state of minnesota

---

OFFICE OF APPELLATE COURTS

SEP 0 3 20144/

FILED

No. A14-0554

STATE OF MINNESOTA IN COURT OF APPEALS

State of Minnesota, Respondent, vs. Robbin Alexander McNeil, Appellant. RESPONDENT'S BRIEF

MARK D. NYVOLD

7671 Central Avenue N.E. Suite 207 Fridley, MN 55432 (763) 276-9173 BRUCE N. RINGSTROM, SR. P.O. Box 652 Detroit Lakes, MN 56502 (218) 847-3994 ATTORNEYS FOR APPELLANT

LORI SWANSON Minnesota Attorney General MICHAEL EVERSON Assistant Attorney General Atty. Reg. No. 0388310 445 Minnesota Street, Suite 1800 St. Paul, MN 55101-2134 (651) 757-1371(Voice) (651) 282-2525 (TTY) GRETCHEN D. THILMONY Becker County Attorney Courthouse 915 Lake Avenue Detroit Lakes, MN 56501 ATTORNEYS FOR RESPONDENT

TABLE OF CONTENTS Page LEGAL ISSUES

1

STATEMENT OF THE CASE AND FACTS

3

ARGUMENT

6

I.

THE DISTRICT COURT PROPERLY EXCLUDED IRRELEVANT TESTIMONY THAT LACKED FOUNDATION AND WOULD HAVE CONFUSED THE ISSUE FOR THE JURY.

A.

Standard Of Review.

6

B.

The Trial Court Appropriately Limited Testimony That Was Irrelevant, Lacked Foundation, And Confused The Issue.

6

Even If The Trial Court Abused Its Discretion, Any Alleged Error Had No Effect On The Verdict.

11

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY ADMITTING RELEVANT EVIDENCE HAVING A TENDENCY To SHOW THAT APPELLANT POSSESSED MARIJUANA.

12

C.

II.

6

A.

Standard Of Review.

12

B.

The Trial Court Did Not Abuse Its Discretion In Admitting Evidence Of Bongs And Cash Found In Appellant's Vehicle

12

Even If The Trial Court Abused Its Discretion, Any Alleged Error Was Harmless.

14

C.

III. THE PROSECUTOR DID NOT COMMIT MISCONDUCT ENTITLING APPELLANT

14

To A NEW TRIAL. A.

Standard of Review.

14

B.

The Prosecutor Did Not Plainly Err Because Appellant Opened The Door To Questions About His Presumptive Sentence.

15

1.

The prosecutor did not commit misconduct.

i

15

2.

Even if the prosecutor erred, Appellant cannot show the error was plain.

18

Even if Appellant can show plain error, he was not prejudiced

18

Review of the alleged error is not necessary to ensure fairness and integrity of judicial proceedings.

19

The Prosecutor Did Not Commit Misconduct During Closing Argument

20

IV. APPELLANT CANNOT SHOW ANY ERRORS, LET ALONE CUMULATIVE ERROR DEPRIVING HIM OF A FAIR TRIAL.

21

CONCLUSION

21

3.

4.

C.

ii

TABLE OF AUTHORITIES Page FEDERAL CASES California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528 (1984)

6

Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038 (1973)

6

United States v. Bowen, 421 F.2d 193 (4th Cir. 1970)

9, 10

STATE CASES State v. Amos, 658 N.W.2d 201 (Minn. 2003)

6

State v. Bailey, 732 N.W.2d 612 (Minn. 2007)

17

State v. Brechon, 352 N.W.2d 745 (Minn. 1984)

9, 10

State v. Davidson, 351 N.W.2d 8 (Minn. 1984)

13

State v. Fields, 730 N.W.2d 777 (Minn. 2007)

16

State v. Glaze, 452 N.W.2d 655 (Minn. 1990)

12

State v. Griller, 583 N.W.2d 736 (Minn. 1998)

15

State v. Grose, 387 N.W.2d 182 (Minn. Ct. App. 1986)

16

State v. Hill, 801 N.W.2d 646 (Minn. 2011)

19

State v. Jackson, 714 N.W.2d 681 (Minn. 2006)

16, 21

iii

State v. Jones, 753 N.W.2d 677 (Minn. 2008)

15, 18

State v. Kelly, 435 N.W.2d 807 (Minn. 1989)

12

State v. Lasnetski, 696 N.W.2d 387 (Minn. Ct. App. 2005)

16

State v. Lee, 645 N.W.2d 459 (Minn. 2002)

12

State v. Majerus, No. A06-906, 2007 WL 2702953 (Minn. Ct. App. Sept. 18, 2007)

13

State v. McCullum, 289 N.W.2d 89 (Minn. 1979)

16

State v. McDaniel, 777 N.W.2d 739 (Minn. 2010)

14

State v. Medibus-Helpmobile, 481 N.W.2d 86 (Minn. Ct. App. 1992)

