[Copyrighted Material Omitted]
Washington County District Court File No. 82-CR-13-789.
Evidence in the form of scientific drug-identification laboratory testing is not necessary to prove the identity of commercially manufactured pharmaceutical drugs beyond a reasonable doubt in a prosecution for unlawful possession of legend drugs under Minnesota Statutes section 151.37, subdivision 1.
For Respondent: Lori Swanson, Attorney General, St. Paul, Minnesota; and Peter J. Orput, Washington County Attorney, Robin M. Wolpert, Assistant County Attorney, Stillwater, Minnesota.
For Appellant: Maura E. Short, Kevin J. Short, Minneapolis, Minnesota.
Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Kirk, Judge.
Deputy Sheriff Ricky Gruber secretly duplicated a key to the pharmaceutical deposit box at the sheriff's office where he worked, and a surveillance camera captured him sneaking in and using the key to open the box and pilfer discarded medicine. A jury found Gruber guilty of unlawful possession of legend drugs and misconduct by a public officer. Gruber asks us to reverse his convictions by holding that the district court should have suppressed evidence, that the state failed to provide him with notice of the officer-misconduct charge, that the jury did not receive sufficient evidence to prove that he was acting within his official capacity and that the medicines he stole are legend drugs, and that the district court received inadmissible evidence. We reject all of Gruber's arguments and affirm.
The Washington County Sheriff's Office provides a locked depository box for members of the public to dispose of their unused pharmaceuticals. The sheriff maintains the box in a room not accessible to the general public. The deposited medicine accumulates in a 30-gallon drum inside the box until an assigned deputy unlocks the box, removes the drum, and incinerates the contents. Ideally, the depository program keeps discarded drugs from being obtained illegally.
One evening in January 2013 Sergeant Larry Osterman noticed that the door to the box was unlocked and the drum was missing. The circumstances might suggest that an authorized deputy had removed the drum and was incinerating the accumulated drugs. But when the sergeant returned later, he found that someone had returned the drum partly full and relocked the box. This indicated that the drum had not been removed for disposal purposes, and it caused the sergeant to suspect that an unauthorized person had accessed it. He installed a hidden camera to monitor the room.
Within days the camera captured Deputy Sheriff Ricky Gruber unlocking and opening the locked box. It recorded Gruber removing the drum from the room and returning it minutes later. Gruber was assigned to a records-management project--an assignment that did not include accessing the deposited drugs. No one with authority had issued Gruber a key to the box or given him permission to open it.
A week after Gruber was recorded accessing the box, supervisors who were watching a live feed from the camera saw him walk past the box more than once, peering around. They next watched Gruber approach the box, open it, remove the drum, and carry the drum from the room. A camera in another room picked up Gruber's activity. There Gruber rifled through the drum's contents, left the camera's view holding something in his hand, returned within view empty-handed, and took the drum back to the box.
The deputies confronted Gruber, arresting him.
Gruber cooperated. He made recorded statements after the investigator read him the Miranda warnings. He admitted that he took drugs from the drum on several occasions. He acknowledged that he was not supposed to access the box. He disclosed that he had removed a key from a coworker's desk, duplicated it, and returned it without notice. He admitted that he had taken the drugs for his own use and for use by his family. He knew that some of the drugs required a prescription, and he said that he had been prescribed some of the same medicine. He revealed where the investigators would find drugs that he had taken, and he consented to searches of his office and his car. Investigating deputies searched and found amoxicillin, hydroxyzine, trazodone, lidocaine, metformin hydrochloride, tadalafil, vardenafil, and fluoxetine hydrochloride. They also found phentermine hydrochloride, a controlled substance. Gruber resigned his deputy position.
The state charged Gruber with fifth-degree possession of a controlled substance, Minn. Stat. § 152.025, subd. 2(a)(1) (2012), theft of a controlled substance, Minn. Stat. § 609.52, subd. 2(1) (2012), misconduct by a public officer, Minn. Stat. § 609.43(2) (2012), and unlawful possession of legend drugs, Minn. Stat. § 151.37, subd. 1 (2012). " Legend drugs" are medications that require a prescription under federal law. Minn. Stat. § 151.01, subd. 17 (2012). One clause of the misconduct-of-a-public-officer statute criminalizes actions by a public officer done in his official capacity in excess of his lawful authority. Minn. Stat. § 609.43(2). The charging section of the criminal complaint against Gruber included the statutory language of this clause, but the complaint outlined the supporting facts only in its statement of probable cause.
Gruber pleaded not guilty. Before trial he argued that the deputies lacked probable cause for his arrest, and he moved the district court to suppress his statements and all drugs discovered in searches after the arrest. He also moved the court to dismiss the charge of misconduct by a public officer, contending that he was not acting in his official capacity when the thefts occurred. The district court denied these motions.
The parties submitted proposed jury instructions. The state's proposed instruction on the misconduct-by-a-public-officer charge defined the lawful authority that Gruber exceeded, describing his lawful authority as a peace officer's statutory authority to prevent and detect crime, to enforce criminal laws, and to arrest offenders. And the instruction identified Gruber's alleged misconduct as his accessing and taking drugs from the depository box without permission. The state maintained that the instruction was proper because Gruber had known that his theft-related behavior was the relevant misconduct as early as the pretrial motion to dismiss, when the parties debated whether Gruber committed the theft in his official capacity. The district court concluded that Gruber had sufficient notice of the charged misconduct and gave the instruction.
The jury found Gruber guilty of gross-misdemeanor misconduct by a public officer and misdemeanor possession of a legend drug. It acquitted him of the charges of possession and theft of controlled substances, both felonies. The jury explained in a note to the district court that it believed that Gruber had in fact committed theft, but it found that the state failed to prove that he knew that the substances he stole were controlled substances. Gruber moved to vacate the judgment, and the district court denied the motion.