State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2024

State of Minnesota,
Respondent,

vs.

Ryan Richard Fenske,
Appellant.

Filed December 14, 2020
Affirmed
Connolly, Judge

Sibley County District Court
File No. 72-CR-19-138

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

David E. Schauer, Sibley County A ttorney, Donald E. Lannoye, Assistant County
Attorney, Gaylord, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his conviction for third -degree controlled -substance
possession. He argues that the district court erred in three ways. First, the district court
erred in denying his motion to suppress the evidence because the officers lacked reasonable
suspicion to conduct a K -9 sniff and the dog was unreliable. Second, the district court
committed reversible error by allowing five decayed convictions into evidence, which
prevented appellant from testifying. Third, appellant argues the district court plainly erred
by permitting the police officers to opine as to who possessed the drugs. We affirm.
FACTS
On April 22, 2019, at approximately 12:30 p.m., Arlington Police Offi cer Noxon
responded to a call from a homeowner who reported a vehicle with two occupants sitting
outside their home for three hours. When Officer Noxon arrived on the scene, he ran the
license plate and it came back as not on file. He approached the vehi cle on the driver’s
side. Officer Noxon identified the female driver as Josephine Powers. The passenger was
appellant Ryan Richard Fenske. Both individuals had freshly lit cigarettes when Officer
Noxon approached. Officer Noxon asked what they we re doing sitting in the vehicle and
Powers responded that they were playing Pokémon Go, a game played on mobile devices.
Officer Noxon observed that Powers’s face appeared gaunt and she was fidgety, which was
“indicative of drug use.” He also observed that app ellant was trying to hide something
under his seat. While checking appellant’s driver’s license, Officer Noxon learned that
appellant was on probation for fifth -degree possession of a controlled substance. Officer

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Noxon believed that there were indicators of current illegal drug activity and he requested
an additional officer. According to Officer Noxon, based on his training and experience as
a law enforcement officer, individuals sometimes light cigarettes when police approach to
mask the smell of other drugs or alcohol in the vehicle. Additionally, Officer Noxon was
familiar with the game Pokémon Go, and he understood it to be a game where people walk
around, not a game that involved sitting in a stationary vehicle for three hours. Based on
all of th ese circumstances, Officer Noxon believed that there were indicator s of current
illegal drug activity, and he requested an additional officer for a K -9 sniff of the car for
possible narcotics.
Chief Petterson of the Arlington Police Department arrived with his USPCA
certified K-9 partner. While sniffing the exterior of the car, the dog alerted on the driver’s
side and passenger’s side. The officers then conducted a search of the vehicle’s interior .
During the search, Chief Petterson found crystal flakes on the driver’s seat that field-tested
positive for methamphetamine. There were 25 grams of marijuan a on the passenger side
floor, as well as a plastic bag from a Holiday gas station that contained a Tupperware
container with three crystal chunks inside. The crystal chunks tested positive for
methamphetamine and weighed approximately 18 grams. The officers also found a digital
scale in the bag. At the scene, Officer Noxon searched appellant’s person and found a five
dollar bill containing white residue . Appellant told Officer Noxon that he had given the
five dollar bill to Powers so she c ould “snort methamphetamine.” Based on the location
of the methamphetamine and the residue found on the five-dollar bill in appellant’s pocket,
Officer Noxon arrested appellant for possession of a controlled substance.

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After the arrest, the officers seized Powers’s and appellant’s cell phones. Pursuant
to a warranted search of the phones, police found s everal “nota ble” text messages .
Appellant texted Powers: “Who needs weed or sh*t. I have a bunch I need to get rid of.”
Powers replied: “Well, yeah, LOL. Do you want to chill this morning then? Sh*t, I’ve been
out. Might be able to buy some off you.” Appellant replied “Of course” and “where you
at?” The messages did not specify an exact location where the two would meet; however,
the officers inferred Powers picked appellant up at a Holiday gas station based on: (1) a
text message from Powers to appellant: “… Got a discount at H oliday. Could meet there
or Kwik Trip.” (2) a later text from appellant to Powers: “I’m at Holiday now” and (3) the
bag “from a Holiday gas station” where the drugs were found.
Appellant was charged with first -degree possession with intent to sell a controlled
substance in violation of Minn. Stat. § 152.021 subd. 1(1) (2019), and third -degree
possession of a controlled substance in violation of Minn. Stat. § 152.023 subd. 2(a)(1)
(2019). Appellant moved to suppress the drug evidence obtained from the vehicle. After
a contested omnibus heari ng, the district court denied appellant’s motion to suppress the
evidence. The district court concluded that “Officer Noxon had reasonable, articulable
suspicion for expanding the scope of the stop…” and that because the K -9 sniff was
reliable, there was probable cause to search the vehicle. Appellant then had a jury trial .
The jury acquitted him of first-degree possession with intent to sell a controlled substance
and found him guilty of third -degree possession of a controlled -substance. This appeal
follows.

