This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-1728

 

 

State of Minnesota,

Respondent,

 

vs.

 

William Donovan Gasta,

Appellant.

 

 

Filed June 12, 2001

Affirmed in part, reversed in part, and remanded

Hanson, Judge

 

Meeker County District Court

File No. K799923

 

Michael A. Hatch, Minnesota Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Michael J. Thompson, Meeker County Attorney, Courthouse, 325 N. Sibley Avenue, Litchfield, MN 55355 (for respondent) 

 

Theodora Gaitas, Assistant State Public Defender, Office of the Minnesota State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.

 


U N P U B L I S H E D  O P I N I O N

 

HANSON, Judge

           

In this appeal from convictions of first-degree sale and second- and fifth-degree possession of a controlled substance, appellant argues that there was insufficient evidence to prove that he had any connection to the sale or possession of the methamphetamine that was sold from or found in a residence that he owned but rented to his girlfriend.  We affirm in part, reverse in part, and remand for resentencing.

FACTS

 

Appellant William Donovan Gasta owns an old gas station building in Kingston, Minnesota.  Gasta converted the station into a small residence and car-repair garage.  Linda Olson lived with Gasta for six months while they were romantically involved.  Eventually, Gasta moved out.  Olson stayed at the residence and paid Gasta $275 in rent every month.  Gasta still stayed with Olson one or two nights a week, and kept some articles of clothing in Olson’s dresser.

In November 1999, a confidential informant (CI) provided information to the Wright County Drug Task Force that Olson was conducting amphetamine sales from the residence.  After receiving this information, the CI was fitted with a body wire and was sent to purchase drugs from Olson.  The CI purchased a half-gram of methamphetamine from Olson for $50.  Gasta was not present during this sale.

A search warrant was executed the following day.  The search warrant was for a search of the residence portion of the building and Olson.  The police encountered Gasta in the garage portion of the gas station.  An officer informed Gasta that they were searching for methamphetamine.  Gasta responded “Linda pays me rent.”  The search of Gasta revealed no drugs or money on his person. 

Officers then entered the residence portion of the gas station and encountered Olson in the kitchen.  Officers searched Olson’s person and found a yellow tin containing several bindles of methamphetamine and two copper-colored keys.  The keys opened a lock-box that was stored under the bed and contained methamphetamine, a straw, a roll of cellophane tape, and some plastic bags.

In a corner cabinet, near the bed, officers found razor blades, a pill bottle and a gram scale.  Officers found other tins under the bed containing packaging materials, rolling papers, a gram scale, a roach clip and a light bulb.  On the floor near the bed, officers found a small container, approximately the size of a hockey puck, which contained marijuana.  In a nightstand, officers found a book of law-enforcement radio codes, a book entitled “Guidelines for Narcotics and Dangerous Drug Handling,” a dugout, four scales and razor blades. 

In one dresser that contained both men’s and women’s clothing, officers found a container that held six packages of methamphetamine and a purse with approximately $3,000 in cash.  In a second dresser, containing both men’s and women’s clothing, officers found Gasta’s 1998 fishing license, a check in the amount of $100 made out to Gasta and $48 cash, including a $10 bill used in the controlled sale.  The officers also found an agate and two lines of methamphetamine, razors, a spoon and a drug pipe in this area.

During the search, the residential telephone rang, and Officer Rebecca Howell answered it.  The caller identified herself as “Helen,” and asked for Linda Olson.  The officer told “Helen” that Linda went to the store and that  “Bill is outside.”  “Helen” then stated that she was coming to get some bags of clothing.  The officer asked “Helen” “How many outfits do you need, one or two?”  “Helen” replied, “Well, I don’t understand.  I just—Linda said it was bagged up.  I am going to stop by for a gram.”  The officers removed their marked cars from sight and “Helen” arrived approximately 15 minutes later.  An officer searched her and found $60 and methamphetamine in her pocket.

Laboratory tests revealed that the officers found a total of 13.36 grams of methamphetamine, five grams of amphetamine, and 30.9 grams of marijuana during the search of the gas station.

The state charged Gasta with first-degree sale of a controlled substance, in violation of Minn. Stat. § 152.021, subds. 1(1), 3(a) (1998), and possession of small amounts of marijuana, in violation of Minn. Stat. §152.027, subd. 4(a) (1998).  At trial, the district court decided to submit the lesser-included offenses of second-degree possession of a controlled substance, in violation of Minn. Stat. § 152.022, subd. 2(1) (1998), and fifth-degree possession of a controlled substance, in violation of Minn. Stat. § 152.025, subd. 2(1) (1998).

Olson testified on Gasta’s behalf.  She stated that Gasta did not live with her, but acknowledged that he would stay with her a few times a week.  Olson explained that Gasta’s clothing was in her dresser drawers because she would do his laundry for him.  Olson testified that the methamphetamine was not Gasta’s.  Gasta also testified that the drugs did not belong to him.

A jury found Gasta guilty of first-degree sale and second- and fifth-degree possession of a controlled substance.  Gasta moved for judgment of acquittal, which the district court denied.  The district court sentenced Gasta to an executed sentence of 86 months, the presumptive sentence for a severity-level-eight offense committed by a person with a criminal-history score of zero.  This appeal followed.

D E C I S I O N

In reviewing a challenge to the sufficiency of the evidence, the appellate court views the evidence in a light most favorable to the conviction.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  A verdict will not be disturbed

[i]f the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that defendant was proven guilty * * * .

 

State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 632 (1965) (citation omitted).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).

I.         

