State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0653

State of Minnesota,
Respondent,

vs.

Desean Demetrius Crayton,
Appellant.

Filed April 8, 2019
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CR-17-25403

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Public Defender, Lydia Maria Villalva Lijo, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten , Presiding Judge; Reyes, Judg e; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Desean Demetrius Crayton challenges his conviction of first-degree drug
possession under Minn. Stat. § 152.021, subd. 2( a)(3) (2016), a rguing that the

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circumstantial evidence presente d at trial was insufficient to support the conviction.
Because the evidence was sufficient, we affirm.
FACTS
On October 8, 2017, Airport Police Officer Zizzo learned that t here was an active
warrant for Desean Crayton’s arrest. He received information that Crayton would be at the
Minneapolis-St. Paul airport that day to meet a woman. Officer Zizzo viewed a photograph
of Crayton and attempted to locate him at the airport.
The woman that was to meet Crayton arrived on a flight, and air port police
monitored her as she moved about the airport. She eventually w aited by a door near the
baggage claim—door one. A taxi ultimately arrived and stopped in front of the door. The
woman got on her phone and walked directly to the taxi. Officer Zizzo followed her.
Officer Zizzo reached the taxi af ter the woman had entered it. He opened the rear
passenger door and immediately sa w that Crayton was seated in t he back seat with the
woman. Officer Zizzo, who was in uniform, identified himself a s a police officer. His
weapon was drawn when he opened the door, but he put it away almost immediately when
he saw that Crayton’s hands were in the air and empty. Accordi ng to Officer Zizzo,
Crayton appeared panicked and in shock. Crayton reached for the door handle and fumbled
with it multiple times. Officer Z izzo called Crayton by name a nd told him not to run.
Crayton opened the door and ran out of the taxi.
Crayton initially ran towards door one. He encountered another police officer there,
so he changed course and ran instead towards a different door—d oor two. Several other
officers were in the area at tha t time. Crayton’s pants fell a s he changed course, which

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caused him to stumble. He got back up and continued to run. Officer Zizzo caught Crayton
and brought him to the ground. C rayton continued to try to get away even after he had
been brought to the ground. Other officers in the area assisted Officer Zizzo. Crayton was
placed in handcuffs and arrested. All told, Crayton had fled f or about six seconds before
he was apprehended. The officers searched Crayton and found se veral items, but no cell
phone.
Just after Crayton was arrested , one of the officers checked th e path that Crayton
had run. She found a cellphone and a bag of suspected narcotic s. Later testing revealed
that the bag contained approximately 39 grams of heroin. The o fficer found these items
near where Crayton had stumbled and approximately ten to twelve feet away from where
Crayton was apprehended. Multiple officers saw Crayton stumble, but no officer actually
observed Crayton drop the items. There were other people in th e sidewalk area where
Crayton fled.
The state charged Crayton with one count of first-degree drug p ossession under
Minn. Stat. § 152.021, subd. 2(a)(3) (2016) and one count of fleeing a peace officer under
Minn. Stat. § 609.487, subd. 6 (2016).1 At trial, an airport surveillance video of the incident
was introduced. The video showed Crayton fleeing the taxi and Officer Zizzo chasing after
him, but did not show Crayton stumble. 2 The video also showed two objects on the

1 The fleeing conviction is not at issue in this appeal.

2 Crayton’s entire flight from Officer Zizzo is not depicted in the video. As the camera is
focused on the taxi’s front end and license plate, Crayton’s le gs can be seen running past
the back of the taxi. The camera then zooms out and pans to th e left, where Crayton ran,

