                           This opinion will be unpublished and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
                                      A15-1459

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                     Lacy Rose Carlsen,
                                         Appellant.

                                    Filed July 5, 2016
                                 Reversed and remanded
                                     Larkin, Judge

                              Freeborn County District Court
                                 File No. 24-CR-12-2050


Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, Lauren F. Schoeberl (certified student attorney), St. Paul, Minnesota (for
appellant)


         Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

LARKIN, Judge

         Appellant challenges her conviction of fifth-degree controlled-substance crime,

arguing that the district court abused its discretion by allowing the state to elicit testimony
regarding her prior drug use. We agree. And because there is a reasonable possibility that

the testimony significantly affected the verdict, we reverse and remand for a new trial.

                                          FACTS

       In November 2012, a concerned citizen reported that she had seen 14 baggies of

methamphetamine in a house in which appellant Lacy Rose Carlsen lived with her

boyfriend, B.E., along with another person and that person’s young son. The citizen

alleged that the methamphetamine was on B.E.’s dresser, which was in a bedroom that B.E.

shared with Carlsen. The police obtained a warrant and searched the house. Officers found

0.01 grams of methamphetamine folded up in a yellow Post-it Note inside of Carlsen’s

purse, which was sitting on the bed in the bedroom that she shared with B.E. Officers did

not find any other methamphetamine in the house. Respondent State of Minnesota charged

Carlsen with fifth-degree controlled-substance crime, and the case was tried to a jury.

       At trial, Carlsen testified that she was “positive” there were not any illegal drugs in

her purse. She also testified that her purse did not contain a yellow Post-it Note. Carlsen

testified that Freeborn County Sheriff Deputy Arnold Zuniga visited her in jail the day after

her arrest. After Deputy Zuniga told her that she was going to be charged with a felony

because there was a “small rock” of methamphetamine in her purse, Carlsen called him a

“f-cking liar.” Carlsen testified that a day or two later, Deputy Zuniga again visited her in

jail and told her that she was going to be charged for possessing three grams of

methamphetamine. Carlsen again called him a “f-cking liar.”

       Before cross-examining Carlsen, the prosecutor asked the district court to allow

questioning regarding Carlsen’s prior drug use, arguing:


                                              2
              In the direct examination, [Carlsen] said that there were no
              illegal drugs in her purse, and I intend to ask her whether she
              used, or was an illegal drug user, and I believe that is an
              appropriate question.
                      ....
                      I intend to ask her in cross-examination whether she is
              or was a meth user. And one of the concerns here is that she
              has tested positive, even while this case has been pending, and
              that that is—that that would be appropriate rebuttal, or
              information, to discredit any claim by her that she was not a
              meth user at the time that this occurred.

       Carlsen objected, arguing that it was “an improper question,” prejudicial, and

irrelevant. The district court ruled as follows: “I’m going to allow the questions. Certainly,

possession of drugs is evidenced by the fact that someone used it. So I will allow you to

inquire, as you suggested.”

       The prosecutor questioned Carlsen as follows:

              Q: You’ve testified that the meth that was found in this case
              was not your meth in that purse; isn’t that right?
              A: Yes.
              Q: But you don’t deny that you were a meth user, do you?
              A: I was not then, a meth user, no.
              Q: Before then, you were?
              A: Before; not during. Not during any of that time. I was
              sober.
              Q: You were sober at that time?
              A: Yes.
              Q: And you acknowledge that you did, at one point, use
              methamphetamine?
              A: Yes, I have, before that.
              Q: So at one—at one point, you knew how to get
              methamphetamine, right?
              A: Yes, you are correct.
              Q: And at—at various times you would have had to keep—
              or you would have kept methamphetamine in your purse?
              A: No.




                                              3
       During cross-examination, Carlsen testified that B.E. had a “hot temper” and that

he had kicked her out of the house two nights before the police executed the search warrant.

Carlsen said she left without clothes or her purse and that she stayed with a friend. She

testified that she was gone the entire day before the search and returned to the house

approximately six hours before the search.