7

State v. Nunn, 561 N.W.2d 902 (Minn. 1997)

11

State v. Papadakis, 643 N.W.2d 349 (Minn. Ct. App. 2002)

12

State v. Patterson, 493 N.W.2d 577 (Minn. Ct. App. 1992)

16

State v. Post, 512 N.W.2d 99 (Minn. 1994)

6

State v. Ramey, 721 N.W.2d 294 (Minn. 2006)

14, 15, 19

State v. Richards, 495 N.W.2d 187 (Minn. 1992)

1, 6

State v. Steward, 645 N.W.2d 115 (Minn. 2002)

15

iv

State v. Strommen, 648 N.W.2d 681 (Minn. 2002)

18

State v. Taylor, 650 N.W.2d 190 (Minn. 2002)

11

State v. Thiel, 846 N.W.2d 605 (Minn. Ct. App. 2014)

7, 11

State v. Trimble, 371 N.W.2d 921 (Minn. Ct. App. 1985)

20

State v. Ture, 632 N.W.2d 621 (Minn. 2001)

12

State v. Valtierra, 718 N.W.2d 425 (Minn. 2006)

16

State v. White, 203 N.W.2d 852 (Minn. 1973)

16

State v. Wiltse, 386 N.W.2d 315 (Minn. Ct. App. 1986)

10

STATE STATUTES AND RULES 2014 Minn. Laws ch. 311

8

Minn. R. Evid. 401 (2014)

12

Minn. R. Evid. 402 (2014)

12

Minn. R. Evid. 403 (2014)

7

Minn. Stat. § 152.025

7, 12

LEGAL ISSUES I.

Did the trial court abuse its discretion by excluding irrelevant and confusing testimony offered to challenge the merits of Minnesota's laws against marijuana possession? The trial court permitted Appellant to offer testimony about his personal views on marijuana and his alleged medical use of the substance, but excluded testimony challenging the legislature's classification of marijuana as a schedule I drug. (T 104-05).1 Apposite Authority: State v. Richards, 495 N.W.2d 187 (Minn. 1992) State v. Thiel, 846 N.W.2d 605 (Minn. Ct. App. 2014)

II.

Did the trial court abuse its discretion by permitting the prosecution to offer evidence that Appellant possessed a large amount of cash and several bongs? The trial court ruled the evidence was relevant and admissible to show that Appellant knowingly possessed marijuana found in his vehicle. (T 40-41). Apposite Authority: Minn. R. Evid. 401 (2014) Minn. R. Evid. 402 (2014) Minn. Stat. § 152.025, subd. 2 (2014)

"T." refers to the transcript of Appellant's jury trial that occurred on March 6 and 7, 2014. I

1

III.

Did the prosecutor commit misconduct by cross-examining Appellant about his presumptive sentence after Appellant testified on direct examination that he was facing prison time if convicted; and by making a brief misstatement about the presumption of innocence but immediately correcting himself? Appellant did not object to cross-examination about the presumptive sentence, so the trial court did not rule. Appellant objected to the prosecutor 's brief misstatement about the presumption of innocence, but the trial court did not rule because the prosecutor immediately corrected himself (T. 155). Apposite Authority: State v. Trimble, 371 N.W.2d 921 (Minn. Ct. App. 1985)

IV.

Did the cumulative effect of any alleged errors deprive Appellant of a fair trial? Appellant did not raise this issue below, so the trial court did not rule. Apposite Authority: State v. Jackson, 714 N.W.2d 681 (Minn. 2006)

2

STATEMENT OF THE CASE AND FACTS On December 14, 2012, Trooper Steven Jepson of the Minnesota State Patrol stopped a vehicle speeding on Highway 34 in rural Becker County, Minnesota. (T. 56-57). He approached the vehicle and spoke with the driver, Appellant Robbin McNeil. (T. 58). Trooper Jepson immediately noticed an odor of burned marijuana coming from the vehicle. (T. 59). He asked Appellant about the odor, prompting Appellant to grab a small Tupperware container from the backseat containing marijuana. (Id.). There were also two glass bongs in the vehicle. (T. 59-61). Trooper Jepson asked Appellant to exit his vehicle and sit in the trooper's squad car. (T. 61). After learning that Trooper Jepson intended to search his vehicle, Appellant requested to speak with a detective or investigator. (T. 62). When asked why, Appellant indicated there was four pounds of marijuana in his vehicle. (Id.). Trooper Jepson quickly located approximately four pounds of marijuana in a bag in the back seat of the vehicle. (T. 62-63, 74). Trooper Jepson arrested Appellant and transported him to the Becker County Jail. (T. 71). During a routine search at the jail, officers discovered $4,000 cash on Appellant's person. (T. 72). As requested by Appellant, an investigator, Sergeant Rodney Eishens, spoke with Appellant at the Becker County Jail. (T. 76-77). During the interview, Appellant told Sergeant Eishens that: I know laws you know with pot [sic]. I know it's illegal. I wasn't doing anything. I wasn't trying to put anybody in a position to commit anything more than citation. I'm fucking desperate. I'm trying to save my house.

