State of Minnesota, Respondent, vs. Angel Franco Palacios, Appellant.

State of Minnesota, Respondent, vs. Angel Franco Palacios, Appellant. A04-1966, Court of Appeals Unpublished, October 25, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1966

 

State of Minnesota,

Respondent,

 

vs.

 

Angel Franco Palacios,

Appellant.

 

Filed October 25, 2005

Affirmed Worke, Judge

 

Hennepin County District Court

File No. 04001743

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487-0201 (for respondent)

 

John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from a conviction of three counts of first-degree controlled-substance crime, one count of second-degree controlled-substance crime, and one count of third-degree controlled-substance crime, appellant argues that there was insufficient evidence to convict him of the two counts related to 19.26 grams of cocaine found in the basement of his home.  Because we find that there was sufficient evidence to convict appellant, we affirm. 

FACTS

            In late 2003, Minneapolis police conducted an investigation into drug sales at a local bar.  During the investigation, appellant sold cocaine to an undercover police officer on December 22 and 30, 2003.  On January 8, 2004, the undercover officer arranged a third meeting with appellant to purchase cocaine.  Shortly after the undercover officer contacted him, appellant, who was under police observation, got into his car and began traveling in the direction of the meeting place.  Officers stopped appellant and arrested him.  Appellant was charged with two counts of first-degree controlled-substance crime (sale) for the December 22 and 30 sales of cocaine to the undercover officer, and third-degree controlled-substance crime (possession) for a bag of cocaine found in appellant's left sock at the time of his arrest.  After his arrest, the police executed a search of appellant's home and found 19.26 grams of cocaine in the basement rafters.  Appellant was charged with first-degree controlled-substance crime (sale) and second-degree controlled-substance crime (possession) in connection with the drugs found in the basement. 

            A jury trial commenced on June 14, 2004.  The record reflects that appellant lived on the ground floor of a duplex with his wife and her two children.  The duplex was owned by appellant's wife and her ex-husband, who was the landlord and lived upstairs.  The basement was accessible to both the upper and lower units of the duplex.  Further, appellant testified that he allowed his friend, Carlos, to use the basement to shower.  Appellant testified that he did not store cocaine in his home, and that he was unaware of the drugs in the basement.  On June 22, 2004, a jury found appellant guilty of all charges.  Appellant now appeals the two convictions related to the drugs found in the basement rafters of his home, arguing that there was insufficient evidence to prove that appellant had exclusive control of the basement.  Appellant has not appealed the convictions related to the December 22 and 30 sales to the undercover officer or the conviction related to the cocaine found in appellant's sock at the time of his arrest. 

D E C I S I O N

Appellant argues that there was insufficient evidence to convict him of the two counts related to 19.26 grams of cocaine found in the basement of his home.  When considering a claim of insufficient evidence, this court's review is limited to a careful assessment of the record to determine "whether a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts."  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000).  When reviewing the record, this court must view the evidence in the light most favorable to a conviction.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  Determining the weight and credibility of witness testimony is a matter for the jury.  Id.  Here, we must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary."  Id.

"A person is guilty of controlled substance crime in the first degree if: (1) on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing cocaine, heroin, or methamphetamine . . . ."  Minn. Stat. § 152.021, subd. 1(1) (2002).  The definition of "to sell" includes possession with the intent to sell.  Minn. Stat. § 152.01, subd. 15a (2002).  In addition, Minn. Stat. § 152.022, subd. 2(1) (2002) provides, "[a] person is guilty of controlled substance crime in the second degree if: (1) the person unlawfully possesses one or more mixtures of a total weight of six grams or more containing cocaine, heroin, or methamphetamine . . . ."  Because there was no evidence of actual or physical possession of the drugs by appellant when he was arrested, we must focus on whether there was sufficient evidence that appellant, although not in actual possession of the substance at the time of arrest, nonetheless constructively possessed it.

            Constructive possession is present when there is strong evidence that the defendant physically possessed the item at one time, did not abandon his possessory interest in the item, and continued to exercise dominion and control over it up to the time of his arrest.  State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975). 

To prove constructive possession the State should have to show: (a) that the police found the substance in a place under [appellant'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 [appellant] was at the time consciously exercising dominion and control over it. 

 

Id. at 105, 226 N.W.2d at 611.

            Appellant argues the state has failed to meet its burden under Florine because it cannot show that appellant had "exclusive control" over the basement.    Appellant contends that at least three other people had either equal or more access to the basement than appellant, and the only evidence that appellant knowingly possessed the cocaine in the basement was police testimony that he lived at the duplex.  The evidence in this case, however, supports the conclusion that appellant was engaged in the business of selling cocaine.  Appellant was convicted of selling cocaine to an undercover police officer on two separate occasions, he was arrested in route to another transaction with the undercover officer, and a bag of cocaine was found in his sock at the time of his arrest.  Based on the number of people who had access to the basement of the duplex, appellant clearly did not have "exclusive control."  There is, however, a strong probability, inferable from all of the evidence in this case, that at one time appellant exercised dominion and control over the drugs found in the basement.  Further, despite appellant's argument that he was not the individual who sold the drugs to the officer he claims the police had mistaken him for his friend Carlos the undercover officer testified that he purchased the drugs from appellant.  The weight and credibility of the testimony at trial was for the jury to determine.  Moore, 438 N.W.2d at 108.  Under the applicable standard of review, we must assume that the jury believed the undercover police officer's testimony.  Id. 

Finally, we have considered the arguments raised by appellant in his pro se supplemental brief and conclude that they do not provide a basis for relief.  Based on the record, there was sufficient evidence for the jury to conclude that appellant was in constructive possession of the drugs found in the basement of his home. 

            Affirmed.