                          This opinion will be unpublished and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
                                     A15-0986

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                  Michael Bruce Rostie,
                                       Appellant.

                                   Filed July 25, 2016
                                        Affirmed
                                   Halbrooks, Judge


                             Olmsted County District Court
                               File No. 55-CR-14-2092

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

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

         Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Jesson,

Judge.
                        UNPUBLISHED OPINION

HALBROOKS, Judge

       Appellant challenges his conviction under Minn. Stat. § 152.137, subd. 2(a)(4)

(2012) of storing methamphetamine paraphernalia in the presence of a child, arguing that

the circumstantial evidence was insufficient to support a guilty verdict. We affirm.

                                         FACTS

       Appellant Michael Bruce Rostie lived with his girlfriend, J.W., in the basement of

a home belonging to D.E. D.E. lived upstairs along with her 13-year-old son. In the

spring of 2014, a deputy from the Wabasha County Sheriff’s Office came to the home to

serve J.W. with legal documents. When J.W. answered the door, the deputy noticed that

she appeared to be under the influence of drugs. The deputy reported his observations to

Officer Timothy Parkin of the Southeast Minnesota Narcotics and Gang Task Force.

Based on this information, Officer Parkin surveilled the home and searched through trash

that had been placed curbside for pickup. Inside the trash, Officer Parkin found items

suggesting the use of methamphetamine in the residence. Based on these findings,

officers obtained a search warrant for the residence and for J.W.’s person.

       Officers executed the search warrant, announcing their presence for approximately

one minute before breaking in the door. Upon entering, Officer Parkin noticed a shadow

down the stairs in the basement.       Officer Parkin went downstairs, announced his

presence, and observed a person go into the bathroom and close the door behind him.

Officer Parkin immediately pushed the bathroom door open so that he could see inside.

Upon doing so, he saw Rostie standing behind the door. Officer Parkin pulled Rostie out


                                             2
from the bathroom and handed him over to another officer. When Officer Parkin went

back inside the bathroom, he noticed the odor of smoke consistent with the recent use of

methamphetamine and a broken pipe with white residue laying on the floor. Officers

then found J.W. in a bedroom approximately three feet down the hallway from the

bathroom.

       Inside the bedroom, officers found numerous items associated with the use of

methamphetamine, including a pill bottle containing 12.6 grams of methamphetamine, a

large butane torch, an open box of unused hypodermic needles, a digital scale, a glass

pipe with methamphetamine residue in it, a small vial containing 0.05 grams of

methamphetamine, a small butane torch, and two additional pipes wrapped in paper

towels inside of a makeup bag.        Officers also searched the attached garage and

discovered a plastic grocery bag with two empty pseudoephedrine packages, a nearly

empty bottle of powdered drain cleaner, and the casings of AA lithium batteries from

which the lithium elements had been removed.           These latter items contain listed

precursors for the manufacture of methamphetamine under Minnesota law. See Minn.

Stat. § 152.0262, subd. 1(b) (2014).      Officers also found Rostie’s paystub in close

proximity to these items in the garage.

       Based on the items found in the residence occupied by Rostie and J.W., the state

charged Rostie with one count of first-degree sale of methamphetamine, one count of

second-degree    possession    of   methamphetamine,     and   one   count   of   storing

methamphetamine paraphernalia in the presence of a child.




                                             3
       Rostie pleaded not guilty, and J.W. testified on Rostie’s behalf at trial. J.W.

testified that she had been a methamphetamine user off and on since 2011 and that she

and Rostie had been fighting about her continued use of the substance the weekend

before the residence was searched by police. She claimed ownership of many of the

items found in their residence, including the pipe found in the bathroom with Rostie. She

testified that she was going to put it in the toilet tank but dropped it on the floor because

she was startled to find Rostie in the bathroom.

       After both parties rested, the state dismissed the charge of first-degree sale of

methamphetamine. The jury was instructed on both principal and accomplice liability for

the remaining two charges—possession and storage of methamphetamine paraphernalia

in the presence of a child. The jury found Rostie not guilty of the second-degree

possession charge but guilty as both a principal and an accomplice to the charge of

storing methamphetamine in the presence of a child. The district court sentenced Rostie

to 18 months in prison. This appeal follows.

