State of Minnesota v. Jimmy Dawayne Lester ( 2016 )

This opinion will be unpublished and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
A14-0431
State of Minnesota,
Respondent,
vs.
Jimmy Dawayne Lester,
Appellant.
Filed June 20, 2016
Affirmed
Rodenberg, Judge
Hennepin County District Court
File No. 27-CR-11-33928
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and
Jonathan P. Schmidt, Kathryn M. Short, Special Assistant Public Defenders, Briggs &
Morgan, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Smith, John, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
RODENBERG, Judge
In this direct appeal from his conviction of third-degree possession of a controlled
substance, appellant Jimmy Dawayne Lester argues that the heroin discovered in a
warrantless search of the rental vehicle he was driving must be suppressed, and, in the
alternative, that there is insufficient evidence that he constructively possessed the heroin.
In an unpublished opinion filed on April 13, 2015, this court reversed appellant’s
conviction, concluding that the heroin must be suppressed because the “police lacked
probable cause to arrest Lester and search his rental car.” State v. Lester, A14-0431, 2015
WL 1608701, at *6 (Minn. App. Apr. 13, 2015). Because the suppression issue was
dispositive, we did not consider appellant’s sufficiency-of-the-evidence argument.
On June 30, 2015, the Minnesota Supreme Court granted further review. In an
opinion filed on February 10, 2016, the supreme court reversed, concluding that the district
court properly denied appellant’s suppression motion because “the search of [appellant’s]
car was lawful under the automobile exception.” State v. Lester, 874 N.W.2d 768, 772-73
(Minn. 2016). The supreme court remanded the matter to this court to “address any
remaining issues on appeal.” Id. at 773. We reinstated the appeal and the parties have filed
supplemental briefs on the sufficiency-of-the-evidence issue. Because the evidence is
sufficient to support appellant’s conviction, we affirm.
FACTS
Appellant waived his right to a jury trial and his case was tried to the court over
several days. The district court made detailed findings of fact, all of which are consistent
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with our independent review of the trial record. See Wilson v. Moline, 234 Minn. 174, 182,
47 N.W.2d 865, 870 (1951) (stating that the duty of an appellate court “is performed when
we consider all the evidence . . . and determine that it reasonably supports the findings”).
The district court made the following factual findings to support its guilty verdict:
1. On October 22, 2011, [appellant] rented a Dodge Charger.
As part of the rental contract, [appellant] agreed that he
would not allow any other person to drive the car.
2. On October 26, 2011, [appellant] drove the Charger to a gas
pump at a Super America gas station, located on the
northeast corner of West Broadway and University Avenue
NE, in Minneapolis. A man, later identified as [A.E.],1 was
sitting in the front passenger seat. [Appellant] and [A.E.]
got out of the Charger and went into the Super America
store. After a few minutes, they came out of the store and
walked to the Charger. [Appellant] remained with the
Charger while [A.E.] walked north to the sidewalk adjacent
to West Broadway. For approximately two minutes, [A.E.]
walked back and forth on the sidewalk while talking on a
cell phone. During this time, [appellant] drove the Charger
away from the gas pump to the north side of the Super
America parking lot, where he parked it, facing east,
parallel to the West Broadway sidewalk (where [A.E.] was
still pacing). While [appellant] remained in the driver’s
seat of the Charger, [A.E.] walked west across University
Avenue NE and then north across West Broadway to a
McDonald’s parking lot. While walking to that location,
[A.E.] remained on his cell phone and was turning his head
left and right to see around him.
3. After [A.E.] arrived in the McDonald’s parking lot, a
Pontiac Grand Am drove into the lot, circled around the
McDonald’s restaurant, and then stopped at [A.E.’s]
location on the south side of the lot. [A.E.] got in the
passenger’s seat of the Grand Am. [A.E.] and the driver,
later identified as [T.H.], were the only occupants of the
Grand Am. After [A.E.] got in the Grand Am, [T.H.] drove
1
In the Rasmussen hearing transcript, “A.E.” is identified by his nickname “J.” In the court
trial transcript he is identified as A.E.
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out the south exit of the parking lot and then east on West
Broadway.
4. The foregoing conduct was observed by Minneapolis
Police Officer Kyle Ruud, who was conducting
surveillance from the McDonald’s parking lot. When
Officer Ruud saw [A.E.] get into the Grand Am, he
concluded that a drug transaction was occurring. He
immediately called on uniformed Minneapolis police
officers to arrest [appellant], still seated in the Charger, and
the occupants of the Grand Am.
5. Minneapolis Police Officer Peter Stanton, driving a marked
squad, stopped the Grand Am (still travelling east on West
Broadway) and arrested [T.H.] and [A.E.]. During the stop
and arrest, Officer Stanton did not observe [A.E.] or [T.H.]
throw anything out of the car or make any other furtive
gestures. [A.E.] and [T.H.] were searched. No drugs or
drug paraphernalia [were] found on either person. [A.E.]
had $200 cash on his person. The Grand Am was taken to
the 4th precinct police station where it was searched. No
drugs or drug paraphernalia [were] found.
