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Court of appeals orders new trial due to impact of evidence relating to charges dismissed during trial

State v. Michael C. Hess, 2014AP268-CR, District 3, 11/11/14 (not recommended for publication); case activity

While the trial evidence was sufficient to support the jury’s verdict that Hess possessed methamphetamine, Hess is entitled to a new trial in the interest of justice because the verdict may have been influenced by evidence offered to proved drugged-driving charges that were dismissed during trial.

Hess was driving down the highway when he swerved, hit another car, and slid through a ditch. In the trail of debris left by his vehicle was a tin can with two baggies of methamphetamine and a magnet (for holding the can to the frame of the vehicle, keeping it out of the passenger compartment). A test of Hess’s blood revealed the presence of meth. Hess was charged with possession (for the baggies), operating under the influence of a controlled substance causing injury, and operating with a restricted controlled substance in his blood. (¶¶2-10).

At trial, the state ran into “an insurmountable problem” with the chain of custody of Hess’s blood sample, which had been tested by an outside lab, not the state hygiene lab. (¶¶11-14). It dismissed the drugged-driving charges, though by this time the lab report showing a positive result for methamphetamine had been displayed to the jury, albeit briefly. (¶11). The trial proceeded on the possession charge and Hess was found guilty.

Hess argues the State failed to prove the baggies were under his “dominion or control” because they were found in a ditch abutting a busy highway accessible to all who happened by. Citing foreign cases, e.g., Hamilton v. State, 496 So. 2d 100 (Ala. Crim. App. 1986), Atwell v. State, 594 So. 2d 202 (Ala. Crim. App. 1991), and United States v. Hooks, 551 F.3d 1205 (10th Cir. 2009), Hess claims that where contraband is found on the side of a road, possession turns on whether someone saw the contraband being thrown from a vehicle or saw the contraband inside a vehicle prior to its being thrown onto the side of the road. The court of appeals disagrees:

¶23      …. We think the most that can be said of the foreign cases, as they apply here, is that when a defendant is alleged to have previously possessed drugs, there must be a sufficient nexus between the drugs and the alleged possessor to remove the case from the realm of speculation.

¶24        We conclude there was a sufficient nexus between Hess and the tin can containing methamphetamine that was found in the ditch. The color photographs of the accident scene are in the record; the path of Hess’s vehicle is apparent from skid marks in the grass, and the divot is clearly visible at the base of a moderately sloped ditch. It is also apparent that the ditch is mowed as part of a residence’s yard. …

¶25      Rydberg, the tow-truck operator, testified he was familiar with the property and it was regularly well-maintained. He recovered the tin can shortly after the accident occurred. The can was lying in the divot, interspersed with the pieces that broke off of Hess’s vehicle in that same location. Aside from what Rydberg believed were the first responders’ latex gloves, no other trash or vehicle debris was present nearby. Further, the can contained a magnet.

¶26      Detective Kuffel testified as an expert. He testified that placing a magnet in a metal container is a common method of transporting and concealing drugs in vehicles, explaining that the magnet would hold the container atop the vehicle frame.

¶27      Considering the convergence of the above factors, a juror could reasonably deduce that the tin can dislodged from beneath Hess’s vehicle when it bottomed out in the ditch. … [I]t would be a significant coincidence for a magnet-can of drugs to be found in an otherwise clean and mowed ditch in someone’s yard, right after an accident, right at that single point where a vehicle left behind a divot and vehicle pieces.

But Hess is entitled to a new trial in the interest of justice because of the reference to “methamphetamine” in the lab report, which wasn’t ultimately admitted into evidence. While the trial court gave the generic cautionary instruction that the jury should base its verdict on the evidence “received” during trial (¶15), the court of appeals wonders whether the common juror would understand what “received” meant in this situation, and concludes “the instruction was insufficient to ‘unring the bell’ given the unique factual circumstances of this case.” (¶31). The presence of meth in Hess’s blood at the time of the accident strengthens the possession case, as it is further circumstantial evidence that the can of meth found in the ditch came from his vehicle. “Given that this was a close, circumstantial case in the first instance, the jury’s exposure to evidence regarding Hess’s blood test results undermines our confidence in the verdict.” (¶32).

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