This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


Joseph Michael Patnode,


Filed March 26, 2002


Parker, Judge*


Le Sueur County District Court

File No. K100118



Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, Lisa Needham (certified student attorney), 525 Park Street, Suite 500, St. Paul, MN 55103; and


Douglas J. Christian, LeSueur County Attorney, 65 South Park Avenue, P.O. Box 156, Le Center, MN 56057 (for respondent)


Kenneth M. Bottema, Stephen V. Grigsby, 210 North Second Street, Suite 50, Minneapolis, MN 55401 (for appellant)


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


U N P U B L I S H E D   O P I N I O N




Appellant Joseph Michael Patnode challenges his conviction for aiding and abetting the manufacture of methamphetamine.  Because there is insufficient evidence to show that appellant actively participated or was present in the residence when the illegal activity was occurring, we reverse.



            In February 2000, Le Sueur County police officers executed a search warrant for a residence owned by appellant, looking for evidence of the manufacture or possession of methamphetamine.  Appellant was not present when the search was initiated.

            The police found several items related to the manufacture of methamphetamine throughout the home and the garage, including a digital scale, red phosphorous, pseudoephedrine, methamphetamine, iodine crystals, acetone, and paint thinners.  The officers also found two bottles of inositol with appellant’s initials scrawled on the bottom,  and a red gas can with appellant’s initials by the handle and writing on it that stated, “not gas, don’t use.”  There is no evidence in the record revealing the content of the gasoline container.

            Present in the home while the search was conducted were Randy Cash, Tammy Jones, and two of her children.  Tammy Jones lived at the residence, renting from appellant.  During the search, appellant arrived at the residence and was arrested.  No methamphetamine was found on his person.

            At trial, the state presented expert testimony regarding the items found at the residence and how they were used in the process of manufacturing methamphetamine.  Appellant’s defense was that he was unaware that methamphetamine was being manufactured at the residence and that he did not live there on a daily basis.[1]  Appellant did not testify.

Randy Cash testified that he purchased iodine on two separate occasions at the request of Tammy Jones.  Cash also testified that he had been at the residence 10-15 times over a 12-month period and saw appellant there only once or twice.  He said that he once saw appellant standing in the garage when the garage door was open and that he may have seen him once in the kitchen.  Cash received favorable treatment from the state as part of a plea bargain.[2]

Another witness for the state testified that she purchased iodine on one occasion at Cash’s request.  She further testified that she never met appellant, nor would she even recognize him.

The officers found mail at the residence addressed to appellant.  Three bank statement envelopes were found in the garage, the most recent was postmarked October 26, 1999, almost four months prior to the search.  Two envelopes were found on the kitchen counter: one from an insurance company and the other containing registration information from the Department of Public Safety.  The postmarks on these envelopes were not evident in the transcript.

At the close of the state’s case-in-chief, appellant moved for a judgment of acquittal.  The district court dismissed a conspiracy to manufacture a controlled substance charge against appellant, and prior to charging the jury, the district court judge questioned whether to submit the aiding-and-abetting charge to the jury.  He acknowledged that it was a “real close question” as to whether the state had presented sufficient evidence from which the jury could make the necessary reasonable inferences to convict appellant on that charge.

The jury found appellant not guilty of possession of a controlled substance and guilty of aiding and abetting another person to commit a controlled substance crime in the first degree in violation of Minn. Stat. §§ 152.021, subd. 2a, and 609.05, subd. 1 (2000).  Appellant was sentenced to serve the presumptive sentence of 86 months in prison.  He appeals.



Appellant argues that the evidence of his guilt was legally insufficient to sustain his conviction.  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 did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing 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).

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 (2000).  A defendant is criminally liable for aiding and abetting if he or she played a knowing role in the crime and took no steps to “thwart its completion.”  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995).  But 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.”  Id. (citing State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993)).  While active participation in the offense’s overt act is not required, a person’s presence, companionship, and conduct before and after an offense are circumstances from which a person’s criminal intent may be inferred.  Id.  “To impose liability for aiding and abetting, the state must show that the defendant played a knowing role in the commission of the crime.”  State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000) (citation omitted).