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D E C I S I O N
I. District court’s denial of appellant’s motion to suppress

“When reviewing a district court’s pretrial order on a motion to suppress evidence,
‘we review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.’” State v. Gauster , 752 N.W.2d 4 96, 502
(Minn. 2008) (quoting State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007)). A reviewing
court defers to the district court’s findings of fact unless they are clearly erroneous. State
v. Lugo, 887 N.W.2d 476, 487 (Minn. 2016). “A factual finding is clearly erroneous if it
does not have evidentiary support in the record.” State v. Roberts, 876 N.W.2d 863, 868
(Minn. 2016).
Appellant first challenges the constitutionality of the dog -sniff search. The
Minnesota Supreme Court has determined that po lice only need reasonable articulable
suspicion of drug activity, rather than probable cause, to conduct a K -9 search. State v.
Davis, 732 N.W.2d 173, 181 (Minn. 2007). “Reasonable [articulable] suspicion must be
based on ‘specific and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant [an] intrusion.’” Id. at 182. As appellant notes, the requisite
showing for reasonable articulable suspicion “is not high.” Id. The court considers the
totality of the circumstances when determining whether reasonable articulable suspicion
exists. Id.
Appellant argues that Officer Noxon lacked reasonable articulable suspicion to
request a K-9 sniff and instead “acted on a hunch.” The district court concluded that the
dog-sniff search was constitutionally sound, relying on Officer Noxon’s testimony,

6
photographs from the stop, and bodycam footage . As an initial matter, appellant argues
that the district court’s factual findings were clearly erroneous. We agree that t he record
does not support the entirety of the following finding:
Officer Noxon observed that Ms. Powers was very fidgety. He
testified that Ms. Powers went beyond the normal type of
nervous behavior that most people exhibit when being stopped
by a police officer. Ms. Powers can be seen on the squad video
as being very fidgety. Officer Noxon testified that based on his
training and experience, this type of fidgetiness was indicative
of current drug use.

Officer Noxon did not testify to the fact that the fidgeting “went beyond the normal
type of nervous behavior” nor did he testify that “this type of fidgetiness was indicative of
current drug use.” Instead, Officer Noxon testified that Powers was “fidgety,” citing this
as a basis for his suspicion of criminal drug activity. However, the remainder of the facts
relied on by the district court are supported by the record, and are not clearly erroneous.
Based on those facts, we conclude that the district court did not err in concluding that the
dog-sniff search was supported by a reasonable, articulable suspicion of criminal activity.
Officer Noxon testified to several specific and articulable facts that, based on his training
and knowledge as a police officer, indicated possible criminal drug activity. Powers was
fidgety and appellant attempt ed to hide something under his seat; both occupants had
freshly lit cigarettes; both occupants had been sitting in the vehicle for approximately three
hours, but told the officer that they were playing a mobile game; and app ellant was on
probation for a controlled -substance violation at the time of the stop. All of these
circumstances supported a reasonable, articulable suspicion of drug activity that warranted
a K-9 sniff of the vehicle.

