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This opinion will be unpublished and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
A17-0148

State of Minnesota,
Respondent,

vs.

Jeriod David Knerr,
Appellant.

Filed January 22, 2018
Reversed
Bratvold, Judge

Isanti County District Court
File No. 30-CR-15-80

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

Jeffrey R. Edblad, Isanti County Attorney, Robert C. Bieniek, Assistant County Attorney,
Cambridge, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges his conviction of second-degree possession of
methamphetamine by raising two issues: (1) the circumstantial evidence of appellant’s guilt
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is insufficient to eliminate reasonable hypotheses inconsistent with his guilt and (2) the
prosecutor engaged in prejudicial misconduct. Because we conclude that the evidence is
insufficient to eliminate a reasonable hypothesis inconsistent with guilt but consistent with
the circumstances proven, we reverse appellant’s conviction.
FACTS
Around 1:30 a.m. on May 6, 2014, Sheriff’s Deputy Jonathan Vandervegt was
traveling eastbound in a marked squad car on 275th Avenue in Isanti County.1 According
to Vandervegt, he was patrolling a known “drug area” and he had made “multiple drug
arrests in [the] area” before that evening. On May 6, he patrolled for several hours, but saw
no other vehicles until he passed a Dodge Dakota pickup truck traveling in the opposite
direction. Because Vandervegt noticed one of the pickup’s taillights was out, he decided to
follow the pickup. As he turned his car around, the pickup accelerated. Vandervegt
continued to follow the pickup as it turned left onto Flora Street, where it slowed down to
a normal speed. Vandervegt also turned onto Flora Street and activated his emergency
lights. The pickup stopped on the shoulder.
As Vandervegt walked over to the pickup, he noticed the driver’s side window was
already open, which struck him as “a little peculiar” since it was about 46 degrees.
Appellant Jeriod David Knerr was in the driver’s seat, and a woman was in the passenger
seat. Vandervegt saw that Knerr’s “hand and leg were shaking violently and [there was]
heavy perspiration on his forehead.” Knerr told Vandervegt that he accelerated when he