3

(Ex. 6).2 The Becker County Attorney charged Appellant with fifth-degree possession of a controlled substance. At trial, Trooper Jepson testified about the traffic stop and locating four pounds of marijuana in Appellant's back seat. (T. 58-63). The prosecution played the squad video of the traffic stop that included Appellant's admissions about possessing marijuana in his vehicle, as well as the recorded interview at the jail in which he again admitted possessing marijuana. (Ex. 4, 6). Appellant testified on his own behalf and described how he started selling marijuana to "[e]arn enough to eat, pay rent, pay bills and feed, food." (T. 89). He stated that he had a "medical marijuana card" and that he uses marijuana to help with nausea and hyperactivity. (T. 113-14). When defense counsel asked why the jury should find him not guilty, Appellant responded: I stood in front of a judge when I was 18 years old, facing 35 years, that's ten years over a life sentence, for growing three pot plants. The reason for that, pot is a schedule I narcotic, heroin is a schedule I narcotic, LSD is a schedule I narcotic. They're the worst of the worst when it comes to drugs. They carry a life sentence, every one of those. Heroin kills people every day. LSD kills people every day. Pot is a schedule I narcotic. If there is a drug on that list that the Food and Drug Administration on record [sic] saying we have zero deaths due to overdose. That drug can't — (T. 95-96). The prosecution objected, at which point the trial court excused the jury and asked defense counsel to make an offer of proof regarding what testimony Appellant intended to offer. (T. 96-97). Counsel responded: Ex. /3 refers to an exhibit received at Appellant's jury trial. Exhibit 6 was a video recording of Sergeant Eishens's interview with Appellant. A transcript of the interview was received as court exhibit 7. 2 GL

4

The facts Mr. McNeil intends to offer by his testimony, is his belief based upon the evidence that is clear and public that marijuana has been improperly classified as a controlled substance — level 1 controlled substance, at the same level as heroin, cocaine, methamphetamine and LSD, and the basis for that classification has been found by presidential commissions, by the Food and Drug Administration which has co-equal power with the DEA to classify something as a schedule I controlled substance, to have no basis. It does not meet the requirement. It has not killed anyone. It is not a dangerous and deadly drug. It may be a drug, but it is not a dangerous and deadly drug, which is the basis for classification as a schedule I, which is why cocaine, heroin, LSD and methamphetamine are schedule I. Mr. McNeil wishes to offer his observations of that and his conclusion that it is improperly schedule I. Minnesota classifies it as schedule I by adopting the federal classifications. It may be a level 2 on the sentencing guidelines, but Minnesota has classified it as a schedule I substance because the federal government did. (T. 98-99). The trial court stated that Appellant could testify about his views on whether marijuana should be legal, but ruled that Appellant could not offer testimony challenging the merits of the law. (T. 105). Appellant subsequently testified that he believes marijuana should be legal because he has "never found anybody that has offered me proof that pot has killed anybody." (T. 110). Appellant added, "if nobody has ever died from pot, and nobody can come out and show ill effects and show where it's putting people in the hospital, why are we — why is it illegal?" (T. 112).

5

The jury found Appellant guilty of fifth-degree possession of a controlled substance. (T. 161). The district court imposed a 19-month stayed prison sentence, which Appellant requested be executed. (T.S. 12-13).3 This direct appeal followed. ARGUMENT I.

THE DISTRICT COURT PROPERLY EXCLUDED IRRELEVANT TESTIMONY THAT LACKED FOUNDATION AND WOULD HAVE CONFUSED THE ISSUE FOR THE JURY. A.

Standard Of Review.

Evidentiary rulings "rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion." State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). To receive a new trial, an appellant alleging the wrongful exclusion of evidence must show both an abuse of discretion and resulting prejudice. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). B.

The Trial Court Appropriately Limited Testimony That Was Irrelevant, Lacked Foundation, And Confused The Issue.

An accused is entitled to a meaningful opportunity to offer relevant evidence in his defense. State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (citing California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528 (1984)). But the right to present evidence in one's defense is subject to "established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Richards, 495 N.W.2d at 195 (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049 (1973)). A defendant, for example, has no right to present irrelevant 3 "T.S" refers to the transcript of Appellant's sentencing hearing that occurred on March 21, 2014.

6

evidence.