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Appellant further argues that, even if the K-9 sniff was legal, the specific K-9 used
was “unreliable” and , therefore, the officers lacked probable cause to search the vehicle.
We disagree.
A reliable dog sniff constitutes sufficient probable cause to search a motor vehicle.
Florida v. Harris, 568 U.S. 237 (2013). Reliability is most commonly established simply
by showing that the K-9 is certified. A defendant is allowed to challenge a K-9’s reliability
by cross-examining the testifying officer or intr oducing his own fact -witness. Id. at 247.
The Supreme Court has held that under the totality of the circumstances, the question is
whether “all the facts surrounding a dog’s alert” would make a reasonable perso n suspect
evidence of a crime. Id. at 248. The totality of the c ircumstances includes the K -9’s
training, certification, field history, and the circumstances of the sniff in question.
Chief Petterson testified about the K-9’s training, certification, and field history.
There were numerous activity logs entered into evidence that detailed each of the K-9’s
deployments. According to Chief Petterson, the K -9 had been his partner for “five and a
half, six years” and is a certified “narcotics detection dog” and “patrol dog.” The K-9 was
trained to detect “marijuana, meth, cocaine, [and] heroin.” Chief Petterson walked through
the K-9 sniff procedure. This procedure was “consistent with” the officer’s training.
Appellant argues that he established the K-9’s unreliability through cross -
examination of Chief Petterson ; he elicited testimony that the K-9 had previously made
“five to ten” false alerts out of 50 deployments . We disagree. Appellant did not produce
any expert witnesses. Nor did appellant contest the certification of the K -9 or its training
history. Rather, appellant focused on the number of “false positive alerts” that the K -9

8
previously made in the field. Appellant did not provide any caselaw to support his
argument that false positive alerts make a K-9 presumptively unreliable. The record shows
a lengthy history of training and f ield experience of both the K -9 and Chief Petterson. It
is true that the K-9 “falsely” found narcotics when there were none present on multiple
occasions; however, he correctly identified them the majority of the time. Further, Chief
Petterson testified that he did not give any “improper body language or clues that would
lead [the K-9] into alerting in this instance.” The K-9 made a positive alert on the driver’s
side and the passenger side.
There are no circumstances surrounding the “sniff in question” that indicate
unreliability. Based on the totality of the circumstances, the K -9 sniff was reliable and
therefore provided Officer Noxon and Chief Petterson with sufficient probable cause to
search the vehicle. The district court properly denied appellant’s motion to suppress the
drug evidence.
II. Admissibility of prior convictions under Minn. R. Evid. 609(b)

Appellant argues that the admissibility of his five previous convictions was
erroneous because the court did not conduct the proper analysis . He also argues that the
admissibility of the convictions “chilled” his testimony, and as such, he was denied the
opportunity to defend himself. Appellant objected to the admissibility of the convictions
before trial. Therefore, this court reviews the issue for harmless error.
A trial court’s ruling under Rule 609 of the Minnesota Rules of Evidence is reviewed
for an abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). “When an
error implicates a constitutional right, we will award a new trial unless the error is harmless

9
beyond a reasonable doubt. An error is harmless beyond a reasonable doubt if the jury’s
verdict was surely unattributable to the error.” State v. Davis, 820 N.W.2d 525, 533 (Minn.
2012) (citation and quotation omitted).
Rule 609 governs the admissibility of prior convictions for impeachment purposes.
Prior convictions are admissible if they are (1) punishable by imprisonment in excess of
one year or (2) involved dishonesty or false statement, regardless of the punishment. Minn.
R. Evid. 609(a). As a general rule, a conviction that is more than ten years old is
inadmissible. However, the district court has discretion to allow a “stale” conviction into
evidence in the interests of justice if “the probative value of the conviction supported by
specific facts and circumstances substantially outweighs its prejudicial effect.” Minn. R.
Evid. 609(b).
The trial occurred in July 2019. The district court ruled that five prior convictions
would be admissible: a felony theft that decayed in 2004, a felony motor-vehicle theft that
decayed in 2004, a felony motor-vehicle theft that decayed in 2006, a gross-misdemeanor
check forgery that decayed in 2004, and a misdemeanor theft that decayed in 2003. The
district court erred by finding the misdemeanor theft was an admissible prior conviction
because it was not a felony or a crime involving dishonesty, and it was over ten years old.
See Minn. R. Evid. 609(a). We conclude that the district court also erred by finding the
remaining four crimes admissible because the district court failed to conduct any analysis
as required under Rule 609(b). Caselaw is clear that due to their age, these convictions
were not admissible unless the district court identified “specific facts and circumstances”
that shows the conviction’s probative value substantially outwei ghed its prejudicial effect

