State Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0848

State Minnesota,
Respondent,

vs.

Jason Jerome McDonough,
Appellant.

Filed November 27, 2017
Affirmed
Smith, Tracy M., Judge

Dakota County District Court
File No. 19HA-CR-15-2760

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Chip Granger, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Jason Jerome McDonough challeng es the sufficiency of the evidence to
support his conviction of third-degree cont rolled-substance crime for possession of a

2
mixture containing methamphetamine. 1 Specifically, McDonough argues that the state
failed to prove beyond a reasonable doubt th at the weight of the mixture containing
methamphetamine that he possessed met the statutory threshold. Because sufficient
evidence supports a finding that McDonough possessed at leas t three grams of a mixture
containing methamphetamine, we affirm.
FACTS
On August 18, 2015, McDono ugh was a passenger in a car with impounded plates.
Based on the plates, West Saint Paul Police Officer Kurtis Syvertsen pulled the car over
and, after determining that neither the driv er nor McDonough had a driver’s license,
allowed them to leave the traffic stop on foot while Syvertsen began preparing to tow the
car.
As part of his preparations for towing, Syvertsen conducted an inventory search of
the car. During this search , Syvertsen discovered a crysta l-like substance between the
front-passenger seat and the front-passenger do or. After calling for backup, Syvertsen
began to approach the driver and McDonough, who were approximately 25 yards from the
car and continuing to walk away. As Syvertsen approached, he saw a similar substance on
the sidewalk in a trail leading from the ca r to McDonough and no ticed that McDonough
had begun digging around in his pants pocket s with his hands. Syvertsen then arrested
McDonough and handcuffed him behind his back. As Syvertsen walked McDonough back

1 Initially, McDonough al so appealed his sentence, argui ng for a reduced offense level
under the Drug Sentencing Reform Act. However, McDonough withdrew this ground for
appeal at oral argument on the basis that State v. Otto , 899 N.W.2d 501 (Minn. 2017),
disposed of it.

3
to his police car, McDonough continued to dig in his pants pockets until Syvertsen pulled
McDonough’s hands up higher to prevent him from doing so.
By the time they reached the police car, West Saint Paul Police Officers Elyse Wood
and Timothy Sewald had arrived. As Wood and Sewald approached, they observed more
crystal-like substance falling from McDonough’s pants onto th e ground. Syvertsen and
Wood searched McDonough and found a small bag containing more of the substance in
McDonough’s left pants pocket. This bag was placed in evidence bag #1. In McDonough’s
right pants pocket, Syvertsen found more of the substance, this time unbagged. It was
placed in evidence bag #2. Mc Donough was then tr ansported to the police station by
Sewald, where additional crystal-like substa nce was collected from McDonough’s right
pants pocket and added to bag #2.
While Sewald transported McDonough to the police station, Syvertsen continued
his search of the car, baggin g the crystal-like substance fro m the floor of the car into
evidence bag #7. Additional crystal-like substance was collected from two other sources:
(1) at the station Syvertsen collected a single crystal from McDonough’s right shoe, which
was placed in either evidence bag #2 or #7; and (2) before taking McDonough from the
scene, Sewald gathered as much of the trail of substance o ff the sidewalk as possible and
placed it in either evidence bag #2 or #7.
The Bureau of Criminal Apprehension (BCA ) tested the contents of evidence bags
#1, #2, and #7. Prior to testing evidence bag #7, the BCA scientist noted that the bag
contained some debris and removed it. The debris was not pa rt of the weight or analysis.
All three evidence bags were found to cont ain methamphetamine, although the purity of

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the contents of each bag was not determined. Bag #1 contained 1.703 ± 0.005 grams; bag
#2 contained 1.138 ± 0.005 grams; bag #7 contained 1.495 ± 0.005 grams.
The district court held a be nch trial. The state offered the BCA test results to prove
the identity and weight of the crystal-like s ubstance. McDonough objected, arguing that,
because bag #2 or #7 c ontained roadside debris , there were issues as to whether (1) the
substance could be authenticated and (2) the state had established appropriate chain of
custody. The district court overruled his objection and admitted the results. During closing
argument, McDonough argued that the state had failed to show that he possessed over three
grams of a mixture containing methamphetamine because, in the process of gathering loose
crystals from McDonough’s pants pockets, the vehicle, and the roadside, the police may
have added debris to the ba gs, causing the measured weig ht to exceed the amount
McDonough possessed. The district cour t found McDonough guilty of third-degree
controlled-substance crime.
McDonough appeals.
D E C I S I O N
McDonough argues that his conviction of third-degree controlled-substance crime
must be reversed because the state’s circumstantial evidence does not exclude the rational
hypothesis that McDonough po ssessed less than three grams of a mixture containing
methamphetamine. McDonough concedes that direct evidence es tablished that he
possessed the mixture containing methamphe tamine in evidence bag #1 (which had a
weight of 1.703 ± 0.005 grams). However, he challenges the finding that he possessed the
remaining mixture necessary to meet the three-gram threshold. Specifically, McDonough