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sidewalk approximately ten to twe lve feet from where Crayton wa s apprehended. Still
photographs from the surveillance video, also introduced at tri al, showed that
approximately two minutes before Crayton fled through the area, there was no cellphone
or bag of heroin on the ground in this area.
Crayton moved for a judgment o f acquittal, arguing that the evi dence supported a
reasonable hypothesis of innocence—that someone else possessed the heroin and dropped
it on the airport sidewalk. The district court denied Crayton’ s motion. The jury found
Crayton guilty of possession of t he heroin. The district court sentenced Crayton to 107
months in prison for the drug-possession conviction.
This appeal follows.
D E C I S I O N
Crayton argues that the evidence was insufficient to support th e drug-possession
conviction. To prove first-degr ee drug possession, the state m ust prove that Crayton
possessed 25 grams or more of her oin. Minn. Stat. § 152.021.su bd. 2(a)(3). There is no
dispute that the bag of heroin found on the airport sidewalk near where Crayton stumbled
contained approximately 39 grams of heroin. Thus, the question on appeal is whether there
was sufficient evidence to prove that Crayton possessed the heroin.
When reviewing the sufficiency of the evidence, this court conducts “a painstaking
analysis of the record to determ ine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient.” State v. Ortega, 813 N.W.2d 86, 100 (Minn.

showing Officer Zizzo running towards the sidewalk. By the tim e the camera catches up
to Crayton, he is being apprehended by multiple police officers on the airport sidewalk.

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2012) (quotation omitted). We a ssume that “the jury believed t he state’s witnesses and
disbelieved any evidence to the contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn.
2011) (quotation omitted). “[W]e will not disturb the verdict if the jury, acting with due
regard for the presumption of innocence and the requirement of proof beyond a reasonable
doubt, could reasonabl y conclude that the defendant was guilty of the charged offense.”
Ortega, 813 N.W.2d at 100.
When the conviction is based on circumstantial evidence, this c ourt conducts a
two-step analysis. State v. Harris , 895 N.W.2d 592, 601 (Minn. 2017). First, the court
identifies the circumstances prov ed at trial, disregarding evid ence that is not consistent
with the jury’s verdict. Id. Second, the court considers the inferences that can be drawn
from the circumstances proved. Id. Appellate courts give no deference to the jury’s choice
among reasonable inferences at this second step. Id. The evidence is sufficient if the
circumstances proved, viewed as a whole, are “consistent with a reasonable inference that
the accused is guilty and inconsistent with any rational hypothesis except that of guilt.” Id.
Speculation alone, however, is not enough to support a hypothes is consistent with
innocence. State v. Schnagl , 907 N.W.2d 188, 197 (Minn. App. 2017) (citing State v.
Al-Naseer, 788 N.W.2d 469, 480 (Minn. 2010)), review denied (Minn. Feb. 28, 2018).
Possession can take two forms—actual or constructive. State v. Salyers , 858
N.W.2d 156, 159 (Minn. 2015). Actual possession involves “dire ct physical control.”
State v. Barker, 888 N.W.2d 348, 353 (Minn. App. 2016) (quoting Jacobson v. Aetna Cas.
& Sur. Co., 46 N.W.2d 868, 871 (Minn. 1951)). “The mere fact that an ite m is not in a
defendant’s physical possession at the time of apprehension does not preclude prosecution

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for actual possession of [the item].” Id. at 354. Constructive possession is established
where the state demonstrates:
(a) that the police found the substance in a place under [the]
defendant’s exclusive control to which other people did not
normally have access, or (b) that , if police found it in a plac e
to which others had access, t here is a strong probability
(inferable from other evidence) that [the] defendant was at the
time consciously exercising dominion and control over it.

State v. Florine, 226 N.W.2d 609, 611 (Minn. 1975). Here, the state’s theory o f guilt at
trial was that Crayton had actual possession of the heroin befo re he dropped it as he fled
from police. Applying the circumstantial-evidence test, we conclude that the evidence was
sufficient to support Crayton’s conviction under an actual-possession theory.
The first step of our analysis is to determine the circumstances proved. Harris, 895
N.W.2d at 601. Viewing the evidence relevant to possession in the light most favorable to
the conviction, the following circumstances were proved at tria l: Officer Zizzo received
information that Crayton would be at the airport to meet a woma n; he also learned that
there was an active warrant for Crayton’s arrest; police located and monitored the woman
whom Crayton was purportedly going to meet at the airport; Crayton arrived at the airport
in a taxi; the woman walked direc tly to the taxi and got in; Of ficer Zizzo followed the
woman towards the taxi, opened the rear passenger door, and saw Crayton in the back seat;
Officer Zizzo had his firearm drawn when he opened the door but put it away once he saw
that Crayton was unarmed; Crayton appeared nervous, opened the taxi door, and ran
towards door one of the airport; Crayton changed course when he saw a police officer at
door one; as he changed course, Crayton’s pants fell and he stumbled; he got back up and

