This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,


Kenneth Lee Greywind, Jr.,



Filed March 26, 2002


Peterson, Judge



Clay County District Court

File No. K300169



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


Lisa Borgen, Clay County Attorney, Courthouse, P.O. Box 280, Moorhead, MN  56561 (for respondent)


John Stuart, State Public Defender, Charles F. Clippert, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D    O P I N I O N


In this appeal from a conviction of fourth-degree controlled-substance crime (sale of marijuana in a park zone), appellant argues that the evidence was not sufficient to prove that he sold marijuana or possessed marijuana with intent to sell it.  We affirm.


            L.L. lived with his daughter in a mobile home near a park.  One evening while the daughter’s boyfriend was visiting, three men came to the door, and the boyfriend let them in.  One of the men was carrying a box.  L.L. did not know any of the men, and he could not remember which one was carrying the box.  The men followed the boyfriend into the daughter’s bedroom.  Between five and ten minutes later, they left without the box.  The daughter and her boyfriend left about 15 minutes later.  L.L. was suspicious, so he went into his daughter’s bedroom and found the box in her closet.  He opened the box and found bags of marijuana and a scale.  L.L. called the police. 

            Police came to the home and set up surveillance to see if anyone came to retrieve the box.  No one returned, and police seized the box.  Test results showed that the box contained 7.9 pounds of marijuana. 

            The police eventually learned that appellant Kenneth Lee Greywind and two other men might have been involved with the box.  The physical descriptions of the three men matched descriptions given by L.L. 

            The bags of marijuana found in the box were tested for fingerprints.  One of the 29 identifiable fingerprints matched Greywind’s print.  Police questioned Greywind, who at first denied handling any of the contents of the box.  After police confronted Greywind with the fingerprint-test results, Greywind admitted that he handled a bag containing hallucinogenic mushrooms.  Greywind claimed that he was at L.L.’s residence to buy mushrooms and admitted seeing the box and its contents, but he denied any involvement with the marijuana. 

            Greywind was charged with one count of fourth-degree controlled substance crime in violation of Minn. Stat. § 152.024, subd. 1(4) (1998) (sale of marijuana in a park zone).  At trial, a detective testified that the amount of marijuana found in the box was too large to be held for personal use and instead was held for sale.  A state trooper testified that the distance between the southwest corner of L.L.’s home and the northeast corner of a nearby city park was 236 feet. 

            Kenneth Birenbaum, Greywind’s cell mate at the county jail, testified that shortly before Greywind’s trial, Greywind discussed his case with Birenbaum.  Birenbaum testified as follows:

            Q:        * * * [D]id he talk to you about what he did * * * on that incident?


A:        Yeah.  He said that him and Sheldon had went there and went to the trailer house and in an apple box they had 20 bags of marijuana and they took them in and from what I gathered, his dad had or [L.L.] had answered the door and they went back in the bedroom and that’s when he said that we had wiped the bags off and put the marijuana into their bags and he also stated that there was a bag of mushrooms in there also.


Q:        And did he say who’s marijuana was brought in the trailer?


A:        He said we, our.


Q:        We, referring to him?


A:        Him and Sheldon, yes.


Q:        Did he say where they brought the marijuana from?


A:        Um, he said just way down south he says, Texas, you know.


* * * *


Q:        Did he say exactly what occurred in the trailer?


A:        * * * [T]hey took the box back into [L.L.’s daughter’s] bedroom and that’s where they’d taken part in wiping the bags, to wipe, he said wipe fingerprints off them, whatever, and put them, rebag them.


Q:        Rebag them?


A:        Yeah.


Q:        Well, did he elaborate on what he meant by rebag them?


A:        Putting it inside of other bags.


Birenbaum testified that several days before he was sentenced for drug-conspiracy charges, he contacted a detective regarding the discussion with Greywind, but he did not give the detective the information he had obtained from Greywind until after he was sentenced.  Birenbaum was not promised leniency in his sentencing in exchange for the information, but the Clay County Attorney’s office agreed to write a letter to the United States Attorney’s office stating that Birenbaum had cooperated concerning Greywind’s case.


In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must 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).  This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

  But 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) (citations omitted).  The 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.  Id.  As long as the circumstances proved satisfy this test, the circumstantial evidence is entitled to as much weight as any other kind of evidence.  State v. Race, 383 N.W.2d 656, 661 (Minn. 1986).

Inconsistencies in the state’s case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.


State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (citation omitted).

Minn. Stat. § 152.024, subd. 1(4) (1998), provides:

A person is guilty of controlled substance crime in the fourth degree if: * * *


            (4) the person unlawfully sells any amount of marijuana * * * in * * *  a park zone * * * except a small amount for no remuneration.” 


            When used in Minn. Stat. § 152.024, subd. 1(4), “sell” means to possess with intent to sell, give away, barter, deliver, exchange, distribute, or dispose of to another.  Minn. Stat. § 152.01, subds. 1, 15a(3) (1998).  “‘Park zone’ includes the area within 300 feet * * * of the park boundary.” Minn. Stat. § 152.01, subd. 12a (1998).

A person is guilty of possession of a controlled substance if he or she knows the nature of the substance, and either physically or constructively possesses it.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  An individual may constructively possess a controlled substance alone or with others.  State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000), review denied (Minn. June 13, 2000).  When, as here, 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.

Florine, 303 Minn. at 105, 226 N.W.2d at 611.  This court looks to the totality of the circumstances in determining whether constructive possession has been proved.  Denison, 607 N.W.2d at 800. 

There is sufficient evidence to conclude that Greywind possessed the marijuana with intent to sell, distribute, or dispose of it to another.  Birenbaum gave detailed testimony that Greywind admitted to possessing the marijuana and bringing it into L.L.’s residence.  Greywind admitted that he was present in the home when the box was there and that he handled one of the bags.  Also, Greywind’s fingerprint was found on one of the bags.

With respect to intent to sell, there was testimony by an officer that the amount of marijuana found in the box was typically not consistent with personal use, but instead was consistent with intent to sell.  Furthermore, Birenbaum testified that Greywind said that while he was in the bedroom, the marijuana was rebagged, which is further evidence that the marijuana was to be sold or distributed to another.

Greywind argues that Birenbaum’s testimony was not credible.  But determining the credibility of witnesses is the exclusive function of the jury.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  Viewing the evidence as a whole, and assuming, as we must, that the jury believed the state’s witnesses and disbelieved all contrary evidence, we conclude that the evidence excludes beyond a reasonable doubt any reasonable inference other than that Greywind possessed the marijuana in a park zone with intent to sell or distribute it to another.