                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-2360

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                       Lue Yang,
                                       Appellant.

                               Filed November 24, 2014
                                       Affirmed
                                    Johnson, Judge

                             Ramsey County District Court
                               File No. 62-CR-13-2131

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Hooten, Presiding Judge; Connolly, Judge; and

Johnson, Judge.

                        UNPUBLISHED OPINION

JOHNSON, Judge

      A Ramsey County jury found Lue Yang guilty of fifth-degree controlled substance

crime and possession of burglary or theft tools. Yang argues that the district court erred
by admitting inadmissible character evidence. We conclude that the district court did not

plainly err by not excluding the testimony of a police officer explaining the reasons why

he investigated Yang. Therefore, we affirm.

                                        FACTS

      Shortly after midnight on October 4, 2012, Yang was riding his bicycle on a

sidewalk in a residential neighborhood of St. Paul. He was wearing dark clothing and a

backpack, and his bicycle did not have a light or reflectors. St. Paul Police Officers

Cohlman Rutschow and Robert Lokhorst saw Yang while their squad car was traveling in

the opposite direction. They made a U-turn so that they could stop Yang, conduct a brief

investigation, and inform him that he needed a headlight on his bicycle. After the U-turn,

Yang was traveling in the same direction as the squad car on its right side. Officer

Lokhorst, the passenger, called out for Yang to stop. Yang sped up. Officer Lokhorst

saw Yang pull something out of his jacket pocket and move his hand downward as if to

drop it on the ground. As Yang did so, he swerved and almost lost control of his bicycle.

At about the same time, Officer Lokhorst heard an item hit the ground. Yang continued

for approximately 30 feet and then stopped.

      After Yang stopped, Officer Rutschow exited the squad car and approached Yang

to speak with him, while Officer Lokhorst went to the location where he believed Yang

had dropped something. At that spot, Officer Lokhorst found a glass pipe wrapped in a

blue napkin. Officer Lokhorst noticed that the pipe contained a substance that appeared

to be, and later tested positive for, methamphetamine. Meanwhile, Officer Rutschow

asked Yang for identification and pat-searched him for weapons. After Officer Lokhorst


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found the pipe, the officers arrested Yang for possession of methamphetamine and,

incident to the arrest, searched his backpack. In the backpack, the officers found a wire

cutter, a screwdriver, and a window punch (a tool approximately three to four inches long

with a pointed end that is used for breaking windows quickly and quietly). Officer

Lokhorst testified at trial that the tools found in Yang’s backpack may be used, and often

are used, for burglarizing and stealing automobiles.

       At trial, Yang testified that he continued riding when Officer Lokhorst called for

him to stop because he did not realize that the officer was speaking to him. Yang

testified that he swerved because he turned his body to the side when he realized that

Officer Lokhorst was speaking to him, and he denied dropping anything on the ground.

Yang testified that he had the wire cutter and screwdriver in his backpack because he had

been working on a friend’s car all day. He testified that he did not remember putting the

window punch in his backpack and must have picked it up inadvertently when he was

gathering up the other tools that he used when working on the car. Yang testified that he

wore dark clothing to mask any grease stains from working on the car.

       In March 2013, the state charged Yang with one count of fifth-degree possession

of a controlled substance, in violation of Minn. Stat. § 152.025, subd. 2(a)(1) (2012). In

August 2013, the state amended the complaint to add a charge of possession of burglary

or theft tools, in violation of Minn. Stat. § 609.59 (2012).

       The case was tried to a jury on two days in August 2013. Officer Rutschow and

Officer Lokhorst testified for the state. When the prosecutor asked Officer Rutschow

why he pat-searched Yang for weapons, he responded by testifying as follows:


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              Given the area that -- with high crime and burglaries and
              thefts, he was wearing dark clothing at the time around a dark
              area. He had a backpack on at the time riding a bike, which
              all those -- all those things are indicators for us that are
              typical with people that commit crimes such as burglaries and
              thefts from autos.

Yang’s trial attorney did not object to the prosecutor’s question or Officer Rutschow’s

answer.    A short time later, the prosecutor asked Officer Rutschow about Officer

Lokhorst’s actions after they stopped Yang. Officer Rutschow responded by testifying as

follows:

              Officer Lokhorst was off to my right kind of around the area
              where he had passed by that car, because our suspicion was
              that, you know, going past the car maybe he ditched
              something along the way as has happened with us with other
              suspects before. They try to hide around something and
              maybe toss something underneath a car trying to hide it from
              us.

Yang’s trial attorney did not object to the prosecutor’s question or Officer Rutschow’s

answer.

      The jury found Yang guilty of both charges. In September 2013, the district court

stayed imposition of sentence and placed Yang on probation for five years.        Yang

appeals.