7
continued to run but he was apprehended shortly thereafter; Cra yton fled for only a few
seconds before he was apprehended; Crayton was searched and no cell phone was found
on him; approximately ten to twelve feet from where Crayton was apprehended, on his
flight path and near where he had stumbled, officers found a ce ll phone and a bag
containing heroin; there were other people in the sidewalk area at the time Crayton fled;
surveillance footage of the airpor t showed that the heroin and cell phone were not on the
ground approximately two minutes before Crayton attempted to flee from police.
The second step of our analysis is to determine whether the cir cumstances proved
are “consistent with a reasonable inference that the accused is guilty and inconsistent with
any rational hypothesis except that of guilt.” Harris, 895 N.W.2d at 601. Crayton
acknowledges that it may have been reasonable for the jury to i nfer that he possessed the
bag of heroin but argues that the circumstances proved are cons istent with a reasonable
hypothesis of innocence—namely, that someone else possessed the heroin and abandoned
it on the sidewalk while or after he ran past the area. He ass erts that this hypothesis is
rational because there were plausible reasons for him to flee the police besides possession
of a large amount of heroin, there was no evidence that anyone saw him drop the heroin,
there was no forensic evidence (e.g., DNA or fingerprint eviden ce) that directly tied him
to the heroin, and the sidewalk was accessible to passersby.
Despite the lack of forensic evidence and the fact that there were multiple plausible
motivations for Crayton to flee from Officer Zizzo, we conclude that the circumstances
proved are consistent with Crayt on’s guilt and not consistent w ith any reasonable
hypothesis of innocence. The heroin was found on the sidewalk on the path that Crayton

8
took while fleeing, near where Crayton stumbled, immediately af ter Crayton’s attempted
flight ended. And surveillance photos showed the heroin was not on the sidewalk just two
minutes before Crayton fled. Considering the timeframe in which the heroin was dropped
or placed on the sidewalk and the physical act of Crayton fleeing and stumbling where the
heroin was discovered, we conclu de that the circumstances prove d are clearly consistent
with a reasonable inference that Crayton physically and actuall y possessed the heroin
before dropping it as he fled. The only possible hypothesis of innocence is that some other
person at the airport dropped a large amount of heroin on the p ath that Crayton fled, near
the spot where Crayton stumbled, at about the same time that Crayton fled, in the presence
of several police officers who might have seen the person drop the heroin. “[P]ossibilities
of innocence do not require rever sal of a jury verdict so long as the evidence taken as a
whole makes such theories seem unreasonable.” State v. Stein , 776 N.W.2d 709, 719
(Minn. 2010) (quotation omitted). We disagree that Crayton’s p roposed hypothesis is
rational in light of the circumstances proved and conclude that the evidence was sufficient
to support Crayton’s conviction under the actual-possession doctrine.
Crayton argues that Harris, State v. Knerr, No. A17-0148, 2018 WL 492621 (Minn.
App. Jan. 22, 2018), and State v. Bemboom , No. A17-0188, 2017 WL 6567657 (Minn.
App. Dec. 26, 2017), support his argument that the evidence was insufficient to prove
possession. His reliance on these cases is misplaced. Each of these cases involved a
defendant driving a vehicle with a passenger or passengers in the vehicle who might have
possessed the contraband in question, without the knowledge of the defendant. Harris, 895
N.W.2d at 602; Knerr, 2018 WL 492621 at *4; Bemboom, 2017 WL 6567657 at *3. The

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facts here are substantially diffe rent. There was no other per son fleeing with Crayton on
foot, and the heroin was found on the path that Crayton fled, n ear where Crayton had
stumbled. Unlike in Harris, Knerr, and Bemboom, where the defendants were travelling
with companions who also reasonably could have possessed contra band, it is not rational
to conclude that somebody other than Crayton dropped the heroin on Crayton’s flight path
at about the time that Crayton fled.
In sum, the circumstantial eviden ce is sufficient to prove that Crayton had actual
possession of the heroin before he dropped it on the ground near his flight path.
Affirmed.