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This opinion will be unpublished and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
A18-1097

State of Minnesota,
Respondent,

vs.

Antonio Dupree Wright,
Appellant.

Filed July 22, 2019
Affirmed in part, reversed in part, and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-CR-17-19207

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

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Florey, 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 Antonio Dupree Wright appeals from the judgment of c onviction, arguing
that (1) the evidence was insufficient to prove that he possessed cocaine with the intent to

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sell, (2) that the district court erred by convicting him of po ssessing and selling the same
contraband, and (3) that the district court erred in calculating his criminal-history score by
failing to make a finding require d by the Minnesota Sentencing Guidelines regarding his
out-of-state convictions before factoring them into Wright’s score. We affirm the drug-sale
conviction because the evidence is sufficient to prove beyond a reasonable doubt that
Wright possessed cocaine with the intent to sell. We reverse the district court’s imposition
of a conviction for drug possessi on and remand to the district court with instructions to
vacate the possession conviction. We also remand to the district court for resentencing and
to properly determine whether Wright’s out-of-state convictions should be included in the
adult section of his criminal-hi story-score calculation under t he Minnesota Sentencing
Guidelines.
FACTS
On July 26, 2017, Minneapolis police officers were surveilling a Chevrolet Equinox
driven by appellant Antonio Dupree Wright. The car was parked and Wright was its sole
occupant. Officer Lessard saw two different people separately get into the Equinox, stay
only a minute or less, and then leave. Wright never got out of the Equinox during this time.
Officer Lessard had worked hundreds of drug cases, and had purc hased drugs dozens of
times working as an undercover officer. Though Officer Lessard could not see into the
vehicle, he believed that drug transactions were occurring in t he Equinox. The short
interactions between Wright and the two other individuals were consistent with his
experience working drug cases and purchasing drugs while undercover.

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After these two interactions, Wright drove out of the area and t o a g a s s t a t i o n .
Officers followed Wright and continued to surveil him. A woman arrived at the gas station
in her car, got out, and went int o Wright’s parked Equinox. Sh e stayed inside for only a
short time and then got back into her car and drove away. The woman never went into the
gas station, and Wright did not get out of his vehicle while at the gas station. Officer
Lessard believed that this interaction was also a drug transaction. A second officer parked
at the gas station, Officer Yang, also observed the interaction there. Officer Yang, who
also had purchased drugs while undercover, observed that the interaction between Wright
and the woman was consistent with his experience making undercover purchases. To buy
drugs while undercover, Officer Yang would often drive to a des ignated public place, get
into the seller’s car or have the seller get into his car for a s h o r t t i m e , a n d m a k e t h e
transaction. After the transaction was complete, Officer Yang would leave the area.
After observing these interactions, police arrested Wright at the gas station. Officer
Babekuhl, who was not involved in surveilling Wright but was asked to assist in the arrest,
searched Wright. He found two baggies of narcotics in Wright’s pocket. One of the bags
contained several individual bindle packages of cocaine. Offic er Yang weighed the
separately packaged bindles at th e scene. Six smaller bindles of cocaine each weighed
close to 0.4 grams. One bindle weighed approximately 3.158 gra ms, and another bindle
weighed 2.3 grams. According to Officer Yang, a bindle about t he size of the six smaller
bindles has a street value of approximately $40.

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Police found several other notable items after they arrested Wr ight. Officer
Babekuhl found $430 cash in Wright’s pockets and a lighter. Police also found three cell
phones in Wright’s Equinox. There was also a half-smoked marijuana blunt in the vehicle.
The state charged Wright with third-degree drug sale in violati on of
Minn. Stat. § 152.023, subd. 1(1) (2016) and fifth-degree drug possession in violation of
Minn. Stat. § 152.025, subd. 2(1) (2016) for the cocaine found in his pocket.
At trial, Officers Lessard and Yang testified that, based on th eir training and
experience, Wright’s conduct in the Equinox was consistent with drug trafficking. Officer
Lessard conceded that he could not see into the Equinox. No officer could see whether the
woman who was part of the third transaction was carrying anything before or after she was
inside Wright’s Equinox. Officer Babekuhl testified that cocai ne packaged in bindles is
packaged for sale. He agreed that drug users often buy more than one bindle, and that users
often keep cocaine they purchase in bindles until they use it, but that “if there’s multiple
bindles, it’s usually for sale.” Officer Lessard testified tha t because a cocaine high lasts
only a short time, users sometimes use a lot of it. Officer Lessard believed that the amount
of cocaine that Wright possessed could last, depending on the individual user and the purity
of the cocaine, two days to a week. Officer Yang testified that possession of multiple cell
phones could be indicative of drug dealing because “[u]sually t here’s a personal phone.
The other phone is what street terminology is a bin (phonetic) phone, which is a girlfriend
phone, and the third could be a transaction phone for drugs.”1

