                         This opinion will be unpublished and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
                                    A13-2402

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                               Stephanie JoNell Guscette,
                                      Appellant.

                               Filed February 9, 2015
                  Affirmed in part, reversed in part, and remanded
                                   Johnson, Judge

                            Otter Tail County District Court
                                File No. 56-CR-12-2184


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

David Hauser, Otter Tail County Attorney, Fergus Falls, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

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

      Considered and decided by Johnson, Presiding Judge; Cleary, Chief Judge; and

Reyes, Judge.
                        UNPUBLISHED OPINION

JOHNSON, Judge

       An Otter Tail County jury found Stephanie JoNell Guscette guilty of fifth-degree

controlled substance crime and driving while impaired based on evidence that she was

sitting in the driver’s seat of a car while intoxicated by methamphetamine and while in

possession of a glass pipe containing a small amount of methamphetamine. Guscette

argues that the evidence is insufficient to prove that she knowingly possessed the small

amount of methamphetamine residue that was attached to the inside of the pipe. She also

argues that the district court erred by imposing two sentences for two offenses that arose

from a single behavioral incident. We conclude that the circumstantial evidence is

sufficient to allow the jury to infer that Guscette knowingly possessed methamphetamine.

But we conclude that Guscette’s two offenses arose from a single behavioral incident.

Therefore, we affirm in part, reverse in part, and remand for vacatur of one of the two

sentences.

                                         FACTS

       On December 11, 2011, at approximately 2:00 a.m., Officer Connor West of the

Fergus Falls Police Department was on patrol when he came upon a vehicle stopped

along the curb, facing east on the westbound side of the street, with its lights on and its

engine running. He approached the driver’s side of the vehicle and saw Guscette sitting

in the driver’s seat, asleep. Guscette woke up after the officer knocked on the window

several times.




                                            2
      Officer West later testified that Guscette seemed “very dazed and out of it,” that

she did not know where she was, and that she did not know that she was parked on the

wrong side of the street. Officer West observed that Guscette was fidgety and frequently

licked her lips with her tongue. He believed that she was exhibiting signs of intoxication

because she was “moving all over the place.” He also believed that she was concealing

something in her purse when she was looking for her driver’s license. Detective Michael

Kusnierek, who had come to assist Officer West, also noticed that Guscette seemed

fidgety and had difficulty following the conversation with Officer West.

      Based on Guscette’s behavior, Officer West suspected that Guscette was impaired

and, thus, might have committed the offense of driving while impaired (DWI). When he

administered field sobriety tests, Guscette failed the one-legged stand test. Officer West

asked Guscette when she last used methamphetamine; she responded by saying, “several

years ago.” Based on Guscette’s behavior, her performance on the field sobriety tests,

and her admission of prior drug use, Officer West determined that there was probable

cause to believe that Guscette was impaired by drugs.

      Officer West asked for Guscette’s consent to search her person and her vehicle,

and she signed a written consent form. Detective Kusnierek found three unused syringes

and a clear glass pipe in Guscette’s purse. Officer West testified that the pipe was of a

type that often is used to ingest methamphetamine. Both officers testified that they saw a

white substance on the inside of the pipe. Guscette told the officers that she took the

syringes and the pipe from a friend for the purpose of preventing him from continuing to

use methamphetamine.


                                            3
       Officer West arrested Guscette for DWI and requested chemical testing pursuant

to the implied-consent statute. Guscette provided a urine sample, which indicated that

she was under the influence of methamphetamine and amphetamine. The glass pipe was

sent to the Bureau of Criminal Apprehension (BCA) for testing. The forensic scientist

who performed the testing of the glass pipe testified at trial that she scraped an off-white

residue from the inside of the glass pipe at its bulbous end. She obtained .06 grams of

residue in this manner, which was determined to contain methamphetamine. It is unclear

from the trial record whether the forensic scientist scraped all of the visible material from

the inside of the pipe or whether the .06 grams that was scraped was only some of the

visible material on the pipe.

       In July 2012, the state charged Guscette with one count of fifth-degree controlled

substance crime, in violation of Minn. Stat. § 152.025, subd. 2(a)(1) (2014), and one

count of DWI, in violation of Minn. Stat. § 169A.20, subd. 1(2) (2014). The case was

tried in August 2013. The state called four witnesses: Officer West, Detective Kusnierek,

and two BCA scientists. Guscette did not present any evidence. The jury found Guscette

guilty on both counts.

