State v. Yang, A20-0011

State of Minnesota, Respondent, v. Tou Pheng Yang, Appellant.

A20-0011

STATE OF MINNESOTA IN COURT OF APPEALS

February 1, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Affirmed

Gaïtas, Judge

Washington County District Court

File No. 82-CR-17-3672

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County Attorney, Stillwater, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Gaïtas, Judge.

NONPRECEDENTIAL OPINION

GAÏTAS, Judge

Appellant Tou Pheng Yang appeals his multiple convictions for controlled-substance crimes following a jury trial. He argues that he should receive a new trial because the prosecutor's misconduct unfairly prejudiced the jury and impacted the verdicts. Yang claims that the prosecutor improperly asked police officers for their expert opinions about whether he intended to sell, and not simply use, controlled substances. And he claims that the prosecutor committed misconduct during closing argument by asking the jury to "care" about the community and hold him accountable. Yang acknowledges that his trial attorney did not object to the prosecutor's conduct, limiting this court to plain-error review.

We conclude that the prosecutor committed plain error by asking several police witnesses to give expert opinions about Yang's intent, and that some of the prosecutor's remarks during closing arguments constituted misconduct. But because there was overwhelming evidence of Yang's guilt, the prosecutor's misconduct did not affect Yang's substantial rights, and therefore, Yang is not entitled to a new trial. We affirm.

FACTS¹

Yang's convictions stem from two traffic stops that occurred about six weeks apart. The first traffic stop happened at night in late August 2017. Woodbury Police Officer Tommy Satele saw a maroon Lexus SUV weave in its lane and cross over the fog line several times.² Officer Satele stopped the SUV. Yang was the driver, and his girlfriend, the vehicle's registered owner, was in the passenger seat. Officer Satele discovered that Yang had an arrest warrant related to a misdemeanor traffic offense. He called Officer Veronica Giese to assist him. When she arrived, the officers took Yang out of the SUV and handcuffed him.

Officer Satele searched Yang's pockets and found a rolled up piece of paper, about $1,500 in cash, and three counterfeit $100 bills. The paper was wrapped around a small amount of methamphetamine. After this discovery, police brought a drug-sniffing dog to the scene. Following the dog sniff, Officer Satele searched the SUV's interior. In the backseat, he found a brown designer backpack containing a loaded gun, a gun magazine, a plastic bag containing a white substance later confirmed to be about 24 grams of methamphetamine, and a black substance later confirmed to be a mixture of about 1.2 grams of morphine and codeine. Subsequent testing revealed the presence of DNA consistent with Yang's DNA on the gun. The backpack also contained documents in Yang's name, including a bank deposit slip, a letter addressed to Yang, a vehicle title, and a paper version of Yang's driver's license.

During the search of the vehicle, Officer Giese noticed a cellphone in the SUV's center console openly displaying messages that seemed to reference a drug exchange. When the police examined the phone after obtaining a warrant, they discovered a photo showing bags of marijuana positioned next to a leather bag and keys to a BMW vehicle, and other photos showing bundles of cash, firearms in black cases, and Yang's driver's license. The phone also contained text messages that suggested to police that Yang was selling marijuana.

The second traffic stop happened in early October 2017 when Yang was driving his own silver BMW sedan without a valid driver's license. The police pulled Yang over, arrested him, and took him to jail. After the arrest, officers searched Yang's car and found several items in the trunk. This time, they found a loaded gun inside a black designerhandbag. They also found a brown designer handbag containing about 42 grams of marijuana wrapped in plastic, empty small plastic bags, and thousands of dollars in cash and counterfeit bills.