1 Police never searched the data contained on the phones.

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Wright did not testify, but his attorney conceded during closin g arguments that
Wright was guilty of possessing the cocaine. With regard to th e sale charge, his attorney
argued that the evidence was insufficient to prove beyond a rea sonable doubt that Wright
possessed the cocaine with the intent to sell it, and that he should therefore be acquitted of
the sale charge. The jury fou nd Wright guilty of both third-de gree drug sale and
fifth-degree drug possession. The district court imposed a conviction for both counts.
A probation agent drafted a felony sentencing report before the sentencing hearing.
The report listed Wright’s prior convictions and concluded that Wright’s criminal-history
score under the Minnesota Sentencing Guidelines was seven. The criminal-history score
included three points for two Illinois armed robbery conviction s that occurred in 1999.
Each Illinois conviction was worth one-and-a-half points. The probation agent wrote a
note next to each of these convictions that read: “Occurred whe n the [defendant] was 17
years old. Verified with Illinois DOC that this is an adult co nviction.” The Illinois court
imposed an 11-year prison sentence on each conviction.
The district court relied on the report to conclude that Wright ’s criminal-history
score was seven. Wright did not object to the district court’s criminal-history-score
calculation at sentencing. The district court sentenced Wright to 57 months’ imprisonment,
which was the presumptive senten ce for third-degree drug sale f or an offender with a
criminal-history score of seven.
Wright appeals the convictions and his sentence.

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D E C I S I O N
Wright argues that the evidence was insufficient to support hi s conviction for drug
sale, that the district court e rred in imposing convictions for both drug sale and drug
possession, and that the district court abused its discretion b y sentencing him based on a
criminal-history score of seven without first finding that the Illinois convictions that
occurred when he was 17 would have been certified to adult cour t had they occurred in
Minnesota. We address each issue in turn.
I. The evidence is sufficient to support Wright’s conviction for third-degree drug
sale.

Wright concedes that he possessed the cocaine found in his pock et. He challenges
the sufficiency of the evidence supporting his conviction for third-degree drug sale, arguing
that the evidence was not sufficient to prove he intended to se ll the cocaine he admittedly
possessed.
In reviewing whether a conviction was supported by sufficient evidence, this court
conducts “a painstaking analysis o f the record to determine whe ther the evidence, when
viewed in the light most favorable to the conviction, was sufficient.” State v. Ortega, 813
N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We assume that “the jury believed the
state’s witnesses and disbelieve d any evidence to the contrary. ” State v. Caldwell , 803
N.W.2d 373, 384 (Minn. 2011) ( quotation omitted). “[W]e will n ot disturb the verdict if
the jury, acting with due regard for the presumption of innocen ce and the requirement of
proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty
of the charged offense.” Ortega, 813 N.W.2d at 100.

7
The district court convicted Wright of third-degree drug sale u nder
Minn. Stat. § 152.023, subd. 1(1), which provides that a person is guilty of that crime “if
the person unlawfully sells one or more mixtures containing a n arcotic drug.” To “sell”
means to “sell, give away, barter, deliver, exchange, distribute or dispose of to another, or
to manufacture.” Minn. Stat. § 152.01, subd. 15a(1) (2016). Possession with the intent to
do any of these acts also constitutes a sale. Id., subd. 15a(3) (2016).
The state argued to the jury that Wright possessed the cocaine with the intent to sell
it. Intent to sell is usually proved with circumstantial evidence. State v. Porte, 832 N.W.2d
303, 309 (Minn. App. 2013). In this case, the only evidence of Wright’s intent to sell
cocaine is circumstantial evidenc e, namely evidence of Wright’s interaction with others,
the manner in which the cocaine was packaged, the amount of coc aine that he possessed,
other items found on Wright and in his car, and the amount of money that Wright had when
he was arrested.
When the conviction is based on circumstantial evidence, this c ourt applies a
two-step analysis. State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017). First, we identify
the circumstances proved at trial, disregarding evidence that i s not consistent with the
jury’s verdict. Id. Second, we “consider the reasonable inferences that can be drawn from
the circumstances proved.” Id. “We give no deference to the jury’s choice between
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.