       In September 2013, the district court sentenced Guscette to one year and one day

in prison for the possession offense, but stayed execution of that sentence, imposed a

180-day jail sentence, and placed Guscette on supervised probation for five years. The

district court imposed a 90-day jail sentence for the DWI offense but stayed execution of

that sentence. Guscette appeals.




                                             4
                                       DECISION

                                  I. Sufficiency of the Evidence

       Guscette argues that the evidence is insufficient to prove beyond a reasonable

doubt that she knowingly possessed the methamphetamine that was scraped from the

inside of the clear glass pipe.

       When reviewing the sufficiency of the evidence, this court undertakes “a

painstaking analysis of the record to determine whether the evidence, when viewed in the

light most favorable to the conviction, was sufficient” to support the conviction. State v.

Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We must assume that

“the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”

State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We will “not

disturb the verdict 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.” Ortega, 813 N.W.2d at 100.

       If the state’s evidence on one or more elements of a charged offense consists

solely of circumstantial evidence, this court applies a heightened standard of review.

State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013). When reviewing a conviction

based on circumstantial evidence, this court applies a two-step test to determine the

sufficiency of the evidence. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). First, we

“identify the circumstances proved.” Id. (citing State v. Andersen, 784 N.W.2d 320, 329

(Minn. 2010)).     “In identifying the circumstances proved, we assume that the jury

resolved any factual disputes in a manner that is consistent with the jury’s verdict.” Id.


                                              5
(citing Andersen, 784 N.W.2d at 329).            Second, we “examine independently the

reasonableness of the inferences that might be drawn from the circumstances proved,”

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

inconsistent with any rational hypothesis except that of guilt.” Id. (quotations omitted).

We must consider the evidence as a whole and not examine each piece in isolation.

Andersen, 784 N.W.2d at 336.

       “A person is guilty of controlled substance crime in the fifth degree” if “the person

unlawfully possesses one or more mixtures containing a controlled substance classified in

Schedule I, II, III, or IV . . . .” Minn. Stat. § 152.025, subd. 2(b)(1). Methamphetamine

is a Schedule II controlled substance. Minn. Stat. § 152.02, subd. 3(d)(2) (2014). A jury

may find a defendant guilty of fifth-degree controlled substance crime if the state proves

that (1) the defendant unlawfully possessed one or more mixtures containing a controlled

substance, and (2) the defendant knew or believed that the substance was a controlled

substance. State v. Ali, 775 N.W.2d 914, 918 (Minn. App. 2009), review denied (Minn.

Feb. 16, 2010). In this case, Guscette’s challenge to the sufficiency of the evidence

focuses on the second element identified in Ali, whether she knew or believed she

possessed a controlled substance. The circumstantial-evidence standard of review is

appropriate because “[k]nowledge is customarily determined from circumstantial

evidence.” See id. at 919.

       We begin our analysis by identifying the circumstances that the state proved

during trial, assuming that the jury believed the state’s witnesses: Guscette was asleep in

the driver’s seat of her car, with its engine running and its lights on, while the car was


                                             6
stopped along the curb on the wrong side of the street. She was dazed, fidgety, and

agitated. She attempted to conceal something while looking through her purse for her

driver’s license.   She admitted to using methamphetamine in the past.           Her purse

contained three capped, unused syringes and a clear glass pipe that may be used to ingest

methamphetamine. Both Officer West and Detective Kusnierek saw a white substance

inside the clear glass pipe, which they recognized as methamphetamine. A photograph of

the pipe, which was introduced into evidence as exhibit 4, depicts a burnt, brown

substance inside the bulbous end of the pipe. Guscette told the officer that she had taken

the pipe from a friend to prevent him from continuing to use methamphetamine. A

forensic scientist scraped .06 grams of a white substance from the inside of the clear glass

pipe, which was determined to contain methamphetamine. Guscette was impaired by

methamphetamine and amphetamine at the time of her interactions with the officer and

the detective.

