This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-198

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony Walker,

Appellant.

 

Filed April 17, 2007

Affirmed
Klaphake, Judge

 

Benton County District Court

File No. K2-03-001031

 

Lori Swanson, Attorney General, Kimberly Ross Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Robert J. Raupp, Benton County Attorney, Courts Facility Building, 615 Highway 23, P.O. Box 189, Foley, MN  56329 (for respondent)

 

Keith M. Ellison, 2100 Plymouth Avenue North, Minneapolis, MN  55411 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Anthony Walker appeals from his conviction for first-degree possession of a controlled substance, arguing that the evidence was insufficient to sustain the conviction.  Because the evidence was sufficient to prove constructive possession, we affirm.

D E C I S I O N

            An appellate court reviews a claim of insufficiency of the evidence to ascertain whether “given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could conclude that the defendant was guilty of the offense charged.”  Bernhardt v. State, 684 N.W.2d 465, 476 (Minn. 2004) (quotation omitted).  “[W]e view the evidence in the light most favorable to the jury’s verdict and assume that the jury believed the state’s witnesses and disbelieved evidence to the contrary.  State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995) (quotations omitted).  If the defendant has waived a jury trial, the findings of the trial court are accorded the same weight as a jury verdict.  State v. Knowlton, 383 N.W.2d 665, 669 (Minn. 1986). 

            Appellant was charged with possession of more than 25 grams of cocaine, a first-degree controlled substance crime.  Minn. Stat. § 152.021, subd. 2(1) (2004).  Possession of a controlled substance may be proved either by actual physical possession of the drug or by constructive possession.  State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000), review denied (Minn. June 13, 2000). 

The purpose of the constructive possession doctrine is to include within the possession statute those cases where the state cannot prove actual or physical possession at the time of arrest, but where the inference is strong that the defendant at one time physically possessed the substance or exercised dominion or control over it. 

 

Id. at 799-800 (quotation omitted).  Constructive possession is proved by showing either that the drugs were found in an area under defendant’s control to which no other person normally had access; or by showing that despite the fact that others had access to the location, the defendant exercised dominion and control over the area.  Denison, 607 N.W.2d at 800.  This court looks at the totality of the circumstances to determine whether constructive possession has been proved.  Id.  A person may constructively possess a controlled substance alone or with others.  Id. at 799.

            Here, the following facts support appellant’s constructive possession of the cocaine:  (1) a controlled buy occurred at apartment 318 of the Wilson Apartments earlier in the day; (2) police maintained surveillance of the apartment building and the immediate vicinity from the time of the controlled buy until execution of the search warrant; (3) police observed appellant and two companions leave the building and approach a Ford Thunderbird parked outside (appellant’s two companions were identified as the participants in the controlled buy); (4) police observed appellant remove a tackle box from the trunk of the Thunderbird and apparently remove something from the tackle box; (5) although appellant’s companion, Martin Tipton, testified that appellant never went to the car and never had cocaine in his hand, pictures taken by the surveillance team show appellant at the car and apparently removing something; (6) Tipton testified that appellant was in the apartment while Tipton and Roderick Herron were cooking cocaine; alternatively, Tipton also said that appellant participated in the cooking process; (7) appellant was extremely belligerent during the search, which suggests that he may have had reason to be concerned about the search; and (8) cocaine was found in the tackle box in the trunk of the Thunderbird.

            These facts are largely circumstantial, rather than direct evidence of possession.  Circumstantial evidence is entitled to the same weight as direct evidence, but requires stricter scrutiny.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  As the supreme court explained:

A conviction based on circumstantial evidence will be upheld if the reasonable inferences drawn from the evidence are inconsistent with any rational hypothesis except that of the defendant’s guilt.  We look at the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit jurors to reach the verdict they did.  The evidence must form a complete chain that leads directly to the defendant’s guilt and makes any other theory unreasonable.  To succeed in a challenge to a conviction based upon circumstantial evidence, a convicted person must point to evidence within the record that is consistent with a rational theory other than guilt.  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.

 

State v. Gates, 615 N.W.2d 331, 337-38 (Minn. 2000) (quotations and citations omitted), rev’d in part on other grounds.  These facts are sufficient to form a complete chain that supports appellant’s conviction.

            The crime of possession of a controlled substance is charged under three different theories:  actual possession; constructive possession; or, infrequently, by alleging proof that the offender is liable for the crime by intentionally aiding, advising, hiring, counseling, or conspiring with another.  See State v. Lorenz, 368 N.W.2d 284, 287 (Minn. 1985) (analyzing sufficiency of evidence on theory of independent possession, joint possession, or aiding and abetting possession of controlled substance).  No matter which theory is used, the underlying charge is one of possession.  The district court found appellant guilty of aiding and abetting first-degree possession of a controlled substance. “Aiding and abetting” means that “[a] person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (2006).  We are troubled here because the facts of this case support a conviction for constructive possession, rather than aiding and abetting possession.  We urge the state to be more precise in its charge, rather than using the concept of aiding and abetting as a catch-all position.  However, because we conclude that the evidence is sufficient to sustain appellant’s conviction for first-degree possession of a controlled substance, we affirm.

            Affirmed.