State of Minnesota v. Michael William Kirby

• Court: Court of Appeals of Minnesota
• Decided: July 18, 2016
• Docket: A15-117
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A15-0117

State of Minnesota, Respondent,

vs.

Michael William Kirby, Appellant.

Filed July 18, 2016 Affirmed Bjorkman, Judge

Steele County District Court File No. 74-CR-13-2262

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and

Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Peterson, Judge; and

Rodenberg, Judge. UNPUBLISHED OPINION

BJORKMAN, Judge

Appellant challenges his conviction of first-degree controlled-substance crime,

arguing that (1) the evidence was not sufficient to prove he knowingly possessed

methamphetamine, (2) the district court abused its discretion by permitting an expert to

testify about the value of methamphetamine, and (3) he is entitled to a new trial based on

recanted testimony and newly discovered evidence. We affirm.

FACTS

On November 22, 2013, Deputy Anthony Padilla of the Steele County Sheriff’s

Department stopped a vehicle driven by appellant Michael William Kirby. As he

approached the vehicle, Deputy Padilla smelled a strong odor of marijuana. Kirby denied

smoking marijuana, but admitted that there was marijuana inside the vehicle. Kirby stated

that the marijuana was in a plastic bag located on the floor behind the front passenger seat.

Deputy Padilla located the plastic bag, which contained several cans and a bag containing

217.55 grams of marijuana. Deputy Padilla removed the marijuana and placed it in his

squad car, and contacted dispatch for assistance.

Minnesota State Trooper Patric Ignaszewski responded to the scene. Deputy Padilla

asked Kirby to get out of the vehicle, and had his canine partner sniff the vehicle for other

narcotics. The canine entered the vehicle through the driver’s door and alerted to the center

console. The canine then alerted to the plastic bag that was still on the floor behind the

passenger seat.

2 During a subsequent full search of the vehicle, Deputy Padilla located a

methamphetamine pipe in the center console. Trooper Ignaszewski found three cans that

appeared to contain fruit punch, sweet tea, and shaving cream. The fruit punch and sweet

tea cans were in the plastic bag, and it appeared to Trooper Ignaszewski that the shaving

cream can had rolled out. All three cans had false bottoms. The bottom of the shaving

cream can contained three bags of methamphetamine with a total weight of 70.525 grams.

Kirby was charged with first-degree controlled-substance crime

(methamphetamine) and fifth-degree controlled-substance crime (marijuana). Prior to

trial, Kirby filed a notice of an alternative-perpetrator defense. At the pretrial conference,

Kirby indicated that he did not know about the methamphetamine in the vehicle, and that

it belonged to either Mark Buskovick, the vehicle owner, or to Ricardo Elizondo, who

recently sold the vehicle to Buskovick.

At trial, Elizondo testified that he sold the vehicle to Buskovick in September 2013,

approximately two months before the stop. Before transferring the vehicle to Buskovick,

Elizondo removed all of his personal belongings and cleaned the vehicle’s interior.

Elizondo stated that the marijuana, the methamphetamine, the methamphetamine pipe, and

the false-bottom cans did not belong to him.

Buskovick testified that when he purchased the vehicle, there was some clutter and

loose bolts, but “nothing big” in the vehicle. He subsequently had the vehicle cleaned and

had new seats installed. Buskovick loaned the vehicle to Kirby in November 2013.

Buskovick stated that the methamphetamine and false-bottom cans did not belong to him.

3 Buskovick did not recall what was inside the vehicle when he loaned it to Kirby, explaining

that his kids often played in the vehicle and “might have thrown stuff in there.”

The state offered expert testimony from Sergeant Andrew Drenth, who worked with

the Drug Task Force of the Owatonna Police Department. Sergeant Drenth detailed his

training and experience in determining the value of controlled substances. He obtains

pricing information through controlled buys, from informants, and from speaking with

various individuals “at the street level.” Over Kirby’s foundation objection, Sergeant

Drenth testified that in November 2013, methamphetamine sold for $100 to $150 per gram.

The state offered this testimony to rebut Kirby’s alternative-perpetrator defense, arguing

that it was unlikely that someone would leave highly valued controlled substances in a

vehicle that someone else was using.

The jury found Kirby guilty of both controlled-substance crimes. Kirby moved for

a new trial, arguing that the evidence was insufficient to prove that he knowingly possessed

methamphetamine and that the district court erred by allowing Sergeant Drenth’s

testimony. The district court denied the motion and sentenced Kirby to 161 months in

prison. Kirby appealed.

While Kirby’s appeal was pending, Buskovick sent Kirby a letter recanting a portion

of his trial testimony. The letter said that the methamphetamine belonged to Joshua Ortega.