                                    DECISION

      Yang argues that the district court erred by admitting the two portions of Officer

Rutschow’s testimony that are excerpted above. Yang contends that the challenged

evidence is inadmissible character evidence.




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       Because Yang did not object to the challenged testimony at trial, this court reviews

only for plain error. See Minn. R. Crim. P. 31.02. Under the plain-error test, an appellant

is not entitled to relief on an issue to which no objection was made at trial unless (1) there

is an error, (2) the error is plain, and (3) the error affects the appellant’s substantial rights.

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If the first three requirements of the

plain-error test are satisfied, this court must consider the fourth requirement, whether the

error “seriously affects the fairness, integrity or public reputation of judicial

proceedings.”    State v. Washington, 693 N.W.2d 195, 204 (Minn. 2005) (quotation

omitted). If this court concludes that any prong of the plain-error test is not satisfied, we

need not consider the other prongs. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).

       “Evidence of a person’s character or a trait of character” is inadmissible “for the

purpose of proving action in conformity therewith on a particular occasion.” Minn. R.

Evid. 404. The rule is intended to prevent “the danger that a jury will overvalue the

character evidence in assessing the guilt for the crime charged.” State v. Loebach, 310

N.W.2d 58, 63 (Minn. 1981). In State v. Williams, 525 N.W.2d 538 (Minn. 1994), the

supreme court held that evidence of a “drug courier profile” (i.e., a composite of certain

behaviors and characteristics common to people who transport drugs) was “clearly and

plainly inadmissible” to prove that the defendant was guilty of possession of cocaine with

intent to sell. Id. at 545, 548. The supreme court noted that such evidence “seems akin to

character evidence” and expressed concern that “the jury was impliedly urged to infer

that since defendant’s conduct fit the profile, she must have known that her luggage

contained crack cocaine.” Id. at 547-48 (quotations omitted). Similarly, in State v.


                                                5
Litzau, 650 N.W.2d 177 (Minn. 2002), the supreme court held that expert testimony

about how drug dealers typically acquire vehicles and transport drugs was “‘plainly

inadmissible.’” Id. at 185 (quoting Williams, 525 N.W.2d at 548). In both Williams and

Litzau, the supreme court reversed the defendants’ convictions and remanded for new

trials not solely because of the admission of drug-profile evidence but, rather, because of

the cumulative effect of multiple trial errors. Litzau, 650 N.W.2d at 187; Williams, 525

N.W.2d at 549.

       Yang contends that the excerpted portions of Officer Rutschow’s testimony should

not have been admitted for the same reasons stated in Williams and Litzau. In response,

the state contends that Williams and Litzau are inapplicable because the profile evidence

in those cases was “extensive” and because in this case the state introduced other,

stronger evidence of Yang’s guilt. The state is correct that the challenged evidence in

this case is unlike the evidence that was erroneously admitted in Williams and Litzau.

The supreme court expressed concern in Williams that the state’s drug-profile evidence

was a large part of the state’s proof that the appellant intended to sell the controlled

substances in her possession. 525 N.W.2d at 541, 549. Similarly, in Litzau, it appears

that the expert testimony about the typical behavior of drug dealers was the state’s

primary means of proving that the appellant intended to sell the controlled substances in

his possession. 650 N.W.2d at 185.

       In this case, however, the state did not rely heavily, if at all, on the challenged

portions of Officer Rutschow’s testimony.       To prove the offense of possession of

burglary or theft tools, the state did not rely heavily on the officer’s testimony about


                                            6
Yang’s dark clothing and backpack to prove that Yang was guilty. The state did not need

to do so because the state introduced evidence that Yang actually possessed tools that

may be used, and often are used, to break into or steal automobiles. To prove the offense

of possession of controlled substances, the state did not rely on the officer’s testimony

about other persons’ attempts to discard or hide controlled substances. The state did not

need to do so because the state introduced evidence that Yang possessed and dropped an

item that was recovered, was tested, and was determined to contain methamphetamine.

In closing argument, the prosecutor asked the jury to infer that Yang possessed

methamphetamine based on the officers’ observations and perceptions of Yang’s

conduct, not Yang’s conformity with a profile. In reality, the challenged portions of

Officer Rutschow’s testimony were relatively insignificant parts of the state’s case and

appear to have been offered only to explain why the officers decided to stop Yang and

conduct a brief investigation. See Litzau, 650 N.W.2d at 182; State v. Cermak, 365

N.W.2d 243, 247 (Minn. 1985).

       Because Yang has failed to show that the challenged evidence is inadmissible, he

cannot satisfy the first requirement of the plain-error test. In light of that conclusion, we

need not analyze the other requirements of the plain-error test. Thus, we conclude that

the district court did not plainly error by not sua sponte excluding the challenged portions

of Officer Rutschow’s testimony.

       Affirmed.




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