This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2014).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A14-1866

                                State of Minnesota,
                                   Respondent,

                                        vs.

                             Iri Armando Ruiz-Deleon,
                                    Appellant.

                            Filed November 23, 2015
                            Reversed and remanded
                               Cleary, Chief Judge
                           Dissenting, Schellhas, Judge

                          Hennepin County District Court
                             File No. 27-CR-14-2298


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Cleary, Chief Judge; Schellhas, Judge; and

Klaphake, Judge.




 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                       UNPUBLISHED OPINION

CLEARY, Chief Judge

       Appellant Iri Armando Ruiz-Deleon was convicted of first-degree aggravated

robbery after a pat-search near the scene of the robbery produced a metal pen and $71

in cash, which appellant stated did not belong to him.       Appellant challenges the

conviction, arguing that the fruits of this search should have been suppressed as the

result of an unconstitutional search. Because we conclude that this evidence was

collected in violation of appellant’s constitutional rights and erroneously admitted at

trial, we reverse and remand for a new trial.

                                        FACTS

       On January 24, 2014, 911 emergency response received a call from a cab driver

reporting that he had been robbed by a customer. Police dispatch informed officers

that a suspect had committed a robbery with a knife and was believed to be fleeing on

foot northbound on Portland Avenue with stolen cash. The suspect was described as a

Hispanic male, approximately 5’ 6” tall and wearing dark clothing. A few blocks from

the location of the crime, officers saw appellant walking down the sidewalk and three

officers stopped to question him. The officers shouted for appellant to stop and put his

hands up, and he complied. The three officers approached appellant, and at least one

officer had his gun drawn. One officer placed appellant in handcuffs, on his knees,

and conducted a pat-search. The search produced a wallet that contained no money.

Due to several factors, appellant and the officers had difficulty communicating.

Appellant seemed to be intoxicated and was slurring his speech.         Appellant is a


                                            2
Spanish-speaker and spoke limited English, repeating a few phrases many times. The

arresting officer spoke limited Spanish and communicated partially in English and

partially in Spanish. The officers learned appellant’s name from the identification in

his wallet and determined that he had no open warrants. The officers then released

appellant and told him to go home.

      However, as one officer walked away from appellant back to his squad car,

appellant walked towards him and spoke to him. As the officer was speaking with

appellant, he also began communicating by radio with another officer who was with

the victim a few blocks away. The other officer informed him that, according to the

victim, the suspect had asked the victim to go to Buena Vista Apartments. The officer

testified his suspicion of appellant was renewed because of appellant’s strange

behavior and because appellant had earlier told the officer that his destination was

Buena Vista Apartments. The officer then handcuffed and pat-searched appellant.

      This second pat-search produced two items that the officer felt inside

appellant’s sweatshirt pocket and then removed: a pen and $71 of cash. The officer

also testified that he saw the cash protruding from appellant’s sweatshirt pocket. The

officer asked appellant if the money was his and appellant said, “it’s not my money.”

The victim was brought to the scene of arrest for a “show-up” identification where he

identified appellant as the perpetrator. On January 27, appellant was charged with

Aggravated Robbery First Degree under 

, subd. 1 (2012).

      On May 1, 2014 the court held a Rasmussen hearing. Appellant’s attorney

argued for suppression of the show-up identification of appellant on the basis that it


                                          3
was impermissibly suggestive. Appellant’s attorney did not argue for suppression of

any statements made by appellant at the scene of arrest or physical evidence acquired

by police. The court denied the motion to suppress.

       Appellant’s jury trial began on June 16, 2014. On June 18, appellant’s attorney

moved to reopen the Rasmussen hearing to argue that appellant’s statement at the

scene of arrest, “it’s not my money,” should be suppressed.         Although the state

objected to the motion on several grounds, the court found good cause to hear the

belatedly raised suppression issue. The court heard arguments regarding appellant’s

motion to suppress the statement. Only one witness, the arresting officer, testified at

the Rasmussen hearing.      Following testimony, appellant’s attorney made a new

argument for suppression of physical evidence obtained through the pat-search at the

scene of arrest. The court denied the motion to suppress the statement and the motion

to suppress physical evidence. In its memorandum in support of the order denying the

motions, the court found that at the time of the relevant statement, appellant was

neither in police custody nor subject to police interrogation. The court also stated that

the physical evidence “was uncovered by both a ‘plain feel’ and ‘plain view’ search,

and thus, the evidence should be admissible.” A jury found appellant guilty. This

appeal followed.