This court stayed Kirby’s appeal to allow him to pursue postconviction relief. The

postconviction court held an evidentiary hearing.

At the postconviction hearing, Buskovick testified that in October 2013, he bought

the vehicle from Daniel Segura, with Elizondo’s assistance. Buskovick said that he gave

4 Ortega a ride on November 9, and that Ortega left a bag in the backseat. Buskovick loaned

the vehicle to Kirby later in November and left town. While Buskovick was gone, Ortega

called him to retrieve the bag. Buskovick attempted to get someone to return the bag to

Ortega, but then “forgot about it.” Buskovick testified that the methamphetamine and

marijuana belonged to Ortega.

Buskovick explained that he did not testify truthfully at Kirby’s trial because he was

afraid. He described being assaulted in December 2013 by Ortega’s brother and another

man, and Ortega telling him, while the two were at the Lino Lakes prison, not to say

“anything stupid” at Kirby’s trial. But when confronted with evidence that Ortega was not

in prison until after Kirby’s trial, Buskovick claimed that Ortega told him over the phone

to tell the truth at trial. Other testimony presented during the postconviction hearing

revealed that Buskovick had conversations with several law-enforcement officers

regarding Ortega and methamphetamine distribution, but never mentioned an assault or

threat. One of the officers, Agent Thomas Oliveto, noted that Buskovick was not

questioned about Kirby’s case.

Ortega testified that Buskovick never gave him a ride in the vehicle. He also stated

that he did not use false-bottom cans, did not leave one with Buskovick, and did not leave

controlled substances in the vehicle. Ortega acknowledged providing methamphetamine

to both Kirby and Buskovick on prior occasions, but stated he would never leave several

thousand dollars’ worth of methamphetamine in the back of a vehicle. Ortega denied

assaulting Buskovick and denied making any statements to Buskovick about his testimony

in Kirby’s trial.

5 The district court denied Kirby’s petition, finding that Buskovick’s testimony at the

postconviction hearing was not credible, and that Ortega’s testimony was credible. The

court expressly concluded that Buskovick was manufacturing a defense for Kirby. Kirby’s

appeal was subsequently reinstated.

DECISION

I. The evidence was sufficient to prove that Kirby knowingly possessed methamphetamine.

When reviewing the sufficiency of the evidence, “we determine whether the

legitimate inferences drawn from the facts in the record would reasonably support the

jury’s conclusion that the defendant was guilty beyond a reasonable doubt.” State v. Pratt,

813 N.W.2d 868, 874 (Minn. 2012). “We give due regard to the defendant’s presumption

of innocence and the [s]tate’s burden of proof, and will uphold the verdict if the jury could

reasonably have found the defendant guilty.” Id.

To support a conviction of first-degree controlled-substance crime, the state was

required to prove that Kirby unlawfully possessed one or more mixtures of a total weight

of 25 grams or more containing methamphetamine. Minn. Stat. § 152.021, subd. 2(a)(1)

(2012). And “the state must prove that [the] defendant consciously possessed . . . the

substance and that [the] defendant had actual knowledge of the nature of the substance.”

State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975); see also 10A Minnesota

Practice, CRIMJIG 20.04 (Supp. 2012) (stating that an element of first-degree controlled-

substance crime is that the defendant “knowingly possessed” the requisite weight of

methamphetamine).

6 When, as here, a controlled substance is not found on the defendant’s person, the

state must prove he constructively possessed it by showing that the controlled substance

was in a place under his exclusive control, or that there is a strong probability that he was,

at the time of discovery, consciously exercising dominion and control over the substance.

State v. Sam, 859 N.W.2d 825, 833 (Minn. App. 2015). If a driver does not have exclusive

possession of a vehicle, it cannot be automatically inferred that controlled substances found

in the vehicle belonged to him. Id. at 834.

Knowing possession is typically proved through circumstantial evidence. See State

v. Ali, 775 N.W.2d 914, 919 (Minn. App. 2009) (“Knowledge is customarily determined

from circumstantial evidence.”), review denied (Minn. Feb. 16, 2010). We apply a two-

step analysis when reviewing a conviction supported by circumstantial evidence. State v.

Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, we identify the circumstances

proved, which are the circumstances supporting the jury’s verdict. Id. at 598-99. “The

second step is to determine whether the circumstances proved are consistent with guilt and

inconsistent with any rational hypothesis except that of guilt.” State v. Moore, 846 N.W.2d

83, 88 (Minn. 2014) (quotations omitted). If the reasonable inferences are consistent with

guilt, a defendant must point to evidence in the record that is consistent with a rational

hypothesis other than guilt. State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).

