This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,


Jason Jeffry Fleischman,


Filed November 20, 2007


Lansing, Judge


Mille Lacs County District Court

File No. CR-05-1221


Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Jan Kolb, Mille Lacs County Attorney, Mille Lacs County Courthouse, 635 Second Street Southeast, Milaca, MN 56353 (for respondent)


John Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.


U N P U B L I S H E D   O P I N I O N


            A jury found Jason Fleischman guilty of possession of methamphetamine and conspiracy to manufacture methamphetamine.  Because the circumstantial evidence was inconsistent with any rational hypothesis except guilt, and the district court did not abuse its discretion when it denied a downward departure, we affirm.


            Investigators from the North Central Drug Task Force conducted surveillance of Jason Fleischman’s mobile home on May 5, 2005.  Fleischman lived in a single-wide trailer together with Megan Herrboldt and the couple’s three children.  Fleischman’s brother had also been living in the mobile home for several weeks.

            During the surveillance, investigators observed the brother spending several hours in a fish house outside the mobile home.  The investigators also observed Fleischman appearing to act as a lookout for his brother while pretending to work on a small engine.

            At one point, Herrboldt tapped on the door of the fish house and spoke to Fleischman’s brother after he opened the door four to six inches.  Later, when one of her children approached the fish house, Herrboldt called to the child and brought him back into the home.

            The investigators observed Fleischman’s brother engage in several other suspicious acts and, based on these observations, obtained a search warrant.  The next day, officers executed the warrant.  In the fish house, the officers discovered a methamphetamine lab and about 118 grams of liquid containing methamphetamine.  The chemical odor in the fish house was sufficiently strong that the officers had to wear protective gear to conduct the search.

            In the search of the mobile home, officers found drug paraphernalia, and Fleischman admitted to using methamphetamine.  He admitted that he was aware that a number of products used in the manufacturing process were in his home—lye, matchbooks, acetone, and brake cleaner—but he claimed to have legitimate uses for the products.  He also admitted to purchasing the matchbooks and that he “might have bought some brake cleaner.”  When asked if his brother was manufacturing methamphetamine, Fleischman stated, “Apparently.”  He also said that his brother was unable to make the manufacturing process work.

            The state charged Fleischman with child endangerment, manufacturing methamphetamine, possession of methamphetamine, possession of drug paraphernalia, attempt to manufacture methamphetamine, and conspiracy to manufacture methamphetamine.  Before trial, the state offered him a 48-month sentence in exchange for a guilty plea.  He rejected the plea bargain and proceeded to trial.  The jury acquitted him of the manufacturing and attempted-manufacturing charges but found him guilty of all other charges.

            Fleischman’s presumptive sentence was between 84 and 117 months.  At his sentencing hearing, he requested a downward departure and argued that the district court should grant his request because his brother, who had pleaded guilty to the more serious offense of manufacturing, received a downward departure that resulted in a 60-month sentence.  The district court rejected his request for a downward departure and imposed an 84-month sentence.

            Fleischman now appeals his conviction and his sentence.



            Jason Fleischman challenges the sufficiency of the evidence to support his convictions.  Evidence is sufficient to support a conviction if, given the facts in the record and the reasonable inferences drawn from those facts, a jury could reasonably conclude that the defendant committed the crime charged.  State v. Brown, 732 N.W.2d 625, 628 (Minn. 2007).  In evaluating the record, we view the evidence in the light most favorable to the jury’s verdict.  State v. Reed, 737 N.W.2d 572, 581 (Minn. 2007).  As a reviewing court, we assume that the fact-finder believed the state’s witnesses and rejected any contrary evidence.  State v. Jackson, 726 N.W.2d 454, 460 (Minn. 2007).

            Convictions based on circumstantial evidence warrant particular scrutiny.  State v. Bolstad, 686 N.W.2d 531, 539 (Minn. 2004).  The circumstantial evidence “must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.”  Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004) (quotation omitted).

            Conviction of conspiracy requires an agreement between two or more people to commit a crime and an overt act in furtherance of that agreement.  Minn. Stat. § 609.175, subd. 2 (2004).  An agreement must be shown by objective evidence, but the agreement need not amount to a formal agreement to commit a crime.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).

            When viewed in isolation, the facts suggesting that Fleischman is guilty could have innocent explanations.  But when viewed under the totality of the circumstances, the facts established by the state are inconsistent with any rational hypothesis except that of guilt.  Fleischman admitted using methamphetamine, and his statements to police indicated that he was familiar with how methamphetamine was manufactured.  He lived in a single-wide trailer on a fifty-foot by eighty-foot lot with five other people.  He told police officers that he never left the house except to purchase alcohol.  Under these circumstances, the jury would have to accept an extended series of implausible coincidences to conclude that Fleischman was not helping his brother manufacture methamphetamine.

            The fish house contained evidence that methamphetamine was being manufactured, and the manufacturing process produced a strong chemical odor.  The jury would have to conclude that, despite the close living arrangements, Fleischman never approached or entered the fish house.  Furthermore, the evidence shows that Herrboldt both approached the fish house and spoke with Fleischman’s brother through the slightly opened door, which would have exposed her to the strong chemical odor surrounding the fish house.  Thus, the jury would have to conclude that Herrboldt and Fleischman never discussed the highly unusual chemical odor. 