Based on the evidence found during the two traffic stops, Yang was charged with first-degree possession of 17 or more grams of methamphetamine with intent to sell under Minn. Stat. § 152.021, subd. 1(1) (2016) (count one); second-degree possession of 10 or more grams of methamphetamine while in possession of a firearm under Minn. Stat. § 152.022, subd. 2(a)(2)(i) (2016) (count two); third-degree possession of 10 or more grams of a narcotic other than heroin, Minn. Stat. § 152.023, subd. 2(a)(1) (2016) (count three); fifth-degree possession of a controlled substance (morphine), Minn. Stat. § 152.025, subd. 2(1) (2016) (count four); and fifth-degree possession of marijuana with intent to sell, Minn. Stat. § 152.025, subd. 1(1) (2016) (count five). The state also gave notice of its intent to seek a sentencing enhancement under Minnesota Statutes section 609.11, subdivisions 5(a) and 9 (2016), on counts one, three, and four based on Yang's alleged commission of the drug offenses while possessing firearms. Yang pleaded not guilty and had a single jury trial involving the charges stemming from both traffic stops.

During the state's case-in-chief, five police officers and two Minnesota Bureau of Criminal Apprehension scientists testified, and the prosecutor offered 44 exhibits into evidence. On direct examination, the prosecutor asked the five police officers for their opinions about whether Yang possessed the drugs for personal use or to sell, phrasing the questions differently for each officer. The five officers testified that the evidence was consistent with intent to sell both methamphetamine and marijuana. Defense counsel madesome objections during the officers' testimony on the grounds of "speculation" and "foundation." But defense counsel did not object to the substance of the officers' opinions.

Yang testified that most of the items seized during the two arrests—the cellphone, the firearms and magazine, the backpack containing 24 grams of methamphetamine, and the handbag containing 42 grams marijuana—did not belong to him. He did admit, however, that the cash and small amount of methamphetamine found in the paper in his pockets during the first stop were his, as was some of the marijuana and cash found during the second stop. Yang also admitted that he knew there was a gun in his car during the second stop. But he denied that the gun belonged to him, and he denied knowing who owned the gun.

During closing arguments, the prosecutor emphasized a theme of public safety and personal accountability to the jury. The prosecutor argued that Yang was a danger to the community and did not care about the community. He asked the jurors to care about the community and to "do the right thing" by holding Yang accountable with their verdicts. Defense counsel made no objection to the state's closing argument.

The jury found Yang guilty of all five counts. At sentencing, the district court sentenced Yang to 110 months in prison for count one and concurrent 36-month terms for counts four and five. This appeal follows.

DECISION

Yang argues that the prosecutor committed two types of misconduct that prejudiced the jury and ultimately affected the verdicts. First, he contends that the prosecutor askedquestions designed to elicit inadmissible expert-opinion testimony. And second, he claims that the prosecutor made improper remarks during closing arguments.

In reviewing prosecutorial-misconduct claims, our standard of review depends on whether defense counsel objected to the misconduct at trial. See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Because defense counsel did not object to the prosecutor's questions on the ground that they called for inadmissible expert testimony, and did not object to the prosecutor's remarks during closing argument, we review these claims for plain error. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (holding that errors not preserved with a trial objection are reviewed under the plain-error standard of review).

The Minnesota Supreme Court has adopted a modified plain-error standard of review for claims of prosecutorial misconduct. Ramey, 721 N.W.2d at 302. Under the modified plain-error standard, a defendant must show that the prosecutor engaged in conduct constituting an error that was plain. Id. An error is plain if it is "clear or obvious," meaning that it "contravenes case law, a rule, or a standard of conduct." State v. Sanchez-Sanchez, 879 N.W.2d 324, 330 (Minn. 2016) (quotations omitted). If plain error is shown, the burden then shifts to the state to demonstrate that the error did not affect the defendant's substantial rights. Ramey, 721 N.W.2d at 302. To demonstrate that the error did not impact the defendant's substantial rights, "the [s]tate must show that there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury." State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010) (quotation omitted). Finally, if the state fails to satisfy its burden, the appellate courtconsiders "whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings." Id.

We now turn to Yang's claims, considering each allegation of misconduct in turn.³

I. Eliciting Inadmissible Expert-Opinion Testimony

In determining whether the prosecutor elicited improper expert-opinion testimony, we first consider whether the prosecutor's conduct was plainly erroneous. The state "may not seek a conviction at any price" because prosecutors...