8
“We review the circumstantial evidence not as isolated facts, b ut as a whole.” State v.
Sterling, 834 N.W.2d 162, 175 (Minn. 2013).
We first identify the circumst ances proved at trial: (1) Polic e saw two people, at
different times, get into Wright’s parked vehicle and get out s hortly thereafter; (2) those
people left the area after they got out of Wright’s vehicle; (3 ) Wright then drove to a gas
station; (4) a woman arrived at t he gas station, got into Wrigh t’s vehicle, got out a short
time later, and drove off in her o w n c a r s h o r t l y t h e r e a f t e r ; ( 5) while he was under
surveillance, Wright never got out of his vehicle; (6) the woma n involved in the third
interaction did not go into the gas station; (7) these three interactions were each consistent
with police officers’ experience buying drugs while undercover; (8) police arrested Wright
and found two bags in his pocket that contained drugs; (9) one of the bags contained several
individually packaged bindles of cocaine of various weights; (1 0) six bindles weighed
approximately 0.4 grams and the largest bindles weighed 2.3 gra ms and 3.158 grams;
(11) cocaine sellers usually package cocaine in bindles to sell it, and although drug users
often buy multiple bindles of cocaine and keep them in bindles until they use them,
possession of multiple bindles usually means that the bindles are for sale; (12) the amount
of cocaine that Wright possessed in the bindles at the time of his arrest could last a user
from two days to a week, depending on the user and the purity o f the cocaine; (13) police
also found $430 cash in Wright’ s pocket and a lighter; (14) the r e w a s a h a l f - s m o k e d
marijuana blunt in Wright’s car; (15) Wright had three phones; and (16) possession of three
phones could be a sign that a person is having an affair and dealing drugs.

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Next, we determine whether the circumstances proved, viewed as a w h o l e , a r e
“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. “Circumstantial
evidence of an intent to sell c ontrolled substances may include evidence as to the large
quantity of the drugs possessed, e vidence as to the manner of p ackaging, and other
evidence.” Porte, 832 N.W.2d at 309 (quotations o mitted). Other evidence of a
defendant’s intent to sell may include possession of packaging materials or a scale. State
v. Hanson, 800 N.W.2d 618, 623 (Minn. 20 11). Moreover, evidence that th e defendant
had a significant amount of cash, that he had contact informati on of known drug dealers,
or maintained records consistent with drug sales are evidence o f an intent to sell. State v.
Collard, 414 N.W.2d 733, 736 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).
Considering the evidence of the three individuals separately getting into Wright’s vehicle
and leaving after a short time on the same day, the amount of c ocaine that Wright
possessed, the manner in which it was packaged, the amount of cash that Wright had in his
pocket, and the three phones that Wright had in his vehicle, we conclude that the
circumstances proved are clearly consistent with a reasonable i nference that Wright
possessed the cocaine with the intent to sell it.
Wright argues that the circumstances proved, however, are also consistent with a
rational hypothesis of innocence—that he possessed the cocaine merely for personal use or
that he purchased the cocaine in the interactions that police observed. He contends that the
amount of cocaine that he possessed and the manner in which it was packaged are also
consistent with an inference that he purchased the cocaine for personal use and was keeping

10
it in the packaging as purchased. He asserts that the half-smo ked marijuana blunt in the
car shows that he is a drug user and that he might have intende d to use the cocaine. He
suggests that, because police c ould not see into the Equinox, it is reasonable to infer that
he purchased drugs from those who got into his car. He also ar gues that because there is
no evidence of how much money he had before the three interactions occurred, it is possible
that he was using the money in his pocket to buy drugs. Finall y, he asserts that he could
have been using the multiple phones in his car to facilitate multiple romantic affairs.
We disagree that the circumstances proved are consistent with a rational hypothesis
other than guilt. When viewed in totality, not as isolated fac ts, the circumstances proved
are not consistent with the hypothesis that Wright possessed th e cocaine for personal use
or that he purchased the cocaine in the interactions that polic e observed. There were
multiple circumstances proved th at are consistent with an inten t to sell and not personal
use. Police observed Wright have three separate interactions with three different people
on the same day, each consistent with a drug transaction, befor e being caught with drugs
packaged in a way that is “usually” for sale, $430 cash, and three phones. It is unreasonable
to infer that Wright possessed the drugs merely for personal us e given the multiple
interactions consistent with dr ug trafficking, the cash, and th e multiple cell phones. The
fact that Wright was involved in three consecutive, very short interactions with separate
individuals at two different locations on the same day is inconsistent with an inference that
he was purchasing drugs, especially considering the cash, phone s, and amount of cocaine
that Wright possessed. It is als o unreasonable to infer, under these circumstances, that