State v. Medibus-Helpmobile, 481 N.W.2d 86, 91 (Minn. Ct. App. 1992)

(stating that "[a] criminal defendant's right to present evidence in his defense is limited by the rules of evidence, and there is no right to present irrelevant evidence"). Similarly, a trial court may exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]" Minn. R. Evid. 403 (2014). In State v. Thiel, 846 N.W.2d 605 (Minn. Ct. App. 2014), the prosecution charged the defendant with fifth-degree possession of a controlled substance after finding two mason jars of marijuana in his vehicle. The defendant sought to testify that he used marijuana to control chronic pain and had a medical marijuana license issued by the State of California. Id. at 614. This Court affirmed the district court's exclusion of testimony about the defendant's medical use of marijuana, stating that: Appellant's testimony that he possessed a California medical marijuana patient verification card and used marijuana for a medical purpose is not relevant to his charge of fifth-degree possession of a controlled substance. Although this testimony may have helped appellant to explain his conduct to a jury, it would not have excused his conduct and it also would have served to confuse and mislead the jury. Id. at 615. As in Thiel, Appellant in the present case is charged with fifth-degree possession of a controlled substance. The elements of fifth-degree possession are: (1) the defendant possessed one or more mixtures containing marijuana; and (2) the defendant knew or believed the substance was marijuana. Minn. Stat. § 152.025, subd. 2(1) (2014). The

7

reason Appellant possessed marijuana or his disagreement with laws prohibiting marijuana possession were irrelevant. Nevertheless, the district court granted Appellant significant leeway to testify about his beliefs regarding marijuana and his alleged medical purpose for using the substance. Appellant was able to testify that he had a "medical marijuana card" and that marijuana helped him with nausea, sleep apnea, hyperactivity. (T. 92, 113-14).4 He also testified that marijuana helps relieve symptoms of hepatitis C and migraine headaches. (T. 113).

The trial court only excluded testimony that directly challenged the

legislature's decision to prohibit marijuana possession. (T. 104-05). Testimony about the reason Appellant disagreed with Minnesota's marijuana law was irrelevant and served to confuse the issue for the jury. In his offer of proof, Appellant indicated that he would testify that: (1) he believed federal authorities misclassified marijuana as a schedule I drug; (2) unspecified presidential commissions and the Food and Drug Administration have found there is no basis to classify marijuana as a schedule I drug; (3) marijuana is not dangerous; and (4) other drugs classified as schedule I are more dangerous than marijuana. (T. 98-99).

The record does not reveal the nature of Appellant's "medical marijuana card," but there was no provision of Minnesota law that could have permitted Appellant to possess the marijuana found in his vehicle. Even under legislation recently approved by the legislature, medical cannabis is available only under highly regulated and controlled circumstances after a person receives a certification of diagnosis from a licensed professional authorized to practice medicine. 2014 Minn. Laws ch. 311. The person must then apply to become part of a patient registry program. Id. § 7. The 2014 legislation does not authorize marijuana that is smoked, such as the marijuana found in Appellant's vehicle. Id. § 2. 4

8

The jury's role was to determine whether Appellant violated Minnesota law, not to determine the merits of the underlying law. The obvious purpose of Appellant's testimony was challenging the policy of prohibiting marijuana possession. Questions of this nature are for the legislature, not a jury. Permitting open-ended testimony challenging the policy underlying a law would involve a significant and inappropriate expansion of issues in a criminal trial, and would effectively permit defendants to place the merits of a law on trial. The evidence excluded by the trial court was also inadmissible for lack of foundation. Appellant had no expertise in the classification of marijuana, or in the dangerousness or medical benefits associated with the drug. The trial court permitted Appellant to offer his personal views about marijuana, but the court appropriately excluded hearsay testimony about scientific studies, presidential commissions, and Food and Drug Administration findings. Appellant's reliance on State v. Brechon, 352 N.W.2d 745 (Minn. 1984) and United States v. Bowen, 421 F.2d 193 (4th Cir. 1970), is misplaced. In Brechon, the supreme court found error in excluding the defendant's testimony about his intent and motive when trespassing because the testimony was relevant to whether the defendant had a claim of right to be on the property. 552 N.W.2d at 750-51. The testimony was therefore relevant to an element of the crime. The court in Brechon also recognized that: The court may rule that no expert testimony or objective proof may be admitted. The court should exclude irrelevant testimony and make other rulings on admissibility as the trial proceeds.

9

Id. at 751. Unlike Brechon, Appellant's testimony challenging the classification of marijuana is not relevant to any element of the crime. In Bowen, the government charged the defendant with failing to report for induction into the army. 421 F.2d at 193. The trial court excluded testimony from the defendant about why he did not want to report for induction into the army, despite the willful failure to report being an essential element of the crime. Id. at 194, 197. The Fourth Circuit found error in excluding the testimony because it deprived the defendant of an effective opportunity to deny that he willfully failed to report. Id. at 197. Unlike Bowen, Appellant's proffered testimony had no relevance to the fifthdegree possession charge, and Appellant had a full opportunity to deny all essential elements of the criminal offense. In addition, neither Bowen nor Brechon involved an attempt to challenge the merits of the underlying charged offense. For similar reasons, Appellant's reliance on State v. Wiltse, 386 N.W.2d 315 (Minn. Ct. App. 1986), is misplaced. In Wiltse, the trial court excluded evidence that the victim invited Appellant into her home. Id. at 317. At the time, there was an order for protection prohibiting Appellant from entering the victim's home. Id. This Court found that testimony about the victim inviting Appellant into the home was relevant because it provided context and enabled the jury to fully understand the factual circumstances. Id. at 317-18. Again, Wiltse did not involve testimony challenging the underlying merits of a law. Here, the trial court allowed Appellant to explain why he possessed marijuana. The court also permitted Appellant to testify regarding his personal opinions about