6. Minneapolis Police Sgt. Steve Mosey, driving a marked
squad car, drove into the Super America parking lot, where
[appellant] was still seated in the Charger. Sgt. Mosey
arrested [appellant] without incident. No drugs or drug
paraphernalia were found on [appellant]. [Appellant] had
$34 on his person.
7. The record is silent regarding how much time elapsed
between the time [A.E.] got into the Grand Am and the time
Sgt. Mosey arrested [appellant]. Because Officer Ruud
called for the arrests when he saw [A.E.] get into the Grand
Am, it appears that [appellant] was arrested within a
moment after that event occurred.
8. The Charger was transported to the 4th precinct station
where it was searched by Officer Stanton. Using one or two
hands (i.e., without having to use a tool), Officer Stanton
removed a panel from the front passenger side of the center
console. Concealed behind the panel was a plastic bag
containing eleven “bindles” of suspected heroin. No drug
paraphernalia or other evidence of heroin use was found in
the Charger.
9. Six of the eleven bindles of suspected heroin were tested at
the BCA. The contents of five of the six bindles tested
ranged in weight from approximately .1 gram to
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approximately .4 grams. The sixth bindle weighed
significantly more than the others, approximately 2.0
grams. The average weight of the contents of the six
bindles was approximately .5 grams. The total weight of
the contents of all six bindles was 3.12 grams. Each of the
six bags tested contained heroin.
10. The heroin seized from the Charger had been packaged for
resale, but the record is silent with regard to who did the
packaging or the circumstances under which the packaging
occurred. If sold one bindle at a time, the retail value of the
heroin seized (assuming all 11 bindles contained heroin)
was approximately $400-$600. A user of heroin may
purchase multiple bindles at one time for personal use in
order to minimize the risk of detection associated with
making multiple purchases.
The district court concluded that the state proved beyond a reasonable doubt that
appellant knowingly exercised dominion and control over the heroin but that the state
did not prove beyond a reasonable doubt that appellant possessed the heroin with intent
to sell it. See Minn. Stat. §§ 152.022, subd. 1(1) (2010) (prohibiting sale of three grams
or more of heroin), .01, subd. 15a(3) (2010) (defining sale as possession with intent to
sell). This appeal of the third-degree possession charge followed.
DECISION
Appellant contends that his conviction must be reversed because the evidence that
he possessed three grams or more of heroin was insufficient. In considering a claim of
insufficient evidence, our review “is limited to a painstaking analysis of the record to
determine whether the evidence, when viewed in a light most favorable to the conviction,
was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440
N.W.2d 426, 430 (Minn. 1989). The reviewing court assumes “the jury believed the state’s
witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101,
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108 (Minn. 1989). We apply this same standard of review to court trials in which the
district court sits as the fact-finder. Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).
As relevant here, the charge of third-degree controlled substance crime requires
proof that appellant processed “three grams or more” of heroin. Minn. Stat. § 152.023,
subd. 2(1) (2010). Because the heroin was not found on appellant’s person, the state must
prove beyond a reasonable doubt that he constructively possessed the heroin at the time of
his arrest. State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975). To
establish constructive possession, the state must show either “(a) that the police found the
substance in a place under defendant’s exclusive control to which other people did not
normally have access, or (b) that, if police found it in a place to which others had access,
there is a strong probability (inferable from other evidence) that defendant was at the time
consciously exercising dominion and control over it.” Id. at 105, 226 N.W.2d at 611. In
order to constructively possess a controlled substance, the defendant must exercise
dominion and control over the substance itself, not the place in which the substance is
found. State v. Hunter, 857 N.W.2d 537, 542 (Minn. App. 2014). Constructive possession
need not be exclusive and may be shared. State v. Smith, 619 N.W.2d 766, 770 (Minn.
App. 2000), review denied (Minn. Jan. 16, 2001).
Constructive possession may be proved by direct or circumstantial evidence. See
State v. Salyers, 858 N.W.2d 156, 160-61 (Minn. 2015) (noting that the state established
exclusive control by direct evidence where a gun was found in a bedroom safe in
defendant’s home, and applying circumstantial-evidence standard was unnecessary).
“Direct evidence is evidence that is based on personal knowledge or observation and that,
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if true, proves a fact without inference or presumption.” Bernhardt v. State, 684 N.W.2d
465, 477 n.11 (Minn. 2004) (quotation omitted). Circumstantial evidence is “[e]vidence
based on inference and not on personal knowledge or observation.” Id. “‘A conviction
based on circumstantial evidence . . . warrants heightened scrutiny.’” State v. Sam, 859
N.W.2d 825, 833 (Minn. App. 2015) (quoting Smith, 619 N.W.2d at 770). When reviewing
the sufficiency of circumstantial evidence, we apply a two-step analysis, which requires
that we first identify the circumstances proved, “giving due deference to the fact-finder and
construing the evidence in the light most favorable to the verdict.” Id. “Second, we
determine whether the circumstances proved are consistent with guilt and inconsistent with
any other rational or reasonable hypothesis.” Id. “This analysis requires that we look at
the circumstances proved not as isolated facts but rather as a ‘complete chain that, in view
of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude . . .
any reasonable inference other than guilt.” Id. (quoting State v. Al-Naseer, 788 N.W.2d
469, 473 (Minn. 2010)).