            The record indicates that Fleischman’s brother spent an extended period of time in the fish house.  The jury would have to conclude that Fleischman never checked on what his brother was doing during that time.  The evidence also suggests that, while his brother was inside the fish house, Fleischman pretended to work on a motor while acting as a lookout for his brother.  The jury would have to conclude that Fleischman really was working on the motor despite being observed watching the mobile-home park.  In addition, the jury would have to believe Fleischman’s claim that he had legitimate uses for the items that he purchased or had in the mobile home that are commonly used in the manufacture of methamphetamine.  Finally, the jury would have to believe that the police officer completely misinterpreted Fleischman’s statements after his arrest.

            When viewed as a whole, Fleischman’s version of events is not plausible, and given the evidence introduced by the state, it would be irrational to conclude that he did not agree to manufacture methamphetamine.  Unlike the facts in Hatfield, the circumstantial evidence does not consist of only a single transaction in which a defendant accompanied an innocent courier and had a plausible, innocent explanation of the situation.  639 N.W.2d at 376-77.  The volume and nature of the circumstances pointing to knowledgeable culpability is too great to be reasonably attributable to any rational hypothesis other than guilt.  On this record the evidence was sufficient to permit the jury to conclude that Fleischman entered into an agreement with his brother to manufacture methamphetamine.

            Fleischman also argues that the evidence was insufficient to show that he constructively possessed the methamphetamine in the fish house.  A person constructively possesses an item if (1) the substance was in a place under defendant’s exclusive control or (2) there is a strong probability that the defendant was “consciously exercising dominion and control over it.”  State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).  Fleischman argues that he did not have exclusive control of the fish house and that the evidence fails to show that he was exercising dominion and control over the methamphetamine.

            Sufficient evidence establishes that Fleischman was involved in a conspiracy to manufacture the methamphetamine.  The record provides direct evidence that methamphetamine was manufactured and kept at his home and that he acted as a lookout during the manufacturing.  From this evidence, the jury could find a strong probability that Fleischman was consciously exercising dominion and control over the methamphetamine in the fish house.  Therefore, the evidence was sufficient to support both the conspiracy and the possession convictions.


Minnesota has a “public policy of achieving uniformity in sentencing.”  State v. Maurstad, 733 N.W.2d 141, 146 (Minn. 2007).  Because of this policy, a sentencing departure cannot be based on a plea bargain.  State v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002).  The sentencing guidelines also recognize the fundamental principle that a defendant cannot be punished for the exercise of constitutional rights, including the right to a jury trial.  Minn. Sent. Guidelines II.D.1.e.

We review decisions on sentencing departures for an abuse of discretion.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  Only a rare case will warrant reversing a district court’s refusal to depart.  State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).  Our previous reversals have been limited to only a few circumstances in which the record has demonstrated that the district court incorrectly believed it was constrained from exercising its discretion or otherwise failed to do so.  See, e.g., State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002) (reversing when district court refused to consider downward departure), review denied (Minn. Apr. 16, 2002).  When the district court denies a departure motion, it is not required to provide an explanation.  State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).

According to Fleischman’s argument, he should have received the same downward departure that his brother received.  He argues that his brother, who accepted a plea bargain, engaged in more culpable conduct and was convicted of a more serious offense.  Fleischman therefore concludes that the district court’s departure decision improperly punished him for exercising his right to a jury trial.

            The Minnesota Supreme Court considered and rejected a similar argument in State v. Vazquez, 330 N.W.2d 110, 111 (Minn. 1983).  In Vazquez, the defendant was convicted for “participating with friends of his in the gang rape of an 18-year-old woman.”  Id.  A codefendant pleaded guilty and received the presumptive sentence.  Id.  The defendant in Vazquez went to trial and received a double upward sentencing departure.  Id.  The supreme court concluded that this was consistent with the goal of uniformity in sentencing:

[O]ne must bear in mind that equality and fairness in sentencing involve more than comparing the sentence the appealing defendant received with the sentence his accomplices received.  It also involves comparing the sentence of the defendant with those of other offenders.


Id. at 112.  The supreme court noted that the codefendant’s sentence was too lenient and that “[r]educing defendant’s sentence would be to compound the error rather than to limit it.”  Id. at 113.  Under the reasoning of Vazquez, Fleischman’s sentence could be longer than his brother’s sentence and still be consistent with the goal of achieving overall uniformity in sentencing.  Thus, the disparity does not conclusively establish that Fleischman was punished for exercising his right to a jury trial. 

Similarly, the disparity in sentencing is consistent with the Misquadace requirement that departures must be justified by reasons other than the plea bargain.  If his brother’s downward departure was unwarranted, then the goal of uniformity in sentencing does not compel the district court to allow Fleischman to benefit from the error.  Vazquez, 330 N.W.2d at 113.  If his brother’s downward departure was warranted, then the goal of uniformity requires a factual demonstration that a downward departure would be similarly proper for Fleischman.  Thus, his brother’s downward departure does not—by itself—provide a reason to grant Fleischman a downward departure.  On appeal, Fleischman has not provided any other argument in favor of granting a downward departure.  Accordingly, we cannot conclude that the district court abused its discretion when it denied Fleischman’s request.