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This opinion will be unpublished and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
A17-1745

State of Minnesota,
Respondent,

vs.

Robert Alan Thunder,
Appellant.

Filed August 13, 2018
Reversed
Bjorkman, Judge

Pennington County District Court
File No. 57-CR-17-181

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

Seamus Duffy, Pennington County Attorney, Kristin Hanson, Assistant County Attorney,
Thief River Falls, Minnesota (for respondent)

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

Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his convictions of six controlled-substance offenses. Because
the record evidence is insufficient to prove that appellant possessed the controlled
substances, we reverse.
FACTS
On March 1, 2017, around 1:30 a.m., a state trooper patrolling in Pennington County
turned to follow a vehicle and observed it speed up, take multiple turns, and eventually fail
to stop at a stop sign. The trooper executed a traffic stop and spoke with the two
occupants—the driver and the front -seat passenger, appellant Robert Thunder. They told
the trooper that the vehicle did not belong to either of them, and Thunder asked to walk
home. The trooper detained both men while he confirmed their identities and subsequently
arrested the driver upon learning that his driver’s license had bee n canceled as inimical to
public safety and that he had an active warrant for his arrest.
The trooper conducted an inventory search of the vehicle. He recovered a backpack
in the back seat behind the driver’s seat, which contained a “large quantity” of a pparent
drugs; a toolbox on the floor behind the passenger seat, which contained drug
paraphernalia; and a glass pipe of the type used for smoking methamphetamine in the
center console.
The trooper arrested Thunder and searched him, recovering $920 in ca sh that was
bound in a yellow bank band. Thunder told the trooper that the driver had picked him up
and was bringing him home, that he had not previously known the driver, and that when

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the trooper began following them, the driver “ got nervous and started speeding up and
basically was trying to avoid [the trooper].”
Subsequent testing of the contents of the backpack revealed m ore than 218 grams
of marijuana, more than 27 grams of methamphetamine, and smaller quantities of several
other controlled substances.
Thunder was charged with second-degree possession of a controlled substance, five
counts of fifth -degree possession of a controlled substance, and possession of drug
paraphernalia. At trial, over Thunder’s objection, the district court admitted evidence that
in 2010, Thunder was discovered in possession of several baggies of methamphetamine
and drug paraphernalia in a vehicle he was driving and was convicted of fifth -degree
controlled-substance possession. The jury found Thunder guilty on the co ntrolled-
substance possession charges but acquitted him on the paraphernalia charge. The district
court convicted Thunder of all six controlled-substance offenses and imposed a 95-month
prison sentence for the second-degree offense, with shorter concurrent sentences for each
of the fifth-degree offenses. Thunder appeals.
D E C I S I O N
In reviewing a claim of insufficient evidence, we
view the evidence in a light most favorable to the verdict to
determine whether the facts in the record and the legitimate
inferences drawn from them would permit the jury to
reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.

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State v. Hanson , 800 N.W.2d 618, 621 (Minn. 2011) (quotations omitted). W hen
reviewing a conviction based on circumstantial evidence, we apply a two-step analysis.
State v. Harris , 895 N.W.2d 592, 598 -601 (Minn. 2017) . First, we identify the
circumstances proved “by resolving all questio ns of fact in favor of the jury’s verdi ct,” in
deference to the jury’s credibility determinations . Id. at 600. Second, we independently
consider the “reasonable inferences that can be drawn from the circumstances proved.” Id.
at 601. “To sustain the conviction, the circumstance s proved, when viewed as a whole,
must be consistent with a reasonable inference that the accused is guilty and inconsistent
with any rational hypothesis except that of guilt.” Id.
To convict Thunder of the controlled-substance offenses at issue here, the state was
required to prove, in relevant part, that Thunder possessed the controlled substances. See
Minn. Stat. §§ 152.022, subd. 2(a)(1), .025, subd. 2(1) (2016). A person may p ossess an
item “jointly with another person,” and p ossession “may be proved through evidence of
actual or constructive possession.” Harris, 895 N.W.2d at 601. When the item is found in
a place to which the defendant and others had access, the state must show that “there is a
strong probability (inferable from other evidence) that defendant was at the time
consciously exercising dominion and control over it.” State v. Florine , 303 Minn. 103,
105, 226 N.W.2d 609, 611 (1975). This standard requires more th an “mere proximity” or
easy access to the item. Harris, 895 N.W.2d at 601 -02. It requires proof “that the
defendant had an ability and intent to exercise dominion and control over the [item].” Id.
at 602.