The circumstances proved include the following: (1) Elizondo sold the vehicle to

Buskovick in September 2013; (2) the vehicle was cleaned before and after the sale by

various people; (3) when Buskovick took possession of the vehicle there was some clutter,

but “nothing big” in it; (4) Buskovick loaned the vehicle to Kirby in November 2013;

7 (5) Kirby was stopped by law enforcement while driving the vehicle approximately one

week later; (6) Kirby admitted to law enforcement that he had marijuana in a plastic bag

behind the front passenger seat; (7) Deputy Padilla found a bag containing 217.55 grams

of marijuana inside a larger plastic bag that also contained cans; (8) the cans had false

bottoms, one of which concealed 70.525 grams of methamphetamine; (9) a

methamphetamine pipe was in the center console; (10) neither the methamphetamine nor

the pipe belonged to Elizondo or Buskovick; (11) the approximate price of one gram of

methamphetamine in November 2013 was $100 to $150.

Kirby acknowledges that the circumstances proved lead to a reasonable inference

that Kirby knowingly possessed the methamphetamine found in the vehicle he was driving.

But he argues that the circumstances proved are consistent with another reasonable

hypothesis—that someone else put the can containing methamphetamine in the vehicle,

and Kirby was unaware of its presence. Kirby points out that Buskovick did not know

exactly what was in the vehicle when he loaned it to Kirby, and that the people who cleaned

the vehicle could have placed the methamphetamine in the vehicle.

In support of this argument, Kirby cites to State v. Sam, where the defendant was

stopped while driving another person’s vehicle. 859 N.W.2d at 828. Law enforcement

found methamphetamine in the glove compartment and a handgun in the center console.

Id. at 829. Prior to the stop, officers observed the front-seat passenger make several

movements toward the center of the vehicle, but did not observe similar behavior by Sam.

Id. at 828. Only the passenger had methamphetamine on his person. Id. at 828-29. This

court reversed Sam’s controlled-substance conviction, holding that it was reasonable to

8 infer from the circumstances proved that the passenger placed the methamphetamine in the

vehicle without Sam’s knowledge. Id. at 835.

This case is distinguished from Sam for several reasons. First, although Kirby

borrowed the vehicle from another individual, the circumstances proved establish that the

owner—Buskovick—did not place the methamphetamine in the vehicle. Second, Kirby

was the only person in the vehicle at the time of the stop. Kirby’s suggestion that the

people who cleaned the vehicle after Buskovick purchased it could have placed the

methamphetamine in the vehicle is mere speculation.

On this record, we conclude that the reasonable inferences drawn from the

circumstances proved are only consistent with Kirby’s guilt. The methamphetamine was

located in the vehicle driven and solely occupied by Kirby. During the traffic stop, Kirby

readily admitted that the marijuana in the plastic bag belonged to him. The marijuana was

in the same bag that contained the methamphetamine. The methamphetamine did not

belong to Elizondo, the vehicle’s previous owner, or Buskovick, who loaned the vehicle to

Kirby. And it is unreasonable to infer that someone would leave several thousand dollars’

worth of methamphetamine lying in a plastic bag in the back of a vehicle operated by

someone else. The only rational hypothesis from the circumstances proved is that Kirby

knowingly possessed the methamphetamine.

II. The district court did not abuse its discretion by permitting an expert to testify about the methamphetamine’s value.

“If . . . specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

9 experience, training, or education, may testify thereto in the form of an opinion or

otherwise.” Minn. R. Evid. 702. “The opinion must have foundational reliability.” Id.

When analyzing foundational reliability, courts first consider “the proffered testimony in

light of the purpose for which it is being offered.” Doe v. Archdiocese of St. Paul, 817

N.W.2d 150, 167-68 (Minn. 2012). Next, courts “consider the underlying reliability,

consistency, and accuracy of the subject about which the expert is testifying.” Id. at 168.

Lastly, the proponent of the evidence must show that it is reliable in that particular case.

Id. We review the admission of expert testimony for clear abuse of discretion. State v.

Ritt, 599 N.W.2d 802, 810 (Minn. 1999).

Kirby argues that the district court abused its discretion by permitting Sergeant

Drenth to testify about the price of methamphetamine in November 2013. Prior to offering

this testimony, Sergeant Drenth detailed his extensive training and experience in the field

of narcotics. He testified that many factors impact the price of methamphetamine,

including the general supply in the area, whether law enforcement has recently seized the

drug, and the quantity of the drug being purchased. Sergeant Drenth confirmed that he was

“up to date” on the factors that affect the price of methamphetamine at the time of the

offense. And he testified that the price at that time was between $100 and $150 per gram.