1 The evidence at trial included a map depicting the area and location of key events. It is
attached to this opinion.
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did because he thought that the deputy’s vehicle was act ually a car that was
“harassing . . . or stalking” Knerr and his companion in an earlier “road rage” incident.
Vandervegt rejected this answer because Knerr and his companion “should have been able
to clearly observe [ the deputy ’s] fully marked squad car.” As he spoke with Knerr,
Vandervegt saw a “high powered butane lighter” that was “commonly used for smoking
controlled substances” inside the pickup.
Vandervegt asked Knerr and the passenger to exit the pickup, then retrieved a K-9
dog from the squad car to do a narcotics sniff. According to Vandervegt, the K-9 “came
into the odor of a controlled substance on the driver’s side and indicated near the rear of
the cab area and then as I detailed him further forward . . . he actually stuck his head in the
open driver’s window and again indicated to the presence of an odor of a controlled
substance.” As a result, Vandervegt searched the pickup interior , but did not find any
contraband. Vandervegt did not think that Knerr was under the influence of any intoxicants
and released him with an equipment violation warning.
Nonetheless, Vandervegt’s observations of Knerr and the passenger made him
suspect that he had somehow missed drugs that had been in the vehicle. Although
Vandervegt had not seen any drugs tossed from pickup as he followed it before the stop,
he decided to search Knerr’s driving route to look for drugs. About 150 feet behind where
the pickup had pulled over on Flora Street, Vandervegt “found a scale which is commonly
used for weighing controlled substance[s].” According to Vandervegt, the scale appeared
to be “freshly deposited there” because it was “clean” and he “didn’t see any dirt or grime
or anything indicating” that the scale had been there long. Meanwhile, a second deputy ,
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Noah Heiller, searched 275th Avenue and found two small baggies of “glass crystal-like
shards” lying in the eastbound lane, between Flora Street and the point on 275th Avenue
where Vandervegt had passed the pickup. The Minnesota Bureau of Criminal
Apprehension (BCA) later determined that the two baggie s together contained over six
grams of methamphetamine.
The state charged Knerr with possessing a controlled substance in the second-degree
under Minn. Stat. § 152.022, subd. 2(a)(1) (2014). The state called three witnesses at trial:
Vandervegt, Heiller, and an investigator for the sheriff’s office, who testified regarding
forensic testing. The investigator testified that the BCA declined to test for DNA on the
baggies and the scale. The investigator also testified that analysis of a fingerprint on the
scale was inconclusive.
Vandervegt testified that the baggies’ location on the road showed that “it would
have had to have come from the driver’s window or the left side” of a vehicle traveling
westbound down 275th Avenue. He also testified that the crystals of methamphetamine in
the baggies were unbroken and that the bag gies themselves “appeared to be in pristine
condition,” as though they had not “been hit by any vehicles or disturbed” and “had just
fallen on the roadway.” But Vandervegt also testified that the drugs “possibly” could have
been there before Knerr drove by because he had “no idea” how long they were in the road.
The jury found Knerr guilty and the district court committed Knerr to the
commissioner of corrections to serve a sentence of 108 months. Knerr appeals.
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D E C I S I O N
Knerr argues that the evidence was insufficient to convict him because there are
reasonable inferences from the circumstances proved that are inconsistent with his guilt.
Generally, when a defendant challenges the sufficiency of the evidence, we “conduct[] ‘a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction,’ is sufficient to allow the jurors to reach a verdict of
guilty.” State v. Porte, 832 N.W.2d 303, 307 (Minn. App. 2013) (quoting State v. Ortega,
813 N.W.2d 86, 100 (Minn. 2012)).
The parties agree the state offered only circumstantial evidence that Knerr possessed
methamphetamine. W e review a conviction based on circumstantial evidence under
heightened scrutiny. State v. Nelson, 812 N.W.2d 184, 188 (Minn. App. 2012). Minnesota
courts use a two-part test to evaluate sufficiency of circumstantial evidence. State v. Harris,
895 N.W.2d 592, 598 (Minn. 2017). First, the court “identif[ies] the circumstances proved
and independently consider[s] the reasonable inf erences that can be drawn from those
circumstances, when viewed as a whole.” Id. When determining the circumstances proved,
the court defers, according to the standard of review, to the jury’s acceptance of evidence
or rejection of evidence that conflicts with the circumstances the state proved. State v.
Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010).
Second, the court must determine that “the reasonable inferences that can be drawn
from the circumstances proved as a whole [are] consistent with the hypothesis that the
accused is guilty and inconsistent with any rational hypothesis except that of guilt.” State
v. Fox, 868 N.W.2d 206, 223 (Minn. 2015). We undertake this second step under a de novo
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standard of review because the inferences the jury drew receive no deference. Al-Naseer,
788 N.W.2d at 474. Mere speculation or conjecture cannot serve as the basis for any
rational hypothesis inconsistent with the guilty verdict. Id. at 480.
The elements of second-degree possession of a controlled substance require the state
to prove that Knerr (1) knowingly possessed the substance; (2) knew or believed the
substance was a controlled substance; (3) had no lawful authority to possess the controlled
substance; and (4) had possession on May 6, 2014, in Isanti County. See Minn. Stat.
§ 152.022, subd. 2(a); State v. Papadakis, 643 N.W.2d 349, 354 (Minn. App. 2002)
(outlining the elements of possession crimes). The state may prove that the defendant
actually or constructively possessed the drugs. State v. Porte, 832 N.W.2d 303, 308 (Minn.
App. 2013).
The state’s theory was that Knerr constructively possessed the drugs.
2 Proving
constructive possession requires that the state show either
(1) that the prohibited item was found “in a place under
defendant’s exclusive control to which other people did not
normally have access,” or (2) if the prohibited item was found
“in a place to which others had access, there is a strong
probability (inferable from other evidence) that defendant was
at the time consciously exercising dominion and control over
it.”

