                          This opinion will be unpublished and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
                                     A14-1398

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                   Pierre Corey Stewart,
                                         Appellant.

                                  Filed August 10, 2015
                                        Affirmed
                                    Toussaint, Judge*

                              Hennepin County District Court
                                File No. 27-CR-12-19924

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

TOUSSAINT, Judge

       On appeal from his conviction of third-degree controlled-substance crime—sale,

appellant Pierre Corey Stewart argues that the evidence is insufficient to prove that he

intended to sell crack cocaine and that the district court abused its discretion when

responding to a jury question.       Because sufficient evidence supports appellant’s

conviction and because the district court did not abuse its discretion when instructing the

jury, we affirm.

                                     DECISION

                                            I.

       Appellant was convicted of “unlawfully sell[ing] one or more mixtures containing

a narcotic drug.” Minn. Stat. § 152.023, subd. 1(1) (2010). “Sell” means “(1) to sell,

give away, barter, deliver, exchange, distribute or dispose of to another, or to

manufacture; or . . . (3) to possess with intent to perform an act listed in clause (1).”

Minn. Stat. § 152.01, subd. 15a (2010). Appellant argues that the evidence is insufficient

to prove that he intended to sell the 2.5 grams of crack cocaine found in the SUV in

which appellant was a passenger.

       Intent to sell controlled substances “typically is proved with circumstantial

evidence.” State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013). Appellate courts

give heightened scrutiny to convictions based on circumstantial evidence. State v. Al-

Naseer, 788 N.W.2d 469, 473 (Minn. 2010).           When reviewing the sufficiency of

circumstantial evidence, we first identify the circumstances proved, giving deference to


                                            2
the fact-finder and construing the evidence in the light most favorable to the verdict.

State v. Silvernail, 831 N.W.2d 594, 598-99 (Minn. 2013). Under this first step, we

assume that the fact-finder rejected appellant’s version of events. Al-Naseer, 788 N.W.2d

at 473. Second, we determine whether the “circumstances proved are consistent with

guilt and inconsistent with any rational hypothesis except that of guilt,” without giving

“deference to the fact finder’s choice between reasonable inferences.” Silvernail, 831

N.W.2d at 599 (quotation omitted).

      Taken in the light most favorable to the verdict, the evidence establishes the

following circumstances: a “frantic” woman was attempting to flag down cars; the

woman’s behavior signified to narcotics-trained police officers that she could be looking

for a drug dealer; the woman successfully flagged down the SUV; appellant reached into

the ceiling of the SUV, handed something to the woman, and the woman handed

something back to appellant; the same exchange occurred with another person; the ceiling

is a common hiding spot for controlled substances; appellant possessed 2.5 grams of

crack cocaine; and typical users buy .2 gram “rocks” of crack cocaine.

      Having established the circumstances proved, we next determine whether the

circumstances proved are consistent with guilt and inconsistent with any rational

alternative hypothesis. A defendant’s intent to sell is often proved by circumstantial

evidence of a large quantity of drugs, cash, packaging, and other indicia of sales. See,

e.g., Porte, 832 N.W.2d at 309; State v. Hanson, 800 N.W.2d 618, 623 (Minn. 2011);

State v. Lozar, 458 N.W.2d 434, 437 (Minn. App. 1990), review denied (Minn. Sept. 28,

1990); State v. Collard, 414 N.W.2d 733, 735 (Minn. App. 1987), review denied (Minn.


                                            3
Jan. 15, 1988). Here, there is no evidence of cash or packaging, and appellant argues that

2.5 grams of crack cocaine is too small a quantity to prove intent to sell. Appellant

asserts that this lack of evidence is inconsistent with guilt and consistent with his rational

hypothesis that he purchased the crack cocaine for personal use.

       But we conclude that appellant’s hypothesis that he possessed the 2.5 grams of

crack cocaine for personal use is irrational because no drug paraphernalia was found on

appellant, 2.5 grams of crack cocaine is much larger than the .2 grams a typical user

would possess, and it is irrational to conclude that the “frantic” woman calling attention

to herself as she flagged down cars was a drug dealer. Therefore, appellant’s hypothesis

is “mere conjecture” and “the reasonable inferences from [the circumstances proved] are

consistent only with [appellant’s] guilt and inconsistent with any other rational

hypothesis.” See State v. Lahue, 585 N.W.2d 785, 788-89 (Minn. 1998).

