Olmsted County District Court File No. 55-CR-11-1427.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County Attorney, Rochester, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Kirk, Presiding Judge; Johnson, Chief Judge; and Stoneburner, Judge.
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.
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.
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.
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 ...