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This opinion will be unpublished and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
A18-1061

State of Minnesota,
Respondent,

vs.

Timothy Merrill Newlun,
Appellant.

Filed May 6, 2019
Affirmed
Rodenberg, Judge

Chisago County District Court
File No. 13-CR-17-1107

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

Janet Reiter, Chisago County Attorney, David Hemming, Assistant County Attorney,
Center City, Minnesota (for respondent)

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

Considered and decided by Brat vold, Presiding Judge; Rodenberg , Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal from his conviction of second-degree pos session of 25 grams
or more of methamphetamine, appellant Timothy Merrill Newlun ar gues that the district
court abused its discretion when it allowed the state to admit several bags of

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methamphetamine as evidence after he stipulated that the substance found in a shaving kit
in the trunk of the car he had been driving weighed more than 2 5 grams and was
methamphetamine. He also argues that the district court abused its sentencing discretion
by failing to consider a downward dispositional departure. We affirm.
FACTS
In December 2017, appellant drove a car that belonged to R.B. The car was parked
at a gas station, and Wyoming Police Officer Anthony Zerwas dec ided to check the car’s
license plate. This check resulted in a response of “impound f or alcohol.” Because a car
with such plates cannot be lega lly driven, Officer Zerwas followed the car and initiated a
traffic stop. Officer Zerwas made contact with the driver, who identified himself as
appellant. Officer Zerwas could “smell the odor of an alcoholic beverage emanating from
the vehicle” and returned to his squad car to check appellant’s driving information. Officer
Zerwas’s search revealed that appellant’s license was cancelled as inimical to public safety.
Another officer, Chisago County Sheriff Sergeant Robert Berg, w as “right behind
Officer Zerwas when he complete d the stop.” Because Officer Ze rwas had smelled an
alcohol odor coming from the car, Sergeant Berg began investigating appellant for possible
driving while impaired. Appellant did not indicate any signs of impairment, but admitted
that he did not have a valid driver’s license. Sergeant Berg told appellant that he was going
to be arrested and transported to jail “due to the initial stuf f that we had, the driving after
cancellation inimical to public safety, [and] operating the vehicle with impounded plates.”
Given the snowy road conditions and the car’s proximity to an I nterstate-35 on-ramp, the
officers decided to tow the car.

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Before towing the car, the offi cers conducted an inventory sear ch. During their
search, Officer Zerwas opened the center console and found “met h baubles” used for
smoking methamphetamine. Also in the center console was a tax form with appellant’s
name on it. Officer Zerwas continued searching the car, opened the trunk, and saw men’s
clothing and a black shaving kit.1 Inside the shaving kit were four plastic bags filled with
a rock-like crystal substance. T he substance field-tested posi tive as methamphetamine.
The officers weighed each of the bags. One of the bags contain e d 6 . 5 g r a m s o f
methamphetamine, and another contained approximately 28 grams o f methamphetamine.
Also inside the shaving kit we re three prescription pill bottle s with appellant’s name on
them.
The state charged appellant with one count of second-degree con trolled-substance
crime for possession of 25 or more grams of methamphetamine und er Minn. Stat.
§ 152.022, subd. 2(a)(1) (2016).2
The case proceeded to a jury trial. Before trial, appellant agreed to stipulate that the
total weight of the methamphetamine was over 25 grams and that the drug mixture was in
fact methamphetamine. The state explained that the purpose of the stipulation was to
eliminate the need for witnesse s to testify concerning the anal ysis and chemical
composition of the methamphetamine or to testify about the methamphetamine’s chain of
custody. Consequently, the principal issue at trial was whethe r appellant knowingly

1 During trial testimony, the officers used other terms to descr ibe the bag in which they
found the methamphetamine. We refer to this bag as a shaving kit here.

