                          This opinion will be unpublished and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
                                     A15-2035

                           Dennis Bernard Freeman, petitioner,
                                      Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed August 22, 2016
                                        Affirmed
                                      Reilly, Judge

                             Hennepin County District Court
                               File No. 27-CR-12-33143

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

       Considered and decided by Smith, Tracy M., Presiding Judge; Worke, Judge; and

Reilly, Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

       On appeal from his conviction of fifth-degree possession of a controlled substance,

appellant argues that his conviction must be reversed because the state failed to prove that
he possessed the drugs within the meaning of the possession statute. Because there is

sufficient evidence in the record to sustain his conviction, we affirm.

                                          FACTS

       In October 2012, appellant Dennis Bernard Freeman rented a room at a motel in

Bloomington where he stayed with his acquaintance, C.M. The room was registered in

appellant’s name. At some point in the evening, C.M. asked the motel front desk

receptionist for a key to the room but the receptionist refused to give her one because she

was not a registered guest. The receptionist thought C.M. was impaired by a narcotic

substance and called the Bloomington Police Department to do a welfare check. Officer

Nicholas Melser and his partner responded to the call and went to appellant’s motel room.

The officers separated appellant and C.M. because they sensed a “domestic situation.”

Appellant remained in the motel room and Officer Melser ordered appellant to move from

the bed to the desk chair in the room. As appellant got off the bed, he grabbed an object

that was located behind his back and put his hand into his pocket. Officer Melser grabbed

appellant’s hand and appellant dropped a cigarette packet which had a plastic baggie

between the carton and the cellophane wrapper. The plastic baggie contained a powdery

substance which later tested positive for heroin.

       Based on those events, appellant was charged with one count of fifth-degree

possession of a controlled substance in violation of Minn. Stat. § 152.025, subd. 2(a)(1)

(2012). Appellant was convicted as charged after a bench trial. The district court found

that appellant “knew the packet of cigarettes contained the powdery substance [and] knew

or believed that the powdery substance [was] heroin.” At the sentencing hearing defense


                                             2
counsel argued that because appellant’s possession of the narcotics was limited, appellant

should be given a downward departure from the presumptive sentence. In response the

district court acknowledged “I think [the possession of narcotics] was fleeting. I don’t have

any question in my mind . . . that’s true,” but sentenced appellant to a presumptive sentence

of 17 months in prison, stayed for a period of three years. Appellant did not file a direct

appeal.

       In July 2015, appellant filed a petition for postconviction relief arguing the state

failed to prove beyond a reasonable doubt that he possessed heroin within the meaning of

the statute and urged the court to recognize that “fleeting control” is insufficient to prove

“possession.” The district court denied appellant’s petition. This appeal follows.

                                     DECISION

       Appellant argues his conviction should be reversed because the state failed to prove

beyond a reasonable doubt that he possessed the drugs within the meaning of the possession

statute. The state contends the evidence established beyond a reasonable doubt the

elements of fifth-degree possession of a controlled substance including possession, and

neither the law nor the facts of the case support appellant’s argument that the court should

recognize a fleeting-control exception.

       The Due Process Clauses of the United States and Minnesota Constitutions require

the state to prove “each element of the crime charged beyond a reasonable doubt.” State

v. Merrill, 428 N.W.2d 361, 366 (Minn. 1998) (citing In re Winship, 397 U.S. 358, 364, 90

S. Ct. 1068, 1072 (1970)); U.S. Const. amends. V, XIV; Minn. Const. art. I, § 7. When

considering a claim of insufficient evidence we “view[] the evidence in the light most


                                             3
favorable to the state and decide[] whether the fact-finder could have reasonably found the

defendant guilty.” In re Welfare of M.E.M., 674 N.W.2d 208, 215 (Minn. App. 2004).

       Appellant was convicted of one count of fifth-degree possession of a controlled

substance in violation of Minn. Stat. § 152.025, subd. 2(a)(1), which provides: “A person

is guilty of controlled substance crime in the fifth degree . . . if . . . the person unlawfully

possesses . . . a controlled substance classified in Schedule I, II, III, or IV. . . .” Heroin is

a Schedule I controlled substance. Minn. Stat. § 152.02, subd. 2(c)(11) (2012). Thus, the

sole question on appeal is whether appellant “unlawfully possessed” the heroin.