There is no question that appellant’s conviction rests on circumstantial 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) (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.  To succeed in a challenge to a conviction based on circumstantial evidence, a convicted person must point to evidence within the record that is consistent with a rational theory other than guilt.  Ostrem, 535 N.W.2d at 923.  However, “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.”  Id. (citation omitted).

Appellant argues that the circumstantial evidence does not form a complete chain leading directly to his guilt.  Appellant points to the lack of testimony that he was ever present at any time when methamphetamine was being manufactured, or that he was even aware that it was being manufactured.  Similarly, there was no testimony as to when appellant was last at the house prior to his arrest.

            Appellant relies on State v. Kessler, wherein this court dismissed an aiding and abetting the manufacture of a controlled substance charge because the defendant took no “affirmative action” in the growing of marijuana plants.  State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991).  This court held that, to be convicted of aiding and abetting, some active participation or “affirmative action” is required; “passive approval” does not constitute criminal activity.  Id.   In Kessler, the defendant’s wife was growing marijuana on the parties’ jointly owned property.  Id. at 538.  Marijuana plants, seeds, grow lights, potting soil, paraphernalia, scales, a pipe, and zig-zag papers were found in common areas of the house and yard.  Id.  The defendant admitted awareness and knowledge of the contraband substance maintained at his house.  Id. at 541.  Nonetheless, because there was no evidence that the defendant cultivated the growing of the marijuana or took any affirmative action that evinced the requisite criminal intent to manufacture a controlled substance, this court ordered the charges related to the sale/manufacture of the marijuana dismissed.  Id. at 542.

Appellant denies any knowledge of the manufacturing of methamphetamine taking place at his property.  Further, no witness puts him at the scene when methamphetamine was actually being manufactured:  while Cash testified that he saw appellant once in the garage, nothing in the record establishes that any incriminating evidence was in the garage at that time.

The state attempts to differentiate Kessler by stating the marijuana was grown in isolated areas mostly outside the home, while the evidence of manufacturing methamphetamine in this case was found throughout the home.  However, the holding in Kessler is not dependent on where the controlled substance was manufactured.  Nor is appellant’s possession or ownership of the property where the methamphetamine was manufactured enough to sustain a conviction for aiding and abetting the manufacture of a controlled substance.  “[I]t requires some active participation to reach the requisite intent.”  Id. at 542.

The state argues that appellant actively aided and abetted the manufacture of methamphetamine by allowing his home to be used to manufacture the drug.  The state points to the pervasive chemical odor in the house at the time of appellant’s arrest, to the physical evidence found at the home, and to the existence of appellant’s initials on a beer cooler, on two bottles of inositol supplement, and on a red gasoline container.

Under Kessler, however, the mere existence of evidence of manufacturing methamphetamine is not enough to sustain a conviction for aiding and abetting the manufacture of methamphetamine.  The existence of the chemical odor, without testimony that appellant was recently or even regularly at the home, does not meet the requisite showing of active participation required under KesslerSee id. at 542 (discussing State v. Ulvinen, 313 N.W.2d 425, 528 (Minn. 1981), wherein the fact that defendant’s mother prevented his children from accidentally witnessing their father dismembering their mother’s body in the bathroom did not constitute the criminal intent required for aiding and abetting homicide).  Similarly, appellant’s initials on the items found in the home and garage are not the “active participation” required to show criminal intent.  Moreover, this evidence could also fit an hypothesis “other than guilt.”

Appellant concedes that he owns the property, so his occasional presence there is not particularly probative.  Nor would it be unusual for appellant to have stored personal property there.  The inositol found in the garage, which one narcotics officer testified was sometimes used as a cutting agent—a use that another officer said he had never heard of before—is an over-the-counter dietary supplement.  There were no receipts in evidence providing the date when the inositol supplement was purchased.

In sum, even if appellant was aware that methamphetamine was being manufactured in his home, without evidence of some affirmative action on his part, there is insufficient evidence to sustain his conviction of aiding and abetting that manufacture.  Missing is testimony placing him at the residence when the methamphetamine was being manufactured, or evidence that he actively participated in procuring the key ingredients to manufacture the methamphetamine.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1]  As presented by defense counsel in final argument.


[2] Charges against Cash for conspiring to manufacture a controlled substance were dismissed.