State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0392

State of Minnesota,
Respondent,

vs.

Elvis Joko Porte,
Appellant.

Filed February 5, 2024
Affirmed
Segal, Chief Judge

Olmsted County District Court
File No. 55-CR-22-2343

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Johnson, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this direct appeal from the judgment of conviction of third-degree controlled -
substance crime, appellant argues that the district court violated his right to present a
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defense because appellant was not able to call a law-enforcement witness to testify during
the defense portion of the trial. We affirm.
FACTS
In the early morning hours of April 12, 2022, a Minnesota State Patrol trooper
initiated a traffic stop after observing a car with windows that the trooper believed were
tinted in violation of state law. The trooper approached the car, identified himself and the
reason for the stop, and asked the driver for his license and proof of insurance. While
waiting for the driver to provide the documents, the trooper saw that the driver appeared to
have loose-leaf marijuana on his lap, the front -seat passenger was rolling a blunt, and the
back-seat passenger was spraying a fluid from an aerosol can on his hands. Appellant Elvis
Joko Porte was the back-seat passenger. The trooper also detected “a heavy aerosol, hand
sanitizer smell, along with fruity cover scents.”
The trooper ran the driver’s license and issued a warning to the driver for the
window-tint violation. He then administered field sobriety tests to the driver because he
suspected the driver may have been smoking marijuana, but ultimately determined the
driver was not impaired. The trooper asked to search the car and the driver consented. The
trooper asked the two passengers to get out of the car and then proceeded with the search.
By that time, two additional officers from the Rochester Police Department had arrived at
the scene.
During the search, the trooper discovered a Pepsi can that “felt odd.” He was able
to remove the top of the can and discovered “off colored white powder in [a] small, twisted-
off sandwich baggie.” He suspected that the baggie contained a controlled substance. He
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placed the Pepsi can on the roof of the car and continued the search. While the trooper was
conducting the search, one of the Rochester officers saw Porte run toward the car , grab
what appeared to be a soda can off the roof, and run away. The other officer told Porte to
stop, but he kept running.
The trooper and one of the officers ran after Porte. During the chase, t he trooper
saw Porte toss the Pepsi can. Porte tried to jump a fence but tripped and fell, at which point
Porte was taken into custody and the trooper found and retrieved the Pepsi can from a
nearby yard. The trooper later photographed the Pepsi can and its contents, but he elected
not to field test the sub stance due to fear of fentanyl exposure. He placed the items in an
evidence bag and placed the bag in the secure evidence locker at the state patrol office.
Respondent State of Minnesota charged Porte with third-degree controlled-
substance crime and fleeing a peace officer. The case proceeded to a jury trial, during
which the trooper and the two Rochester police officers testified to the events described
above. The state called three additional witnesses to establish the chain of custody and
results of the chemical testing of the powder found in the Pepsi can. The testing revealed
that the powder contained a mixture of fentanyl, tramadol, and fluorofentanyl.
A Minnesota State Patrol sergeant testified that on the day of the incident that he
removed the evidence from the evidence locker and logged it into the department’s
database, where it was assigned a unique barcode. He then placed it on a shelf in the
evidence room. Later that month, a second s ergeant received a request from the county
attorney’s office to have the evidence tested by the Minnesota Bureau of Criminal
Apprehension (BCA). The evidence to be tested consisted of two cellophane bags
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containing suspected controlled substances. The second sergeant removed the cellophane
bags from the Pepsi can, placed them back in the evidence bag without the Pepsi can, and
resealed the bag with packing tape. He then filled out the evidence submission form for
the BCA.
Approximately one week later, the first sergeant transported the evidence bag to the
BCA and checked the evidence in with the intake technician. When the evidence was
returned from the BCA, the second sergeant photographed the evidence and placed it back
on the shelf in the evidence room. Finally, a forensic scientist from the BCA testified about
the results of the chemical testing and that the combined weight of the substances was
25.612 grams.
After the state rested its case, Porte elected to discharge his counsel and proceed
pro se. The district court informed Porte that he had to decide whether to testify, and Porte
responded that he wanted to “re-question the witnesses that were called.” The district court
informed Porte that they were not “starting anything over. Not the trial; not any
examination of witnesses.” Porte then waived his right to testify, and the court took a
recess.
When the parties returned to discuss jury instructions and closing arguments, Porte
requested that he be permitted to re-question the trooper. Porte argued that the trooper had
committed perjury because the trooper testified that he did not weigh the suspected
controlled substances, but the police report indicated that he did and got a result of 27
grams. The district court explained that the discrepancy was not necessarily perjury but
inquired with the state about the trooper’s availability to testify. The prosecutor stated that
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it was “[u]nlikely” the trooper would be available. After additional discussion about the
