State of Minnesota, Respondent, vs. Steve Richard Petersen, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A03-909

 

State of Minnesota,
Respondent,
 
vs.
 
Steve Richard Petersen,
Appellant.

 

Filed June 8, 2004

Affirmed

Peterson, Judge

 

Cass County District Court

File No. K802257

 

Mike Hatch, Attorney General, Bernard E. Johnson, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Earl E. Maus, Cass County Attorney, 303 Minnesota Avenue, Walker, MN  56484-3000 (for respondent)

 

Charles L. Hawkins, Suite 2890, 333 South Seventh Street, Minneapolis, MN  55402 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

This appeal is from a conviction of fifth-degree controlled-substance crime (possession of one or more mixtures containing methamphetamine), which was a lesser-included offense of the charged offense, first-degree controlled-substance crime (possession of one or more mixtures of a total weight of 25 grams or more containing methamphetamine).  Appellant Steve Richard Petersen argues that the evidence was insufficient to support a conviction of first-degree controlled-substance crime and, therefore, the district court should have granted his motion for judgment of acquittal, thereby preventing the jury, which found appellant not guilty of first-degree controlled-substance crime, from deliberating on the lesser-included offense.  Because the evidence in the record was sufficient to support a conviction of first-degree controlled-substance crime, we affirm.

FACTS

            After methamphetamine was found in James Waterbury's vehicle, Waterbury informed the officer that he knew where he could get some methamphetamine and agreed to set up a buy for police officers.  Waterbury called appellant twice and made arrangements to meet him at a specified hotel.  Appellant and Waterbury discussed using "the same setup last time."  Waterbury testified that he had previously purchased methamphetamine from appellant at the same hotel.

            Officers had appellant's residence under surveillance and followed him when he left in his vehicle and drove to the hotel.  Officers stopped appellant's vehicle when it pulled into the hotel parking lot and arrested appellant.  During a search of appellant's person incident to arrest, officers discovered in a jacket pocket a small Tupperware container attached to a keychain-like object.  The substance in the container was tested and found to contain 3.3 grams of methamphetamine.

            Officers searched appellant's vehicle after having it towed to the law-enforcement center.  In the glove compartment of appellant's vehicle, officers found a baggie containing 23.4 grams of methamphetamine, a baggie containing 1.9 grams of methamphetamine, and a Q-tip container containing .01 grams of methamphetamine.  A latent fingerprint recovered from the baggie containing 23.4 grams of methamphetamine matched appellant's right thumbprint.

            David Morlan was a passenger in appellant's vehicle when it was stopped.  Initially, Morlan told officers that he knew nothing about the methamphetamine.  At trial, Morlan testified that the methamphetamine found in the glove compartment of appellant's vehicle belonged to him.  Morlan testified that when the police pulled behind appellant's vehicle, he put the items containing methamphetamine, along with a pack of cigarettes, in the glove compartment because he "was trying to get rid of everything I had on me."  Morlan also testified that, at appellant's house, before the stop, Morlan gave appellant a small amount of methamphetamine.  Morlan testified that appellant held the bag containing methamphetamine while Morlan scooped out a small amount and put it into a small Tupperware container.

Appellant was charged by complaint with one count each of first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 1(1) (2000) (unlawful sale of one or more mixtures of a total weight of ten grams or more containing methamphetamine); and first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 2(1) (2000) (unlawful possession of one or more mixtures of a total weight of 25 grams or more containing methamphetamine).  The district court denied appellant's motion for judgment of acquittal and submitted the charged offenses to the jury.  On the first-degree possession charge, the district court also submitted to the jury the lesser-included offense of fifth-degree possession of methamphetamine.  The jury found appellant guilty of the lesser-included offense of fifth-degree possession of methamphetamine and not guilty of the first-degree sale and possession offenses. D E C I S I O N

            Appellant argues that the evidence was insufficient to support a conviction of first-degree controlled-substance crime and, therefore, the district court should have granted his motion for judgment of acquittal, thereby, preventing the jury from deliberating on the lesser-included offense.  Minn. R. Crim. P. 26.03, subd. 17(1), states:

After the evidence on either side is closed, the court on motion of a defendant or on its initiative shall order the entry of a judgment of acquittal of one or more offenses charged in the tab charge, indictment or complaint if the evidence is insufficient to sustain a conviction of such offense or offenses.

