State of 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This opinion will be unpublished and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
A16-1893

State of Minnesota,
Respondent,

vs.

Kelly Lynn Wise,
Appellant.

Filed December 4, 2017
Affirmed
Florey, Judge

Meeker County District Court
File No. 47-CR-15-541

Lori Swanson, Attorney Gene ral, Edwin W. Stockmeyer, A ssistant Attorney General,
St. Paul, Minnesota; and

Brandi Schiefelbein, Meeker County Attorney, Litchfield, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Jesson, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
On appeal from her convictions of fifth-degree possession of a controlled substance
and possession of drug paraphernalia, appellant argues that the circumstantial evidence was
2
insufficient to prove that she constructively possessed a pipe with traces of
methamphetamine found in a locked safe. Because the evidence was sufficient, we affirm.
FACTS
Appellant Kelly Lynn Wise lived in a h ouse with her significant other, M.H., and
her son, C.W. Appellant and M.H. shared a bedroom. M.H.’s son, N.H., also occasionally
stayed at the home. On the morning of June 10, 2015, law enforcement executed a search
warrant at the home; agents had previously arranged controlled buys of methamphetamine
from N.H. and believed that he was residing at that location.
After entering, officers found appellant and M.H. in their bedroom. No one else
was home. The bedroom contained a security -camera monitor, providi ng a view of the
home’s front entrance. In the bedroom, a plastic bin contained appellant’s mail; two large
shards of a substance that field-tested pos itive for methamphetamine; a pipe that field-
tested positive for methamphetamine; a scale; drug paraphernalia; and over $1,000 in cash,
including money that had been used in th e aforementioned contro lled buys to purchase
methamphetamine from N.H. On a shelf, be hind a child’s picture in a frame with
“mommy” written across the top, was a wa ter bong that field-tested positive for
methamphetamine.
A locked safe was also discovered on a shelf in the bedroom, and after breaking it
open, officers found two car titles, one belonging to appellant and one belonging to M.H.,
as well as two pipes in an eyeglasses case. One of those pipes found in the safe was tested
by the Bureau of Criminal Apprehension (BCA) and contained trace amounts of
methamphetamine.
3
Officers searched two upstairs bedrooms, one belonging to C.W. and one belonging
to N.H., and discovered methamphetami ne paraphernalia in both bedrooms and
methamphetamine in N.H.’s room. A further search of the house turned up additional drugs
and paraphernalia. In the kitchen, officers found marijuana, baggies, and a “snort straw.”
In the basement, officers found baggies and paraphernalia.
Appellant was arrested and ga ve a short recorded statemen t. She stated that she
could not recall the last time she used methamphetamine, but it had “been a while.” When
asked if she would test positive for metham phetamine, she responde d that she did not
know. A statement was also taken from M.H., who admitted to being a regular
methamphetamine user.
On June 24, 2016, an amended complaint was filed charging appellant with third-
degree possession of methamphetamine, fifth-degree possession of methamphetamine, and
possession of drug paraphernalia.
A two-day jury trial was held. At the start of trial, the district court dismissed the
third-degree possession charge. 1 N.H. testified for the defe nse that the day before the
search, he was using his scale to weigh methamphetamine in appellant and M.H.’s
bedroom. Appellant and M.H. returned home , so he put his methamphetamine and other
paraphernalia into the plastic bin in their room . He testified that the safe was sometimes
open and sometimes closed, but he did not put anything into the safe when they returned
home. He also testified that he did not know the combination to the safe.

