Cottonwood County District Court File No. 17-CR-11-93
The opinion of the court was delivered by: Connolly, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Bjorkman, Judge.
UNPUBLISHED OPINION CONNOLLY, Judge
Appellant argues that insufficient evidence supports his convictions of constructive possession of a controlled substance and conspiracy to manufacture methamphetamine. Because circumstantial evidence excludes beyond a reasonable doubt any reasonable inference other than appellant's guilt of constructive possession of methamphetamine and because the testimony of appellant's accomplices and the corroborating evidence supports an inference of conspiracy to manufacture methamphetamine, we affirm.
In February 2011, A.D. reported to the police that J.N. and Dan Henderson were purchasing pseudoephedrine for appellant Chanon Leigh Burke to use in the manufacture of methamphetamine. A.D. also reported seeing several items used to manufacture methamphetamine in the residence appellant shared with his girlfriend and seeing appellant give Henderson methamphetamine when she was with the two of them at Henderson's residence.
The execution of a search warrant for appellant's residence produced coffee filters with white residue later determined to contain methamphetamine, pieces of rubber hose or tubing, a device used for smoking methamphetamine or marijuana, and a jug of blue liquid inside the residence. The trash can outside the residence contained empty pseudoephedrine boxes, receipts for pseudoephedrine, a plastic bottle with a tube protruding from it, a plastic bottle with tinfoil inside it, broken batteries, battery packages, and burnt tinfoil.
At appellant's trial, a Bureau of Criminal Apprehension special agent testified as to how these items are used in the manufacture of methamphetamine. Henderson, Jessica Flaherty, and Judy Graft testified that they purchased pseudoephedrine for appellant in exchange for methamphetamine for their personal use.*fn1 A police officer testified that the pseudoephedrine logs from nine area pharmacies showed that these three people had purchased pseudoephedrine, as had J.N. and appellant's girlfriend.*fn2
The jury found appellant guilty of constructive possession of a controlled substance and of conspiracy to manufacture methamphetamine. He challenges his convictions on the ground of insufficient evidence.
1. Constructive possession
"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." State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002). "[T]he constructive possession doctrine permits a conviction where the state cannot prove actual possession, but the inference is strong that the defendant physically possessed the item at one time and did not abandon his possessory interest in it." State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). "Where drugs are found in a place to which others have access, constructive possession is proved when there is a strong probability (inferable from other evidence) that the defendant was at the time consciously exercising dominion and control over them." State v. Arnold, 794 N.W.2d 397, 401 (Minn. App. 2011) (quotation omitted). Appellate courts consider the totality of the circumstances in determining whether the state has established constructive possession. State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000), review denied (Minn. June 13, 2000).
Appellant's girlfriend, who also lived in his residence, did not appear for trial. Appellant argues that, because "no testimony was offered by the prosecution as to [her] involvement [with the methamphetamine] . . . there was no way for the jury to have a strong probability inferable from other evidence that appellant was exercising dominion and control over the methamphetamine found [in the residence]." But "[a] person may constructively possess a controlled substance alone or with others." Id.; see also State v. Dickey,__ N.W.2d __, __, 2013 WL 869650, at *2 (Minn. App. Mar. 11, 2013) (same).Thus, whether appellant's girlfriend also constructively possessed the methamphetamine is irrelevant to whether appellant constructively possessed it.
Appellant concedes that "the evidence does show . . . that [a]ppellant shared a residence or stayed at the residence sometimes" but also argues that "testimony was in dispute that [a]ppellant lived at the residence." This argument mischaracterizes the testimony of Henderson, Flaherty, Graft, and A.D.
Henderson answered "Yeah" when asked if he would recognize the house where appellant was living from December 2010 through February 2011; when shown a picture of the house, Henderson said "That's the house he [appellant] was staying at." Graft testified that she and her husband owned the residence. When asked who was living there on February 14, she answered that appellant's girlfriend and appellant lived there, adding that she knew "they were there in the winter because [appellant] blew snow there and at our house." Flaherty was asked if she knew where appellant lived on February 10, 2011, and answered, "Not exactly, no. I know where he was staying"; she also identified the picture of the house as "the residence where he was staying." A.D. answered "Yes" when asked if she knew where appellant lived in early February 2011; when shown a picture of appellant's residence and asked what it was, she said, "[Appellant's] house."
No one offered testimony contradicting the views that appellant resided in the house where the methamphetamine was found. A consideration of the totality of the circumstances demonstrates that the state established appellant's constructive possession of the methamphetamine. The circumstantial evidence was sufficient to exclude beyond a reasonable doubt any reasonable inference other than that of appellant's guilt of constructive possession of methamphetamine.
II. Conspiracy to manufacture methamphetamine
Proof of conspiracy to manufacture methamphetamine requires proof of an agreement between two or more people to manufacture methamphetamine and an overt act in furtherance of the conspiracy. State v. Tracy, 667 N.W.2d 141, 146 (Minn. App. 2003). When "several persons commit separate acts which form parts of a connected whole, an inference of conspiracy-that there was concert in both planning and execution-is permissible." State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943).
Appellant argues that, because there was no testimony that he was seen manufacturing methamphetamine or that he told people to purchase pseudoephedrine for him, the state failed to prove a conspiracy. But Henderson, Graft, and Flaherty testified that they and appellant committed acts that formed parts of a connected whole, i.e., the manufacture of methamphetamine, and other evidence corroborates their testimony. See Minn. Stat. § 634.04 (2012) ("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."); Turnage v. State, 708 N.W.2d 535, 543 (Minn. 2006) (noting that appellate courts review the sufficiency of corroborating evidence for accomplice testimony in the light most favorable to the verdict and resolve all conflicts in favor of the verdict).
Henderson, Graft, and Flaherty all provided accomplice testimony, and their testimony was corroborated by both A.D.'s testimony and the pseudoephedrine logs from the pharmacies.
Q. Did [appellant] ever ask you to purchase anything for him?
A. To make methamphetamine.
Q. Did you purchase pseudoephedrine for him?
Q. How many times would you have done this?
Q. And where would you have done this? . . . .
A. The pharmacy in Jackson and Wal-Mart in Worthington.
. . . . Q. . . . [W]hy did you purchase the Pseuoephedrine pills for him?
A. To get some meth. . . . .
Q. Have you seen [appellant] ask others to purchase ...