                                   DECISION

       “When reviewing a pretrial order on a motion to suppress, we review the

district court’s factual findings under our clearly erroneous standard. We review the




                                           4
district court’s legal determinations, including a determination of probable cause, de

novo.” State v. Milton, 

 (Minn. 2012) (citation omitted).

      The Fourth Amendment to the United States Constitution and article I, section

10 of the Minnesota Constitution guarantee an individual’s right to be free from

unreasonable searches and seizures. State v. Jackson, 

 (Minn.

2007). Evidence seized in violation of the constitution must generally be suppressed.

. “Warrantless searches are generally unreasonable unless they fall within

a recognized warrant exception.” State v. Ortega, 

 (Minn. 2009).

One of the exceptions to the warrant requirement is for protective pat-down searches

on the outside of a suspect’s clothing to find weapons. Terry v. Ohio, 

, 29-

31, 

 (1968). Under Terry, a police officer “may stop and frisk

a person when (1) they have a reasonable, articulable suspicion that a suspect might be

engaged in criminal activity and (2) the officer reasonably believes the suspect might

be armed and dangerous.” State v. Dickerson, 

 (Minn. 1992),

aff’d, 

, 

 (1993). “The purpose of this limited search is not

to discover evidence of crime, but to allow the officer to pursue his investigation

without fear of violence . . . .” Adams v. Williams, 

, 

 (1972).

      Appellant argues that the second pat-search performed by the arresting officer

was not based on a reasonable belief that appellant was armed and dangerous, and thus

the pen and cash discovered during that search should be suppressed. Appellant

argues that because the officer had “conducted a pat-search of appellant just moments


                                          5
earlier” and appellant “made no furtive, threatening or unexpected movements during

[the] encounter,” or otherwise indicated he was a threat, the second pat-search was

impermissible. The state responds that due to factual developments after the first pat-

search, the second pat-search was justified.

       Generally, “once a Terry search has determined that the suspect is not armed,

the police may not without probable cause once again search the suspect.” State v.

Flowers, 

 (Minn. 2007) (quotation omitted).              However, the

supreme court has held that even after an initial Terry stop, behavior or circumstances

that give an officer heightened suspicion can justify a second pat-down. 

 When

analyzing whether a search was justified, the court must evaluate the totality of the

circumstances from the perspective of a reasonable person and give “due weight . . . to

the specific reasonable inferences [that the officer] is entitled to draw from the facts in

light of his experience.” Terry, 

, 

; see also Appelgate v.

Comm’r of Pub. Safety, 

 (Minn. 1987).

       The officer who performed the search gave two explanations for the search

during his testimony. First, the officer stated the search was to determine if appellant

possessed the stolen money. The state does not assert that the officer had probable

cause to search appellant or that appellant was under arrest at the time of the search.

The pat-search cannot be justified if the purpose was to search appellant for evidence

of the crime. Flowers, 

-51 (citing Williams, 

, 

).




                                            6
      Second, the officer stated the search was for officer safety. The state argues

that the search was justified under Terry as a pat-search for officer safety. However,

this explanation cannot be squared with the facts in this case. When officers first

approached appellant, they placed him on his knees and in handcuffs and performed a

thorough pat-search. After detaining appellant for this first search and questioning

him for about four minutes, they released him and told him to go home. The officer

walked back to his squad car, and appellant was out of his sight for a few seconds.

After appellant resumed conversation with the officer, the officer handcuffed appellant

and performed another thorough pat-search.

      The district court stated that “[t]his [second] pat down search was necessary

since the individual had been out of law enforcement control, no matter how brief a

time.” This was based on the officer’s testimony that it was his habit to perform

another pat-search of a suspect if he was out of his sight for any amount of time.

However, this habit does not create a reasonable belief that appellant was armed and

dangerous. By the time of the second pat-search, appellant was in handcuffs and had

already been thoroughly searched for weapons. In these circumstances, appellant’s

having been out of sight for a few seconds did not provide officers with reasonable

grounds to believe that appellant was armed or presented a threat to officer safety. In

the absence of this reasonable suspicion, the officer was not permitted to perform the

pat-search. Because the unjustified search was in violation of appellant’s rights under

the Fourth Amendment to the United States Constitution and article I, section 10 of the




                                          7
Minnesota Constitution, the fruits of this search must be suppressed. State v. Harris,

 (Minn. 1999).

