This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1681

 

 

State of Minnesota,

Respondent,

 

vs.

 

Julie K. Miller,

Appellant.

 

 

Filed November 14, 2006

Reversed; motion denied

Klaphake, Judge

 

Wabasha County District Court

File No. K2-04-202

 

 

Mike Hatch, Attorney General, Manuel J. Cervantes, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

James C. Nordstrom, Wabasha County Attorney, Wabasha County Courthouse, 625 Jefferson Avenue, Wabasha, MN  55981 (for respondent)

 

John M. Stuart, State Public Defender, Jane E. Rydholm, Special Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Minge, 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

KLAPHAKE, Judge

            Appellant Julie K. Miller challenges her conviction for first-degree controlled substance offense, arguing that the evidence was insufficient to support her conviction for manufacturing methamphetamine.  We conclude that even when viewing the evidence in the light most favorable to the conviction, the record evidence is insufficient to permit the jury to reach a guilty verdict.  We therefore reverse appellant’s conviction.

D E C I S I O N

            In a challenge to the sufficiency of the evidence, this court is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach their verdict.”  State v. Hatfield, 639 N.W.2d 372, 375 (Minn. 2002).  The reviewing court may not retry facts, but must assume that the jury believed the state’s witnesses and disbelieved contradictory testimony.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). 

            We give a conviction based on circumstantial evidence greater scrutiny but give circumstantial evidence the same weight as direct evidence, so long as it is consistent with the finding of guilt and inconsistent with any other rational hypothesis.  State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).  The supreme court stated the test as “not whether reasonable doubt existed, but whether there was sufficient evidence for a jury to reasonably conclude that no reasonable doubt existed.”  Id.

            Appellant was convicted of first-degree controlled substance crime, manufacturing methamphetamine.  Minn. Stat. § 152.021, subd. 2a (Supp. 2003).  “Manufacturing” includes “the production, cultivation, quality control, and standardization by mechanical, physical, chemical, or pharmaceutical means, packing, repacking, tableting, encapsulating, labeling, relabeling, filling, or by other process, of drugs.”  Minn. Stat. § 152.01, subd. 7 (2004).  A person may be held liable for another’s crime if said person “intentionally aids, advises, hires, counsels, or conspires with . . . the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (2004). 

            The state relies on the following evidence to support appellant’s conviction: (1) appellant lived in the trailer where deputies found her co-defendant, Dirk Alan Hartwig, manufacturing methamphetamine; (2) after appellant was placed in the squad car, she smelled strongly enough of anhydrous ammonia, so the odor lingered in the squad car; (3) appellant had two “foilies,” aluminum foil with a burnt residue, in her purse; and (4) when asked by deputies, appellant lied about knowing where Hartwig was.  Although Hartwig was apparently actively manufacturing methamphetamine at the time, appellant was not in the trailer where Hartwig was apprehended but was stopped elsewhere on the property.  

            Active participation in the overt act of manufacturing is not required in order to sustain a conviction for manufacturing methamphetamine.  See State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991) (discussing aiding and abetting sale or manufacture of marijuana).  But some active participation is required in order to reach the requisite intent.  Id.  Mere presence at a 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. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995).  There is not sufficient evidence in this record that appellant did more than passively acquiesce to Hartwig’s active role in manufacturing methamphetamine. 

            We therefore conclude that there is insufficient evidence to sustain appellant’s conviction for manufacturing methamphetamine and reverse her conviction.  In light of our decision here, we deny appellant’s motion to strike a sentence in the state’s brief.  Further, we need not address the issues raised in appellant’s pro se brief.

            Reversed; motion denied.