5
argues that at least some portion of the mixture in evidence bags #2 and #7 was proved to
be in his constructive possession by circumst antial evidence and that the circumstantial
evidence was insufficien t to prove beyond a reasonable doubt that he possessed the
mixture. We conclude that, even under the more exacting circumstantial-evidence
standard, the evidence was sufficient to support McDonough’s conviction.
When evaluating the sufficiency of circumstantial evidence, the reviewing court
uses a two-step analysis. State v. Silvernail , 831 N.W.2d 594, 598 (Minn. 2013). “The
first step is to identify the circumstances proved.” Id. “In identifying the circumstances
proved, we defer to the [fact-finder’s] acceptance of the proof of these circumstances and
rejection of evidence in the record that c onflicted with the circumstances proved by the
State.” Id. at 598-99 (quotation om itted). The reviewing cour t “construe[s] conflicting
evidence in the light most fa vorable to the verdict and a ssume[s] that the [fact-finder]
believed the State’s witnesses and disbelieved the defense witnesses.” Id. at 599 (quotation
omitted). “The second step is to determ ine whether the circ umstances proved are
consistent with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.
(quotation omitted). “We give no deferen ce to the [fact-finder’s] choice between
reasonable inferences at this second step.” State v. Harris, 895 N.W.2d 592, 601 (Minn.
2017).
McDonough was convicted of third-degree controlled-substance crime. Under the
laws in effect at the time McDonough possessed the methamphetamine,2 a person is guilty

2 In 2016, Minnesota passed the Drug Sentencing Reform Act, which changed the weight
thresholds for certain drug crimes. However, the passage of that law does not impact

6
of third-degree controlled-substance crime if “on one or more occasions within a 90-day
period the person unlawfully possesses one or more mixtures of a to tal weight of three
grams or more containing . . . methamphetamine.” 3 Minn. Stat. § 152.023, subd. 2(a)(1)
(2014). At issue in this case is whether the state proved the total-weight requirement.
The circumstances proved support the dist rict court’s conclusion that McDonough
possessed at least three grams of a mixture containing methamphetamine. Multiple officers
testified that they saw crystals spilling out from McDonough’s pa nts pockets onto the
sidewalk from the time that McDonough exited the stopped car to the time he was placed
in the police car. Although there was some debris gathered during the collection of these
crystals, the BCA scientist attempted to remove as much debris as possible prior to testing
evidence bag #7. Even after this debris was removed, the weight of the substance in
evidence bag #7 was 1.495 ± 0. 005 grams. Combined with the undisputed weight of the
mixture found in McDonough’s left pants pocket (evidence bag #1), McDonough
possessed 3.198 ± 0.010 grams of a mixture c ontaining methamphetamine. Further, even
this amount disregards the additional 1.138 ± 0.005 grams of methamphetamine in
evidence bag #2. Adding this bag further raises the weight to 4.336 ± 0.015 grams.
McDonough argues that these circumstan ces do not exclude the possibility that
evidence bags #2 and #7 contained roadside debris, which he never physically possessed,

McDonough’s conviction. See generally Otto, 899 N.W.2d 501 (holding that changes in
weight thresholds do not apply to crimes committed before the act’s effective date).

3 A mixture includes “a preparation, compou nd, mixture, or substance containing a
controlled substance, regardless of purity.” Minn. Stat. § 152.01, subd. 9a (2014).

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in sufficient weight to inflate the total wei ght to over three grams. This argument is
unconvincing. Taken t ogether, the facts that (1) office rs observed crystal-like substance
falling from McDonough’s pants onto the sidewalk as he was walking, (2) evidence bags
#2 and #7 could be comprised of almost fifty percent debris and still (when combined with
evidence bag #1) meet the three-gram weight threshold, (3) as much debris as possible was
removed from bag #7 prior to weighing, and (4 ) the removed debris was not part of the
weight or analysis, the circumstances proved make the hypothesis th at he possessed less
than the required 1.297 grams of the mixtur e in evidence bags #2 and #7 irrational.
Therefore, we conclude that the record contained sufficient evidence to support the district
court’s conclusion that McDonough committe d the offense of th ird-degree controlled-
substance crime.
Affirmed.