State v. Keith James Rose

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 11, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP2224-CR Cir. Ct. No. 2017CF317

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEITH JAMES ROSE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: JOHN M. WOOD, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP2224-CR

¶1 PER CURIAM. Keith Rose appeals a judgment of conviction for
manufacturing methamphetamine and four other drug offenses, all as party to a
crime. He also appeals the circuit court’s order denying his motion for
postconviction relief. A jury found Rose guilty based in part upon evidence that
Rose was a regular methamphetamine user and that the basement where he lived
with his sister contained materials used to make methamphetamine. Rose argues
that the circuit court erroneously exercised its discretion by allowing law
enforcement officers to provide opinion testimony that a methamphetamine user
would recognize the materials used to make methamphetamine. We reject this
argument and conclude that the circuit court reasonably admitted the testimony.
Rose also argues that the circuit court violated his right to present a defense by
refusing to admit certain evidence relating to his sister. We conclude that, even if
the circuit court erred in refusing to admit the evidence, the error was harmless.
Accordingly, we affirm.

BACKGROUND

¶2 Law enforcement officers executed a search warrant at the home
where Rose and his sister lived in the basement. Officers obtained the warrant after
learning, among other information, that both Rose and his sister had been blocked
from purchasing Sudafed because they had exceeded allowable purchase limits.1
Officers had also received a tip that Rose’s sister was making methamphetamine.
Additionally, the officers had found incriminating items in trash picked up outside
the home where Rose and his sister were living in the basement. These items

1
Testimony by a law enforcement officer established that pseudoephedrine (sometimes
sold in the product called Sudafed) is a key ingredient used in making methamphetamine.

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No. 2019AP2224-CR

included empty Sudafed packs, straws containing residue consistent with
methamphetamine, and coffee filters containing methamphetamine residue.

¶3 As law enforcement officers entered Rose’s residence to execute the
search warrant, an officer saw Rose exiting the basement. In their search of the
basement, the officers found numerous materials consistent with the “one pot”
method for manufacturing methamphetamine. These materials included fish tank
tubing, a high-acid drain cleaner, camp fuel and a canister of lighter fluid, pipe
cutters that can be used to cut open lithium batteries to strip out lithium, a funnel,
and grinders that can be used to grind up Sudafed. Additionally, the officers found
plastic bottles with holes drilled through the top and plastic tubing running through
the bottles. They also found “cold pack” containers and coffee filters with residue
on them.

¶4 A federal drug enforcement officer testified that the materials found
in the basement showed that the basement was being used to manufacture
methamphetamine. A second officer testified that a long-time methamphetamine
user “should” recognize the materials used to make methamphetamine. A third
officer testified that he would find it “very hard … to believe” that anyone who was
“familiar with meth, been around meth” would not recognize the materials in Rose’s
basement as those used in the making of methamphetamine. Rose objected to the
testimony of the second and third officers.

¶5 Rose admitted during an interview with law enforcement that he had
been using methamphetamine over a two-year period and that he used it regularly
with his sister. He also admitted to purchasing Sudafed, and to asking a store
employee whether someone else could purchase Sudafed for him when he reached
his purchase limit. Additionally, Rose admitted that he had cleaned up

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No. 2019AP2224-CR

methamphetamine waste in the basement. He denied that he had ever manufactured
methamphetamine. He stated that he was unsure of who made methamphetamine,
although he had heard rumors that his sister did.

¶6 Rose’s sister admitted during an interview with law enforcement that
she had purchased Sudafed for Rose and his girlfriend, and that she suspected Rose
was making methamphetamine. She also said that she had noticed a heavy chemical
smell in the basement in the past, and when she asked Rose about the smell, he
would say he was cleaning his tools or give some other excuse.

¶7 When Rose’s sister later testified at trial, she claimed not to remember
her interview because she had taken so much methamphetamine. She denied that
she ever made methamphetamine, and also denied ever seeing Rose make
methamphetamine. She admitted that she and Rose lived in the basement together
and used methamphetamine together on a daily basis. She testified that Rose would
buy Sudafed for her, and that she would give him methamphetamine. She admitted
that she had been blocked from purchasing Sudafed or pseudoephedrine numerous
times. Additionally, she admitted that she had purchased camping fuel for Rose.
She also admitted that there were plastic bottles in the basement for the purpose of
making methamphetamine. Finally, she admitted that Rose had shown her how
much pressure to use to cut open a battery.