       Appellant argues on appeal that three pieces of evidence should have been

suppressed: the cash and pen produced by the pat-search and appellant’s statement,

“It’s not my money.”1 The cash and pen were directly produced by the illegal search

and these items must be suppressed. 

 The district court erred by admitting these

fruits of the search. Appellant’s statement was given just after the illegal search. This

court must determine whether the taint of the illegal search requires the statement to be

suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 

, 

 (1963).

       In Wong Sun, the United States Supreme Court ruled:

              We need not hold that all evidence is fruit of the poisonous
              tree simply because it would not have come to light but for
              the illegal actions of the police. Rather, the more apt
              question in such a case is whether, granting establishment
              of the primary illegality, the evidence to which instant
              objection is made has been come at by exploitation of that
              illegality or instead by means sufficiently distinguishable
              to be purged of the primary taint.

, 

 (quotation omitted). The Minnesota Supreme Court has

outlined several factors that determine whether the illegal government action has

tainted the evidence sought to be admitted.

              These factors include the purpose and flagrancy of the
              misconduct, the presence of intervening circumstances,
              whether it is likely that the evidence would have been

1
 Appellant has not raised the issue of the admissibility of the show-up identification
on appeal. Thus, the court does not reach this issue.

                                              8
              obtained in the absence of the illegality and the temporal
              proximity of the illegality and the evidence alleged to be
              the fruit of the illegality.

State v. Warndahl, 

 (Minn. 1989).

       Appellant’s statement, “It’s not my money,” must be suppressed.                 The

statement was made by appellant in response to being confronted with the fruits of the

illegal search. The confrontation occurred immediately after the illegal search and it is

unlikely that the statement would have been made absent the unconstitutional

intrusion. It is tainted by the illegal search and the district court erred by admitting the

statement.

       Finally, this court must determine whether the erroneous admission of this

evidence requires reversal of appellant’s conviction. “When an error implicates a

constitutional right, we will award a new trial unless the error is harmless beyond a

reasonable doubt.” State v. Davis, 

 (Minn. 2012). “An error is

harmless beyond a reasonable doubt if the jury’s verdict was surely unattributable to

the error.”    

 (quotation omitted).     When determining if a verdict is surely

unattributable to erroneously admitted evidence, this court should consider “the

manner in which the evidence was presented, whether it was highly persuasive,

whether it was used in closing argument, and whether it was effectively countered by

the defendant.” State v. Sterling, 

 (Minn. 2013) (quotation

omitted). The relevant inquiry “is not whether, in a trial that occurred without the

error, a guilty verdict would surely have been rendered, but whether the guilty verdict




                                             9
actually rendered in this trial was surely unattributable to the error.” State v. Juarez,

 (Minn. 1997) (quotation omitted).

       Here, the district court erred by admitting the cash and pen found on appellant

along with appellant’s statement, “It’s not my money.” This evidence played a large

part in the state’s case against appellant. The prosecutor repeatedly referred to this

evidence. First, the state presented the arresting officer’s testimony that the search of

appellant produced approximately the amount of cash reported stolen and a pen that

the officer believed could be used as a weapon. These items were placed into evidence

as exhibits. The officer also testified that appellant made the statement that the money

was not his. Further, the prosecutor asked appellant about this statement in cross-

examination. Despite the video evidence of appellant making this statement, appellant

denied making it, likely affecting his credibility to the jury.      Finally, in closing

arguments, the prosecutor described the items found on appellant and quoted this

statement.   He emphasized that the amount of cash found on appellant was

approximately the amount that the victim reported stolen and referred to the pen,

stating that appellant “was armed with an item used in a manner to lead the victim to

reasonably believe that the article was a dangerous weapon.”

       The fruits of the illegal search were a highly persuasive part of the prosecutor’s

evidence. They were presented in closing arguments as clear evidence of elements of

the crime. Appellant could not effectively counter this evidence. A reasonable jury

would, at minimum, consider this persuasive evidence in making its decision. The

guilty verdict in this case was not surely unattributable to the erroneously admitted


                                           10
evidence. Because appellant was prejudiced by evidence collected in violation of his

constitutional rights and erroneously admitted at trial, we reverse and remand for a

new trial.2

       Reversed and remanded.