Kirby argues that Sergeant Drenth’s testimony lacked foundation because he did not

use a precise mathematical formula to calculate the price. He cites no authority that

requires a witness to make precise mathematical calculations in order to testify about drug

prices. Rather, he relies on Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408

F.3d 410, 416 (8th Cir. 2005), for the general proposition that “[a]n expert opinion that

10 fails to consider the relevant facts of the case is fundamentally unsupported[.]” We are not

persuaded. Sergeant Drenth testified that he was up to date on the relevant factors that

affected the price of methamphetamine in November 2013. The fact that he considered

these factors to establish a price range, rather than applying a precise mathematical formula

to calculate a price does not mean that his testimony lacked foundation. On this record, we

discern no abuse of discretion by the district court in admitting Sergeant Drenth’s

testimony.

III. The district court did not abuse its discretion by denying postconviction relief based on recantation and newly discovered evidence.

We review the denial of a petition for postconviction relief based on recanted

testimony or newly discovered evidence for an abuse of discretion. State v. Nicks, 831

N.W.2d 493, 503 (Minn. 2013); Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “A

postconviction court abuses its discretion when its decision is based on an erroneous view

of the law or is against logic and the facts in the record.” Riley, 819 N.W.2d at 167

(quotation omitted).

A. Recanted Testimony

A new trial may be granted on the grounds of false or recanted testimony where

(1) the court is reasonably well satisfied that the testimony of a material witness was false;

(2) the jury might have reached a different conclusion without the testimony; and (3) the

petitioner was surprised by the testimony and was unable to counteract it or did not know

it was false until after the trial. Nicks, 831 N.W.2d at 511; Dobbins v. State, 788 N.W.2d

719, 733 (Minn. 2010).

11 At the postconviction hearing, Buskovick recanted part of his trial testimony. At

trial, Buskovick testified that he did not know exactly what was in his vehicle when he

loaned it to Kirby, but that any controlled substances did not belong to him. In contrast, at

the postconviction hearing, he testified that he knew there were controlled substances in

the vehicle, because Ortega had placed them in the back seat.

Buskovick’s recanted testimony fails the first prong of the recanted-testimony

analysis. The district court expressly found that Buskovick’s testimony at the

postconviction hearing was not credible. Based on this finding, the district court

determined that it was “not at all satisfied that . . . Buskovick’s trial testimony was false.”

Because we defer to the district court’s credibility determination, we conclude that Kirby

is not entitled to postconviction relief based on recanted testimony. Miles v. State, 840

N.W.2d 195, 201 (Minn. 2013) (stating that “[t]he postconviction court is in the best

position to evaluate witness credibility”).

B. Newly Discovered Evidence

Kirby also argues that he is entitled to postconviction relief because Ortega’s

postconviction testimony constitutes newly discovered evidence. A new trial may be

granted on this basis when a defendant proves:

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).

12 At the postconviction hearing, Ortega testified that he did not ride in Buskovick’s

vehicle, did not use false-bottom cans to conceal methamphetamine, and did not leave any

controlled substances in the vehicle. He admitted providing methamphetamine to Kirby

and Buskovick on prior occasions, but stated that he would not leave several thousand

dollars’ worth of the drug in a vehicle he did not possess. Ortega suggested that Buskovick

could have obtained methamphetamine from Segura.1

Ortega’s testimony satisfies the first three prongs of the Rainer test. His testimony

was not known at the time of Kirby’s trial. Ortega’s name was not mentioned in connection

with this case until Buskovick recanted his trial testimony. Although Kirby’s attorney

could have uncovered Ortega’s testimony through due diligence, nothing in the record

suggests counsel had any reason to do so. And nothing about Ortega’s testimony is

cumulative, impeaching, or doubtful. Ortega testified about new information, and the

postconviction court specifically found that his testimony was credible.

But we conclude that Ortega’s testimony fails to satisfy Rainer’s fourth prong. At

trial, Kirby argued that Buskovick, Elizondo, the people who cleaned the vehicle, or

someone else placed the methamphetamine in the vehicle, and that he did not know about

it. The substance of Ortega’s testimony is that he did not ride in or put any controlled

substance in the vehicle. While new, Ortega’s testimony adds nothing to Kirby’s

alternative-perpetrator defense. In sum, this “newly discovered evidence” was not likely

1 Kirby asserts that Ortega testified that the methamphetamine belonged to Segura. But the relevant portions of the transcript reveal that Ortega was actually explaining that the vehicle was owned by Segura, and Buskovick was in the process of purchasing it from him.

13 to produce an acquittal on the first-degree controlled-substance charge. Because Ortega’s

testimony does not satisfy the fourth prong of the Rainer test, we discern no abuse of

discretion in the denial of postconviction relief.

Affirmed.