 

This court reviews the denial of a motion for acquittal as it would review a claim of insufficient evidence.  See id. (providing district court shall order judgment of acquittal upon motion if evidence is insufficient to sustain conviction); State v. Anderson, 414 N.W.2d 747, 750-51 (Minn. App. 1987) (reviewing denial of motion for acquittal by deciding whether evidence was sufficient to sustain convictions).

"Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences from those facts, a jury could reasonably conclude that the defendant committed the crime charged."  State v. Pinkerton, 628 N.W.2d 159, 162 (Minn. App. 2001), review denied (Minn. July 24, 2001).  This court must view the evidence in the light most favorable to the verdict and assume that the jury believed the state's witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (stating in reviewing claim of insufficient evidence, this court must view evidence in light most favorable to the verdict and assume that jury believed state's witnesses and disbelieved contradictory evidence).

"[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).  But circumstantial evidence "is entitled to as much weight as other kinds of evidence."  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  "The circumstantial evidence must form a complete chain which, in light 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."  Id. (quotation omitted).

A person is guilty of first-degree controlled-substance crime if he "unlawfully possesses one or more mixtures of a total weight of 25 grams or more containing . . . methamphetamine."  Minn. Stat. § 152.021, subd. 2(1) (2000).

Appellant argues that, in light of Morlan's testimony, the evidence was insufficient to prove that appellant possessed the methamphetamine found in the glove compartment of his vehicle.  "A person is guilty of possession of a controlled substance if [he or] she knew the nature of the substance and either physically or constructively possessed it."  State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000), review denied (Minn. June 13, 2000).  An individual may constructively possess a controlled substance alone or with others.  Id.  When the controlled substance is not in a place under defendant's exclusive control to which other people did not normally have access, constructive possession requires a showing that "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).  This court looks to the totality of the circumstances in determining whether constructive possession has been proved.  Denison, 607 N.W.2d at 800.

Appellant's argument assumes the credibility of Morlan's testimony.  The fact that the jury found appellant not guilty of first-degree possession of methamphetamine does not mean that the evidence was insufficient to convict him of that offense.  Under the standard of review applicable to a sufficiency-of-the-evidence challenge, the court is not required to accept a defendant's theory of the case.  See State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (stating "[t]he jury has no obligation to believe a defendant's story."); State v. Simon, 275 N.W.2d 51, 52 (1979) (stating jury could have accepted defense explanation that defendant's cotenant put LSD in defendant's bedroom without his knowledge or permission but jury was not bound to do so).

The state presented the following evidence:  three containers containing methamphetamine with a total weight of 25.31 grams were found in the glove compartment of appellant's vehicle; a Tupperware container containing 3.3 grams of methamphetamine was found on appellant's person; Waterbury had made arrangements to purchase methamphetamine from appellant; Waterbury had previously purchased methamphetamine from appellant; although Waterbury had previously met Morlan, he had never purchased methamphetamine from him; appellant's fingerprint was on the baggie containing 23.4 grams of methamphetamine; and Morlan initially told police he knew nothing about the methamphetamine in appellant's vehicle.

Viewing the evidence in the light most favorable to the state, we conclude that the evidence excludes beyond a reasonable doubt any reasonable inference other than that appellant constructively possessed the methamphetamine found in the glove compartment of his vehicle.  See State v. Cusick, 387 N.W.2d 179, 180-81 (Minn. 1986) (stating sufficient evidence existed to establish constructive possession where police discovered cocaine next to driver's wallet in front seat of car, even though driver's girlfriend owned car, used cocaine, and testified that cocaine was hers); see also Minn. Stat. § 152.028, subd. 2 (2000) (providing that "[t]he presence of a controlled substance in a passenger automobile permits the factfinder 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" and where the defendant is charged with violating section 152.021).

Because the evidence was sufficient to support a conviction of first-degree possession of methamphetamine, the district court did not err in denying appellant's motion for judgment of acquittal.  Based on this conclusion, we do not reach the remaining issues raised by the parties.

Affirmed.