¶8 The jury found Rose guilty of each of the following offenses as party
to a crime: manufacturing methamphetamine, possession of waste from
methamphetamine manufacturing, maintaining a drug trafficking place, possession
of methamphetamine, and possession of drug paraphernalia. We reference
additional facts as needed in our discussion below.

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No. 2019AP2224-CR

DISCUSSION

¶9 We turn first to Rose’s argument that the circuit court erroneously
exercised its discretion by allowing law enforcement officers to provide opinion
testimony that a methamphetamine user would recognize the materials used to make
methamphetamine. The significance of this testimony, as Rose seems to
acknowledge, is that it tends to undercut any claim that Rose was an unwitting
participant in the manufacture of methamphetamine in the basement where he lived.
Because Rose was charged as party to a crime, the State did not need to prove that
Rose personally made methamphetamine or directly committed each of the charged
crimes; it was enough to show that Rose knowingly assisted another’s commission
of the crimes while “acting with knowledge or belief that [the] person is committing
or intends to commit” them. See WIS JI—CRIMINAL 400; see also State v. Sharlow,
110 Wis. 2d 226, 238-39, 327 N.W.2d 692 (1983).

¶10 “The admissibility of expert opinion testimony lies in the discretion
of the circuit court.” State v. St. George, 2002 WI 50, ¶37, 252 Wis. 2d 499, 643
N.W.2d 777. “The circuit court’s exercise of discretion will not be overturned if the
decision had ‘a reasonable basis,’ and if the decision was made ‘in accordance with
accepted legal standards and in accordance with the facts of record.’” State v.
LaCount, 2008 WI 59, ¶15, 310 Wis. 2d 85, 750 N.W.2d 780 (quoted source
omitted). Circuit courts have “‘considerable leeway’ in determining the
admissibility of expert testimony with the objective of ensuring the reliability and
relevancy of such testimony in light of the facts of the particular case.” See State v.
Smith, 2016 WI App 8, ¶7, 366 Wis. 2d 613, 874 N.W.2d 610 (2015) (quoting
Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 152 (1999)). “Reliability may
be based on the expert’s own observations from his or her ‘extensive and specialized
experience.’” Id. (quoting Kumho Tire, 526 U.S. at 156).

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No. 2019AP2224-CR

¶11 Rose argues that the circuit court erroneously exercised its discretion
under these standards when it allowed one law enforcement officer to testify that a
long-time methamphetamine user “should” recognize the materials used to make
methamphetamine, and another officer to testify that it was “very hard … to believe”
that anyone who was “familiar with meth, been around meth” would not recognize
the materials in Rose’s basement as being used to make methamphetamine. Rose
argues that the officers were not qualified to provide this opinion testimony. The
State, in contrast, argues that the officers were qualified to provide this testimony.2

¶12 We uphold the circuit court’s decision to allow the testimony because
we conclude that the record shows there was a reasonable basis to conclude that the
officers were qualified to provide it. One officer stated that he had been in law
enforcement for close to thirteen years and was part of a special drug investigation

2
The officers’ testimony reads more fully as follows:

[Officer 1]

Q. Based on your training and experience is it likely for a
long-time Methamphetamine user not to recognize the materials
used in making Methamphetamine?

A. He should know.

….

[Officer 2]

Q. …. Based on your training and experience as you know
dealing with meth laboratories, is it likely that a person who is a
regular user of Methamphetamine would not have recognized
what you saw in the basement as a one pot Methamphetamine lab?

….

A. I would find it would be very hard for me to believe that
anybody in that room that would be familiar with meth, been
around meth, had a history, that they wouldn’t know what that was
being used for. It’s pretty clear in my eyes when that’s being seen.

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No. 2019AP2224-CR

unit. Additionally, he was certified in testing procedures for various drugs, and he
had training and experience on how methamphetamine affects individuals. The
other officer stated that he had been a law enforcement officer for twenty-five years,
and that he had training and experience in investigating methamphetamine labs. He
had executed approximately twenty-five to thirty search warrants for such labs.
Based on the officers’ training and experience, the circuit court reasonably allowed
their opinion testimony.