       In closing arguments, the prosecutor said:

                      Meth is a highly addictive drug, as Deputy Zuniga
              testified to. And the Defendant admitted that she had used the
              drug. It’s not surprising that it would be in her purse or that
              she would maintain even a small rock of meth in a Post-it Note
              in her purse, because even a small rock of meth can be used for
              a person to get high. It can be—she could, obviously, use it.

       Carlsen’s attorney argued that Carlsen did not know where the methamphetamine

came from, but Carlsen knew that she did not put it in her purse and that she did not know

it was in her purse.    Carlsen’s attorney suggested Deputy Zuniga and B.E. had an

opportunity to place the methamphetamine in Carlsen’s purse.

       Before the jury returned its verdict, the district court made the following record:

              The jury went out for deliberations at just a couple minutes
              before three. At . . . 3:40 the bailiff stopped in my chambers
              and said the jury is split and they want to know what to do.
              And I told the bailiff, “Tell them to keep on deliberating.” And
              I also told the bailiff, “If they have any other questions, they
              need to write it down so we can go in session and address it.”
       The jury found Carlsen guilty. The district court stayed imposition of sentence and

placed Carlsen on probation. This appeal follows.

                                     DECISION




                                             4
       Carlsen argues that the district court erred by allowing evidence regarding her prior

drug use. The admission of evidence of other crimes or bad acts, so-called Spreigl

evidence, is reviewed for an abuse of discretion. State v. Clark, 738 N.W.2d 316, 345

(Minn. 2007). When such evidence is erroneously admitted, this court must determine

whether there is a reasonable possibility that the wrongfully admitted evidence

significantly affected the verdict. State v. Fardan, 773 N.W.2d 303, 320 (Minn. 2009). If

such a possibility exists, then the error is prejudicial and a new trial is required. Id.

       Spreigl evidence is inadmissible to prove that a defendant acted in conformity with

her character. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d

167, 169 (1965). “The overarching concern behind excluding such evidence is that it might

be used for an improper purpose, such as suggesting that the defendant has a propensity to

commit the crime or that the defendant is a proper candidate for punishment for his or her

past acts.” Fardan, 773 N.W.2d at 315 (quotations omitted). But the evidence may be

admissible for other purposes, such as to prove motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b).

       There are five requirements for admission of other-acts evidence:

              (1) the state must give notice of its intent to admit the evidence;
              (2) the state must clearly indicate what the evidence will be
              offered to prove; (3) there must be clear and convincing
              evidence that the defendant participated in the prior act; (4) the
              evidence must be relevant and material to the state’s case; and
              (5) the probative value of the evidence must not be outweighed
              by its potential prejudice to the defendant.

State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006).




                                               5
       “When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt

should be given to the defendant and the evidence should be excluded.” State v. Kennedy,

585 N.W.2d 385, 389 (Minn. 1998). If the evidence is allowed, “[a]s a general rule, even

absent a request by the defense, [limiting instructions] should be given prior to the

admission of [the] 404(b) evidence and again at the end of trial to help ensure that the jury

does not use the evidence for an improper purpose.” State v. Bauer, 598 N.W.2d 352, 365

(Minn. 1999).

       In this case, the district court allowed testimony regarding Carlsen’s prior

methamphetamine use on the impermissible ground that it showed that she had a propensity

to possess methamphetamine, reasoning that “possession of drugs is evidenced by the fact

that someone used it.” See Fardan, 773 N.W.2d at 315 (stating that an improper purpose

includes “suggesting that the defendant has a propensity to commit the crime”). Moreover,

the district court did not provide limiting instructions. Nonetheless, the state contends that

the district court did not abuse its discretion because Carlsen opened the door to evidence

regarding her past methamphetamine use.

              Opening the door occurs when one party by introducing certain
              material creates in the opponent a right to respond with
              material that would otherwise have been inadmissible. The
              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.

State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (citations and quotations omitted).

       The state argues that it did not anticipate having to introduce evidence regarding

Carlsen’s past methamphetamine use until Carlsen opened the door to that evidence by


                                              6
telling the jury during her opening statement that the police “burst” through her door even

though she had never been convicted of a felony and that it was such a small amount of

methamphetamine that the police did not bother testing the Post-it Note for fingerprints,

eliciting police testimony that the drugs in her purse had a street value of one dollar, and

testifying that she was “[p]ositive” there were no drugs in her purse when the police entered

the residence. The state contends that “[t]he prosecutor was entitled to present evidence to

counter [Carlsen’s] claim that she would have no reason to possess ‘that tiny bit of meth’

with a street value of about one dollar.”

