This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).


State of Minnesota,


Brian Keith Grover,

Filed February 8, 2000
Halbrooks, Judge

Winona County District Court
File No. K5981552

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Charles Maclean, Winona County Attorney, Nancy L. Buytendorp, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Brian Grover challenges the trial courtís denial of his presentence motion to withdraw his guilty plea. Grover alleges that there was an inadequate factual basis to support the guilty plea and that the trial court erred in refusing to allow him to testify about his reasons for wanting to withdraw the plea. Because we find there was an adequate factual basis for his plea, and the trial court did not err in requiring Grover to present his reasons for withdrawing the plea through his attorney, we affirm.


Law enforcement officers searched appellant Brian Keith Groverís home and seized approximately 79.3 grams of cocaine from his basement. While he was incarcerated on the drug charges, Grover assaulted a jailer.

Grover later appeared at a plea hearing with his attorney and pleaded guilty to a controlled substance crime in the first degree and assault in the fourth degree. At the hearing, Grover stated that he and his girlfriend leased the main floor of his home. Another tenant lived upstairs. Grover and the upstairs tenant both had access to the main floor and the basement. The other tenant, however, could only access the basement through Groverís apartment. To Groverís knowledge, the other tenant had not gone through his apartment during the period of Groverís tenancy.

Grover admitted that the cocaine discovered by law enforcement was in the basement of his home. He also admitted that he saw the cocaine being brought into his home by another individual. He knew that the substance was cocaine and that it was illegal. He also admitted to having control over the things in his basement.

With regard to the assault charge, Grover acknowledged that he got into an argument with the jailer while he was incarcerated on the drug charges. Grover stated the jailer hit him and he hit the jailer back. He testified he put the jailer in a headlock and punched him a number of times before releasing him. Grover conceded that his actions went beyond what was necessary for self-defense.

Grover also acknowledged that he carefully read the plea petition, he went through the petition with his attorney, his attorney answered any questions he had, everything in the petition was true and accurate, and he signed the petition.

Based on Groverís pleas and the information in the complaint, the court adjudicated Grover guilty of a controlled-substance crime in the first degree and assault in the fourth degree.

Nine days after the plea hearing, Grover filed a motion and supporting affidavit to withdraw his guilty plea. In the affidavit, he stated he wanted to withdraw his guilty plea to the fourth-degree assault because he had understood that the only way he could plead guilty to the controlled-substance offense was to plead guilty to the assault charge as well.

At the hearing on the motion, defense counsel attempted to call Grover to the stand so that he could explain why he wanted to withdraw his guilty plea. The district court refused to allow Grover to testify. Defense counsel then told the court that he believed Grover wanted to withdraw his guilty plea because he had felt somewhat rushed, it was not a totally educated decision, and Grover had not realized all the consequences of the plea.

Defense counsel consulted with Grover and again told the court that Grover desired to speak to the court. The court refused to allow Grover to speak, but stated he could communicate through his counsel.

The court ultimately denied Groverís motion to withdraw his guilty plea, and Grover again asked to be allowed to speak for himself. Once again, the court refused the request, but invited Grover to consult with his attorney. After discussions off the record, defense counsel informed the court he had nothing additional to say.

Grover was sentenced in accordance with the plea agreement and this appeal followed.


On appeal, Grover contends the trial court made two errors in denying his motion to withdraw his guilty plea. He argues his plea was not accurate because there was an inadequate factual basis for his plea to the controlled-substance charge, and the trial court did not allow him to testify about his reasons for wanting to withdraw his plea on the assault charge.


In its discretion, the trial court may allow the defendant to withdraw a plea at anytime before sentence if it is fair and just to do so. Minn. R. Crim. P. 15.05, subd. 2. A trial court will be reversed only if the appellate court finds the court abused its discretion. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

In order to be valid, a guilty plea must be accurate, voluntary, and intelligent. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). The accuracy of a plea is assured by having an adequate factual basis. Id. at 251-52. The factual-basis requirement is satisfied if the record contains a showing that there is a credible evidence available which would support a jury verdict that defendant is guilty of at least as great a crime as that to which he or she pleaded guilty. State v. Genereux, 272 N.W.2d 33, 34 (Minn. 1978) (citations omitted). Here, Grover contends the factual basis is inadequate to support the plea to the first-degree controlled substance offense because there is no evidence in the record that he "consciously possessed" the controlled substance.