11
Wright had three cell phones to facilitate multiple affairs or that he made three separate
drug buys at two different locations within a short time span solely for personal use.
Because the circumstances proved are consistent with an inferen ce that Wright
intended to sell the cocaine that he possessed, and are inconsi stent with any rational
hypothesis other than that he in tended to sell it, the evidence is sufficient to support
Wright’s conviction for third-degree drug sale under Minn. Stat. § 152.023, subd. 1(1).
II. The district court erred by i mposing a conviction for both drug sale and drug
possession.

Wright asserts that the district court erred in imposing a con viction for both drug
sale and drug possession because both counts necessarily involve possession of the same
cocaine. A district court may not impose a conviction for a lesser-included offense that is
“necessarily proved if the crime charged were proved.” Minn. S tat. § 609.04, subd. 1(4)
(2016). The state agrees in this case that proof of the third-degree sale charge necessarily
included proof of the lesser offense of the fifth-degree possession charge; Wright could not
have possessed cocaine with the intent to sell it without possessing the cocaine. We agree
with the parties that the district court erred by imposing a conviction for both third-degree
drug sale and fifth-degree drug possession under these circumstances. See State v. Bertsch,
707 N.W.2d 660, 665-66 (Minn. 2006 ) (noting that Minn. Stat. § 609.04 applies when a
defendant is charged with disseminating contraband and possessi ng the same contraband
with the sole purpose of dissemination). We reverse the distri ct court’s imposition of a
conviction on the possession charge and remand with instructions to vacate the fifth-degree
drug-possession conviction, leaving the finding of guilt intact . See State v. LaTourelle ,

12
343 N.W.2d 277, 284 (Minn. 1984) (“[T]he proper procedure to be followed by the trial
court when the defendant is convicted on more than one charge for the same act is for the
court to adjudicate formally and impose sentence on one count only.”).
III. The district court abused its discretion in sentencing Wri ght based on a
criminal-history score of seven without first finding that his prior out-of-state
convictions, which occurred when W right was 17 years old, would have been
certified to adult court if they occurred in Minnesota.

Wright maintains that the district court abused its discretion in sentencing him based
on a criminal-history score of seven. We will not reverse a di strict court’s determination
of a defendant’s criminal-history score “absent an abuse of dis cretion.” State v. Maley ,
714 N.W.2d 708, 711 (Minn. App. 2006). But the interpretation of the sentencing
guidelines presents a legal issue that this court reviews de no vo. State v. Scovel , 916
N.W.2d 550, 554 (Minn. 2018).
“Minnesota’s Sentencing Guidelin es provide uniform standards fo r the inclusion
and weighting of criminal history information that are intended to increase the fairness and
equity in determining a defendant ’s criminal-history score.” Maley, 714 N.W.2d at 711
(quotation omitted). Under the sentencing guidelines, an offender’s criminal-history score
is the sum of points from eligible prior adult felonies, prior juvenile adjudications, prior
misdemeanors and gross misdemea nors, and the offender’s custody status at the time of
the offense. Minn. Sent. Guidelines 2.B.1-7 (2016). The guidelines detail the requirements
for calculating the offender’s criminal-history points in each of these areas. Id. If the
offender has a foreign conviction, the guidelines instruct a se ntencing court as to whether

13
the foreign conviction should be factored into the offender’s j uvenile section or adult
section:
Minnesota law governs the inclusion of a prior felony offense
from jurisdictions other tha n Minnesota committed by an
offender who was under 18 years old in the juvenile section or
adult section of the criminal history score. The offense should
be included in the juvenile history section only if it meets th e
requirements in section 2.B.4. The prior can be included in the
adult history section only if the factfinder determines that it is
an offense for which the offender would have been certified to
adult court if it had occurred in Minnesota.