10
and that the interests of justice required the admission. Minn. R. Evid. 609(b). See State
v. Hofmann, 549 N.W.2d 372, 376 (Minn. App. 1996) (“Because the specific facts and
circumstances of the [decayed] crime were not shown, evidence of that conviction was not
properly admissible under rule 609,” and the court therefore erred in admitting the prior
conviction for impeachment). The only analysis the district court conducted was to say
that the convictions “go to the theme of truthfulness.” This is insufficient. The district
court must conduct the specific analysis required by Rule 609(b).
Because the district court erred by finding that these five convictions were
admissible for impeachment, we must determine the impact of the error on appellant’s
convictions. An error is harmless beyond a reasonable doubt if the “verdict was surely
unattributable to the erroneous admission.” State v. Juarez, 572 N.W.2d 286, 292 (Minn.
1997). We are convinced that the error was harmless beyond a reasonable doubt.
Appellant argues that the erroneous ruling prevented him from testifying. However,
a district court’s erroneous decision to allow impeachment by prior conviction does not
implicate a defendant’s right to testify if the defenda nt’s proffered testimony was not
critical to his defense. See State v. Zornes , 831 N.W.2d 609, 628 (Minn. 2013). If the
district court’s erroneous ruling does not implicate a defendant’s right to testify, then the
error is harmless “if there is no reason able possibility that it substantially influence[d] the
jury’s decision.” State v. Taylor, 869 N.W.2d 1, 14 (Minn. 2015) (alteration in original).
Because appellant did not make an offer of proof as to what his testimony would have been
had he testified, we are left to assume that the thrust of the testimony would have been to

11
deny possession of the methamphetamine and argue that it belonged to Powers. Ihnot, 575
N.W.2d at 587.
Appellant’s defense strategy was to deny ownership of the drugs, suggesting they
belonged to Powers. The defense also focused on the failure of the police officers to
conduct forensic testing to determine who handled the drugs . While appellant did not
testify, the thrust of his expected testimony was presented through his attor ney by cross-
examination of Powers and the police officers. The strategy was effective as appellant was
acquitted of the first -degree possession with intent to sell a controlled -substance charge,
indicating that appellant’s testimony was not critical to h is defense. Accordingly,
appellant’s constitutional right to testify was not implicated by the district court’s
impeachment ruling.
Furthermore, the remaining evidence presented by the state was overwhelming. It
included video footage from the scene showing the location of the drugs, which were under
appellant’s seat. Officer Noxon also discovered a five dollar bill in appellant’s pocket with
a white substance on it, which appellant admitted was methamphetamine. Moreover,
appellant explicitly stated in a text message that he had possession of drugs and that he was
looking to get rid of them. While the text message did not explicitly say
“methamphetamine,” it did allude to drugs other than just marijuana: “who needs weed or
sh*t.” It is a reasonable inference that this message was referring to the drugs that were
found at the scene. Because appellant’s testimony was not critical to his defense and the
evidence against him was overwhelming, there is “no reasonable possibility” that the
impeachment decision “substantially influenced the jury’s decision.” Taylor, 869 N.W.2d

12
at 14. Any possible error that the district court made was harmless beyond a reasonable
doubt.
III. Officer’s testimony regarding who possessed the drugs
Appellant challenges the admissibility of certain testimony from two police officers.
Appellant did not object to this testimony at trial. Therefore, this court reviews the issue
using the plain-error standard. Minn. R. Crim. P. 31.02. The plain-error standard requires
an appellant to show an error that was plain and affected substantial rights. Johnson v.
United States, 520 U.S. 461, 466-67 (1997). “If those three prongs are met, we may correct
the error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’” State v. Crowsbreast , 629 N.W.2d 433, 437 (Minn. 2001) (quoting
Johnson, 520 U.S. at 467). The first prong of the plain -error doctrine is satisfied if
appellant establishes an error – such as a deviation from a legal rule. United States v.
Olano, 507 U.S. 725, 732 (1993). Witnesses are not permitted to testify as to their opinion
on “ultimate issues” regarding legal analysis or mixed questions of law and fact because
these types of opinions are not deemed to be of any use to the trier of fact. Minn. R. Evid.
704 197 7 comm. cmt . However, “testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” Minn. R. Evid. 704.
Appellant argues that the officers “repeatedly testified to their personal beliefs” or,
in other words, “they opined that Fenske was guilty .” However, this characterization of
Officer Noxon’s and Chief Petterson’s testimony is incorrect because it takes their
testimony out of context. At trial, appellant made Powers’s connection to the controlled

