This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




State of Minnesota,



Roger Mark Molstad,


Filed February 10, 1998


Randall, Judge

Carlton County District Court

File No. KX-96-59

Hubert H. Humphrey III, Attorney General, Hilary Lindell Caligiuri, Assistant Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Marvin E. Ketola, Carlton County Attorney, 202 Court House, P.O. Box 300, Carlton, MN 55718-0300 (for respondent)

John S. Lind, 920 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.[*]



Appellant challenges his conviction for a controlled substance crime in the fifth degree by challenging the sufficiency of the evidence. Appellant alleges that the prosecution failed to prove that appellant possessed the felony amount of marijuana because the prosecution did not establish that the BCA excluded the marijuana stalks before taking the weight measurement. We affirm.


Appellant Roger Mark Molstad was involved in a one-car rollover accident in Cloquet, Minnesota. When police arrived on the scene, they determined that appellant appeared under the influence of alcohol due to his unsteadiness when walking, his struggle to keep balance, his slurred speech, the odor of alcohol, and his bloodshot and watery eyes. The officers arrested appellant, who refused to take a blood-alcohol concentration test or perform any physical dexterity tests. When the officers at the jail asked appellant to empty his pockets, he produced a small plastic bag that contained green, leafy material that the officers recognized as marijuana.

During the inventory of appellant's pickup, the officer noticed a clear plastic bag protruding from the map pouch on the front passenger seat. The plastic bag contained five smaller plastic sandwich bags, each containing green, leafy matter that the officer believed to be marijuana. The large plastic bag also contained two measuring scales, a small pipe, and eight empty plastic sandwich bags. The officer marked all items and sent them to the Bureau of Criminal Apprehension (BCA) for testing.

The BCA results revealed that the bag found on appellant's person and the five bags found in the truck all contained marijuana. The single bag found on appellant contained 3.2 grams of marijuana; the five bags together contained 68.2 grams of marijuana. The officers thus retrieved 71.4 grams of marijuana from appellant and his truck.

Appellant was charged with a fifth-degree controlled substance crime, among other offenses. At the close of the state's case at trial, appellant moved for a directed verdict, contending the state had failed to meet its burden of proving that the total weight of marijuana found in appellant's possession did not include mature stalks. The court denied the motion on the basis that the substance found on appellant and in his truck was processed and packaged for sale and consumption. The court also noted that appellant had failed to make a pretrial demand for a BCA scientist to testify to the composition of the marijuana sample tested.

When appellant testified, he claimed that he was not the owner of the marijuana in the vehicle and offered, as an alternative explanation for its presence there, that he had lent his truck to a friend for the majority of the day.

After weighing the witness testimony and the circumstantial evidence, the district court found appellant guilty as charged. Appellant challenges only his controlled substance conviction in this appeal. Thus, the statutes at issue are Minn. Stat. §§ 152.01, subd. 16 (1996) (defining "small amount" of marijuana as less than 42.5 grams); 152.025, subd. 2 (1) (1996) (excluding small amount of marijuana from definition of fifth-degree controlled substance crime).


1. Weight of marijuana

When, as here, a defendant has waived his right to a jury trial, the findings of the district court are entitled to the same weight as a jury verdict. State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996). On review, this court must view the evidence in a light most favorable to the verdict and determine whether the district court could have reasonably found the defendant guilty of the crime charged after giving due regard to the presumption of the defendant's innocence and the state's burden of proving guilt beyond a reasonable doubt. State v. Knowlton, 383 N.W.2d 665, 669 (Minn. 1986).

Appellant was convicted of felony fifth-degree controlled substance crime by virtue of the fact that he was in possession of over 42.5 grams of marijuana. The weight of the controlled substance is a key element of the offense and must be proved beyond a reasonable doubt. State v. Robinson, 517 N.W.2d 336, 339 (Minn. 1994). Minnesota law defines marijuana as:

[A]ll parts of the plant of any species of the genus Cannabis, including all agronomical varieties, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

Minn. Stat. § 152.01, subd. 9 (1996) (emphasis added).

To establish appellant's guilt, the prosecution presented BCA forensic reports that identified 71.4 grams of marijuana as the contents of all bags confiscated from the truck and appellant's person.

Appellant contends his conviction should be reversed because the prosecution failed to prove that appellant possessed over 42.5 grams of marijuana, absent mature stalks. He alleges the BCA failed to separate out the stalks when weighing the marijuana at issue. Appellant bases his argument on this court's opinion in State v. Gallus, 481 N.W.2d 116, 119 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992). There, police confiscated entire marijuana plants from a defendant's residence and submitted them to the BCA for examination. Id. at 117. The BCA weighed the entire plants, including the flower tops, seeds, stems, and stalks to determine the amount of marijuana seized, despite the fact that the scientist knew that the mature stalk of a marijuana plant is not included in the statutory definition of "marijuana." Id. Gallus was charged with selling marijuana in violation of Minn. Stat. § 152.025, subd. 1(1). Id.