       We next consider the reasonableness of the inferences that may be drawn from the

circumstances that have been proved. The state asked the jury to infer that Guscette

knew that she had a glass pipe in her purse and knew that the pipe contained

methamphetamine. This is a reasonable inference in light of the circumstances proved.

Furthermore, the reasonable inference urged by the state is consistent with Guscette’s

guilt. In State v. Siirila, 292 Minn. 1, 193 N.W.2d 467 (1971), the supreme court upheld

a jury’s guilty verdict in a drug-possession case in which a very small amount of

marijuana was found in a pocket of a jacket that the defendant was wearing at the time of

his arrest. Id. at 3, 193 N.W.2d at 469. The supreme court stated that it was reasonable


                                             7
for the jury to infer that “whatever was in the jacket was there with his knowledge.” Id.

at 11, 193 N.W.2d at 473.

      Guscette contends that the inference urged by the state is not the only reasonable

inference that may be drawn from the circumstances proved. She contends that another

reasonable inference is that she did not know that methamphetamine was inside the pipe.

She explains that a person who uses or has used methamphetamine “would have used all

of the drugs loaded into the pipe and would not knowingly have left any amount stuck at

the bottom.” She contends that it is not enough for the state to prove merely that a

burned or charred residue is visible on the glass; she contends that the state also must

prove that she knew that the burned or charred residue is methamphetamine as opposed to

something else, such as a by-product of methamphetamine that has been burned or

heated.

      The alternative inference that Guscette suggests is not a reasonable inference

because it is inconsistent with one of the circumstances proved in this particular case.

Both Officer West and Detective Kusnierek testified that they saw white streaks on the

inside of the pipe and that the white streaks appeared to be methamphetamine. Even if

Guscette was aware of only the brown, burnt substance, and even if the white substance

was mere residue, the evidence nonetheless would be sufficient in light of Siirila, in

which the supreme court effectively held that there is no minimum quantity of controlled

substances necessary to support a conviction and, more importantly, no requirement that

the controlled substances be usable, unless the statute so provides. See id. at 10, 193

N.W.2d at 473. Guscette contends that the state must prove that she knew that the


                                           8
residue was not converted into a substance other than methamphetamine.              Such an

application of the circumstantial-evidence test would impose too high of a standard. If a

defendant knew or believed at one time that a substance was a controlled substance, the

state need not also prove that the defendant continued to hold the same knowledge or

belief after the controlled substance has been heated or burned.

       In light of that understanding of the state’s burden, Guscette’s alternative inference

is inconsistent with the circumstances proved. By her own admission, she took the pipe

from a friend so that he would not continue to use it to ingest methamphetamine. This

circumstance supports the inference that Guscette knew that the pipe had been used to

smoke methamphetamine. Guscette was under the influence of methamphetamine at the

time of her interaction with the law-enforcement officers, the syringes in her possession

were capped and unused, and the arresting officer did not find any other delivery device

on her person or in her car. These circumstances support the inference that Guscette used

the clear glass pipe to ingest methamphetamine before her arrest and, therefore, knew that

the substance that remained inside the pipe was methamphetamine. In light of these

circumstances, it would not be reasonable for a jury to infer that Guscette did not know

that the clear glass pipe in her purse contained methamphetamine.

       Guscette cites caselaw from other jurisdictions to support her contention that the

state has not proved that she knowingly possessed a very small amount of controlled

substances. Even if we were inclined to follow cases that are not binding on us, the cases

cited would be of limited value because sufficiency of the evidence inevitably is a case-

specific, fact-bound determination.     Furthermore, in each of the foreign cases, the


                                             9
defendant was not under the influence of a controlled substance at the time of arrest,

which would make it more difficult for a prosecutor to prove that the person knowingly

possessed a controlled substance. See Hudson v. State, 30 So. 3d 1199, 1207 (Miss.

2010); State v. Kopp, 325 S.W.3d 466, 472 (Mo. Ct. App. 2010); State v. Baker, 912

S.W.2d 541, 544 (Mo. Ct. App. 1995); State v. Polk, 529 S.W.2d 490, 492 (Mo. Ct. App.

1975), abrogated by State v. Grim, 854 S.W.2d 403, 411 (Mo. 1993), as recognized in

Kopp, 325 S.W.3d at 471 n.6; State v. Reed, 964 P.2d 113, 114 (N.M. 1998). Thus, the

foreign cases cited by Guscette are distinguishable.