2
  Because we are reversing and remanding for a new trial, we need not address
allegations of prosecutorial misconduct or other issues raised in appellant’s pro se
supplemental brief.

                                        11
SCHELLHAS, Judge (dissenting)

       I respectfully disagree that the district court erred by denying appellant’s

suppression motion.

       The Richfield Police Department dispatched Officer Brian Bataglia “to the area of

62nd and Portland Avenue on a report of a robbery, cab driver held at knife point.

Suspect took cash and was fleeing northbound on Portland Avenue.” The dispatcher

advised that the suspect was a Hispanic male who was approximately five feet six inches

tall and wearing dark clothing. At the mid-trial Rasmussen hearing, Officer Bataglia

testified that he was en route to the location of the victim when another officer advised

that he was with a male party matching the suspect’s description. Officer Bataglia then

responded to assist that officer. Officer Bataglia testified that “[he] began to approach the

suspect from the south . . . [and] told the suspect to put his hands up; the suspect was not

compliant.” Officer Bataglia then spoke Spanish to the suspect and told him to get down

on his knees, and the suspect did not comply. At that point, “[Officer Bataglia] holstered

[his] gun which was originally at the low ready, . . . placed the male suspect down onto

his knees and placed him into handcuffs for officer safety.” Officer Bataglia performed a

quick safety pat-search. As noted by the district court, the squad videos, admitted into

evidence at the Rasmussen hearing, depict this encounter.

       Officer Bataglia testified that during this time period, the suspect, later identified

as appellant, was speaking in Spanish and was belligerent. But when Officer Bataglia

learned that appellant had no warrants, he removed his handcuffs. Because Officer

Bataglia had not located a knife, he told another officer to “get [appellant] ID’d and kick

                                            D-1
him so that [they could] continue to search the area for the suspect.” Officer Bataglia

asked the dispatcher to notify Minneapolis police that the officers were hoping to set up a

perimeter to conduct a canine search for the suspect. The officers instructed appellant to

“go home” and walked back to their squad cars.

       But appellant did not follow the officers’ instruction to go home. As noted by the

district court, this is apparent in the squad videos. Instead of following the officers’

instruction, appellant followed Officer Bataglia from a distance of about 10 to 15 feet,

speaking to Officer Bataglia in English and stating that “it was [appellant’s] brother.”

Officer Bataglia questioned appellant regarding his brother’s identity and asked whether

his brother had been in the cab, and Officer Bataglia believed that appellant “could

possibly be involved in the situation.” Officer Bataglia therefore again detained appellant

and sought additional information about the robbery from the officer who was with the

victim. Officer Bataglia learned that only one passenger was in the cab at the time of the

robbery and that the passenger had asked to be dropped off at the Buena Vista

Apartments. Appellant then stated that he was headed to the Buena Vista Apartments,

and Officer Bataglia conducted another pat-search and discovered a pen and cash. When

asked why he conducted a second pat-search, Officer Bataglia testified that “[m]ore

details involved had come out to implicate this male party and coming from, or going to

the location of where the cab driver was suppose[d] to drop him off.” When asked

directly whether the pat-search also was for officer safety, Officer Bataglia said yes.

       On cross-examination, Officer Bataglia agreed that appellant was “extremely

intoxicated,” and the squad videos are consistent with that testimony. Also on cross-

                                            D-2
examination, Officer Bataglia testified that he did not immediately place appellant in

handcuffs when appellant mentioned his brother and that he could not recall whether he

handcuffed appellant for the second time before or after the second pat-search. Regarding

officer safety, Officer Bataglia explained the need for the second pat-search as follows:

“[I]f [the suspect] is not in total—if I am not monitoring him and if I take my eyes off

him at any time then he will be patted down again for officer safety.”

       On redirect examination, Officer Bataglia testified that during the second pat-

search, he saw and felt money coming out of appellant’s sweatshirt pocket and removed

the money “to establish that the dollar amount that [appellant] had on him was similar to

the dollar amount that the victim stated that was taken from him” in order to “[d]etermine

if we had the correct party detained.” After Officer Bataglia discovered the money in

appellant’s sweatshirt pocket, appellant volunteered that the money was not his.