2 We have previously stated that actual possession may be proven even when a defendant
does not physically possess the contraband at the mo ment of arrest. State v. Barker, 888
N.W.2d 348, 354 (Minn. App. 2016) (reversing district court’s order dismissing charges
for lack of probable cause). For example, the state may prove actual possession by evidence
that the defendant at one time physically possessed the contraband. Id. Here, the state and
Knerr address only constructive possession; therefore, we analyze the case only under the
tenets of constructive possession, even though actual possession may be the more
applicable standard. See id. at 354.
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State v. Salyers, 858 N.W.2d 156, 159 (Minn. 2015) (quoting State v. Florine, 303 Minn.
103, 105, 226 N.W.2d 609, 611 (1975)). The deputies found the drugs on a public highway,
which is not “in a place under defendant’s exclusive control to which other people did not
normally have access.” Florine, 226 N.W.2d at 611. Accordingly, in order to prove Knerr
possessed the drugs, the state needed to show that there was a strong probability that Knerr
was consciously exercising dominion and control over the drugs.
The state proved the following circumstances. (1) Knerr was driving a pickup
westbound on 275th Avenue around 1:30 a.m. on May 6, 2014, and had a passenger with
him. (2) The deputy, while traveling eastbound, passed the pickup, saw one of its taillights
was out, and then turned around to follow the pickup. (3) Knerr accelerated his speed on
275th Avenue as the deputy began to follow him. (4) Knerr turned left onto Flora Street,
slowed down to a normal speed, and then pulled over after Vandervegt activated his
emergency lights. (5) The deputy did not see anything thrown from the pickup while he
was following it. (6) When the deputy approached the pickup , the driver’s side window
was already down, which the deputy thought was “peculiar” given that the temperature was
approximately 46 degrees. (7) Knerr was sweating, and his hand and leg were shaking.
(8) Knerr admitted that he accelerated after seeing the deputy’s car turn around and
explained that he thought he was being followed by a vehicle from an earlier “road rage”
incident. (9) A torch “commonly used” for ingesting controlled substances was in the
pickup. (10) The K-9 dog performed a narcotics sniff of the pickup and “indicated” the
presence of an odor of a controlled substance on the driver’s side, the rear of the cab, and
the driver’s open window. (11) The deputy searched but did not find any controlled
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substances in the pickup. (12) Knerr did not appear to be under the influence of any
intoxicants. (13) The deputies searched the area on Flora Street and 275th Avenue,
following the path that Knerr traveled after passing the deputy. (14) During their search,
the deputies found a scale along Flora Street, about 150 feet away from where the deputy
had pulled Knerr over. (15) The scale was “clean,” had no “dirt or grime” and appeared to
have been “freshly deposited” there. (16) The deputies also found two unmarked baggies
with a crystal-like substance lying in the eastbound lane of 275th Avenue. (17) The location
of the baggies in the roadway suggested they may have been discarded out of the driver’s
side of a vehicle heading westbound down 275th Avenue. (18) The substance in the baggies
had “large shards” that “had not been broken down” and the baggies were in “pristine
condition” and did not appear to have “been hit by any vehicles or disturbed.” (19) The
deputy had seen “zero traffic” in the area before he saw Knerr and was patrolling a known
“drug area.” (20) Investigators found a partial fingerprint on the scale, but could not
conclusively match it to Knerr. (21) Investigators did not test either the scale or the baggies
for DNA. (22) Testing of the baggie contents confirmed six grams of methamphetamine.
We acknowledge that the jury could have reasonably inferred Knerr possessed the
methamphetamine from the circumstances proved. Under the applicable standard of
review, however, the circumstances proved must support no reasonable hypothesis
inconsistent with guilt. Knerr argues that there are two reasonable hypotheses from the
circumstances proved that are inconsistent with his guilt: (1) the passenger possessed the
drugs without Kn err’s knowledge or (2) someone besides Knerr or his passenger
abandoned the drugs before or after Knerr drove by . Because we determine that Knerr’s
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first hypothesis is reasonable and inconsistent with his guilt, we do not address his second
hypothesis.
The state argues that Knerr’s first hypothesis is not reasonable for three reasons.
First, the state contends that the drug’s placement in the eastbound lane is inconsistent with
someone throwing the drugs from the passenger side of a pickup travelling in the
westbound lane. Second, the state points out that the K-9 dog “indicated” on the driver’s
side of the pickup . Lastly, the state argues that the jury reasonably could have concluded
that Knerr jointly possessed the drugs with his passenger.
The state presents valid inferences as to why Knerr’s first hypothesis is unlikely,
but not unreasonable; therefore we do not accept the state’s inferences under the applicable
standard of review. The record contains no evidence that the drugs could not have landed
in the eastbound lane if the passenger threw them out of a vehicle travelling in the
westbound lane. Instead, the deputy testified that the location of the baggies was
“consistent” with being thrown out of the open driver’s window of a westbound vehicle.
Moreover, the state offered no evidence showing that the passenger did not reach across
Knerr to throw the drugs out of the driver’s side of the pickup. Lastly, the state’s argument
that the jury “may have also considered the possibility that the methamphetamine was
possessed jointly” is unavailing because joint possession is only one of the rational
inferences from these facts, and the inferences of the jury do not receive any deference. 3
Al-Naseer, 788 N.W.2d at 474.