       At oral argument, Guscette’s appellate attorney asserted that, if her conviction is

upheld, virtually any case of possession of drug paraphernalia, which is a petty

misdemeanor, could be charged out as possession of a controlled substance, which is a

felony, unless the paraphernalia never has been used. The state’s appellate attorney did

not quarrel with the assertion; instead, he asserted that the state should be given wide

latitude in its charging decisions and that the public interest is well served when persons

possessing used drug paraphernalia receive treatment and other rehabilitative services

that are available only in felony prosecutions. We need not agree or disagree with the

attorneys’ assertions. We simply conclude that, in light of the applicable caselaw, the

state’s evidence in this case is sufficient to support the conviction.

                                 II. Multiple Punishments

       Guscette also argues that the district court erred by imposing sentences on both of

the offenses of which the jury found her guilty. Guscette raises this issue for the first

time on appeal. Her failure to raise this issue at sentencing does not preclude her from


                                              10
making the argument on appeal. See State v. Osborne, 715 N.W.2d 436, 441 n.3 (Minn.

2006); State v. Johnson, 653 N.W.2d 646, 651 (Minn. App. 2002).

       Guscette relies on a statute that provides, “if a person’s conduct constitutes more

than one offense under the laws of this state, the person may be punished for only one of

the offenses.”   Minn. Stat. § 609.035, subd. 1 (2014).      Multiple sentences may be

imposed only if multiple offenses do not arise from “a single behavioral incident.” State

v. Johnson, 273 Minn. 394, 399, 141 N.W.2d 517, 521-22 (1966). The supreme court has

prescribed two different tests for determining whether multiple offenses arise from a

single behavioral incident. State v. Bauer, 792 N.W.2d 825, 827-28 (Minn. 2011) (Bauer

II). The first test applies if there are two or more intentional crimes; in that situation,

“Minnesota courts consider whether the conduct (1) shares a unity of time and place and

(2) was motivated by an effort to obtain a single criminal objective.” State v. Bauer, 776

N.W.2d 462, 478 (Minn. App. 2009) (Bauer I) (citing State v. Williams, 608 N.W.2d 837,

841 (Minn. 2000), aff’d, 792 N.W.2d 825 (Minn. 2011)); see also State v. Soto, 562

N.W.2d 299, 304 (Minn. 1997)). The second test applies if “the offenses include both

intentional and nonintentional crimes”; in that situation, “the proper inquiry is whether

the offenses (1) occurred at substantially the same time and place and (2) arose from ‘a

continuing and uninterrupted course of conduct, manifesting an indivisible state of mind

or coincident errors of judgment.’” Bauer I, 776 N.W.2d at 478 (quoting State v. Gibson,

478 N.W.2d 496, 497 (Minn. 1991)).

       Fifth-degree controlled substance crime is an intentional crime because it requires

proof that the defendant knew or believed that the substance he or she possessed was a


                                            11
controlled substance. Ali, 775 N.W.2d at 918; see also Minn. Stat. § 609.02, subd. 9

(2014). The statute criminalizing DWI does not contain a mens rea requirement. See

Minn. Stat. § 169A.20, subd. 1(2). For purposes of section 609.035, the supreme court

has treated DWI as a nonintentional crime. See, e.g., State v. Clement, 277 N.W.2d 411,

413 (Minn. 1979); Johnson, 273 Minn. at 404-05, 141 N.W.2d at 525. Thus, we must

apply the second test to the facts of this case.      The state concedes that the first

requirement of the second test is satisfied. Accordingly, we will focus on whether the

second requirement of the second test is satisfied, i.e., whether the two offenses “arose

from ‘a continuing and uninterrupted course of conduct, manifesting an indivisible state

of mind or coincident errors of judgment.’”      Bauer I, 776 N.W.2d at 478 (quoting

Gibson, 478 N.W.2d at 497)).

      “The state has the burden to establish by a preponderance of the evidence that the

conduct underlying the offenses did not occur as part of a single behavioral incident.”

