                          This opinion will be unpublished and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
                                     A14-0365

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Michael Allen Truelove,
                                      Appellant.

                                Filed January 26, 2015
                    Affirmed in part, vacated in part, and remanded
                                   Schellhas, Judge

                              Brown County District Court
                                File No. 08-CR-13-153

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

Robert D. Hinnenthal, Brown County Attorney, Paul J. Gunderson, Assistant County
Attorney, New Ulm, Minnesota (for respondent)

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

         Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Smith,

Judge.
                        UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges his conviction of second-degree controlled-substance crime

on the basis that it is not supported by sufficient evidence. He challenges his conviction

and sentence for fifth-degree controlled-substance crime because it is a lesser-included

offense of second-degree controlled-substance crime. We affirm appellant’s conviction of

second-degree controlled-substance crime, vacate his conviction and sentence for fifth-

degree controlled-substance crime, and remand for correction of the judgment of

conviction.

                                         FACTS

       After stopping a vehicle with a cracked windshield, a New Ulm police officer

determined that the vehicle’s driver, W.P., was under the influence of some substance

and arrested the driver for driving while impaired (DWI). The officer observed that the

vehicle’s front-seat passenger, appellant Michael Allen Truelove, was fidgeting, flailing

his arms, rocking back and forth, and unable to speak coherently. Upon exiting the

vehicle, Truelove also had difficulty maintaining his balance. The officer determined that

Truelove also was under the influence of some substance and transported Truelove to a

detoxification facility for his safety. After the traffic stop, police released another

occupant of the vehicle, a backseat passenger, G.B. Police searched the vehicle and

discovered that the center console contained an open envelope addressed to Truelove that

contained a baggie of 4.3 grams of methamphetamine. Police also found a small digital

scale and a hose containing a burnt substance in the vehicle. The vehicle was registered to


                                            2
a female who was not an occupant at the time of the traffic stop. During a routine search

of Truelove at the detoxification facility, intake staff discovered a baggie containing 1.9

grams of methamphetamine in one of Truelove’s pockets.

       Respondent State of Minnesota charged Truelove with second-degree controlled-

substance crime under Minn. Stat. § 152.022, subd. 2(a)(1) (2012), for possession of six

or more grams of methamphetamine, and fifth-degree controlled-substance crime under

Minn. Stat. § 152.025, subd. 2(a) (2012), for possession of methamphetamine. During a

jury trial, W.P. testified that Truelove picked her up in the vehicle that police later

stopped and that W.P. believed belonged to Truelove’s girlfriend. W.P. purchased

methamphetamine from Truelove but did not know the weight of the drug she purchased;

she did not have a scale with her. W.P. knew that Truelove had additional

methamphetamine with him, but she did not know how much or where he kept it. After

W.P., Truelove, and G.B. used methamphetamine, W.P. took over driving because

Truelove caused the vehicle to swerve on the road. Police discovered baggies containing

methamphetamine in W.P.’s sock after her arrest, and the state charged her with DWI and

fifth-degree controlled-substance crime. W.P. testified at Truelove’s trial as part of a plea

agreement with the state. She testified that the only methamphetamine that she possessed

was that found in her sock and that any methamphetamine found in the vehicle did not

belong to her. G.B. testified that he did not have methamphetamine in his possession

when police stopped the vehicle and that any methamphetamine found in the vehicle did

not belong to him.




                                             3
       A New Ulm police sergeant testified that he compared the baggie found in

Truelove’s pocket with the baggie found inside the envelope in the vehicle and that the

two were “similar” and could have come from the same box of baggies. The sergeant

further testified that digital scales like the one found in the vehicle are “commonly used

by those involved in the drug trade.” The jury found Truelove guilty of second- and fifth-

degree controlled-substance crime, and the district court convicted Truelove of both

offenses and imposed concurrent sentences of 98 and 21 months’ imprisonment. This

appeal follows.

                                     DECISION

Sufficiency of evidence for second-degree controlled-substance conviction

       Truelove argues that the evidence was insufficient for the jury to find that he

possessed the methamphetamine discovered in the vehicle. Appellate review of a

challenge to the sufficiency of the evidence involves “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 jurors to reach the verdict which they did.” State

v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). The verdict will not be

disturbed “if the jury, acting with due regard for the presumption of innocence and the

requirement of proof beyond a reasonable doubt, could reasonably conclude that the

defendant was guilty of the charged offense.” Id. The reviewing court must assume that

the jury believed the state’s witnesses and disbelieved any evidence to the contrary, as the

weight and credibility to be given to witness testimony is for the jury to determine. State

v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).


                                             4
      Corroboration of accomplice testimony

      Truelove contends that the jury found him guilty of second-degree controlled-

substance crime based on uncorroborated accomplice testimony.