¶13 In arguing to the contrary, Rose relies on State v. Dalton, 98 Wis. 2d
725, 298 N.W.2d 398 (Ct. App. 1980). Rose’s reliance on Dalton is misplaced. In
Dalton, this court concluded that it was impermissible for a psychiatrist to provide
an opinion on whether the defendant had intent to kill. See id. at 728-32. The court
reasoned that such testimony would improperly invade the jury’s role to evaluate
the evidence and determine intent. See id. at 730-31. Here, in contrast, the officers
did not purport to opine directly on whether Rose knowingly participated in
manufacturing methamphetamine. Rather, they provided opinions as to whether
someone who is a long-time methamphetamine user or otherwise familiar with the
drug would recognize the materials used to make it. The ultimate question of
whether Rose knowingly participated in manufacturing methamphetamine was left
to the jury to decide based on its evaluation of all of the evidence.

¶14 We turn to Rose’s argument that the circuit court’s exclusion of
certain evidence relating to his sister violated his right to present a defense. More
specifically, Rose argues that the circuit court should have allowed evidence that
his sister was the sole original target of the investigation that led to the search of the
basement. Rose contends that this evidence would have rebutted other evidence

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No. 2019AP2224-CR

that created an inaccurate impression that he was an original target.3 Rose also
argues that the circuit court should have allowed evidence of a Child Protective
Services “raid” on their home a week earlier. Rose contends that this evidence
would have shown both (1) that there were no signs of methamphetamine
manufacture at the time of the raid, and (2) that his sister had a motive to shift blame
to Rose because she feared losing her children. According to Rose, the evidence
the circuit court refused to admit would have bolstered his defense that his sister
was the guilty party.

¶15 The State counters that the circuit court reasonably excluded this
evidence as irrelevant and that, even if it was relevant, its exclusion did not violate
Rose’s right to present a defense. The State additionally contends that, even if the
court erred in excluding the evidence, the error was harmless. A violation of the
right to present a defense is subject to harmless error analysis. State v. Kramer,
2006 WI App 133, ¶26, 294 Wis. 2d 780, 720 N.W.2d 459.

¶16 Rose offers no reply to the State’s harmless error argument.
Regardless, we agree with the State that, if there was error, it was harmless. An
error is harmless if it is “clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.” State v. Mayo, 2007 WI 78, ¶47,
301 Wis. 2d 642, 734 N.W.2d 115 (quoted sources and internal quotation marks
omitted).

¶17 The evidence overwhelmingly showed that Rose, at a minimum, was
a knowing participant in manufacturing methamphetamine and the other crimes

3
After Rose filed his reply brief, the State filed a letter with this court requesting that we
strike three sentences in its brief, to correct an inaccuracy relating to whether Rose was an original
target of the investigation. We now grant the request.

8
No. 2019AP2224-CR

charged, even if he did not directly commit each of those crimes and even if his
sister was the principal actor. To summarize the evidence already set forth:

(1) Rose and his sister lived together in the basement and regularly used
methamphetamine together;

(2) Rose had been using methamphetamine for at least two years;

(3) Both Rose and his sister had been blocked from purchasing Sudafed,
a key ingredient in making methamphetamine, because they had exceeded the
allowable purchase limit;

(4) Rose asked a store employee whether someone else could purchase
Sudafed for him once he reached the legal limit;

(5) Rose would buy Sudafed for his sister, and she would give him
methamphetamine;

(6) Rose’s sister bought him camping fuel, one of the materials used in
making methamphetamine;

(7) When police executed the search warrant at Rose’s home, they found
that the basement contained numerous materials commonly used for manufacturing
methamphetamine;

(8) Rose was seen exiting the basement when the warrant was executed;

(9) A long-time methamphetamine user or other individual familiar with
methamphetamine would likely recognize the materials used to make
methamphetamine;

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No. 2019AP2224-CR

(10) Rose showed his sister how much pressure to use to cut open a battery,
one of the materials used in making methamphetamine;

(11) Rose’s sister admitted that there were plastic bottles in the basement
for the purpose of making methamphetamine; and

(12) Rose admitted to cleaning up methamphetamine waste in the
basement.

¶18 We are satisfied that it is clear beyond a reasonable doubt that, even
if the circuit court had admitted the additional evidence relating to Rose’s sister, a
rational jury still would have found Rose guilty. Assuming without deciding that
such evidence might have further incriminated Rose’s sister to the benefit of Rose’s
defense, such as casting doubt on her motives for implicating Rose, it would not
have materially changed the overall strength of the evidence pointing to Rose’s
guilt.

¶19 In sum, for the reasons stated above, we affirm the judgment of
conviction and the order denying Rose’s motion for postconviction relief.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5 (2019-20).

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