State of Minnesota, Respondent, vs. Samuel Frank Sullivan, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-1956

 

State of Minnesota,

Respondent,

 

vs.

 

Samuel Frank Sullivan,

Appellant.

 

Filed September 16, 2003

Affirmed Willis, Judge

 

Todd County District Court

File No. K10286

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Gaylord Saetre, Todd County Attorney, Joe E. Judd, Assistant County Attorney, 212 Second Avenue South, Long Prairie, MN  56347 (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of driving after cancellation.  He contends that the district court abused its discretion by refusing to admit photographs of appellant's truck, which, appellant argues, show that the police officer who arrested him could not have seen into his truck and recognized him as the driver.  Because we conclude that the court did not abuse its discretion, we affirm.

FACTS

            Appellant Samuel Frank Sullivan was arrested in January 2002 after Todd County Deputy Sheriff Donald Asmus, who was aware that Sullivan's driving privileges had been cancelled, spotted Sullivan driving a pickup truck.  Sullivan was charged with driving after cancellation, in violation of Minn. Stat. § 171.24, subd. 5 (2000).

            On the day of his trial in July 2002, Sullivan informed the district court that he intended to introduce photographs of his truck as evidence that Deputy Asmus could not have seen into the truck and recognized Sullivan to be the driver.  The photographs show the truck equipped with a "topper," which encloses the truck's bed and has windows on all four sides.  The state objected, arguing that the photographs were obviously not taken close in time to Sullivan's arrest, which occurred during the winter, because they depict green grass and trees with leaves.  The district court ruled that the photographs were inadmissible because there was insufficient foundation to show that the photographs were taken close in time to Sullivan's arrest and because the defense failed to disclose the photographs to the state before trial.   

Deputy Asmus testified that (1) when he saw the truck, he recognized it as Sullivan's truck, and he started to follow it; (2) he was 60 to 70 yards behind the truck and, although it was approximately 11:30 p.m. and dark, he was able to see into the cab with the assistance of his squad car's headlights and a "takedown light," which was mounted on the roof of his car and pointed forward at the truck; (3) he saw a driver and one passenger in the truck and saw that the driver had curly brown hair that was longer than the passenger's hair, which was "dark and straighter";  (4) he recognized Sullivan to be the driver and had "no doubt" that it was he; (5) the truck turned and Deputy Asmus's view of the truck was obscured for "a little bit," and then he saw that Sullivan and the passenger had switched places and that Sullivan was no longer driving; and (6) he stopped the truck. 

Deputy Asmus further testified that he approached the truck and told Sullivan that he knew Sullivan had been driving before the truck stopped, to which Sullivan replied, "Yeah, you got me."  Deputy Asmus also said that he could not remember whether Sullivan's truck was equipped with a topper on the night that he stopped him.

Sullivan, Sullivan's father, and the other man in the truck, Aaron Lind-Pashina, testified for the defense.  Sullivan testified that (1) Lind-Pashina's hair was longer than Sullivan's hair on the night of Sullivan's arrest; (2) Lind-Pashina had driven Sullivan's truck for the entire time that the two men were together on the night of his arrest and that they had not switched places; and (3) the truck was equipped with a topper on the night of Sullivan's arrest.  Sullivan's father testified that Sullivan and Lind-Pashina had been at his house before Sullivan's arrest and that Lind-Pashina was driving the truck when they left.

Lind-Pashina also testified that (1) he drove Sullivan's truck on the night of Sullivan's arrest, (2) he and Sullivan had not switched places, and (3) the truck was equipped with a topper on the night of Sullivan's arrest.  On cross-examination, Lind-Pashina admitted that he had a conversation with Deputy Asmus in June 2002 in which he told Deputy Asmus that it was "possible" that Sullivan was driving on the night of his arrest.  Deputy Asmus testified in rebuttal that Lind-Pashina had admitted during the June conversation that Sullivan had been driving and that he and Sullivan had switched places.  The jury found Sullivan guilty, and this appeal follows.

D E C I S I O N

Appellate courts largely defer to the district court's evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Erroneous exclusion of defense evidence is subject to a harmless-error analysis.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  We must be satisfied beyond a reasonable doubt that a reasonable jury would have reached the same verdict "if the evidence had been admitted and the damaging potential of the evidence fully realized."  Id.

Sullivan argues that the district court abused its discretion by ruling the photographs of his truck inadmissible.  In March 2002, more than four months before Sullivan's trial, the state made a demand for disclosure of, among other things, "documents and tangible objects" that Sullivan intended to introduce into evidence at his trial.  See Minn. R. Crim. P. 9.02, subd. 1(1) (requiring defendant to disclose photographs on prosecutor's request).  But Sullivan waited until the day of trial to notify the state that he intended to offer the photographs as evidence, and he provides no explanation for the delay.  We conclude, therefore, that the district court did not abuse its discretion by refusing to admit the photographs into evidence.

 But even if exclusion of the photographs were an abuse of the district court's discretion, we are satisfied that there was no prejudice to Sullivan.  The defense presented the jury with ample evidence of its theory that Sullivan's truck was equipped with a topper at the time of Sullivan's arrest.  Sullivan and Lind-Pashina both testified that the truck had a topper, and Sullivan described the topper in detail, including the extent to which it allegedly would have obscured the back window and thereby impaired Deputy Asmus's ability to see into the truck.  Deputy Asmus testified, however, that Sullivan was driving and that when confronted, Sullivan admitted that he had been driving.  And Lind-Pashina admitted that he might have told Deputy Asmus that Sullivan had been driving.  Finally, the "damaging potential" of the photographs was limited by the delay in taking them.  We are therefore satisfied beyond a reasonable doubt there is no reasonable probability that the result of Sullivan's trial would have been different if the district court had admitted the photographs.

Affirmed.