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State v. Elling

Court of Appeals of Minnesota

July 22, 2013

State of Minnesota, Respondent,
Gerald Thomas Elling, Appellant.


Isanti County District Court File No. 30-CR-11-439

Lori Swanson, Attorney General, St. Paul, Minnesota; and Jeffrey Edblad, Isanti County Attorney, Stacy St. George, Timothy C. Nelson, Assistant County Attorneys, Cambridge, Minnesota (for respondent)

David W. Merchant, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Rodenberg, Judge; and Huspeni, Judge. [*]


On appeal from his conviction of felony fifth-degree possession of methamphetamine and of gross-misdemeanor driving-after-cancellation inimical to public safety (DAC/IPS), appellant argues (1) his fifth-degree-possession conviction must be reversed because there was insufficient circumstantial evidence; (2) the district court committed reversible error by allowing the introduction of inadmissible hearsay evidence and other testimonial evidence from police officers; and (3) appellant's purported guilty plea on the charge of driving after cancellation must be vacated where he did not validly waive his jury trial rights. Because there was insufficient circumstantial evidence to support appellant's felony conviction, that conviction is reversed, and because his gross-misdemeanor guilty plea was invalid, we reverse and remand for further proceedings.


On August 8, 2011, law enforcement arrived at a gas station for a controlled buy, targeting suspect D.K. Surveillance showed a vehicle arriving with two occupants. The car's driver was appellant Gerald Elling, and the passenger was D.K. Police had no prior information that appellant would be involved in the controlled buy or would be driving the car. When police officers approached the vehicle to arrest the occupants, appellant cooperated with the officers and had no drugs on him. But D.K. did not cooperate, and when he was removed from the vehicle, officers discovered a broken baggy with methamphetamine near where D.K. had been sitting and white powder spread over the passenger's seat.

When searching the car, police found a pair of jeans in the backseat, behind the driver's seat. The jeans were on top of a snowmobile jacket. In the coin pocket of the jeans was a baggy containing what was later determined to be methamphetamine.

Respondent, the state, charged appellant with conspiracy to commit fourth-degree possession with intent to sell (methamphetamine), fifth-degree possession (methamphetamine), and DAC/IPS. Appellant moved to dismiss the possession charges for lack of probable cause. The district court granted the motion with respect to the fourth-degree possession charge, finding that respondent failed to produce evidence of a conspiracy. But the district court denied the motion as to the fifth-degree possession charge. Appellant pleaded guilty to the DAC/IPS charge and proceeded to trial on the fifth-degree possession charge.

The fifth-degree possession charge was based on the methamphetamine found in the jeans in the backseat of the car; ownership of the jeans was the sole contested issue at appellant's trial. At trial, an investigator testified that the jeans found in the car were size 30/31. He also testified that the registered owner of the car was an individual named J.B. and that no paperwork or anything else found in the car was connected to appellant.

Although police did not locate J.B., J.B.'s driver's license indicated that he was six-foot-one and 250 pounds. The investigator testified that appellant was five-foot-eight and 180 pounds; that D.K. was five-foot-ten and 200 pounds; and that he himself was six-foot-two and 215 pounds and wore size 34/34 pants. He also testified that, as part of his investigation, he had spoken with an unidentified jail employee who indicated that, when appellant was brought to the jail, he had been wearing size 31/30 pants. Finally, he testified that, based on his training and experience, he had formed an opinion that appellant owned the jeans containing the methamphetamines.

Another officer testified that he knew appellant from prior contacts and testified generally regarding appellant's weight. Specifically, he testified that on the day of his arrest, appellant was skinnier than usual and that appellant was heavier at trial than he had been at the time of his arrest. In ...

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