In State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975), the Minnesota Supreme Court held that to convict a defendant of possession of a controlled substance, the state must prove that the defendant "consciously possessed, either physically or constructively, the substance and that [the] defendant had actual knowledge of the nature of the substance." Id. (citation omitted). To establish constructive possession, the state must show:

(1) that the police found the substance in a place under [the] defendantís exclusive control to which other people did not normally have access, or (2) that, if police found it in a place to which others had access, there is a strong probability (inferable from other evidence) that [the] defendant was at the time consciously exercising dominion and control over it.

Id. at 105, 226 N.W.2d at 611 (citations omitted).

In this case, the basement was not under Groverís exclusive control as his girlfriend and another tenant also had access to it. Thus, the record must show "a strong probability" that Grover was "at the time consciously exercising dominion and control" over the substance. We conclude Groverís testimony at the plea hearing in conjunction with the information in the complaint is sufficient to support this conclusion. See Trott, 338 N.W.2d at 252 (stating the complaint forms part of the record and by pleading guilty the defendant "judicially [admits] the allegations contained in the complaint"). At the plea hearing Grover admitted that (1) he resided with his girlfriend at the home where the cocaine was found; (2) he had control over the basement; (3) law enforcement officers found and seized 79.3 grams of cocaine from the basement of his home; (4) he knew the substance was cocaine and that it was illegal; and (5) he was aware the drugs were brought into his home.

According to the complaint, Groverís girlfriend informed police she believed Grover was selling drugs. She stated she was aware there were frequent visitors who would briefly go into the bedroom with Grover. She also stated she purchased three boxes of sandwich bags for Grover and she knew he was going to use them to package cocaine. She also admitted driving Grover to a local bar where she believed he was selling cocaine.

While searching the home, Officer Swanson also found a large number of plastic bags in the kitchen garbage that had the corners torn off of them. Based on his experience, the officer knew the most common method of packaging crack cocaine for street sale in Winona is to place a small amount into the corner of a plastic bag, tie a knot above the crack, and then remove the rest of the bag from the corner. Thus, the record as a whole shows a strong probability that Grover exercised dominion and control over the cocaine found in the basement of his home. See, e.g., State v. Colsch, 284 N.W.2d 839, 841 (Minn. 1979) (holding defendant constructively possessed controlled substances found in a bedroom containing male and female clothing, as well as papers and a checkbook bearing defendantís name); State v. Simon, 275 N.W.2d 51, 52 (Minn. 1979) (holding defendant constructively possessed narcotics found, along with a passport, in his bedroom in a mobile home defendant jointly leased with a friend).


Grover contends the trial court erred in refusing to allow him to testify about his reasons for wanting to withdraw his guilty plea and contends the case should be remanded for an evidentiary hearing where he can testify about his reasons. In support of his argument, Grover relies on State v. Kaiser, 469 N.W.2d 316 (Minn. 1991).

In Kaiser, the defendant made a motion to withdraw his guilty plea because his attorney allegedly coerced him into pleading guilty. Id. at 318. At the motion hearing, the trial court denied the defendantís repeated requests to testify in support of his claim. Id. On appeal, the Minnesota Supreme Court held the trial court erred in refusing to allow defendant to testify. Id. at 319. It reasoned that deciding whether or not a defendant was coerced by his attorney into pleading guilty required the trial court to make findings of fact and the trial court could not fairly do that without allowing the defendant to testify. Id.

In this case, there is no claim that Groverís attorney coerced his plea. In fact, there is no evidence of any conflict between Grover and his counsel at the hearing on the plea withdrawal issue. While we may have reached a different decision and allowed Grover an opportunity to testify, we conclude Grover was given an adequate opportunity, through his counsel, to express his reasons for wanting to withdraw his plea, and the circumstances in Kaiser that required the defendantís testimony are not present in the instant case.

Grover claims his plea was (1) not voluntary because it was rushed, and (2) not "intelligent" (knowingly and understandingly made) because he did not know the collateral consequences of his decision. These are circumstances which the trial court could fairly evaluate without Groverís testimony. See generally State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994) (considering the circumstances surrounding defendantís plea, such as the thoroughness of the rule 15.01 inquiry, to determine whether there was sufficient evidence to support the trial courtís determination that defendantís plea was voluntary).