1 The charge was dismissed because the larg e shards of methamphetamine had not been
weighed and tested by the BCA.
4
Appellant was convicted of fifth-degree possession of methamphetamine for the
trace amounts of methamphetamine found on th e pipe in the safe. She was also found
guilty of a petty-misdemeanor count of possession of drug paraphernalia for possessing
that same pipe.2 This appeal followed.
D E C I S I O N
Appellant argues that there was insufficien t evidence to convic t her of possessing
the methamphetamine pipe found in the safe. In considering her claim of insufficient
evidence, we conduct “a painst aking 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 the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.
1989). We assume that “the jury believe d the state’s witnesses and disbelieved any
evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The verdict
will not be disturbed if the jury, acting with due regard for the pr esumption of innocence
and the requirement of proof beyond a reasona ble doubt, could reasonably conclude that
appellant is guilty of the charged offenses. Bernhardt v. State, 684 N.W.2d 465, 476-77
(Minn. 2004).
Appellant was convicted of fifth-degree possession of a controlled substance, a
violation of Minn. Stat. § 152.025, subd. 2(a)(1) (2014), which prohibits persons from
unlawfully possessing “one or more mixtures containing a controlled substance classified
in Schedule I, II, III, or IV, except a small am ount of marijuana.” Methamphetamine is a