10

marijuana laws. The court, however, reasonably precluded Appellant from offering detailed testimony about the merits of state and federal laws prohibiting the possession of marijuana. The excluded testimony was largely hearsay, lacked foundation, and was an irrelevant attempt to challenge the legislature's decision to prohibit marijuana possession. The district court did not abuse its discretion. C.

Even If The Trial Court Abused Its Discretion, Any Alleged Error Had No Effect On The Verdict.

Even if Appellant showed an abuse of discretion, he is entitled to a new trial only if the error resulted in prejudice. Thiel, 846 N.W.2d at 615 (citing State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997)). Appellant's testimony about the merits of Minnesota's marijuana laws would not have impacted the verdict. The district court instructed the jury regarding the elements of fifth-degree controlled substance crime and their duty to follow the law when rendering a verdict. See State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002) (noting the presumption that juries follow the court's instructions). Far from helping Appellant, his testimony about pro-marijuana beliefs further suggested that he possessed marijuana. Appellant's testimony would not legitimately negate any element of the crime. Therefore, even if the trial court abused its discretion, any error was harmless.

11

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY ADMITTING RELEVANT EVIDENCE HAVING A TENDENCY To SHOW THAT APPELLANT POSSESSED MARIJUANA. A.

Standard Of Review.

Appellate courts "largely defer to the trial court's exercise of discretion in evidentiary matters and will not lightly overturn a trial court's evidentiary ruling." State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). A criminal defendant alleging error in the admission of evidence "bears the burden of proving the admission was erroneous and prejudicial." State v. Lee, 645 N.W.2d 459, 465 (Minn. 2002). An error is prejudicial only if it likely "substantially influenced the jury to convict." Id. (citing State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990)). B.

The Trial Court Did Not Abuse Its Discretion In Admitting Evidence Of Bongs And Cash Found In Appellant's Vehicle.

All relevant evidence is admissible, except as otherwise provided by rule or statute. Minn. R. Evid. 402 (2014). Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable. Minn. R. Evid. 401 (2014). Rule 401 "adopts a minimal relevancy approach." State v. Ture, 632 N.W.2d 621, 631 (Minn. 2001). To prove fifth-degree drug possession, the prosecution needed to establish that: (1) Appellant possessed one or more mixtures containing marijuana; and (2) Appellant knew or believed the substance was marijuana. Minn. Stat. § 152.025, subd. 2(1). Both possession of the controlled substance and knowledge of the nature of the substance are essential elements. State v. Papadakis, 643 N.W.2d 349, 354 (Minn. Ct. App. 2002).

12

The presence of a large amount of cash on Appellant's person, along with bongs in his vehicle, links the marijuana to Appellant and demonstrates that he knew the marijuana was in fact marijuana. See State v. Majerus, No. A06-906, 2007 WL 2702953, at *2-.3 (Minn. Ct. App. Sept. 18, 2007) (finding that the presence of large amounts of cash and drug paraphernalia was relevant to establish the defendant's knowledge that a substance was methamphetamine). Appellant argues evidence of the cash and bong was irrelevant because Appellant stipulated that the substance was his marijuana. (Appellant's Brief 22). The parties did not, however, stipulate to the possession or knowledge element of fifth-degree possession. Defense counsel indicated to the trial court that Appellant was "stipulating he was in possession." (T. 42-43). But the prosecutor did not agree to the stipulation. (T. 43-44). Indeed, as the trial court recognized, a stipulation to possession of marijuana would essentially leave the sole contested issue as whether the offense occurred in Becker County on the date in question. (T. 43). The trial court added: The defendant has not pled guilty, everything is at issue in this case, and the State is not obligated to accept a stipulation. If they want to prove possession, they're entitled to prove it. (T. 43-44). See State v. Davidson, 351 N.W.2d 8, 10 (Minn. 1984) (recognizing the general rule that "a defendant should not be able to unilaterally control the issue of the need for relevant evidence by offering to stipulate"). Appellant was clearly attempting to exclude evidence that was contrary to his legally irrelevant claim that he had a medical purpose for using marijuana. The evidence

13

was relevant to show that Appellant knowingly possessed the marijuana found in his automobile. The trial court did not abuse its discretion by admitting the evidence. C.

Even If The Trial Court Abused Its Discretion, Any Alleged Error Was Harmless.