2 Because the offense occurred in 2017, we cite to the 2016 version of the statute.

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possessed the methamphetamine. Appellant contended that he had been borrowing R.B.’s
car and did not know that the methamphetamine had been inside it.
Before opening statements, the state indicated an intention to introduce the four bags
of methamphetamine, arguing tha t “all of those bags are admissi ble to prove the case.”
Appellant’s trial counsel objected , asserting that the bags wer e not needed to prove the
element of the offense requiring proof of 25 grams or more of m ethamphetamine, and
argued that it would be “overkill” to admit the bags since appe llant had stipulated to the
methamphetamine’s weight. The district court rejected appellant’s argument. It reasoned
that, despite the stipulation, the bags themselves were relevan t evidence and not unfairly
prejudicial.
At trial, the two officers testified that they found a shaving kit in the trunk of the
car. The shaving kit contained prescription pill bottles with appellant’s name on them and
the methamphetamine. Appellant called one witness, R.B., who t estified that he was the
registered owner of the car appellant had been driving and that he had allowed appellant to
use the car to search for a job. R.B. also testified that othe r individuals had used the car
during the time that appellant had been borrowing it. On cross-examination, R.B. testified
that he knew the officers found drugs inside the car, but that those drugs were not his.
At the close of trial, the district court instructed the jury that appellant had stipulated
that the “drugs found in the vehicle he was driving . . . [were ] methamphetamine and
weighed 25 grams or more” and that the jury should treat that fact as having been proved.
The district court did not allow the bags into the jury-deliber ation room. But during

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deliberations, the jury asked to view the bags. The district c ourt allowed the jury to view
the bags in the courtroom. The jury later found appellant guilty of the charged offense.
At sentencing, appellant’s trial counsel explained that the state had agreed to request
a 60-month sentence, a downward durational departure, based on its assessment that
appellant’s offense was less serious than a typical second-degr ee-possession offense.
Appellant had also moved the district court for a downward disp ositional departure to
probation, but withdrew that request at sentencing. The distri ct court then adopted the
state’s previously-stated reas ons for departing and sentenced a ppellant to a 60-month
prison term.
This appeal followed.
D E C I S I O N
I. The bags of methamphetamine a dmitted at trial were relevant as to whether
appellant knowingly possessed the methamphetamine in the car he w a s
driving, and the district court acted within its discretion in admitting the bags
into evidence.

Appellant argues that his stipul ations eliminated the state’s n eed for admitting the
bags into evidence at trial, and that the district court abused its discretion by allowing the
bags into evidence because they were irrelevant and unfairly prejudicial.
We review the district court’s ev identiary rulings for abuse of discretion. State v.
Peltier, 874 N.W.2d 792, 802 (Minn. 2016); see also State v. Zornes, 831 N.W.2d 609, 624
(Minn. 2013) (stating that admission of physical evidence will be upheld unless it
constitutes an abuse of discretion). Appellant bears the burden of demonstrating both that
the district court abused its discretion in admitting the evide nce at issue and that he was
prejudiced by its admission. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

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A defendant’s offer to stipulate in a criminal case does not ta ke away the state’s
right to offer evidence. State v. Davidson, 351 N.W.2d 8, 10 (Minn. 1984) (citing State v.
Wiley, 205 N.W.2d 667, 675 (Minn. 1973)). “A defendant may not be a llowed to
unilaterally control the need for relevant evidence by offering to stipulate, especially where
the evidence bears upon other issues not covered by the stipulation.” State v. Matelski, 622
N.W.2d 826, 832 (Minn. App. 2001), review denied (Minn. May 15, 2001).
Under Minn. R. Evid. 401 and 402, evidence relevant to prove the offense remains
admissible, regardless of the d efendant’s offer to stipulate. See State v. Durfee , 322
N.W.2d 778, 785-86 (Minn. 1982) (despite appellant’s admission that child’s injuries
constituted great bodily harm, photos remained admissible becau se the real issue was
whether defendant intentionally caused that harm); State v. Barsness, 473 N.W.2d 325, 328
(Minn. App. 1991) (despite appella nt’s offer to stipulate, dist rict court did not abuse its
discretion in admitting photo and videotape evidence because they were relevant), review
denied (Minn. Aug. 29, 1991). Generally , with regard to physical evi dence, objects that
are connected to the crime scene or the investigation are admissible. Zornes, 831 N.W.2d
at 624.
Under Minn. R. Evid. 403, even highly damaging evidence is none theless
admissible when it is relevant a nd highly probative of a materi al issue of fact. State v.
Schulz, 691 N.W.2d 474, 478 (Minn. 2005). But when the potential for unfair prejudice
substantially outweighs the probative value of the evidence and the stipulation supplies all
of the relevant information on t he subject, the evidence should be excluded. Davidson,
351 N.W.2d at 11; see State v. Yang, 774 N.W.2d 539, 555 (Minn. 2009) (explaining that,