       The district court found Officer Bataglia’s testimony to be “credible in all

respects.” When reviewing the denial of a motion to suppress evidence, “[appellate

courts] review the district court’s factual findings under a clearly erroneous standard.”

State v. Gauster, 

 (Minn. 2008) (quotation omitted). “Such findings

can be held to be clearly erroneous only if, on the entire evidence, [the appellate court is]

left with a definite and firm conviction that a mistake has occurred.” State v. Stephenson,

, 

 (1976).

       The Fourth Amendment to the United States Constitution and Article I of the

Minnesota Constitution prohibit the unreasonable search and seizure of “persons, houses,

papers, and effects.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. Warrantless

                                            D-3
searches are per se unreasonable, subject to limited exceptions. State v. Othoudt, 

 (Minn. 1992) (citing Katz v. United States, 

, 

 (1967)). One such exception was recognized in Terry v. Ohio, which set forth

the circumstances in which police may constitutionally “stop and frisk” suspicious

persons without a warrant. 

, 

 (1968). Under Terry,

police may “stop and frisk a person when (1) they have a reasonable, articulable

suspicion that a suspect might be engaged in criminal activity and (2) the officer

reasonably believes the suspect might be armed and dangerous.” State v. Dickerson, 

 (Minn. 1992), aff’d, 

, 

 (1993).

       “The officer need not be absolutely certain that the individual is armed; the issue is

whether a reasonably prudent man in the circumstances would be warranted in the belief

that his safety or that of others was in danger.” Terry, 

, 

.

“The purpose of this limited search is not to discover evidence of crime, but to allow the

officer to pursue his investigation without fear of violence . . . .” Adams v. Williams, 

, 

 (1972). When determining whether an officer

reasonably conducted a pat-search, “due weight must be given . . . to the specific

reasonable inferences which he is entitled to draw from the facts in light of his

experience.” Terry, 

, 

.

       Appellant challenges the constitutional validity of Officer Bataglia’s second pat-

search. He argues that the district court erred by not suppressing the pen and cash because

the second pat-search was not based on a reasonable belief that appellant was armed and

dangerous. Appellant’s focus on Officer Bataglia’s subjective reasons for the pat-search

                                            D-4
is misplaced. We should assess Officer Bataglia’s decision to conduct a second pat-

search of appellant under an objective standard, as instructed by the United States

Supreme Court in Terry.

              The scheme of the Fourth Amendment becomes meaningful
              only when it is assured that at some point the conduct of those
              charged with enforcing the laws can be subjected to the more
              detached, neutral scrutiny of a judge who must evaluate the
              reasonableness of a particular search or seizure in light of the
              particular circumstances. And in making that assessment it is
              imperative that the facts be judged against an objective
              standard: would the facts available to the officer at the
              moment of the seizure or the search warrant a man of
              reasonable caution in the belief that the action taken was
              appropriate?

 at 21–22, 88 S. Ct. at 1880 (emphasis added) (quotation omitted). We therefore should

not speculate regarding Officer Bataglia’s subjective reasons for the pat-search.

       Appellant also argues that the second pat-search was invalid because there was no

reason to believe that he was armed and dangerous. But an officer need not be absolutely

certain that an individual is armed before conducting a pat-search; instead, the issue is

whether a reasonably prudent officer in the circumstances would be justified in believing

that his safety or that of others was in danger. Id. at 27, 88 S. Ct. at 1883. We must give

“due weight . . . to the specific reasonable inferences [that the officer] is entitled to draw

from the facts in light of his experience.” Id.

       The state persuasively argues that the circumstances in this case—particularly

appellant’s belligerent conduct during the initial encounter with police, his failure to

follow the instruction to go home, and his peculiar pursuit of and attempt to engage

Officer Bataglia from behind—objectively support a suspicion that appellant might be

                                             D-5
armed and dangerous. Cf. State v. French, No. A13-0062, 

, at *3

(Minn. App. Mar. 31, 2014) (noting that handcuffed suspect whom officer had pat-

searched and was escorting suddenly broke free and brandished knife with eight-inch

blade), review denied (Minn. June 17, 2014). I disagree with the majority that

“appellant’s having been out of sight for a few seconds did not provide officers with

reasonable grounds to believe that appellant was armed or presented a threat to officer

safety.” I would conclude that a reasonably prudent officer in the circumstances would

have been warranted in the belief that his safety or that of others was in danger and,

accordingly, that Officer Bataglia’s second pat-search of appellant was reasonable.