Williams, 608 N.W.2d at 841-42. If the relevant facts are undisputed, this court applies a

de novo standard of review to a district court’s determination whether multiple offenses

arose from a single behavioral incident.        Bauer I, 776 N.W.2d at 477; State v.

Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001). But if the relevant facts are

disputed, this court applies a clear-error standard of review to a district court’s

determination of the issue. State v. Effinger, 380 N.W.2d 483, 489 (Minn. 1986); Bauer

I, 776 N.W.2d at 477; State v. O’Meara, 755 N.W.2d 29, 37 (Minn. App. 2008).

      Guscette did not raise the issue at the sentencing hearing, so the district court did

not make any express findings on the issue. But the district court imposed two sentences


                                           12
for Guscette’s two convictions and, thus, made an implied finding that Guscette’s two

convictions did not arise from a single behavioral incident. On appeal, the state and

Guscette rely on different versions of the facts in their respective arguments. The state

contends that Guscette first took possession of the pipe in Moorhead; Guscette notes that

the possession offense occurred in Fergus Falls, the place where she was found with the

pipe in her purse. In addition, the state sought to persuade the jury that Guscette used the

pipe to smoke methamphetamine before she was arrested; Guscette did not admit to using

the pipe, and her trial counsel sought to persuade the jury that she was impaired by

prescription medication. Because the relevant facts are disputed, we apply a clear-error

standard of review. See Effinger, 380 N.W.2d at 489; Bauer I, 776 N.W.2d at 477;

O’Meara, 755 N.W.2d at 37.

       To determine whether two offenses “arose from ‘a continuing and uninterrupted

course of conduct, manifesting an indivisible state of mind or coincident errors of

judgment,’” Bauer I, 776 N.W.2d at 478 (quoting Gibson, 478 N.W.2d at 497), a court

must ascertain the place and time in which the defendant committed each offense.

Williams, 608 N.W.2d at 841-42. In this case, Officer West testified that Guscette told

him that she took the pipe from a friend to prevent him from continuing to use

methamphetamine. But Officer West did not testify where the friend lived or where

Guscette first took possession of the pipe. The state did not offer any evidence as to

where Guscette first took possession of the pipe, either at trial or at the sentencing

hearing. Consequently, there is no evidence to support the state’s argument or the district

court’s implied finding that the two offenses were committed in different cities at


                                            13
different times.   A factual determination on the single-behavioral-incident issue “is

clearly erroneous when it is unsupported by the record.” O’Meara, 755 N.W.2d at 37.

To the extent that we know the relevant facts, they are fairly similar to the facts of City of

Moorhead v. Miller, 295 N.W.2d 548 (Minn. 1980), in which the defendant was

convicted of DWI and an open-bottle violation, which led the supreme court to comment,

in affirming the trial court, that “the two offenses must be deemed to have arisen from the

same behavioral incident.” Id. at 550; see also State v. Tildahl, 540 N.W.2d 514, 515

(Minn. 1995) (summarily holding that district court erred by imposing two sentences on

convictions of aggravated driving and open-bottle violation).

       The state relies on Clement and State v. Butcher, 563 N.W.2d 776 (Minn. App.

1997), review denied (Minn. Aug. 5, 1997), in support of its argument that Guscette’s

two offenses did not arise from a single behavioral incident. But neither case involved a

defendant who was convicted of both driving while impaired and unlawful possession of

a controlled substance that caused the impairment.         In Clement, the defendant was

convicted of DWI and unlawful possession of tear gas, but there was no connection

between the tear gas and his impairment, which was caused by his consumption of

alcohol. See 277 N.W.2d at 412-13. In Butcher, the defendant was convicted of driving

after cancellation of a driver’s license, hunting for deer outside of deer season, and

transporting an uncased firearm. 563 N.W.2d at 777, 783-84. But none of those offenses

are at issue in this case, which means that Butcher adds little to our analysis. We believe

that Miller and Tildahl are more similar to the facts of this case.




                                             14
      Thus, we conclude that the district court clearly erred by impliedly finding that

Guscette’s two convictions arose from separate behavioral incidents and by imposing two

sentences on the two convictions. Therefore, we remand the matter to the district court

for vacatur of one of the two sentences. See Tildahl, 540 N.W.2d at 515.

      Affirmed in part, reversed in part, and remanded.




                                           15