       But Carlsen did not assert that she had no reason to possess such a small amount of

methamphetamine. During opening remarks, Carlsen’s attorney told the jury that it was

such a small amount of methamphetamine that the police did not bother to test the Post-it

Note for fingerprints. This remark does not imply that Carlsen lacked motive to possess

the methamphetamine. Instead, it implies that the police did not gather enough evidence

to prove possession. Moreover, during direct examination, Carlsen did not testify that she

had never used methamphetamine, and she did not explicitly claim that someone planted

it. Instead, she essentially denied the allegations against her, testifying that she was

“[p]ositive” there were not any illegal drugs in her purse. In sum, Carlsen did not obtain

an unfair advantage by presenting the jury with a misleading or distorted representation of

reality and therefore did not open the door to evidence regarding her prior drug use. Cf.

State v. Yang, 644 N.W.2d 808, 817 (Minn. 2002) (concluding that the defendant’s

testimony regarding his fear of a gang created the impression that he was afraid of gangs,




                                             7
which “paint[ed] a picture” that was “incomplete” and opened the door to evidence

regarding the defendant’s own gang affiliation).

       Because Carlsen pleaded not guilty to the possession charge and demanded a jury

trial, the state should have anticipated that if she testified at trial, she likely would deny

possession. If the state wanted to introduce evidence of Carlsen’s prior methamphetamine

use at trial, it should have provided timely Spreigl notice so the district court could have

conducted a more thorough Spreigl analysis and recognized the need for limiting

instructions if the evidence was admitted.

       Under the circumstances here, the district court should not have allowed the state to

cross-examine Carlsen about her prior methamphetamine use. But that conclusion does

not end our analysis. We must also determine whether the error requires a new trial. See

Fardan, 773 N.W.2d at 320 (assessing whether erroneously admitted Spreigl evidence

warranted a new trial). Carlsen is not entitled to a new trial unless there is “a reasonable

possibility that the wrongfully admitted evidence significantly affected the verdict.” Id.

(quotation omitted). The supreme court has considered three factors when determining if

erroneously admitted Spreigl evidence significantly affected a verdict: (1) whether other

evidence was presented on the issue for which Spreigl evidence was offered, (2) whether

the court gave a limiting instruction, and (3) whether the state dwelled on the evidence in

its closing argument. Id. “The defendant bears the burden of demonstrating that [she] was

prejudiced by the admission of the evidence.” Id. (quotation omitted).

       In this case, the district court identified the issue of “possession” as the reason for

allowing evidence of Carlsen’s prior methamphetamine use, reasoning that prior use proves


                                              8
current possession. Carlsen’s conviction is based on constructive possession. The state

can prove constructive possession by showing: (1) “the police found the substance in a

place under [the] defendant’s exclusive control to which other people did not normally

have access,” or (2) “if police found [the substance] in a place to which others had access,

there is a strong probability (inferable from other evidence) that [the] defendant was at the

time consciously exercising dominion and control over it.” State v. Florine, 303 Minn.

103, 105, 226 N.W.2d 609, 611 (1975). The state presented other evidence of constructive

possession: the methamphetamine was found in Carlsen’s purse and her purse was in her

bedroom. But the district court did not give a limiting instruction. Moreover, the state

dwelled on the evidence in its closing argument, using Carlsen’s prior drug use to frame

its theory of the case. The prosecutor argued, “Meth is a highly addictive drug, as Deputy

Zuniga testified to. And the Defendant admitted that she had used the drug. It’s not

surprising that it would be in her purse . . . .”

       In sum, even though the state presented other circumstantial evidence of possession,

given the state’s emphasis on the Spreigl evidence in its closing argument and the absence

of limiting instructions, there is a reasonable possibility that the evidence regarding

Carlsen’s prior methamphetamine use significantly affected the verdict. We therefore

reverse and remand for a new trial without addressing Carlsen’s argument that the district

court erred by having an ex parte communication with the reportedly deadlocked jury.

       Reversed and remanded.




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