                           This opinion will be unpublished and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
                                      A14-1025

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                    Daniel Dean Kruse,
                                        Appellant.

                                   Filed April 27, 2015
                                        Affirmed
                                    Schellhas, Judge

                              St. Louis County District Court
                                File No. 69VI-CR-13-1359

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

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, David W. Merchant, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Schellhas, Presiding Judge; Hooten, Judge; and Reilly,

Judge.

                          UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges the sufficiency of the evidence for his conviction of fifth-

degree controlled-substance crime. We affirm.
                                          FACTS

       On September 14, 2013, an anonymous informant disclosed to Eveleth Police

Officer Anthony Goulet the location of appellant Daniel Dean Kruse. Officer Goulet

believed Kruse to have an active felony warrant and contacted dispatch for confirmation.

Officer Christopher Melin, who heard dispatch confirm the active felony warrant, arrived

at Officer Goulet’s location, and both officers proceeded to Kruse’s location. Officer

Goulet spotted Kruse and called out to him by name. Kruse ran for approximately a block

and a half, despite multiple orders by Officer Goulet to stop. When Kruse fell, the

officers apprehended him.

       While performing a search incident to arrest, the officers discovered a glass

marijuana pipe, an aluminum marijuana pipe, a knife, and a small plastic container,

which held 21 blue round pills, on Kruse’s person. Of the blue pills, 12 were marked with

a “V” on one side and a “2684” on the other side, and 9 were marked with a “V” on one

side and a “10” on the other side. Kruse told officers that he got the pills from a friend

and that the pills were for C.B., with whom officers believed Kruse had had relations in

the past. Using the website Drugs.com, Officer Goulet identified the pills as “Diazepam

10 mg,” a controlled substance.

       Respondent State of Minnesota charged Kruse with fifth-degree controlled-

substance crime. Kruse waived his right to a jury trial, and the parties submitted the case

to the district court on stipulated facts under Minn. R. Crim. P. 26.01, subd. 3. The parties

agreed that the court could consider the police report, to which printouts from Drugs.com

were attached. The parties also stipulated that C.B. had a prescription for diazepam and


                                             2
that the blue pills were not contained in a prescription bottle when the officers found

them on Kruse’s person. The parties agreed to a sentence and waived a sentencing

hearing in the event of a guilty finding. The district court found Kruse guilty of fifth-

degree controlled-substance crime, imposed a 13-month sentence, stayed the sentence for

12 months, placed Kruse on probation, and immediately discharged him from probation,

based on the parties’ agreement.

       This appeal follows.

                                     DECISION

       Kruse argues that the evidence is insufficient to support his conviction of fifth-

degree controlled-substance crime. “[Appellate courts] use the same standard of review in

bench trials and in jury trials in evaluating the sufficiency of the evidence.” State v.

Palmer, 803 N.W.2d 727, 733 (Minn. 2011). “[Appellate courts] review the evidence to

determine whether, given the facts in the record and the legitimate inferences that can be

drawn from those facts, a [fact-finder] could reasonably conclude that the defendant was

guilty of the offense charged.” State v. Fairbanks, 842 N.W.2d 297, 306–07 (Minn. 2014)

(quotation omitted). Appellate courts undergo “a painstaking analysis of the record to

determine whether the evidence, when viewed in the light most favorable to the

conviction, was sufficient to permit the [fact-finder] to reach the verdict which [it] did.”

State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted).

       “If a conviction, or a single element of a criminal offense, is based solely on

circumstantial evidence,” Fairbanks, 842 N.W.2d at 307, “[appellate courts] apply a two-

step analysis in determining whether [that] circumstantial evidence is sufficient to


                                             3
support a guilty verdict,” State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). The first step

is to “identify the circumstances proved.” Palmer, 803 N.W.2d at 733 (quotation

omitted). The second step is to “examine the reasonableness of all inferences that might

be drawn from the circumstances proved, including inferences consistent with a

hypothesis other than guilt.” Id. (quotations omitted).

       Under the first step, “[appellate courts] assume that the jury resolved any factual

disputes in a manner that is consistent with the jury’s verdict. Put differently, [appellate

courts] construe conflicting evidence in the light most favorable to the verdict . . . .”

Moore, 846 N.W.2d at 88 (quotation and citation omitted). Under the second step,

“[appellate courts] examine independently the reasonableness of the inferences that might

be drawn from the circumstances proved.” Id. (quotations omitted). “To affirm the

conviction, [appellate courts] must conclude that the circumstances proved are consistent

with guilt and inconsistent with any rational hypothesis except that of guilt, not simply

that the inferences that point to guilt are reasonable.” Id. (quotations omitted).