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substances, in conjunction with law enforcement’s failure to conduct forensic tests to
determine who handled the drugs , a major focus. In response to the sugge stion that “law
enforcement did a shoddy investigation by not doing forensic testing ,” the officers
explained why they did not perform any forensic tests.
Officer Noxon explained that he did not request fingerprint testing because the drugs
“were found in the floorboard in front of the passenger [seat],” indicating “it’s within reach
of the passenger” and , therefore, “we would place the ownership of that item with the
passenger.” This was not an opinion on guilt, but rather an explanation as to why DNA
testing was deemed unnecessary. Moreover, in response to the question “so do you believe
that you found who actually possessed the methamphetamine?” Chief Petterson said “yes,
we do” and stated that individual was appellant. He testified that he assumed ownership
based on the location of the evidence. Additionally, he testified that he suspected the drugs
belonged to appellant based on “information in the statements and the evidence from the
vehicle” (referring to the text message exchanges). Like Officer Noxon, Chief Petterson’s
testimony explained why no forensic testing was conducted. He did not “o pine[ ] that
Fenske was guilty.” The testimony of both officers falls within the parameters of Rule
704; it was not a deviation from a legal rule. Minn. R. Evid. 704. Therefore, it was not a
plain error. Olano, 507 U.S. at 732.
Even if the district court erred, the error did not “affect [appellant’s] substantial
rights.” Johnson, 520 U.S. at 467. “An error affects a defendant’s substantial rights when
there is a reasonable likelihood that the error substantially affected the verdict.” State v.
Brown, 792 N.W.2d 815, 824 (Minn. 2011). Even without the officers’ testimony, the

14
evidence against appellant was overwhelming. Assuming the statements regard ing
ownership of the drugs were stricken from the record, it is not reasonably likely that the
jury would have come to a different conclusion. The verdict would still be supported by
the video footage of the drugs in the car, the five dollar bill, the text messages, and Powers’s
testimony.
Appellant claims that this case is similar to State v. Hogetvedt , and that this court
should “revers[e] and remand[ ] this case for a new trial” as it did there. 623 N.W.2d 909,
916 (Minn. App. 2001). But this case is distinguishable. In Hogetvedt, the defendant was
charged with assaulting his mother. The mother first identified the defendant as the
assailant, but later recanted her statement over the phone to a police officer. The police
officer testified to a per sonal opinion despite the district court’s clear instructions not to:
the district court stated “as to [the officer’s] opinion as to [appellant’s] guilt, that would be
totally improper . . . such opinions are his alone and are to be kept to himself.” Id. at 914.
The officer took the stand, however, and testified that during the phone call with the victim,
“…I told her that I believed it was appellant that assaulted her.” Id. at 915. This testimony
was clearly inappropriate. But it is much different than the testimony here. Officer Noxon
and Chief Petterson never stated it was their opinion that the drugs belonged to appellant
as opposed to Powers. Rather, in response to questions about the absence of forensic
testing, the officers explained testing did not seem necessary because the circumstances
indicated the drugs were appellant’s.
Appellant also argues that the “error is plain” and that it is “confirmed” by State v.
Myrland. 681 N.W.2d 415 (Minn. App. 2004). Myrland is also distinguishable from this

15
case. There, over defense objection, a school district’s human resources director testified
about the result of an internal investigation, and the employment actions taken against the
defendant, who was charged with possession of child pornography. Myrland, 681 N.W.2d
at 421. The testimony was deemed “irrelevant to the criminal charges” and was one of
several errors that brought “the fairness of appellant’s trial seriously into question.” Id.
But this court stated that “we need not address each of the claimed errors” because the case
was reversed on other grounds. Id.
The district court did not plainly err in allowing Officer Noxon and Chief Petterson
to testify about the ownership of the drugs. Even if the district court did plainly err, the
error did not “affect[ ] [appellant’s] substantial rights.” See Brown, 792 N.W.2d at 824.
Affirmed.