Minn. Sent. Guidelines 2.B.5.e (emphasis added).
The district court factored Wright’s Illinois convictions, whic h occurred when he
was 17 years old, into his adult-history section. But, the dis trict court did not make an
express finding that either offense would have been certified to adult court if it had occurred
in Minnesota.
“[T]he district court may not use out-of-state convictions to calculate a defendant’s
criminal-history score unless the state lays foundation for the court to do so.” Maley, 714
N.W.2d at 711. “The state must establish by a fair preponderance of the evidence that the
prior conviction was valid, the defendant was the person involv ed, and the crime would
constitute a felony in Minnesota.” Id.; see also Williams v. State , 910 N.W.2d 736, 740
(Minn. 2018) (indicating that at sentencing the state bears the burden of proving that a prior
conviction qualifies for inclusion within the criminal-history score).
When determining whether a prior out-of-state offense would have been certified to
adult court in Minnesota, “the d istrict court may look to the d efinition of the offense, the
nature of the offense, and the sentence received.” State v. Edwards, 900 N.W.2d 722, 729

14
(Minn. App. 2017) (quotation omitted), aff’d mem., 909 N.W.2d 594 (Minn. 2018). 2 “In
many cases . . . the district court’s determination can be made by examination of the statutes
in the two states and without l ooking at the defendant’s underl ying conduct.” Id. (citing
Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992)). In Edwards, this court affirmed the district
court’s decision to include the appellant’s prior out-of-state juvenile offenses because the
district court compared the Minnesota and Wisconsin certification statutes and concluded
that the appellant would have b een certified to adult court if the crime occurred in
Minnesota. Id. at 729-31.
Unlike in Edwards, the district court in this case did not find that Wright’s
out-of-state convictions would have been certified to adult cou rt in Minnesota.
Nevertheless, the district cour t included the convictions in th e adult-history section of
Wright’s criminal-history score and assigned 1.5 points to each offense. Because the
guidelines provide that inclusion of these offenses in the defendant’s adult-history section
is only appropriate if the court determ ines that the out-of-state offe nse would have been
certified to adult court in Minnesota, the district court abuse d its discretion by including
the Illinois offenses in the adult-history section without firs t determining that they would
have been certified to adult court in Minnesota.
The state argues that the district court implicitly found that the Illinois convictions
would have been certified to adu lt court in Minnesota given the court’s ultimate
determination that Wright’s criminal-history score was seven. It argues that it introduced

2 Edwards was affirmed by the supreme court “upon an evenly divided court.” 909 N.W.2d
at 594.

15
sufficient evidence to prove each out-of-state conviction by a preponderance of the
evidence. But Wright does not challenge that the Illinois convictions exist, he argues that
the district court failed to make a necessary finding under the guidelines before including
the offenses in the adult-history section of Wright’s criminal-history score. There was no
discussion of Illinois convictions at the sentencing hearing. The limited information in the
record about the convictions inc ludes a note from the probation officer on the report, the
titles of the Illinois offenses (both armed robbery), and the f act that the Illinois court
sentenced Wright to 11 years in prison. While the district cou rt may have been able to
determine whether the Illinois offenses would have been certifi ed to adult court in
Minnesota using this information and with some additional legal research, we are not
convinced on this record that the district court made such a determination. There is nothing
in the record to suggest that the district court considered the Illinois or Minnesota
certification statutes before calculating Wright’s criminal-history score. Consequently, we
conclude that the district court abused its discretion by sente ncing Wright with a
criminal-history score of seven without first finding that the Illinois convictions would
have been certified to adult cour t in Minnesota. We remand to the district court for
resentencing with a proper criminal-history-score calculation.
We recognize that Wright did not object to the criminal-history-score calculation at
sentencing.3 Under similar circumstances, when a defendant failed to objec t to the

3 A defendant does not waive review of the district court’s crim inal-history-score
calculation by failing to object to the score at sentencing. State v. Maurstad, 733 N.W.2d
141, 147 (Minn. 2007).

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inclusion of foreign convictions in his criminal-history score and later challenged the score
on appeal, we have indicated that it is appropriate for the dis trict court to allow the state,
on remand, to present additional evidence to support the inclus ion of the offense in the
calculation of the defendant’s criminal-history score. See State v. Outlaw , 748 N.W.2d
349, 355 (Minn. App. 2008), review denied (Minn. July 15, 2008) (indicating that because
“appellant did not object to the district court’s determination that his out-of-state
convictions were felonies,” the state, on remand, was “permitte d to further develop the
sentencing record so that the district court [could] appropriately make its determination”).
We leave the decision of whether to reopen the record to allow the state to produce
additional evidence to the discretion of the district court.
Affirmed in part, reversed in part, and remanded.