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At trial, t he state argued that Thunder construc tively possessed the controlled
substances jointly with the driver. The jury’s guilty verdicts show the state proved the
following circumstances: (1) On March 1, 2017, Thunder was a front -seat passenger in a
vehicle that a state trooper stopped for a traffic violation; (2) the trooper arrested the driver
and conducted an inventory search of the vehicle, which revealed a backpack containing
multiple controlled substances; (3) the person who loaned the vehicle to the driver was not
familiar with the backpack and had never seen the driver with it; and (4) Thunder had $920
in cash on his person, which the trooper believed, based on his training and experience,
could indicate Thunder was going to buy or had sold the controlled substances.
The state asserts that two additional circumstances support the jury’s determination
of guilt. We disagree. First, the state contends that it proved that the vehicle “was traveling
in the complete opposite direction from [Thunder’s] residence” at the time of the stop,
contradicting Thunder’s claim that he was merely getting a ride home. But the state does
not identify any record evidence concerning where the vehicle was stopped relative to
Thunder’s residence, and our careful review of the record reveals none. Second, the state
points to Thunder’s prior conviction of possessing methamphetamine in a motor vehi cle.
That circumstance, while proved, is not evidence that can factor into the determination
whether Thunder possessed the controlled substances. Rather, the evidence was admitted
only on the limited issue of knowledge —that if Thunder did possess the substances, he

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likely knew what they were.1 Accordingly, we limit our consideration of the circumstances
proved to the four listed above.
Given Thunder’s proximity and ease of access to the controlled substances and
possession of an unusually large quantity of cash, we conclude the proved circumstances
support a reasonable inference that Thunder possessed the backpack and the controlled
substances it contained, either individually or jointly with the driver of the vehicle. But
that does not end our analysis. To sustain Thunder’s convictions, the circumstances proved
must also be “inconsistent with any rational hypothesis except that of guilt.” Harris, 895
N.W.2d at 601. That is not the case here.
Thunder was neither the driver nor the owner of the vehicle. No drugs or
paraphernalia were visible in the vehicle —the backpack behind the driver’s seat was
“mostly closed” and the toolbox and center console were closed. And neither the backpack
nor the toolbox contained any identifying information linking them to Thunder . These
facts likely led the jury to acquit Thunder of the paraphernalia charge . B ecause the
evidence tying Thunder to the toolbox is indistinguishable from that tying him to the
backpack, it is reasonable to infer that he exercised an equal lack of dominion and control

1 Thunder also challenges the admission of this evidence. Because we reverse based on
insufficient evidence, we do not substantively address this issue. But we note that the
evidence of Thunder’s prior methamphetamine -related conviction was admitted to show
Thunder’s knowledge of methamphetamine , a fact that was not in dispute . See State v.
Rossberg, 851 N.W.2d 609, 615 (Minn. 2014) (addressing requirements for admission of
other-bad-acts evidence, including that it must address a specific fact that is actually
disputed). Moreover, because the jury was not instructed to limit its consideration of the
prior conviction to that issue, the potential for unfair prejudice was not only great but likely
led to the unsupported convictions we now reverse.

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over the contraband contained within each. Indeed, the state acknowledges that one of
“three rational inferences [that] can be drawn from the circumstances proved” is th at the
driver alone “consciously exercised dominion and control over the controlled substances.”
We agree. The reasonableness of this innocent inference means that the state presented
insufficient evidence to support Thunder’s controlled-substance convictions.
Reversed.