3 Under Minnesota law, if a defendant is charged with violating, among other enumerated
statutes, section 152.022, “[t]he presence of a controlled substance in a passenger
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Further, this court has stated that typically Minnesota courts have “upheld
convictions based on circumstantial evidence” only when there is “evidence tying a
defendant directly to the illegal items.” Sam, 859 N.W.2d at 835. For example, courts have
upheld convictions based on circumstantial evidence where “the items were found in the
defendant’s home, effects identifying the defendant were found near or on the items, the
defendant admitted possession of the items, or there was testimony at trial accusing the
defendant of possessing the items.” Id. (citations omitted). There is no evidence in this case
directly tying Knerr to the drugs, apart from the reasonable inference that the drugs were
in his pickup before they landed on the road. Because the evidence also supports the
reasonable inference that the passenger exclusively possessed the drugs, we reject the
state’s theory . See id. at 834 (stating that proximity may be considered in establishing
possession, but holding that mere proximity to drugs in vehicle was insufficient to establish
possession when another passenger was in vehicle).
Knerr’s hypothesis also finds support in recent Minnesota Supreme Court caselaw.
In Harris, the supreme court reversed a conviction based on circumstantial evidence. 895
N.W.2d at 603. Harris was driving a car at night with two passengers, one of whom police
were actively seeking based on an arrest warrant. Id. at 596. After an officer activated his

automobile permits the factfinder to infer knowing possession of the controlled substance
by the driver or person in control of the automobile when the controlled substance was in
the automobile.” Minn. Stat. § 152.028, subd. 2 (2014). Neither party addresses section
152.028 in this appeal. In State v. Sam, this court stated that section 152.028 merely
“permits the inference that a driver has knowing possession of everything in the vehicle”
and so “it does not negate other reasonable inferences” and thus has no effect on the
circumstantial-sufficiency-of-the-evidence test. 859 N.W.2d 825, 832 n.4 (Minn. App.
2015).
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lights and siren, Harris continued driving for another three blocks at a speed of 30 miles
per hour, during which the officer saw movement inside the car. Id. at 596-97, 603. Harris
stopped his car when the officer pulled alongside. Id. at 597. During a search of the vehicle,
the officer noticed that the “headlining had been pulled down near the sunroof ,” which
created a small void. Id. at 602. The officer found a handgun in that void. Id. at 597.
Investigators found a mixture of male and female DNA from five or more people on the
firearm. Id. Testing revealed that the DNA could have belonged to Harris or another
passenger in the car, but not 75.7% of the population. Id. Based on this evidence, the
supreme court held that it was reasonable to infer that Harris did not know the firearm was
in the car. Id. at 602-03. In doing so, the supreme court concluded that it was reasonable to
infer that Harris failed to immediately stop the car because he knew one of his passengers
was subject to an arrest warrant. Id. at 603.
Relying on Harris, Knerr argues that it is reasonable to infer that the passenger
possessed the drugs. Like the evidence in Harris, the evidence against Knerr includes no
forensic evidence linking him to the drugs and another passenger was in the car throughout
the relevant time period. Additionally, Knerr sped up, then turned off the road after seeing
a squad car follow him, which is similar to Harris’s failure to immediately stop.
The state attempts to distinguish Harris in three ways, all of which are unavailing.
First, the state argues that the weapon in Harris was wedged in such a way that the driver
might not have been able to see it, and that the car did not belong to Harris . But it is
reasonable for a passenger in Knerr’s pickup to hide the drugs so that Knerr, like Harris,
did not know of the contraband until the passenger threw it out the window. Second, t he
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state contends that there was no testimony indicating that Harris moved toward the firearm,
while the state presented evidence from which it argued that Knerr threw the drugs out of
the pickup. But all of the state’s evidence suggesting that Knerr threw the drugs out of the
window also supports the inference that the passenger discarded the drugs. Third, the state
argues that Harris had a plausible reason for not stopping at the police officer’s command,
while Knerr did not. But even if we assume that the jury rejected Knerr’s “road rage”
explanation as implausible, Knerr’s evasive driving does not mean he knowingly possessed
the drugs. As a result, we conclude that the circumstantial evidence against Knerr was
insufficient to convict him of second-degree possession of a controlled substance.
Because we reverse Knerr’s conviction, we do not address his contentions of
prosecutorial misconduct. We do note, however, that the prosecutor in this case clearly
erred by stating “[w]e did—[w]e did try or make an attempt to, you know, establish the
possession by the fingerprints, you know, again, it just didn’t happen, so but if it had we
probably wouldn’t be having a trial in this matter.” The Minnesota Supreme Court has
“made it clear that the state will not be permitted to deprive a defendant of a fair trial by
means of insinuations and innuendos which plant in the minds of a jury a prejudicial belief
in the existence of evidence which is otherwise inadmissible.” State v. Harris, 521 N.W.2d
348, 354 (Minn. 1994) (quotations omitted). Here, the state did not successfully gather
forensic evidence and suggesting that such evidence would have shown Knerr’s guilt was
clear prosecutorial misconduct.
Reversed.

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