“Circumstantial evidence must form a complete chain that, in view of the evidence as a

whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable

doubt any reasonable inference other than guilt.” State v. Al-Naseer, 788 N.W.2d 469,

473 (Minn. 2010) (quotation omitted). “[Appellate courts] give no deference to the fact

finder’s choice between reasonable inferences.” State v. Andersen, 784 N.W.2d 320,

329–30 (Minn. 2010) (quotation omitted).

       “A person is guilty of controlled substance crime in the fifth degree” if “the person

unlawfully possesses one or more mixtures containing a controlled substance classified in


                                             4
Schedule I, II, III, or IV.” Minn. Stat. § 152.025, subd. 2(a) (2012). The elements of

unlawful possession of a controlled substance are that the defendant (1) consciously

possessed a controlled substance, either physically or constructively, and (2) knew the

nature of the substance. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610

(1975); State v. Ali, 775 N.W.2d 914, 918 (Minn. App. 2009), review denied (Minn.

Feb. 16, 2010). In this case, the state presented circumstantial evidence of both the

identity of the alleged controlled substance and Kruse’s knowledge of the identity of the

substance. Kruse challenges the sufficiency of the state’s evidence.

Nature of pills

       Kruse first challenges the sufficiency of the evidence to prove beyond a reasonable

doubt that the blue pills contained diazepam. “[The supreme court] ha[s] not prescribed

minimum evidentiary requirements in identification cases, preferring to examine the

sufficiency of the evidence on a case-by-case basis.” State v. Vail, 274 N.W.2d 127, 134

(Minn. 1979). But “Minnesota law requires proof of the actual identity of the substance,

the defendant’s belief is insufficient.” Id.

       In this case, the parties stipulated that the blue pills were not contained in a

prescription bottle when they were found in Kruse’s possession and that C.B. had a valid

prescription for diazepam. Viewed in the light most favorable to the verdict, Moore, 846

N.W.2d at 88, the evidence proved the following additional circumstances: (1) Kruse fled

when confronted by police officers; (2) Kruse possessed a knife and contraband; (3) the

21 pills consisted of two varieties marked as diazepam; (4) the pills belonged to C.B.;

(5) Kruse had had past relations with C.B.; and (6) Kruse told police officers that he got


                                               5
the pills from a friend and that they were for C.B. These stipulated facts and proven

circumstances are consistent with Kruse’s guilt because they support a rational

hypothesis that the pills were prescription diazepam pills for C.B.

       Kruse compares this case to State v. Olhausen, 681 N.W.2d 21 (Minn. 2004), and

In re Welfare of J.R.M., 653 N.W.2d 207 (Minn. App. 2002), arguing that this case does

not involve the types of circumstances that have supported convictions of controlled-

substance crimes when the identity of the substance was challenged. Indeed, the

circumstances proved in Olhausen and J.R.M. are not the same as the circumstances in

this case. In Olhausen, the circumstances proved included

              (1) respondent’s agreement to sell 1 pound of
              methamphetamine, (2) respondent’s phone calls to arrange
              the sale, (3) respondent’s representation of a small sample to
              [an officer], a sample that [the officer] believed to be
              authentic methamphetamine, (4) respondent’s various
              statements, including an offer to sell “ten for one,” or 1 pound
              of methamphetamine for $10,000, (5) respondent’s various
              indications that the package he obtained from [his friend] was
              1 pound of methamphetamine, (6) [the friend’s]
              representations to the police that he furnished respondent with
              1 pound of methamphetamine, and (7) respondent’s dramatic
              flight from the scene of the incident.

681 N.W.2d at 23, 25–26. In J.R.M., the circumstances proved included the following:

              A witness saw appellant smoking a substance and passing the
              substance around between pinched fingers. Further, a
              substance that smelled like marijuana was found in one of the
              boy’s shoes. The assistant principal and liaison officer
              testified at the adjudication hearing and described the
              substance as a “joint.” Moreover, the officer testified that
              appellant smelled of marijuana and that appellant’s eyes were
              bloodshot and watery. Finally, both the assistant principal and
              liaison officer testified that appellant admitted to smoking
              marijuana.


                                             6
653 N.W.2d at 210–11. Notably, the circumstances proved in Olhausen are different from

the circumstances proved in J.R.M. and from those proved in this case. “[W]here the

identification of the drug is in question, the sufficiency of the evidence is examined on a

case-by-case basis.” Olhausen, 681 N.W.2d at 29. Because we examine the evidence on a

case-by-case basis, the lack of similarity between the facts in Olhausen and J.R.M. and

the facts in the case before us does not support Kruse’s insufficiency-of-the-evidence

argument.