In State v. Porte, we applied an elements-based approach in reviewing the
sufficiency of the evidence of possession and sale of a controlled substance. 832 N.W.2d
303, 309 (Minn. App. 2013). Under this approach, which is consistent with the supreme
court’s analysis in Al-Naseer, 788 N.W.2d at 474-75 (noting cases in which the court
applied heightened scrutiny to some elements despite fact that direct evidence stablished
other elements), we first consider if there is direct evidence on a disputed element that is
sufficient to prove the disputed element. If the direct evidence is sufficient there is no need
to evaluate the reasonableness of any inferences. Porte, 832 N.W.2d at 309. This
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elements-based approach was recently employed by the Minnesota Supreme Court. State
v. Horst, ___ N.W.2d ___, ___, 2016 WL 2908009, at *12-13 (Minn. May 18, 2016).
The disputed element here is possession. Appellant argues that the heroin was not
found in a place under his exclusive control because it was found in a rental vehicle to
which “hundreds of people may have had access.” Appellant also argues that he did not
have exclusive control over the place where the drugs were found because A.E. had access
to the car and was sitting on the passenger side, closer to the side of the console where the
heroin was found.2 We agree with appellant that the heroin was not found in a place under
his exclusive control.
The next question is whether the state proved beyond a reasonable doubt that
appellant was consciously exercising dominion and control over the heroin found in the
center console of the vehicle he was driving. See Hunter, 857 N.W.2d at 542-43. Because
this determination is based on an inference, this necessarily requires us to apply the
circumstantial-evidence standard of review.
The district court made detailed factual findings to support its guilty verdict, and we
must give deference to those findings in determining the circumstances proved. Based on
the district court’s factual findings, the inference that appellant was exercising dominion
2
We note that appellant relies on the tip from the CRI that A.E. would be delivering heroin
to the area, which prompted Officer Ruud to set up surveillance. But the district court
judge who presided over trial was the not the judge who presided over the Rasmussen
hearing. And the district court judge granted appellant’s request to exclude this evidence
from the court trial. Ruud did not testify at trial about the CRI. The district court did not
include any reference to the CRI’s tip in its findings of fact. The tip involving A.E. is,
therefore, not a circumstance proved.
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and control over the heroin in the console of the rental vehicle is a reasonable inference. It
is permissive for the fact-finder to infer that the driver of a vehicle has knowing possession
of a controlled substance found in the vehicle. See Minn. Stat. § 152.028, subd. 2 (2014)
(“The presence of a controlled substance in a passenger automobile permits the fact finder
to infer knowing possession of the controlled substance by the driver or person in control
of the automobile when the controlled substance was in the automobile.”). Although the
district court did not reference this statute in its order, the district court was nonetheless
persuaded by the fact that appellant rented the vehicle only four days before the offense,
which made the inference that A.E. or someone else hid the controlled substance in the
vehicle without appellant’s knowledge unreasonable.
Appellant argues that his case is like Sam, where we reversed a possession-of-a-
controlled-substance conviction. 859 N.W.2d at 836. There, drugs were found in the glove
compartment of a vehicle that Sam was driving but did not own. Id. at 828. The passenger
in that case made “a lot” of movement toward the center of the vehicle, while Sam made
no such movements. The methamphetamine was found in the glove compartment, directly
in front of the passenger’s front seat, the passenger had methamphetamine in his wallet at
the time of arrest, and Sam had no drugs or paraphernalia on his person. Id. at 834. These
facts in Sam supported a reasonable inference that the passenger stashed the drugs in the
glove compartment, which is one of the reasonable inferences that persuaded this court to
reverse the conviction. Id. at 835. We were also persuaded that it was reasonable to infer
that the owner of the car left the drugs in the glove compartment. Id.
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Here, unlike Sam, neither A.E. nor appellant made any furtive movements, and
neither A.E. nor appellant was in possession of drugs at the time of the arrest, making the
inference that A.E. stashed the drugs in the console unreasonable. Additionally, the state
persuasively argues that the heroin was packaged for individual sale, weighed three grams
or more, and was valued at approximately $600, which is substantially more than the
methamphetamine that was found in the glove compartment in Sam, which was a fifth-
degree possession charge, requiring possession of any amount of a mixture containing a
controlled substance listed in Schedules I, II, III, or IV, Minn. Stat. § 152.025, subd. 2(a)(1)
(2012). The small amount of a controlled substance in Sam compared to the three grams
or more worth $600 in this case makes the inference that someone else left the heroin in
the rental vehicle unreasonable. Because the inferences inconsistent with guilt are not
reasonable, we conclude that the evidence is sufficient to support appellant’s conviction of
third-degree controlled substance crime.
Affirmed.
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