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under Minn. R. Evid. 403, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfai r prejudice). Unfair prejudic e is not merely damaging
evidence, even severely damaging evidence; instead it is eviden ce that persuades by
illegitimate means, giving one party an unfair advantage. Schulz, 691 N.W.2d at 478.
Appellant argues that, because he stipulated that the drug mixt ure was
methamphetamine weighing at least 25 grams, the bags should not have been admitted into
evidence because they were irrelevant and highly prejudicial.
The issue here is similar to that in Wiley, where the defendant offered to admit that
the quantity of seized marijuana was sufficient to support a co nviction and to permit an
inference of knowledge of the marijuana’s presence. 205 N.W.2d at 675. The defendant
argued that the state should be p rohibited from introducing the marijuana into evidence
because the very large amount mi ght unduly prejudice the jury. Id. The district court
admitted the marijuana into evidence. Id. On appeal, the defendant argued that the
admission was prejudicial. Id. The supreme court rejected the argument, concluding that
the marijuana was admissible becau se it “was relevant to the de fense that defendant had
been ‘framed.’” Id.
Here, the issue principally in dispute at trial was not the wei ght of the
methamphetamine or whether the drug mixture was methamphetamine. The disputed issue
was whether appellant knew methamphetamine was in the car he ha d been driving.
Appellant denied knowing about the drugs. His defense theory a ppears to have been that
he was borrowing a friend’s car and someone else put the metham phetamine in the car.
Despite appellant’s stipulations , the state still needed to pro ve that appellant knew the

8
methamphetamine was in the car. The state sought to admit the bags to prove that appellant
knew the methamphetamine was in the car by showing the jury the size of the bags, the
amount of methamphetamine in them, the size of the shaving kit, and the prescription pill
bottles with appellant’s name on them in close proximity to the bags. This was relevant
v i s u a l e v i d e n c e t h a t w e n t t o t h e k n o w i n g e l e m e n t o f t h e o f f e n s e. See 10A Minnesota
Practice, CRIMJIG 20.14 (Supp. 2018) (stating that the first element of controlled-
substance possession is that the defendant “knowingly possessed one or more mixtures”).
The admission of the bags was not unfairly prejudicial. The fa ct that it was
damaging to the defense is what made the evidence relevant. An d any prejudice was not
unfair. Accordingly, the district court did not abuse its discretion by allowing the state to
admit the bags into evidence.
II. The district court did not co nsider a downward dispositiona l departure
because appellant withdrew his request for one.

Appellant argues that we must remand for resentencing because t he district court
did not consider a probationary sentence. Appellant asserts that the district court was under
the impression that he was subjec t to a three-year minimum term under Minn. Stat.
§ 152.022, subd. 3(b) (2016), and that the district court improperly relied on that statute.
District courts are afforded great discretion in sentencing, and reviewing courts will
reverse sentencing decisions only for an abuse of that discretion. State v. Soto, 855 N.W.2d
303, 307-08 (Minn. 2014). The district court must impose the presumptive sentence unless
“substantial and compelling circumstances” exist warranting a downward departure. State
v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Unlike dispositional departure s , whi c h a r e
based on a defendant’s character istics, durational departures may be justified by offense-

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related reasons only. State v. Rund , 896 N.W.2d 527, 533 (Minn. 2017). We will not
interfere with the district court’s exercise of discretion, “as long as the record shows the
sentencing court carefully evaluated all the testimony and info rmation presented before
making a determination.” State v. Pegel , 795 N.W.2d 251, 255 (Minn. App. 2011)
(quotation omitted).
Appellant’s argument mischaracterizes the record concerning why the district court
did not consider a downward dispositional departure. At senten cing, appellant’s trial
counsel explained that the state had agreed to request a downward durational departure to
a 60-month term, instead of the presumptive guidelines term of 88 months, because
appellant’s offense was less seri ous than the typical second-de gree drug possession.
Because the parties had agreed to a durational departure, the district court expressly asked
appellant’s trial counsel, “So we’re clear, however, you’re withdrawing your dispositional
departure request?” Appellant’s trial counsel responded, “Correct, Your Honor.”
As the sentencing transcript clearly indicates, the district co urt did not consider a
dispositional departure because appellant withdrew that motion. Consequently, there was
no request for the district court to consider.
The district court acted within its discretion in sentencing appellant to a downward
durational departure and adopting the earlier-stated substantial and compelling reasons for
departing from the guidelines as stated on the record.
Affirmed.