                    A conviction cannot be had upon the testimony of an
             accomplice, unless it is corroborated by such other evidence
             as tends to convict the defendant of the commission of the
             offense, and the corroboration is not sufficient if it merely
             shows the commission of the offense or the circumstances
             thereof.

Minn. Stat. § 634.04 (2012). The corroborating evidence must tend to affirm the truth of

the accomplice’s testimony and point to the defendant’s guilt to “some substantial

degree,” and “evidence is sufficient to corroborate an accomplice’s testimony when it is

weighty enough to restore confidence in the truth of the accomplice’s testimony.” State v.

Clark, 755 N.W.2d 241, 253–54 (Minn. 2008) (quotations omitted) (noting that

corroborating evidence need not establish a prima facie case of guilt). The corroborating

evidence may be direct or circumstantial. State v. Johnson, 616 N.W.2d 720, 727 (Minn.

2000). But accomplice testimony may not be corroborated solely by the testimony of

another accomplice. State v. Pederson, 614 N.W.2d 724, 733 (Minn. 2000). “[Section

634.04] contemplates that the issue of whether an accomplice’s testimony has been

sufficiently corroborated is a question of fact to be determined by the jury.” Clark, 755

N.W.2d at 251.

      A jury instruction about the need for corroboration of accomplice testimony “must

be given in any criminal case in which any witness against the defendant might

reasonably be considered an accomplice to the crime.” State v. Lee, 683 N.W.2d 309, 316



                                            5
(Minn. 2004) (quotation omitted). “Generally, the test for whether a particular witness is

an accomplice is whether the witness could have been indicted and convicted for the

crime with which the defendant is charged.” State v. Scruggs, 822 N.W.2d 631, 640

(Minn. 2012) (quotations omitted). The district court may determine as a matter of law

whether a witness is an accomplice if the facts are undisputed and only one inference can

be drawn. Holt v. State, 772 N.W.2d 470, 483–84 (Minn. 2009). “But if the question is

disputed or subject to differing interpretations, the issue of whether a particular person is

an accomplice is a fact question for the jury to resolve.” Scruggs, 822 N.W.2d at 640.

       Here, the district court instructed the jury about the need for corroboration of

accomplice testimony and told the jury that W.P. and G.B. “are persons who could be

charged with the same crime as [Truelove]. You cannot find [Truelove] guilty of a crime

on the testimony of these accomplices unless that testimony is corroborated.” On appeal,

the state questions whether this language was proper and whether G.B. could be

considered an accomplice to possession of methamphetamine. Even if we assume that

both W.P. and G.B. were accomplices to possession of methamphetamine and that the

jury instructions were correct, sufficient evidence corroborates the testimony of W.P. and

G.B. The envelope containing methamphetamine found in the vehicle was addressed to

Truelove, indicating that he possessed the envelope and its contents. Cf. State v. Wiley,

366 N.W.2d 265, 270 (Minn. 1985) (determining that evidence was sufficient to establish

appellant’s constructive possession of marijuana found in bedroom containing mail

addressed to appellant and inside boxes with appellant’s name on them). The vehicle also

contained a small digital scale, evidencing drug-trade participation and supporting W.P.’s


                                             6
testimony that Truelove sold her methamphetamine while in the vehicle and that he had

additional methamphetamine with him. This corroborating evidence tends to affirm the

truth of the accomplice testimony and point to Truelove’s guilt to a “substantial degree.”

See Clark, 755 N.W.2d at 253 (quotation omitted).

      Sufficiency of circumstantial evidence

      Truelove argues that the circumstantial evidence presented at trial was insufficient

for the jury to find that he possessed the methamphetamine discovered in the vehicle.

Although circumstantial evidence is given the same weight as direct evidence, a

conviction based on circumstantial evidence warrants “a higher level of scrutiny.”

Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004). The sufficiency of circumstantial

evidence is reviewed by using a two-step analysis. State v. Silvernail, 831 N.W.2d 594,

598 (Minn. 2013). First, the reviewing court must identify the circumstances proved by

the evidence, “consider[ing] only those circumstances that are consistent with the

verdict.” Id. at 598–99 (stating that the jury is in the best position to evaluate the

credibility of circumstantial evidence and that “we defer to the jury’s acceptance of the

proof of these circumstances and rejection of evidence in the record that conflict[s] with

the circumstances proved” (quotation omitted)). Second, the reviewing court must

“determine whether the circumstances proved are consistent with guilt and inconsistent

with any rational hypothesis except that of guilt.” Id. at 599 (quotation omitted) (stating

that the reasonableness of all inferences is examined independently, with no deference

given to the jury’s choice between reasonable inferences). “Circumstantial evidence must

form a complete chain that, in view of the evidence as a whole, leads so directly to the


                                            7
guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference

other than guilt.” State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012) (quotations omitted).