            Gasta argues that there was insufficient evidence to sustain his conviction of possession of a controlled substance.  In order to support a conviction of unlawful possession of a controlled substance, the state must prove that the “defendant consciously possessed, either physically or constructively, the substance and that defendant had actual knowledge of the nature of the substance.”  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (citation omitted).  Here, there is no evidence that Gasta physically possessed a controlled substance.  Thus, we must determine whether there was sufficient evidence that Gasta constructively possessed it.

The purpose of the constructive-possession doctrine is to include within the possession statute those cases where the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it up to the time of arrest.

 

Florine, 303 Minn. at 104-05, 226 N.W.2d at 610.  To establish constructive possession the state must show: (1) that the police found the substance in an area that was under defendant’s exclusive control and as to which others would not normally have access, or (2) if the substance was found in an area where others did have access; there is a strong probability that the defendant was consciously exercising dominion and control over the substance.  303 Minn. at 105, 226 N.W.2d at 611.

Minnesota courts have addressed the issue of sufficiency of the evidence to establish constructive possession of drugs in a number of cases.  See, e.g., State v. Lorenz, 368 N.W.2d 284, 288 (Minn. 1985) (holding that the fact that cocaine was discovered in defendant’s dresser in his bedroom in apartment he shared with another was sufficient to establish defendant’s constructive possession of cocaine; marijuana discovered in a common area of apartment was also sufficiently connected to defendant); State v. Maldonado, 322 N.W.2d 349, 353 (Minn. 1982) (upholding conviction for possession of marijuana found under driver’s seat in truck owned and driven by defendant, in which there were passengers and from which defendant fled when police approached); State v. Carr, 311 Minn. 161, 163, 249 N.W.2d 443, 444-45 (1976) (affirming conviction of possession of controlled substance where drugs found in common area of apartment that defendant shared with another and where defendant rushed to area where drugs were found when police raid ensued); Florine, 303 Minn. at 105, 226 N.W.2d at 611 (1975) (affirming conviction of possession of cocaine and marijuana where marijuana was found in the trunk of an abandoned car that was entrusted to defendant and cocaine was found on top of defendant’s notebook in the car’s back seat). 

Following this line of cases, we conclude that there is sufficient evidence to support the inference that Gasta exercised dominion and control over the methamphetamine found in the bedroom.  Gasta and Olson were the only persons at the gas station at the time of the raid.  Although Gasta may not have lived at the residence, he was the owner, he had formerly lived there and items were found linking him currently to the residence, including his clothing, a check written out to him and his fishing license.  Further, these items were found in close proximity to controlled substances.  Given the totality of the circumstances, the jury could reasonably have found that Gasta constructively possessed the methamphetamine.  State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000) (court looks to totality of circumstances in assessing constructive possession).

II.

Gasta also argues that the state did not present sufficient evidence to sustain its burden of proof that he aided and abetted the sale of a controlled substance.  To be convicted of first-degree sale of a controlled substance, the state must prove beyond a reasonable doubt that the defendant, on one or more occasions within a 90-day period, unlawfully sold one or more mixtures of a total weight of 10 grams or more containing cocaine, heroin or methamphetamine, and that the defendant knew or should have known that the substance was a controlled substance.  Minn. Stat. § 152.021, subd. 1 (1998).  

A person may be held liable for another’s crime “if the person intentionally aids, advises, hires, counsels or conspires with * * * the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (1998).  Mere presence at the crime scene does not alone prove that a person aided or abetted, because inaction, knowledge or passive acquiescence does not rise to the level of criminal culpability.  State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993).  A conviction on charges of aiding and abetting cannot be based on failure to disclose or mere knowledge of the event.  State v. McKenzie, 532 N.W.2d 210, 222 (Minn. 1995); State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981) (holding that mere inaction or passive approval is insufficient to impose liability for aiding and abetting).  Rather, the state must present evidence of active participation to prove the requisite intent to sell a controlled substance.  State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991).  Additionally, when a conviction is based entirely on circumstantial evidence, “the circumstantial evidence must do more than give rise to suspicion of guilt; it must point unerringly to the accused’s guilt.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (quotation omitted).

The state argues that Gasta’s intent to aid and abet Olson in the sale of methamphetamine could be inferred from three facts: (1) Gasta resided part-time with Olson in a small residence that contained controlled substances in several locations; (2) controlled substances were found in close proximity to Gasta’s clothes and other personal items; and (3) Gasta took no steps to thwart Olson’s possession or sale of the drugs.  While this evidence is sufficient to prove possession, it is insufficient to sustain the state’s burden to prove Gasta’s intent to aid and abet the sale.

            Gasta was not involved in the controlled buy conducted by the CI.  There is no eyewitness testimony that Gasta was present during any sale of methamphetamine.  The phone call made by “Helen” during the execution of the search warrant asked for Olson, not Gasta.  While it appears that Gasta may have known that Olson sold drugs, there is no evidence that Gasta was actively involved in any sale.  In reversing a conviction of aiding and abetting the sale of a controlled substance, this court in Kessler stated:

The complaint and its attachment made no claim that Kessler took any affirmative action which evinces intent to manufacture or sell a controlled substance. * * * While knowledge and acquiescence are pertinent to show his possession, we think it is clear from the supreme court’s holdings * * * that some active participation is required to aid and abet an “active” crime.

 

470 N.W.2d at 542.  Those observations apply equally here.  Accordingly, we reverse Gasta’s conviction of aiding and abetting the sale of controlled substances and remand for resentencing on the possession convictions.

            Affirmed in part, reversed in part, and remanded.