                                             II.

       Appellant argues that the district court abused its discretion by redefining

constructive possession when responding to a jury question. A district court has broad

discretion when giving jury instructions. State v. Kelley, 855 N.W.2d 269, 274 (Minn.

2014). “But a district court abuses that discretion if its jury instructions confuse, mislead,

or materially misstate the law.” Id. (citations omitted). In response to a question from

the jury, the district court may “give additional instructions.” Minn. R. Crim. P. 26.03,

subd. 20(3); see also State v. Crims, 540 N.W.2d 860, 864 (Minn. App. 1995), review

denied (Minn. Jan. 23, 1996). The district court is not required to use the standard jury

instructions, State v. Smith, 674 N.W.2d 398, 401 (Minn. 2004), and it may tailor the


                                              4
instructions to fit the facts of each case, State v. McCuiston, 514 N.W.2d 802, 804 (Minn.

App. 1994), review denied (Minn. June 15, 1994). But the district court may not give

additional instructions “in such a manner as to lead the jury to believe that it wholly

supplants the corresponding portion of the original charge.”         State v. Murphy, 380

N.W.2d 766, 772 (Minn. 1986).

       To establish constructive possession, the state must prove:

              (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.

State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975). “[C]onstructive

possession need not be exclusive, but may be shared.” State v. Smith, 619 N.W.2d 766,

770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).

       Here, the district court initially instructed the jury with the standard instruction,

which undisputedly conforms to the Florine standard. See 10A Minnesota Practice,

CRIMJIG 32.42 (2006 & Supp. 2014); see also Florine, 303 Minn. at 105, 226 N.W.2d at

611. Then, during deliberations, the jury submitted the following question to the district

court: “Under the Minnesota laws, specifically who is responsible for the contents in a

vehicle? Please redefine the parameters of possession.” Over appellant’s objection, a

substitute district court judge responded:

              The law does not specifically delineate who is responsible for
              the contents of a motor vehicle. The question before you is a
              bit different. It is whether the defendant possessed controlled
              substances. I’ll give you another explanation of the term


                                             5
              “possession” that is worded slightly differently than [the
              previous judge] instructed you, although the principles remain
              the same.
                      The law recognizes two kinds of possession—actual
              possession and constructive possession. A person who
              knowingly has direct physical control over a thing is then in
              actual possession of it. A person who is not in actual
              possession of a thing, but who knowingly has both the power
              and the intention to exercise authority and control over it,
              either directly or through another person, is then in
              constructive possession of it.
                      Thus, you may find that the element of possession, as
              that term is used in these instructions, is present if you find
              beyond a reasonable doubt that the defendant had actual or
              constructive possession.
                      I would further point out that a person may possess a
              controlled substance even though another person actually
              owns it, and that it is not necessary that possession occur for
              any particular amount of time.

       Minn. R. Crim. P. 26.03, subd. 20(3), states that “[i]f the jury asks for additional

instruction on the law during deliberation, the court must give notice to the parties” and

may “give additional instructions.” The substitute judge complied with the rules by

giving notice to the parties, hearing the parties’ arguments for and against giving an

additional instruction, and exercising its discretion to give an additional instruction.

       Although the substitute judge’s response differs from the standard jury instruction,

the substitute judge’s redefinition of constructive possession is the functional equivalent

of the Florine standard. The use of the phrase “knowingly has both the power and the

intention to exercise authority and control over it” is substantially synonymous with

“consciously exercising dominion and control over it” because “knowing” is defined in

part as “conscious”; “power” is defined in part as having “[d]ominance, control, or

influence”; and “intentional” means “[d]one with the aim of carrying out the act.”


                                              6
Black’s Law Dictionary 883 (defining intentional), 950 (defining knowing), 1288

(defining power) (9th ed. 2009). In addition, because constructive possession may be

shared, Smith, 619 N.W.2d at 770, the phrase “through another person” did not

improperly expand liability under the constructive-possession doctrine.             Lastly, the

substitute judge’s response did not wholly supplant the prior instruction because the

substitute judge indicated that he would give “another explanation . . . that is worded

slightly differently, . . . although the principles remain the same.” For these reasons, the

district court did not abuse its discretion when responding to the jury question.

       Affirmed.




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