Even if the trial court abused its discretion, Appellant cannot show that the alleged error had any impact on the verdict. Appellant repeatedly admitted possessing marijuana, both in statements to officers and while on the witness stand. (T. 61-62, 115-16; Ex. 4, 6). Trooper Jepson testified about finding marijuana in Appellant's vehicle. (T. 59-63). Appellant argues the evidence undercut his defense that he believed marijuana should be legal because it suggested he was selling, rather than merely using, the marijuana. (Appellant's Brief 23). Disagreement with the merits of a criminal statute is a not a defense. In essence, Appellant claims prejudice on the grounds that the evidence ran contrary to his attempt at jury nullification. The evidence was relevant to show that Appellant possessed the marijuana and knew the substance was marijuana. Appellant cannot establish how this evidence would legitimately change the verdict. Therefore, even if the trial court abused its discretion, any error is harmless. III. THE PROSECUTOR DID NOT COMMIT MISCONDUCT ENTITLING APPELLANT To A NEW TRIAL. A.

Standard of Review.

When an appellant fails to object to alleged prosecutorial misconduct, a reviewing court applies a modified plain error test. State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010) (citing State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006)). Under this test, an appellant has the burden of showing prosecutorial misconduct, and that the prosecutorial

14

misconduct was plain, meaning clear or obvious. Ramey, 721 N.W.2d at 302. An error is not plain unless it contravenes binding precedent. State v. Jones, 753 N.W.2d 677, 689 (Minn. 2008). Even upon a showing of plain error, a conviction is still affirmed if the State shows a lack of prejudice. Id. (citing State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998)). An appellate court reviews for plain error only if necessary to ensure fairness and integrity of judicial proceedings. Ramey, 721 N.W.2d at 304. B.

The Prosecutor Did Not Plainly Err Because Appellant Opened The Door To Questions About His Presumptive Sentence.

During direct examination, Appellant testified that he would go to prison if convicted and implied that the prison sentence would be lengthy. (T. 95-96, 109). He also testified that he had studied Minnesota's controlled substance laws. (T. 96). On cross-examination, the prosecutor briefly questioned Appellant about whether, contrary to his earlier claims, he would receive a probationary sentence. (T. 119). Appellant opened the door to cross-examination on this subject. 1.

The prosecutor did not commit misconduct.

Appellant does not allege error in receiving inadmissible evidence. (Appellant's Brief 25-29). Instead, he argues that it was misconduct for the prosecutor to elicit, without any defense objection, testimony to rebut Appellant's claim that he would go to prison if convicted. (Id.). To establish misconduct, Appellant must do more than show that the evidence was inadmissible. See State v. Steward, 645 N.W.2d 115, 122 (Minn. 2002) (stating that "asking a question to which an objection is sustained is not by itself evidence of prosecutorial misconduct"). Appellant must demonstrate that the evidence

15

was plainly inadmissible and "that the state had no good-faith basis to argue for admissibility and elicited the testimony knowing that it was inadmissible."

State v.

Jackson, 714 N.W.2d 681, 698 (Minn. 2006) (Hanson, J., concurring) (citing State v. White, 203 N.W.2d 852, 857 (Minn. 1973)). See also State v. Fields, 730 N.W.2d 777, 782 n.1 (Minn. 2007) (noting that cases involving clearly inadmissible evidence frequently relate to evidence that the trial court already ruled inadmissible). It is generally improper for either party in a criminal case to offer evidence about potential sentences that a defendant might receive if convicted. See State v. Grose, 387 N.W.2d 182, 188 (Minn. Ct. App. 1986). But a defendant may "open the door" to the introduction of otherwise inadmissible evidence by introducing material that "creates in the opponent a right to respond with material that would otherwise have been inadmissible." State v. Valtierra, 718 N.W.2d 425, 436 (Minn. 2006).5 The opening-thedoor doctrine "is essentially one of fairness and common sense, based on the proposition that one party should not have an unfair advantage . . . and that the factfinder should not be presented with a misleading or distorted representation of reality." Id. A defendant opens the door if denying the prosecution an opportunity to present further evidence on a

5

See also State v. McCullum, 289 N.W.2d 89, 93 (Minn. 1979) (holding that defendant opened the door to testimony about his post-arrest silence by eliciting testimony from officers that he had been cooperative); State v. Lasnetski, 696 N.W.2d 387, 396-97 (Minn. Ct. App. 2005) (finding defendant opened the door to questions about his extramarital affair by testifying that he and his wife had marital difficulties that caused him to be depressed); State v. Patterson, 493 N.W.2d 577, 580 (Minn. Ct. App. 1992) ("[T]he Defendant opened the door himself by his own statement. It would have been unfair to the State's case to let that testimony that he offered, that he volunteered as a matter of fact, go unanswered[.]").