       Kruse next relies on State v. Robinson, 517 N.W.2d 336 (Minn. 1994), for his

argument that “the fact that the pills are marked as diazepam does not eliminate the

rational possibility that they were, in fact, placebos.” Kruse’s reliance on Robinson is

misplaced. In Robinson, the defendant challenged his conviction of first-degree sale of a

controlled substance on the basis that the substance did not weigh at least ten grams. 517

N.W.2d at 337–38. The substance was a collection of 13 white “pieces” individually

wrapped in plastic, of which only 6 or 7 were tested for identification and determined to

contain cocaine base. Id. at 338. The supreme court assumed that the weight of the tested

“pieces” was less than 9 grams and considered the circumstantial evidence adduced to

prove the total weight of the substance, including

              that the 13 white “pieces” were individually wrapped in
              plastic and all the pieces were inside one larger plastic bag;
              that this is a common method of packaging crack cocaine;
              that crack is typically sold in $20 or $50 units and defendant
              Robinson had fourteen $20 bills and one $50 bill in his sock;
              and, finally, that defendant was carrying a beeper and was
              arrested shortly after a report of drug dealing in a parking lot
              at 3:30 a.m.


                                             7
Id. The court rejected the state’s argument that these circumstances were sufficient to

prove the identity of the “pieces” that were not tested and “conclude[d] that random

sampling in a case such as this one is insufficient to establish the total weight required of

the mixture containing a controlled substance.” Id. at 338–39. The court noted that “in the

case of substances not homogeneously packaged, drug dealers are known to substitute

placebos for the real thing” and referenced the Minnesota Legislature’s decision to

criminalize the sale of simulated controlled substances under Minn. Stat. § 152.097

(1992). Id. at 339. But the court also stated that “[t]here may be instances where the

seized material consists of pills or tablets where the individual items are so alike and the

risk of benign substitutes so unlikely that random testing may legitimately permit an

inference beyond a reasonable doubt that the requisite weight of the whole mixture is

established.” Id. at 340.

       In this case, the circumstantial evidence proved that Kruse possessed blue pills

marked as diazepam, not “some amount of some kind of white substance.” See id. at 340.

Furthermore, the circumstantial evidence proved that the blue pills belonged to C.B. and

that she had a valid prescription for diazepam, which is inconsistent with Kruse’s

hypothesis that the pills were manufactured to appear as diazepam, when in fact they

were placebos or counterfeits. “[Appellate courts] will not overturn a conviction based on

circumstantial evidence on the basis of mere conjecture.” Andersen, 784 N.W.2d at 330

(quotation omitted). We conclude that the evidence was sufficient to prove beyond a

reasonable doubt that the pills possessed by Kruse contained diazepam.



                                             8
Actual knowledge

       Kruse next challenges the sufficiency of the evidence to prove beyond a

reasonable doubt that he had actual knowledge that the pills contained diazepam.

“Possession crimes require proof that the defendant had actual knowledge of the nature of

the substance in his possession.” Ali, 775 N.W.2d at 918. “[P]roof that the defendant was

aware that he possessed a controlled substance satisfies the [fifth-degree controlled-

substance crime] statute’s actual-knowledge requirement.” Id. at 919.

       Kruse attempts to undermine his conviction by highlighting the following

allegedly erroneous factual finding by the district court: “By telling officers he had

retrieved the substance from one residence with the intent to transport the substance to

another individual, Defendant admitted he consciously possessed the substance and had

actual knowledge of its nature.” (Emphasis added.) We agree that the stipulated facts do

not support the court’s finding that Kruse admitted that he knew that the pills were a

controlled substance. Arguably, the court’s finding regarding Kruse’s admission should

be set aside. See Vail, 274 N.W.2d at 133 (stating that “the judge’s findings of fact are

entitled to the same weight on review as a jury verdict” and “will not be set aside unless

clearly erroneous”). But setting aside the court’s finding of an admission does not

necessitate setting aside the court’s finding that Kruse had actual knowledge that the pills

were a controlled substance.

       Kruse attempts to bolster the hypothesis that he possessed the pills without actual

knowledge that they were a controlled substance by isolating the circumstances proved.

He first argues that the stipulated fact that C.B. had a valid prescription for diazepam


                                             9
does not foreclose the rational hypothesis that he did not know what the pills were and

simply obtained them from a friend for her. He argues that his flight from police officers

can rationally be explained by his outstanding warrant and his possession of other

contraband at the time of flight. And he argues that he did not attempt to discard the pills,

suggesting that he lacked knowledge that they were a controlled substance. But the

hypothesis that Kruse did not know that the pills were a controlled substance is irrational

in light of the combined circumstances that the pills were marked as diazepam, a

prescription drug; the pills were for C.B., with whom Kruse had had past relations; the

pills were in two varieties; the pills were in a nonprescription container when Kruse was

arrested; Kruse possessed the pills while also possessing other drug paraphernalia and a

knife; and Kruse ran when confronted by police officers.

       We conclude that the stipulated facts and circumstances proved in this case

support the hypothesis that Kruse had actual knowledge that the pills were a controlled

substance. We also conclude that the circumstances proved in this case are consistent

with guilt and inconsistent with any rational hypothesis except that of guilt.

       Affirmed.




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