trooper’s schedule, the district court stated, “ [The trooper] is not available to us ,” and
moved on with the trial. The parties made closing arguments and the jury began
deliberations.
During deliberations, the jury asked, “Is there documentation showing that [the
sergeant] documented in the chain of custod y, dating and signing the evidence out for
transportation to the BCA? Is that pertinent?” While discussing how to respond, Porte
indicated there were documents showing that the sergeant obtained the chain of custody
but “did not sign,” and that he was not given the chance to introduce that evidence. The
district court responded that it would not comment on the existence of anything not in
evidence. The jury ultimately found Porte guilty of both charges. The district court
sentenced Porte to 57 months in prison for third-degree controlled-substance crime.
DECISION
Both the United States and Minnesota Constitutions “protect a criminal defendant’s
right to a meaningful opportunity to present a complete defense.” State v. Pass , 832
N.W.2d 836, 841 (Minn. 2013) (citing U.S. Const. amend. XIV; Minn. Const. art. 1, § 7).
“A criminal defendant’s right to present a complete defense includes the right to call and
examine witnesses.” State v. Munt, 831 N.W.2d 569, 585 (Minn. 2013).
Porte argues that the district court deprived him of his right to present a complete
defense by “rul[ing] that [Porte] could not call witnesses in the defense portion of the case.”
Appellate courts “review a district court’s evidentiary rulings for abuse of discretion, even
when . . . the defendant claims that the exclusion of evidence deprived him of his
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constitutional right to a meaningful opportunity to present a complete defense.” State v.
Zumberge, 888 N.W.2d 688, 694 (Minn. 2017). “Even if an objection was made and a
district court abused its discretion, [appellate courts] reverse only if the exclusion of
evidence was not harmless beyond a reasonable doubt.” Id.
Here, the trooper was the only witness Porte sought to call to the stand during the
defense portion of the case, but Porte never subpoenaed the trooper. Porte was also on
notice prior to trial that the trooper’s availability was limited. The state in fact had sought
a continuance at a pretrial hearing because the trooper was going to be on vacation and
otherwise not available “starting August 16[, 2022] and for . . . the next three weeks.” The
district court then stated that the August 29 trial date would be left on the schedule, and
asked the prosecutor to inquire whether the trooper would be available to “make it for a
day or half-day of testimony.” The prosecutor confirmed that he would “inquire regarding
how rigid [the trooper’s] unavailability is with the eye towards him testifying the morning
of August 30th.” At no point was there any discussion about the possibility that the trooper
may be asked to return to testify during the defense portion of the trial.
The trooper testified on the morning of August 30 as anticipated and was cross-
examined by Porte’s counsel. The trooper was then excused by the district court. When
Porte later attempted to call the trooper after dismissing his counsel, the prosecutor
indicated that it was unlikely that the trooper would be able to return to testify based on the
prosecutor’s understanding of the trooper’s work and vacation schedule.
The district court’s discretion in evidentiary matters includes the discretion to
“reasonably control[] the trial process.” State v. Richards, 495 N.W.2d 187, 195 (Minn.
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1992); see also Minn. R. Evid. 611(a) (“The court shall exercise reasonable control over
the mode and order of interrogating witnesses and presenting evidence . . . .”); State v.
Thomas, 891 N.W.2d 612, 619 (Minn. 2017) (noting that adopting a rigid evidentiary rule
would “infringe on the district court’s discretion to manage criminal trials”). We conclude
that the district court acted within its discretion here because Porte had not subpoenaed the
trooper and the trooper’s limited availability was known to the defense prior to trial.
Additionally, we discern no violation of Porte’s right to present a defense because,
even if we were to conclude that the district court erred, any such error fails to meet the
standard required for reversal—that the error “was not harmless beyond a reasonable
doubt.” Zumberge, 888 N.W.2d at 694. “An error is not harmless beyond a reasonable
doubt when ‘there is a reasonable possibility that the [error] complained of [may] have
contributed to the conviction.’” Id. (quoting Chapman v. California, 386 U.S. 18, 24
(1967)) (other quotation omitted). Here, there is no reasonable possibility that the denial
of Porte’s request to re-question the trooper contributed to the verdict.
Porte’s defense at trial was that the state failed to establish the chain of custody of
the drug evidence because the chain-of-custody form, which was submitted into evidence,
lists a weight of 27 grams, but the trooper and two sergeants all testified that they did not
weigh the substance. Porte argues that this discrepancy demonstrates that a member of the
state patrol must have weighed the substance in the can, contrary to the testimony of the
law-enforcement witnesses. Porte claims that his defense was impaired by his inability to
question the trooper about this inconsistency.
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Porte, however, did not need to present additional testimony from the trooper to
make this argument. T he chain-of-custody form showing a weight for the substance was
in the record, along with the testimony of the trooper and the two sergeants denying that
they weighed it. And Porte, in fact, made this very argument in his closing statement to
the jury. Based on the evidence presented by the state at trial, we conclude that, even if
there was an error, any such error was harmless beyond a reasonable doubt. Porte has thus
failed to make out a constitutional violation.
Affirmed.