       “[T]o convict a defendant of unlawful possession of a controlled substance, the state

must prove that defendant consciously possessed, either physically or constructively, the

substance and that the defendant had actual knowledge of the nature of the substance.”

State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). Viewing the evidence

in the light most favorable to the state, M.E.M., 674 N.W.2d at 215, Officer Melser asked

appellant to move to the desk chair, appellant reached his hand behind where he was sitting

and then moved his hand to his pocket in an effort to conceal an object. When Officer

Melser grabbed appellant’s hand a packet of cigarettes with a visible baggie containing

heroin fell to the floor. Appellant acknowledged he bought cigarettes earlier in the day and

that he knew C.M. was a heroin user. Thus there is sufficient evidence in the record to

support the judge’s determination that appellant physically possessed heroin because it was

physically in his hand. And there is sufficient evidence in the record to support the judge’s

determination that appellant had actual knowledge that the substance was heroin based on

appellant’s attempt to conceal the packet of cigarettes from the police. As such, under the


                                               4
plain language of the statute the evidence is sufficient to establish each element of

possession of a controlled substance. Minn. Stat. § 152.02, subd. 2(c)(11); see also 10

Minnesota Practice, CRIMJIG 20.36 (2015).

       However, at sentencing the district court characterized the possession as “fleeting,”

and appellant urges this court to adopt a “fleeting-control” exception to the possession

element. Although Minnesota has rejected a fleeting-control exception to the crime of

illegal possession of a firearm, In re Welfare of S.J.J., 755 N.W.2d 316, 318-19 (Minn.

App. 2008) (citing State v. Houston, 654 N.W.2d 727, 734 (Minn. App. 2003)), Minnesota

has neither adopted nor rejected a fleeting control defense to a drug possession case.

       Appellant argues there are “sound reasons to differentiate” firearm possession cases

from drug possession cases. A fleeting-control exception in firearm cases was rejected in

part because the relevant statutory provision did not “permit or even mention ‘fleeting’

possession,” nor did it “indicate that the possession . . . must be more than ‘brief’ or

‘temporary’” and an appellate court “may not add to a statute ‘what the legislature

purposely omits or inadvertently overlooks.’” S.J.J., 755 N.W.2d at 319 (quoting Ullom

v. Indep. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn. App. 1994)). “Permitting such

a defense would run afoul of this basic legislative purpose.” Id. As such, even if there are

sound reasons to differentiate firearm possession cases from drug possession cases, the

reasoning used to reject the fleeting-control exception to firearms is applicable in this case

because the relevant statutory provision did not create an exception.




                                              5
       Further, the cases cited by appellant from other jurisdictions that have adopted a

fleeting-control exception are factually distinct from the present case and, therefore, they

are not persuasive. In Sanders, police officers conducted a sting operation and witnessed

the defendant being handed cocaine, holding it briefly, and returning it. Sanders v. State,

563 So.2d 781, 781-82 (1990). Unlike Sanders, appellant was not witnessed merely

touching but then rejecting an illegal drug. In Moreau, the defendant picked up a napkin

that his codefendant spat out which subsequently tested positive for heroin and “made a

move toward the bathroom” with the napkin in the presence of police officers. Moreau v.

State, 588 P.2d 275, 277-78, 285-86 (Alaska 1978). Unlike Moreau, the heroin was not

merely retrieved by appellant after a codefendant expelled it in front of an officer. In

Mijares, the defendant was observed removing a “narcotics kit” from an unconscious

passenger in his car and throwing it out the window before taking the passenger to a nearby

fire department for emergency aid. People v. Mijares, 491 P.2d 1115, 1116 (1971). Unlike

Mijares, appellant was not witnessed disposing of illegal drugs while proceeding to locate

medical aid for an unconscious person in possession of the illegal drugs. Further, the

Mijares court emphasized that the decision “in no way insulates from prosecution under

the narcotics laws those individuals who, fearing they are about to be apprehended, remove

contraband from their immediate possession.” Id. at 1120. Although the cases cited by

appellant present factual scenarios where a fleeting-control exception may be based on

sound reasons, the facts of appellant’s case are not analogous.

       In sum, Minnesota does not recognize a fleeting-control exception to drug

possession cases and there is sufficient evidence in the record to support a determination


                                             6
that appellant unlawfully possessed heroin. Even if Minnesota were to recognize a

fleeting-control exception, the facts of this case are not a compelling reason to do so.

       Affirmed.




                                              7