                                     DECISION

       Under the traditional standard of review of sufficiency of the evidence, 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 jury 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). But “[i]f a conviction, or a single

element of a criminal offense, is based solely on circumstantial evidence,” id. at 307,

appellate courts


                                             4
             apply a two-step analysis in determining whether [that]
             circumstantial evidence is sufficient to support a guilty
             verdict. The first step is to identify the circumstances proved.
             The second step is to determine whether the circumstances
             proved are consistent with guilt and inconsistent with any
             rational hypothesis except that of guilt.

                     In identifying the circumstances proved, [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 and assume that the
             jury believed the State’s witnesses and disbelieved the
             defense witnesses. This is because the jury is in the best
             position to evaluate the credibility of the evidence, even in
             cases based on circumstantial evidence. Under the second
             step of [the] analysis, [appellate courts] examine
             independently the reasonableness of the inferences that might
             be drawn from the circumstances proved.

State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014) (quotations and citations omitted). “[A]

conviction based entirely on circumstantial evidence merits stricter scrutiny than

convictions based in part on direct evidence.” State v. Jones, 516 N.W.2d 545, 549

(Minn. 1994). “While it warrants stricter scrutiny, circumstantial evidence is entitled to

the same weight as direct evidence.” State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).

The 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. Jones, 516 N.W.2d at 549. A jury,

however, “is in the best position to evaluate circumstantial evidence, and [its] verdict is

entitled to due deference.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

      For the conviction of storage of methamphetamine paraphernalia in the presence

of a child, the state was required to prove beyond a reasonable doubt that Rostie


                                            5
(1) knowingly stored any methamphetamine paraphernalia (2) in the presence of a child.

Minn. Stat. § 152.137, subd. 2(a)(4). Rostie does not dispute the presence of the items

found in the home. Nor does he dispute the presence of a child in the home. He only

argues that the evidence is insufficient to prove that he knowingly either directly stored

methamphetamine paraphernalia in the home or aided and abetted J.W. in storing the

paraphernalia. See Minn. Stat. § 152.137, subd. 2(a) (“No person may knowingly engage

in any of the following activities in the presence of a child . . . .”).

       Rostie concedes that “the fact that these items were all found within the living

space shared jointly by Rostie and [J.W.] is consistent with an inference that Rostie either

stored one or more of these items himself, or that he intentionally assisted [J.W.] with

their storage.”    But Rostie asserts that “none of the circumstances surrounding the

discovery of any of these items can exclude the reasonable, alternative inference that

Rostie was in fact not responsible in any manner for the presence of these items inside the

house.” This argument is without merit.

       Rostie and J.W. were a couple who shared a living space, including the bedroom

where most of the confiscated objects were discovered. The items found in the garage

were in close proximity to a paystub with Rostie’s name on it. Officers also found a

penis pump located literally on top of a butane torch they uncovered during their search.

Officer Parkin testified that male methamphetamine users frequently employ such

devices because they begin to “develop a vascular restriction which restricts blood flow

to the penis” as a result of extended use. Most tellingly, Officer Parkin witnessed

someone enter the bathroom and found Rostie hiding in there with the broken


                                                6
methamphetamine pipe and the odor of fresh methamphetamine smoke. Parkin testified

that “[m]ethamphetamine has a smell that in a short period of time will quickly dissipate

after it’s smoked.” Parkin did not recall smelling freshly smoked methamphetamine

anywhere else in the home, including the bedroom where J.W. was found. It is not

rational to conclude that J.W. dropped the pipe in the bathroom directly at Rostie’s feet

before running back to the bedroom given that the odor of freshly smoked

methamphetamine was concentrated in the bathroom and not where J.W. was found.

Further, even if it was J.W. who smoked the methamphetamine immediately before the

officers arrived, it is unreasonable to believe that Rostie had no knowledge of the

presence of paraphernalia in the home because, according to J.W., they had been arguing

about the subject all weekend.

       The circumstances proven are entirely consistent with the state’s theory that Rostie

was involved with the storage of methamphetamine at the residence and are inconsistent

with any rational hypothesis except that of guilt. These inferences, taken together as a

whole, support a finding of guilt to sustain a conviction of storage of methamphetamine

paraphernalia in the presence of a child under Minn. Stat. § 152.137, subd. 2(a)(4).

       Affirmed.




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