16

subject would either: (1) give the defendant an unfair advantage; or (2) allow the defendant to present "a misleading or distorted representation of reality." State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007). Here, Appellant opened the door to cross-examination about the likely sentence he would receive by both implying and testifying that he would receive a prison sentence if convicted. For example, Appellant testified: Defense Counsel: Mr. McNeil, I would ask that you explain and summarize why you believe marijuana should not be illegal from your personal point of view. Appellant:

If marijuana is never killed anybody [sic], why am I going to prison for it?

(T. 109). The trial court sustained the prosecution's objection to this testimony, but did not order the testimony stricken or otherwise advise the jury to disregard the testimony. (T. 109-10). Defense counsel earlier asked Appellant if he had "studied the laws concerning these controlled substances," to which Appellant responded, "Yes, I have." (T. 96). Appellant also earlier implied that he would face substantial prison time when he testified that: I stood in front of a judge when I was 18 years old, facing 35 years, that's ten years over a life sentence, for growing three pot plants. The reason for that, pot is a schedule I narcotic. They're the worst of the worst when it comes to drugs. They carry a life sentence, every one of those. (T. 95-96). By implication, this testimony suggested Appellant was facing substantial prison time if convicted. Appellant bolstered the impact of his testimony by suggesting to the jury that the trial court and prosecutor were withholding critical factual information:

17

It's hard for my not [sic] to bring in facts into this. I'm being placed up on the stand and asked questions and being boxed in and I can't even say a fact without being objected and then shut down right now. (T. 112). By introducing the topic of punishment into the trial, Appellant opened the door to cross-examination about the fact that, contrary to his earlier claims, he would receive a probationary sentence. Given Appellant's testimony about punishment, the prosecutor had a good-faith basis to conclude that Appellant opened the door to cross-examination about possible punishment. Appellant presented a misleading representation of reality that gave him an unfair advantage and illegitimately suggested to the jury that they should acquit because he would receive a harsh sentence if convicted. The prosecutor did not commit misconduct by inquiring into a subject on cross-examination that Appellant testified about on direct examination. 2.

Even if the prosecutor erred, Appellant cannot show the error was plain.

To constitute plain error, an error must be "clear" or "obvious" based on controlling appellate authority. Jones, 753 N.W.2d at 686 (citing State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002)). Appellant fails to cite controlling appellate authority clearly establishing that the prosecutor's cross-examination was misconduct. There was a reasonable and good-faith basis to conclude that Appellant opened the door to a subject that he testified about on direct examination. As a result, Appellant cannot establish plain error. 3.

Even if Appellant can show plain error, he was not prejudiced.

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Even upon a showing of plain error, an appellant is not entitled to reversal unless the plain error resulted in prejudice. Ramey, 721 N.W.2d at 302. When deciding whether alleged prosecutorial misconduct affected an appellant's substantial rights, courts consider: (1) the strength of the evidence against the appellant; (2) the pervasiveness of the improper conduct; and (3) whether the appellant had an opportunity to rebut the alleged improper evidence or conduct. State v. Hill, 801 N.W.2d 646, 655 (Minn. 2011). Here, there is no reasonable likelihood that the absence of the challenged crossexamination would significantly affect the verdict. The evidence against Appellant was strong, including multiple admissions from Appellant that the marijuana found in his car belonged to him. The challenged cross-examination was very brief and had little prejudicial effect — it simply attempted to rebut Appellant's inaccurate testimony. The trial court instructed the jury twice not to consider potential penalties when deciding the case. (T. 120, 128-29). Under these circumstances, there is no reasonable likelihood that the alleged error affected the verdict. 4.

Review of the alleged error is not necessary to ensure fairness and integrity of judicial proceedings.

Appellant's entire case focused on challenging the merits of the underlying marijuana law. Appellant did so in part by offering testimony that was inaccurate and without foundation. Among the inaccurate testimony offered by Appellant was the suggestion that he would face substantial prison time if convicted. Indeed, Appellant's testimony implied that he might receive a life sentence if convicted. To grant Appellant a new trial because the prosecution without objection attempted to rebut the inaccurate

19

testimony offered by Appellant would itself undermine the integrity of the judicial system. For this reason, review of the alleged error is not necessary to ensure fairness and integrity of judicial proceedings. C.

The Prosecutor Did Not Commit Misconduct During Closing Argument.

During closing argument, the prosecutor misspoke when he told the jury that Appellant is presumed innocent until "I call my first witness and the second witness and the point when the defendant testified." (T. 155). After Appellant objected, the prosecutor immediately corrected himself and clarified that he intended to state that: The defendant is presumed innocent throughout this trial. I would submit to you that the evidence introduced in this case has overcome that presumption. (T. 156). A prosecutor may not argue that the presumption of innocence disappears simply because the state presented a certain quantity of evidence. State v. Trimble, 371 N.W.2d 921 (Minn. Ct. App. 1985). Here, the prosecutor's argument was a very brief misstatement, and the prosecutor immediately corrected himself when defense counsel objected. Specifically, the prosecutor corrected himself by specifically telling the jury that "[t]he defendant is presumed innocent throughout this trial." (T. 156). The prosecutor's discussion of the presumption of innocence was extremely brief, and his misstatement was immediately corrected. The jury obviously knew that the prosecutor did not intend to imply that the presumption of innocence disappeared with