The district court in Gallus concluded that the statute would only be violated when a defendant possessed more than 42.5 grams of marijuana, excluding the weight of mature stalks of the marijuana plant. Id. at 117-18. Because the BCA had weighed the entire plants, including mature stalks, the court determined the state failed to show that Gallus had possessed more than 42.5 grams of marijuana, excluding mature stalks. Id. Consequently, the district court dismissed the criminal complaint. Id. at 118. This court affirmed, holding that the state had the burden to prove that a defendant was in possession of an amount of marijuana over the 42.5-gram statutory threshold, excluding mature stalks. Id. at 120. We agree that based on its specific findings, Gallus was decided correctly.

Now, based on Gallus, appellant contends the state had the burden of proving at trial that the 71.4 grams of marijuana found on appellant and in his vehicle did not contain any mature marijuana stalks. We agree that the state has the entire burden of proving appellant's guilt; the prosecution cannot shift any of the burden onto a defendant to prove his innocence. State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993). We reject any inference from the district court that appellant had an obligation to produce a witness to prove the weight of the marijuana, excluding mature stalks. Appellant had every right not to call a BCA expert or other expert to examine the plant material and testify and still retain the presumption of innocence.

That said, however, we hold that the state met its burden of proving the confiscated marijuana weighed more than 42.5 grams, excluding mature stalks. Unlike the entire marijuana plants involved in Gallus, the marijuana in this case was already processed and in small bags ready for distribution and consumption. Unlike an entire plant, where the mature stalk of the plant is easily distinguishable from the leaves of the plant, the green, leafy mixture in the bags here contained small particles and did not lend itself to distinguishing between stalks and leaves. The record did not contain any evidence to suggest that the marijuana contained mature stalks. The record was simply silent.

But given the obvious distinction between the processed marijuana in this case and the whole plants involved in Gallus, the state met its burden of proving that appellant was in possession of over 42.5 grams of marijuana, exclusive of mature stalks. In the future, a district court or an appellate court might be faced with a fact situation where the alleged seller maintains that 100% mature stalks only, and nothing else, were chopped into tiny particles and passed off to unwitting buyers as the real thing. We do not have that claim by appellant here.

2. Sufficiency of the evidence

Appellant contends the record contains insufficient evidence to support his conviction of felony fifth-degree controlled substance crime. The prosecution based its case on circumstantial evidence. Circumstantial evidence is entitled to as much weight as any other kind of evidence. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). To sustain a conviction, circumstantial evidence must be consistent with the accused's guilt and must not support any rational or reasonable inference other than that of guilt. State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).

Appellant was convicted for unlawful possession of marijuana. The state had the burden of proving the defendant possessed the substance, either physically or constructively, and had actual knowledge of the nature of the substance. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). Constructive possession exists when police find a substance in a place that is under the defendant's exclusive control and normally inaccessible to others, or, if the substance is in a place where others have access, then the evidence suggests a strong probability that defendant was exercising control over the substance at the time he was caught with the goods. Id. at 105, 226 N.W.2d at 611.

Appellant contends that the evidence does not point unerringly toward him as the person in possession of the marijuana because he had lent his friend his vehicle for the day. Appellant claimed at trial that he never saw the large bag of marijuana in the pocket of the front seat until police showed it to him, thus suggesting that the friend left the marijuana concealed in the truck. To demonstrate his lack of knowledge of the large stash, appellant highlights the fact that he repeatedly asked the officers why he was being charged with a felony offense when he only had a small bag of marijuana (3.2 grams) in his pocket.

On review, this court must assume the fact-finder believed the state's evidence and disbelieved all contrary evidence. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). The fact that appellant offered a plausible alternative explanation of events did not compel the court to accept his version of the facts. State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987) (upholding district court's finding, based on circumstantial evidence, that defendant had intent to sell controlled substance despite fact that defendant claimed money belonged to girlfriend and drugs were for personal use), review denied (Minn. Jan. 15, 1988). Circumstantial evidence need not exclude all other possible theories of the crime, but must make them unreasonable. State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985).

The evidence here established that appellant was the only occupant and person in control of his vehicle at the time of the accident and immediately before the marijuana was found. The mere fact that he offered another explanation for the presence of the marijuana did not defeat the weight of circumstantial evidence that pointed to appellant's possession of the marijuana. The district court, in its role as fact-finder, had the right to weigh the credibility of conflicting testimony. The evidence is sufficient to sustain appellant's conviction.


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