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State v. Franco

Court of Appeals of Minnesota

June 24, 2013

State of Minnesota, Respondent,
v.
Roberto Franco, Appellant.

UNPUBLISHED OPINION

Ramsey County District Court File No. 62-CR-10-5482

Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, David E. Miller, Kaarin Long, Assistant County Attorneys, St. Paul, Minnesota (for respondent)

Scott Selmer, Minneapolis, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Toussaint, Judge. [*]

PETERSON, Judge

In this appeal from a conviction of possession of a firearm by an ineligible person, appellant argues that the district court (1) erred in upholding the validity of a warrant to search the residence where a controlled buy occurred, (2) erred in denying appellant's motion to compel disclosure of the confidential informant's identity, (3) materially misstated the law on constructive possession, and (4) erred in evidentiary rulings. Appellant also argues that he is entitled to reversal of his conviction because the state failed to preserve material evidence and because the evidence was insufficient to prove constructive possession. We affirm.

FACTS

In July 2011, Detective Shawn Scovill of the Dakota County Drug Task Force learned that Vincent Colunga was selling large quantities of methamphetamine. Using a confidential informant (CI), Scovill arranged three controlled buys of methamphetamine from Colunga.

The third controlled buy occurred at a residence located at 171 Annapolis Street East in St. Paul. Task-force detectives gave the CI money to buy the methamphetamine and conducted audio and visual surveillance of the entire transaction. The CI met with Colunga at a pre-arranged location, and Colunga instructed the CI to drive to 171 Annapolis Street. At the residence located there, a man later identified as Rafale Ybarra came to a side door and provided the methamphetamine to the CI.

Within 72 hours after the controlled buy, Scovill applied for and obtained a search warrant dated July 7, 2010, to search the residence at 171 Annapolis and the person of Ybarra. The search-warrant application states:

Your affiant conducted an interview with the CI following the controlled buy. The CI stated that he/she has been in the residence at 171 Annapolis Street East, St. Paul MN 55107 on two previous occasions within the past four months. The CI stated he/she knew the owner of the residence as "RAFA." On one of these occasions the CI personally observed the owner of the residence remove methamphetamine from a pan located in the kitchen. The CI described the pan as a spaghetti boiling pot. The CI stated that the pan was full of methamphetamine and estimated the weight at approximately five pounds.
Your affiant spoke with the St. Paul Police Department Narcotics Unit and provided them with the address of 171 Annapolis Street East. Agents of the St. Paul Narcotics Unit were able to identify Rafale Ybarra DOB/10-25-1966 as a possible match for the address and nickname.

The CI positively identified Ybarra from his driver's license photo.

Officers executed the search warrant on July 13, 2010. Several people were present in the home, including appellant Roberto Franco, who lived there. They stated that Ybarra lived next door. During execution of the search warrant, a detective found a .22-caliber revolver inside a pillow under a shelf in the basement. Following execution of the search warrant, Scovill interviewed appellant and Gilbert Castillo, who also lived at 171 Annapolis. Appellant admitted that the gun belonged to him, although he stated that he kept it outside in a car. Castillo did not say anything about the gun during his statement to Scovill.

Appellant was charged with being an ineligible person in possession of a firearm. The district court denied appellant's pretrial motions to suppress evidence discovered during the search and to compel disclosure of the CI's identity, and the case was tried to a jury.

Castillo testified at trial that during the interview with Scovill, in response to a question whether there was anything else in the house that Scovill should know about, he replied, "Yes, there's a gun downstairs. The gun is mine." Witnesses who were present during execution of the search warrant testified ...


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