                        This opinion will be unpublished and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                         UNPUBLISHED OPINION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In an unpublished opinion filed on April 13, 2015, this court reversed appellant’s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


                                             2
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.

                                              3
     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


                                  4
                  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,


                                              5
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,


                                             6
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


                                              7
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.

                                              8
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.




                                              9
       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.




                                              10