       A pat-search must be “confined in scope to an intrusion reasonably designed to

discover guns, knives, clubs, or other hidden instruments for the assault of the police

officer.” Terry, 

, 

. But police may seize nonthreatening

contraband detected during a pat-search under the plain-view doctrine, so long as the

search “stays within the bounds marked by Terry.” Dickerson, 

, 

. “Under [the plain-view] doctrine, if police are lawfully in a position from which

they view an object, if its incriminating character is immediately apparent, and if the

officers have a lawful right of access to the object, they may seize it without a warrant.”

, 113 S. Ct. at 2136–37. As applied in the pat-search context,

                     [i]f a police officer lawfully pats down a suspect’s
              outer clothing and feels an object whose contour or mass
              makes its identity immediately apparent, there has been no
              invasion of the suspect’s privacy beyond that already
              authorized by the officer’s search for weapons; if the object is
              contraband, its warrantless seizure would be justified by the


                                            D-6
              same practical considerations that inhere in the plain-view
              context.

 at 375–76, 

. The incriminating character of the item seized must be

“immediately apparent” without the need to conduct “some further search of the object.”

, 

.

       Here, the district court found that Officer Bataglia discovered the cash by both a

plain-feel and plain-view search and concluded that the evidence therefore was

admissible. We must defer to the court’s credibility determinations, Dickerson, 

, and nothing in the record supports a conclusion that the court’s findings

are clearly erroneous. I would affirm the court’s conclusion that Officer Bataglia did not

violate appellant’s constitutional right to be free from unreasonable search and seizure;

the court therefore did not err by denying appellant’s suppression motion.

       Regarding the majority’s conclusion that the district court erred by not suppressing

appellant’s statement that the money was not his, I would conclude that any error was

harmless. “When an error implicates a constitutional right, [an appellate court] will award

a new trial unless the error is harmless 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, 

 (Minn. 2012) (quotation and citation omitted).

When determining if a verdict is surely unattributable to erroneously admitted evidence,

the court must consider “the manner in which the evidence was presented, whether it was

highly persuasive, whether it was used in closing argument, and whether it was

effectively countered by the defendant.” State v. Sterling, 

 (Minn.


                                           D-7
2013) (quotation omitted). “[T]he admission of a defendant’s statements to police at trial

in violation of Miranda does not require a new trial if the state can show beyond a

reasonable doubt that the error was harmless.” State v. Farrah, 

(Minn. 2007). The question to be asked is: “What effect did the jury’s hearing the

defendant’s statement actually have on the guilty verdict rendered?” 

 (quotation

omitted).

       Here, appellant’s statement “clearly had no substantial or significant impact on the

verdict.” See State v. Walsh, 

 (Minn. 1993) (concluding that

although statements made by defendant while handcuffed to handrail violated Miranda,

statements “clearly had no substantial or significant impact on the verdict”). Appellant’s

statement did not play a major role in the state’s case; the state presented the evidence in

a manner whereby the jury would not have focused unduly on it, and it was not the focus

of any single witness’s testimony. The prosecutor did not dwell on it in either the opening

statement or closing argument. And as in Walsh, “[t]he evidence against [appellant] was

strong,” and “[t]he statement[] made . . . [was] quite innocuous.” 

 The victim identified

appellant as the perpetrator. Appellant stated that he was heading to the Buena Vista

Apartments, and the cab passenger had asked to be brought to the same location before he

robbed the victim. Appellant fit the physical description of the perpetrator, he had cash on

his person in an amount that the victim reported as stolen, and he possessed a metal pen

that the victim could have mistaken for a knife. Moreover, appellant availed himself of

the opportunity to counter the evidence, arguing that the statement was consistent with

his account of events and that he was merely communicating that the money in his pocket

                                            D-8
had been given to him by a friend. I would conclude that the district court’s erroneous

admission of the evidence was harmless. See Walsh, 

.

      Based on the foregoing, I would affirm appellant’s conviction.




                                         D-9