“A jury is in the best position to evaluate circumstantial evidence, and its verdict is

entitled to due deference.” State v. Fairbanks, 842 N.W.2d 297, 307 (Minn. 2014).

       For a defendant to be found guilty of possession of a controlled substance, the

state must prove that the defendant possessed the substance either physically or

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

Constructive possession is shown when (a) the police found the substance in a place

under the defendant’s exclusive control to which other people did not normally have

access, or (b) if the police found the substance in a place to which others had access there

is a strong probability, inferable from the evidence, that the defendant was at the time

consciously exercising dominion and control over the substance. Id. at 104–05, 226

N.W.2d at 610–11 (stating that the constructive-possession doctrine permits conviction

“where the inference is strong that the defendant at one time physically possessed the

substance and did not abandon his possessory interest in the substance but rather

continued to exercise dominion and control over it up to the time of the arrest”).

       Considering the evidence consistent with the jury’s verdict, the circumstances

proved at trial include that Truelove was driving a vehicle that was not registered to any

of its occupants but that W.P. believed belonged to Truelove’s girlfriend. W.P. purchased

methamphetamine from Truelove while in the vehicle, and she knew that he had more of

the drug with him. The three occupants of the vehicle used methamphetamine, and W.P.

took over driving the vehicle when Truelove’s driving became erratic. When police


                                             8
searched the vehicle, its center console contained an envelope addressed to Truelove that

contained a baggie of 4.3 grams of methamphetamine. Also discovered in the vehicle

were a small digital scale and a hose containing a burnt substance. W.P. and Truelove had

baggies of methamphetamine on their persons, and the baggie containing 1.9 grams of

methamphetamine in Truelove’s pocket was similar to the baggie in the envelope. The

methamphetamine found in the vehicle did not belong to W.P. or G.B. Given these

circumstances proved, the only reasonable inference is that Truelove constructively

possessed the methamphetamine in the vehicle while he drove and that he did not

abandon his possessory interest when W.P. took over driving. See Minn. Stat. § 152.028,

subd. 2 (2012) (“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.”).

       Truelove argues that another reasonable inference is that W.P. possessed the

methamphetamine and hid it in an envelope she found in the vehicle when the officer

initiated the traffic stop. Truelove essentially asks this court to evaluate the credibility of

W.P.’s testimony that the methamphetamine found in the vehicle did not belong to her

and that the only methamphetamine she possessed was that found in her sock. But the

credibility to be given to W.P.’s testimony was for the jury to determine, and this court

must assume that the jury believed her testimony. See Huss, 506 N.W.2d at 292; see also

State v. Porte, 832 N.W.2d 303, 308–09 (Minn. App. 2013) (rejecting argument that

cocaine found in van driven by defendant could have belonged to van’s owner or


                                              9
passenger, when owner and passenger testified at jury trial and denied possession of

cocaine). The circumstantial evidence presented at trial was sufficient for the jury to find

that Truelove possessed the methamphetamine discovered in the vehicle and that he is

guilty of second-degree controlled-substance crime.

Convictions of second- and fifth-degree controlled-substance crime

       The district court convicted Truelove of second- and fifth-degree controlled-

substance crime and imposed sentences for both offenses. On appeal, the state agrees

with Truelove that this was error because fifth-degree possession of a controlled

substance is a lesser-included offense of second-degree possession of a controlled

substance. A defendant may not be convicted of both a crime and an included offense,

and “included offense” means, among other things, “[a] lesser degree of the same crime.”

Minn. Stat. § 609.04, subd. 1 (2012). The court convicted Truelove of fifth-degree

controlled-substance crime under Minn. Stat. § 152.025, subd. 2(a), for possession of

methamphetamine. This offense is a lesser degree of second-degree controlled-substance

crime under Minn. Stat. § 152.022, subd. 2(a)(1), for possession of six or more grams of

methamphetamine, of which the court also convicted Truelove.

       Because the district court erred by convicting Truelove of both second- and fifth-

degree controlled-substance crime, we vacate the conviction and sentence for fifth-degree

controlled-substance crime while leaving the jury’s guilty verdict for that offense in

force, and we remand the case to the district court for correction of the judgment of

conviction. See State v. Barrientos-Quintana, 787 N.W.2d 603, 614 (Minn. 2010)

(vacating convictions and sentences and remanding for correction of official judgment of


                                            10
conviction where defendant was improperly convicted of alternative charges arising from

single criminal act).

       Affirmed in part, vacated in part, and remanded.




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