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the calling of the first witness, and the prosecutor's clarification made that point clear. There was no prosecutorial misconduct. Even if the prosecutor erred, there was no prejudice to Appellant. The evidence, including Appellant's own admissions, plainly established his guilt. Officers found marijuana in Appellant's vehicle. The prosecutor's challenged argument was brief, immediately corrected, and unlikely to influence the jury's verdict given the overwhelming evidence. This Court should affirm Appellant's conviction. IV. APPELLANT CANNOT SHOW ANY ERRORS, LET ALONE CUMULATIVE ERROR DEPRIVING HIM OF A FAIR TRIAL. An appellant may be entitled to a new trial when the cumulative effect of any alleged errors is so great as to deprive "him of his due-process right to a fair trial[.]" State v. Jackson, 714 N.W.2d 681, 698 (Minn. 2006). Here, there were no trial errors, and certainly no errors that deprived Appellant of a fair trial. The alleged instances of prosecutorial misconduct involved only brief testimony and argument. Appellant had a full opportunity to present a legitimate defense. The only evidentiary limitations placed upon Appellant involved irrelevant evidence that would have confused the issue and did not support any legally valid defense. Therefore, Appellant's cumulative error claim fails. CONCLUSION For the foregoing reasons, this Court should affirm Appellant's conviction in all respects.

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Dated: September 3, 2014

Respectfully submitted, LORI SWANSON Attorney General State of Minnesota

MICHAEL EVERSON Assistant Attorney General Atty. Reg. No. 0388310 445 Minnesota Street, Suite 1800 St. Paul, Minnesota 55101-2134 (651) 757-1371 (Voice) (651) 282-2525 (TTY) GRETCHEN D. THILMONY Becker County Attorney Courthouse 915 Lake Avenue Detroit Lakes, MN 56501 ATTORNEYS FOR RESPONDENT STATE OF MINNESOTA

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AFFIDAVIT OF SERVICE BY U.S. MAIL

Re:

State of Minnesota vs. Robbin Alexander McNeil Court File No. A14-0554

STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) Denise Panknin, being first duly sworn, deposes and says: That at the City of St. Paul, County of Ramsey and State of Minnesota, on September 3, 2014, she caused to be served the two copies of RESPONDENT'S BRIEF AND ONE COPY OF ALL THE UNPUBLISHED CASES PER MINN. STAT. §

480A.08, SUBD. 3 (2012), by depositing the

same in the United States mail at said city and state, true and correct copy(ies) thereof, properly enveloped with prepaid first class postage, and addressed to:

MARK D. NYVOLD 7671 Central Avenue N.E. Suite 207 Fridley, MN 55432

BRUCE N. RINGSTROM, SR. P.O. Box 652 Detroit Lakes, MN 56502

DENISE PANKNIN Subscribed and sworn to before me on Septe e ber 3, 2014.

NOT

Y PUBLIC

CYNTHIA G. ELIAS NOTARY PUBLIC•MINNESOTA yr Cornmissior Wires Jan. 31, 2015

■

STATE OF MINNESOTA OFFICE OF THE ATTORNEY GENERAL SUITE 1800 445 MINNESOTA STREET ST. PAUL, MN 55101-2134 TELEPHONE: (651) 297-2040

LORI SWANSON ATTORNEY GENERAL

September 3, 2014

AnnMarie S. O'Neill Clerk of Appellate Courts 305 Minnesota Judicial Center 25 Rev. Dr. Martin Luther King, Jr. Blvd. St. Paul, MN 55155 Re:

State of Minnesota vs. Robbin Alexander McNeil Court File No. A14-0554

Dear Ms. O'Neill: Enclosed herewith for filing please find original and four copies (three bound and one unbound) of Respondent's Brief and Affidavit of Service By Mail. By copy of this letter, service is made upon Mark D. Nyvold and Bruce N. Ringstrom, Sr., Appellant's counsel. By copy of this letter going to Mr. Nyvold and Mr. Ringstrom, Sr., I am serving two copies of the enclosed brief upon them, along with one copy of the unpublished case per Minn. Stat. § 480A.08, subd. 3 (2012).

Sincerely,

MICHAEL EVERSON Assistant Attorney General (651) 757-1371 (Voice) (651) 297-4348 (Fax) Enclosure cc:

Mark D. Nyvold (ends) Bruce N. Ringstrom, Sr. (ends) Gretchen D. Thilmony, Becker County Attorney (ends) The Honorable Joseph A. Evans (ends)

TTY: (651) 282-2525 • Toll Free Lines: (800) 657-3787 (Voice), (800) 366-4812 (TTY) • www.ag.state.mn.us ::Printed on 50' recycled paper (15 post consumer content) 7

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