This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-98-935

State of Minnesota,

Respondent,

vs.

Justine Emile Ford,

Appellant.

Filed March 23, 1999

Affirmed

Kalitowski, Judge

Ramsey County District Court

File No. KX972973

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center-West, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Paul C. Thissen, Assistant State Public Defender, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

After a trial to the court, appellant Justine Emile Ford challenges his conviction of fifth-degree possession of a controlled substance, arguing the evidence was insufficient to support the conviction. We affirm.

D E C I S I O N

In reviewing a claim based on sufficiency of the evidence, appellate courts are limited to determining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, the fact-finder could reasonably conclude the defendant was guilty of the offense charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). Absent a clear abuse of discretion, the trial court is considered the best judge of witness credibility. State v. Davis, 422 N.W.2d 296, 300 (Minn. App. 1988). The record must be reviewed in the light most favorable to the decision, and this court must assume the fact-finder believed the evidence supporting the conviction and disbelieved the contrary evidence. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

To convict a defendant of unlawful possession of a controlled substance, the state must prove the defendant consciously possessed the substance either physically or constructively, and the defendant had actual knowledge of the nature of the substance. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). Here, the arresting officer saw appellant drop a tissue to the ground, which later was found to have a plastic package containing cocaine wrapped in it. Because the district court found appellant had actual possession of the cocaine, the issue is not, as appellant argues, whether he constructively possessed the cocaine as it lay on the ground, but rather, whether appellant was in physical possession of the cocaine and dropped it.

Appellant argues the evidence in the record is insufficient to show he physically possessed the cocaine. We disagree. The arresting officer testified that: (1) as he approached appellant he saw appellant drop a tissue from his left hand; and (2) he picked up the tissue and found a plastic package containing cocaine wrapped in it. The fact that appellant dropped the cocaine upon seeing a police officer raises an inference that appellant knew he possessed cocaine. Thus, given the officer's testimony and the legitimate inferences that can be drawn from that testimony, the district court could have reasonably concluded appellant was guilty of a controlled substance crime in the fifth degree.

Appellant also contends the evidence of possession was insufficient because the arresting officer's testimony was inconsistent as to whether he monitored the tissue between the time it was dropped and the time the officer picked it up, and therefore the other person present at the scene could have placed the cocaine in the tissue. We disagree. The fact-finder is free to accept part of a witness's testimony and reject other parts. State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977). Here, the district court apparently accepted the officer's testimony that no one could have tampered with the tissue because the officer placed the other person in the squad car before, rather than after, engaging in a physical altercation with appellant.

Viewing the facts in the light most favorable to the conviction, the district court could reasonably conclude from the facts in the record and the legitimate inferences to be drawn from those facts that appellant consciously, and with actual knowledge, possessed cocaine.

Affirmed.