A12–1372.

Court of Appeals of Minnesota.

June 24, 2013.

Syllabus by the Court

If the state does not make a harmless-error argument with respect to an issue that is subject to the harmless-error rule, this court is not required to undertake a harmless-error analysis but may do so in certain circumstances.

Lori Swanson, Attorney General, St. Paul, MN; and Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County Attorney, Rochester, MN, for respondent.

David W. Merchant, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, MN, for appellant.

Considered and decided by KIRK, Presiding Judge; JOHNSON, Chief Judge; and STONEBURNER, Judge.

OPINION

JOHNSON, Chief Judge.

A Rochester police officer found crack cocaine inside a van that Elvis Joko Porte was driving. An Olmsted County jury found Porte guilty of, among other things, first-degree and second-degree controlled-substance offenses. On appeal, Porte raises several issues. We conclude that the evidence is sufficient to support his controlled-substance convictions. But we conclude that the district court erred by giving a permissive-inference instruction to the jury. Therefore, we reverse and remand for a new trial.

FACTS

On February 24, 2011, a woman reported that her van, which she had lent to her boyfriend, A.R., was missing. That evening, Rochester police officer Kenneth Gallion observed Porte driving the van. Officer Gallion stopped the van and removed Porte from the vehicle.

Inside the van, officers found crack cocaine and marijuana. Officer Mitchell Jenson found a plastic bag of crack cocaine on the floor near the left side of the front passenger's seat. Officer Jenson also found a bag of marijuana and a bag containing 50 individually wrapped packages of crack cocaine inside a small storage compartment below the dash in front of the center console. (The parties describe this space as a “glove compartment,” although it is not on the passenger's side like most glove compartments. For the sake of clarity, we will refer to this space as a “center glove compartment.”) Porte initially told the officers that he had permission to use the van. After officers informed Porte that drugs were found inside the van, Porte claimed that the van was stolen.

The state charged Porte with seven offenses: first-degree controlled substance crime for possession with intent to sell more than 10 grams of cocaine, in violation of Minn.Stat. § 152.021, subd. 1(1) (2010); second-degree controlled substance crime for possession of more than 6 grams of cocaine, in violation of Minn.Stat. § 152.022, subd. 2(1) (2010); fifth-degree controlled substance crime for possession of marijuana, in violation of Minn.Stat. § 152.025, subd. 2(a)(1) (2010); aiding and abetting each of the first-degree and second-degree controlled-substance offenses, in violation of Minn.Stat. §§ 152.021, subd. 1(1), 152.022, subd. 2(1), 609.05, subd. 1 (2010); and two driving violations.

During a two-day trial in February 2012, A.R. testified that he let Porte use the van in exchange for $40 worth of crack cocaine and that he later agreed to convey the van to Porte in exchange for money and crack cocaine. A.R. testified that, at the time of their agreement, he opened up the center glove compartment to show Porte insurance papers and did not see any drugs inside. Porte's front-seat passenger, R.M., testified for the prosecution that the cocaine on the floor near the passenger's seat was his but that the drugs in the center glove compartment did not belong to him.

Porte testified in his own defense. He denied that the van transaction involved an exchange of drugs, but he admitted to using drugs in the van before acquiring it. Porte testified that he gave A.R. $500 as partial payment for the van and agreed to give A.R. an additional $200 at a later date. Porte further testified that none of the drugs in the vehicle belonged to him and that he had never opened the center glove compartment or looked inside it.

Before the case was submitted to the jury, the state dismissed the charge of marijuana possession. The jury found Porte guilty on all remaining counts. In May 2012, the district court imposed a presumptive sentence of 98 months of imprisonment. Porte appeals.

ISSUES

I. Is the evidence sufficient to support Porte's convictions of first-degree controlled substance crime and second-degree controlled substance crime?

II. Is Porte entitled to a new trial because the district court gave the jury a permissive-inference instruction?

ANALYSIS

I.

