This opinion will be unpublished and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

C0-98-1779

State of Minnesota,

Respondent,

vs.

Jorge Luis Gonzalez,

Appellant.

Filed May 18, 1999

Affirmed

Randall, Judge

Hennepin County District Court

File No. 97108886

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

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent),

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant).

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Huspeni, Judge[*].

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

RANDALL, Judge

Appellant argues that there is insufficient evidence to support his conviction of second-degree possession of a controlled substance. He claims that the state failed to prove that he constructively possessed the controlled substance. We affirm.

FACTS

On December 2, 1997, Minneapolis Police Officers Porras and Holland received information from a confidential reliable informant that a Hispanic male was suspected of transporting a quantity of cocaine in his vehicle, a white Chrysler with Illinois plate C425348. The officers then followed a vehicle matching the description to a motel in Minneapolis, where it stopped in the parking lot.[1] When the officers approached the vehicle on the driver's side, Officer Holland noticed appellant Jorge Luis Gonzalez, the driver, pull something from his right pants pocket. Officer Holland ordered Gonzalez out of the car and observed a plastic baggie containing what the officer believed to be cocaine lying on the right side of the driver's seat. Upon searching the passenger, Emerjirdo Duena-Carmona, the officers found five rocks of what was believed to be crack cocaine. Laboratory tests confirmed that the baggie contained 26 grams of cocaine and that the five rocks were crack cocaine.

Gonzalez was charged in Hennepin County District Court with a first-degree controlled substance crime. After waiving his right to a jury trial, Gonzalez was tried on stipulated facts for a second-degree controlled substance crime. The stipulated facts consist of the criminal complaint and the Minneapolis Police Department chemist's report. The district court found Gonzalez guilty of the lesser charge of second-degree possession of six or more grams of a controlled substance and sentenced him to 48 months in prison. This appeal follows.

D E C I S I O N

Gonzalez claims there is insufficient evidence as a matter of law to support his conviction of second-degree possession of a controlled substance. When there is a sufficiency of evidence challenge, the court must look to the facts in the record and legitimate inferences drawn therefrom to determine whether the evidence, viewed in the light most favorable to the verdict, was sufficient to support a guilty verdict. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). This standard of review applies to cases heard with or without a jury. State v. Hughes, 355 N.W.2d 500, 502 (Minn. App. 1984), review denied (Minn. Jan. 2 1985). While review of a conviction based on circumstantial evidence requires stricter scrutiny, such

evidence is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.

State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (citation omitted). It is still recognized in such situations that the trier of fact "is in the best position to evaluate the circumstantial evidence surrounding the crime." State v. Race, 383 N.W.2d 656, 662 (Minn. 1986) (citations omitted).

When the state is unable to prove actual possession, the conviction can be upheld if the state proves constructive possession. State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975). Constructive possession requires the state to prove that the substance (a) was found in a place that defendant had exclusive control over and to which others did not normally have access, or (b) while found in a place accessible to others, there is a high probability (inferable from other evidence) that defendant at the time consciously exercised dominion and control over it. Id. at 105, 226 N.W.2d at 611.

Gonzalez argues that because the baggie of cocaine was found on the right-hand side of the driver's seat, accessible to both the driver and passenger, and because the passenger was later found to have possession of five rocks of crack, it is rational to conclude that the baggie of cocaine belonged to the passenger instead of Gonzalez. Gonzalez further contends that in addition to failing to prove his exclusive control over the cocaine, the state failed to show a strong probability that he consciously exercised dominion and control over the cocaine when it was found, thereby failing to prove constructive possession.

Prior constructive possession cases set out the scope of constructive possession. In State v. Cusick, it was held that sufficient evidence existed to establish constructive possession where the police discovered cocaine next to the driver's wallet in the front seat of the car, even though the driver's girlfriend owned the car, used cocaine, and testified that the cocaine was hers. State v. Cusick, 387 N.W.2d 179, 180-81 (Minn. 1986). In State v. Carr, the court upheld a conviction of possession of controlled substance where, when police arrived, defendant rushed toward drugs in a common area of an apartment to which others had access. State v. Carr, 311 Minn. 161, 163, 249 N.W.2d 443, 444-45 (1976). Also, in Florine, the court ruled that defendant constructively possessed the controlled substance found in a place accessible to others because he consciously exercised dominion and control over the substance. Florine, 303 Minn. at 105, 226 N.W.2d at 611

Here, Gonzalez's vehicle matched the description given by the informant of the vehicle suspected of transporting cocaine. The police report stated that the officer noticed Gonzalez remove an object from his pocket and place it directly beside him on the right-hand side of the driver's seat. When the officers checked the car, they discovered a plastic baggie containing what appeared to be cocaine on the driver's seat. They did not find any other objects near the cocaine. Viewing the evidence in the light most favorable to the verdict, as we must, we conclude the facts support the district court's guilty verdict.

Affirmed.

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

[1] It is presumed that Gonzalez's vehicle matched the description given by the confidential reliable informant because Gonzalez does not challenge the stop of his vehicle.