2 The parties agree that appellant’s convictions are based upon the methamphetamine pipe
found in the safe.
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Schedule II controlled substance. Minn. Stat. § 152.02, subd. 3(d)(2) (2014). Appellant
was also found guilty of the petty-misdemeanor offense of possessing drug paraphernalia,
a violation of Minn. Stat. § 152.092 (2014 ). The term “drug paraphernalia” generally
includes all equipment that is intentionally used to manufacture, introduce into the body,
test, or enhance an illicit controlled substance. See Minn. Stat. § 152.01, subd. 18 (2014).
Possession of contraband “may be pr oved through actual or constructive
possession.” State v. Salyers , 858 N.W.2d 156, 159 (Minn. 2015). Actual possession
involves direct physical control over something. State v. Barker , 888 N.W.2d 348, 353
(Minn. App. 2016). There is no evidence of appellant’s actual possession of the
methamphetamine pipe, so we must look to constructive possession. The constructive-
possession doctrine is intended to “include within the possession statute those cases where
the state cannot prove actual or physical po ssession at the time of arrest but where the
inference is strong that the defendant at one time physically possessed the substance and
did not abandon his [or her] possessory interest.” State v. Florine, 303 Minn. 103, 104-05,
226 N.W.2d 609, 610 (1975). Establishing constructive possession requires either “proof
that the item was in a place under the defendant’s exclusive control to which other people
did not normally have access” or “proof of a strong probability that the defendant was at
the time consciously exercising dominion and co ntrol over it, even if the item was in a
place to which others had access.” Barker, 888 N.W.2d at 353-54 (quotations omitted).
Constructive possession need not be exclusive; possession of c ontraband may be shared.
State v. Smith , 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16,
2001). However, appellant must have knowingly possessed the contraband. See Florine,
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303 Minn. at 104, 226 N.W.2d at 610 (stating that there must be conscious possession of a
controlled substance and actual kn owledge of its nature); 10A Minnesota Practice ,
CRIMJIG 20.36 (2015) (requirin g a jury to find the defendant knew or believed the
substance was a controlled substance).
Appellant argues that we should review th e sufficiency of the evidence under the
heightened circumstantial-evidence standard, while the state asserts that a direct-evidence
standard may apply. A direct-evidence standard may be applicable in cases of constructive
possession when there is direct evidence that the area where the contraband was found was
under the defendant’s exclusive control, for ex ample, where there is direct evidence that
no one but the defendant occupi ed a particular room in a house where contraband was
discovered. Salyers, 858 N.W.2d at 160-61; see State v. Horst, 880 N.W.2d 24, 39 (Minn.
2016) (stating that when a disputed element is sufficiently proven by dire ct evidence, a
direct-evidence standard of review applies ). Here, however, a ci rcumstantial-evidence
standard applies because there was no evidence that appellant had exclusive control over
the house, the bedroom, or the safe, and her exercise of dominion and control over the pipe
was based on inference. We therefore apply a circumstantial-evidence standard of review
to determine if there is sufficient “proof of a strong probability that [appellant] was at the
time consciously exercising dominion and control over [the pipe].” Barker, 888 N.W.2d
at 353-54 (quotation omitted).
Under the circumstantial-evidence standard , we review the evidence using a two-
step analysis: we first identify the circumstances proved, deferring “to the jury’s acceptance
of the proof of these circumstances and rejecti on of evidence in the record that conflicted
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with the circumstances proved by the [s]tate.” State v. Robertson, 884 N.W.2d 864, 871
(Minn. 2016) (quotations omitted). Se cond, we “independ ently examine the
reasonableness of all inferences that migh t be drawn from the circumstances proved,
including inferences consistent w ith a hypothesis other than guilt.” Id. (quotations
omitted). “In order to sustain a conviction based on circumstantial evidence, the reasonable
inferences that can be drawn from the circumstances proved as a whole must be consistent
with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis
except that of guilt.” Id. (quotation omitted). We must vi ew not only the circumstances
proved as a whole, but also must consider the inferences drawn therefrom as a whole. State
v. Harris, 895 N.W.2d 592, 600 (Minn. 2017).
Here, the circumstances proved are that a ppellant and M.H. shared a bedroom and
both used methamphetamine. Methamphetamine , paraphernalia, a scale, a large amount
of cash, and appellant’s mail were found in a plastic bin in their room. On a shelf in their
room was a water bong that ha d been used to smoke metham phetamine. Inside a locked
safe in their room was a pipe containing traces of methamphetamine. Both appellant’s and
M.H.’s car titles were in that locked safe. The safe was sometimes left open, but N.H. did
not know the combination.
The circumstances proved are consistent with the hypoth esis that appellant and
M.H. jointly possessed the methamphetamine pipe found in the safe. Appellant and M.H.
both used methamphetamine. Th e locked safe was in their shared bedroom, the room
where they were found when the search warra nt was executed. No one else was home.
“Proximity is an important consideratio n in assessing constructive possession,” and
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“constructive possession need not be ex clusive, but may be shared.” Smith, 619 N.W.2d
at 770. Appellant’s and M.H.’s proximity to the locked safe indicates that its contents were
under their joint control. Both appellant’s a nd M.H.’s car titles were in the safe, further
suggesting that the contents of the safe were under their joint control. See State v. Colsch,
284 N.W.2d 839, 841 (Minn. 1979) (concluding there was sufficient evidence of
constructive possession when papers identif ying the defendant and the defendant’s
checkbook were found near the drugs); State v. Carr , 311 Minn. 161, 163, 249 N.W.2d
443, 445 (1976) (concluding there was sufficient evidence of constructive possession when
papers identifying the defendant were found in the same drawer as the drug paraphernalia).
Appellant argues that the circumstances allow for the reasonable inference that the
pipe belonged solely to M.H., C.W., or N.H. We disagree. N.H. testified that he did not
know the combination to the safe. Despite acknowledging possession of the large shards
of methamphetamine and other paraphernalia found in the plastic bin, N.H. did not claim
ownership of the pipe found in the safe. It is unreasonable to infer that the pipe belonged
to N.H. Likewise, C.W. testified that he did not use methamphetamine, and even if he did,
it is unreasonable to infer that C.W. kept his methamphetamine pipe in appellant and
M.H.’s room. As to M.H., it is unreasonable to infer that the methamphetamine pipe was
solely his. The safe was a space utilized by both appellant and M.H., and it was located in
their shared bedroom. Both appellant and M.H. used meth amphetamine, and the
circumstances indicate that they used it openly. For example, a water bong that field-tested
positive for methamphetamine was in their room, largely unconcealed. It is unreasonable
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to infer that only M.H. exercised dominion and control over the methamphetamine pipe
found in the safe.
The evidence in this case constitutes proof of a strong probability that appellant and
M.H. were jointly and consciously ex ercising dominion and control over the
methamphetamine pipe found in the safe. Barker, 888 N.W.2d at 353-54. Viewing the
evidence in the light most fa vorable to the conviction, th e jury could have reasonably
concluded, beyond a reasonable doubt, that appellant was guilty of the charged offenses.
Affirmed.