Porte first argues that the evidence is insufficient to support the convictions on the first-degree and second-degree controlled-substance offenses. Specifically, he argues that the state failed to prove both that he possessed the crack cocaine that was found in the center glove compartment and that he intended to sell it. We address his sufficiency-of-the-evidence argument first because it would, if successful, provide Porte with the greatest possible relief, outright reversal.

When considering a claim of insufficient evidence, this court conducts “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 a verdict of guilty. State v. Ortega, 813 N.W.2d 86, 100 (Minn.2012) (quotation omitted). We must assume that “the jury believed the state's witnesses and disbelieved any evidence to the contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn.2011) (quotation omitted). “[W]e 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 the defendant was guilty of the charged offense.” Ortega, 813 N.W.2d at 100.

A.

Porte argues that the state did not introduce evidence sufficient to prove that he possessed the crack cocaine that was found inside the center glove compartment. He asserts that he “was only one in a series of persons who had recently had control of the van.” He contends that because he was in the process of buying the van, he never opened the center glove compartment and, thus, did not know that drugs were inside. The state must prove that Porte possessed crack cocaine to obtain convictions of first-degree and second-degree controlled-substance offenses. SeeMinn.Stat. §§ 152.01, subd. 15a(3) (2010), 152.021, subd. 1(1), 152.022, subd. 2(1).

A defendant may be deemed to have possessed controlled substances by constructive possession. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). A jury may find that a defendant was in constructive possession of a controlled substance if the state proves:

(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 105, 226 N.W.2d at 611;see also State v. Lee, 683 N.W.2d 309, 316–17 n. 7 (Minn.2004). “Proximity is an important factor in establishing constructive possession.” State v. Breaux, 620 N.W.2d 326, 334 (Minn.App.2001). Furthermore, an item that is constructively possessed may be possessed by more than one person. State v. Smith, 619 N.W.2d 766, 770 (Minn.App.2000), review denied (Minn. Jan. 16, 2011). Thus, jurors could find Porte guilty of the controlled-substance offenses if they believed either that Porte possessed the crack cocaine alone or that he possessed the crack cocaine jointly with R.M., the front-seat passenger at the time of Porte's arrest. See id.

The trial record contains sufficient evidence to allow the jury to find that Porte had constructive possession of the crack cocaine that was found in the center glove compartment. A.R. testified that he allowed Porte to use the van in exchange for crack cocaine and later agreed that Porte could acquire the van with money and crack cocaine. Porte also admitted to using marijuana in the van before agreeing to acquire it, and the marijuana was found next to the crack cocaine. In addition, all other persons known to have had access to the van denied placing the crack cocaine and marijuana inside the center glove compartment. A.R. testified that no drugs were inside the center glove compartment when he delivered the van to Porte. The above-described evidence is sufficient to allow a jury to believe that Porte constructively possessed the crack cocaine that was found in the van's center glove compartment. See State v. Cusick, 387 N.W.2d 179, 180–81 (Minn.1986) (cocaine found on ground near defendant's wallet after car accident); State v. Maldonado, 322 N.W.2d 349, 353 (Minn.1982) (marijuana found under driver's seat of truck driven by defendant with passengers); Florine, 303 Minn. at 103–04, 226 N.W.2d at 610 (cocaine found in abandoned vehicle near defendant's billfold and driver's license).

Porte asserts that it is more likely that the crack cocaine belonged to A.R. or R.M., given their admissions to using drugs and R.M.'s proximity to the center glove compartment while Porte was driving. Porte also describes A.R.'s and R.M.'s testimony as “self-serving” and asks us to consider that A.R. was granted immunity. These arguments essentially ask this court to reweigh the evidence. We must defer to the jury's assessment of a witness's credibility, State v. Green, 719 N.W.2d 664, 673–74 (Minn.2006), and we must assume that “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).

In sum, the evidence is sufficient to prove that Porte had constructive possession of the crack cocaine that was found...