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This opinion will be unpublished and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
A18-1153

State of Minnesota,
Respondent,

vs.

Gregorio Zuniga-Vallejo,
Appellant.

Filed May 28, 2019
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Le Sueur County District Court
File No. 40-CR-15-1087

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Brent Christian, Le Sueur County Attorney, Le Center, Minnesota (for respondent)

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

Considered and decided by Bratvold, 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
REILLY, Judge
Appellant argues that: (1) the district court erred in its admission of his non -
Mirandized statements; (2) the district court erred in its admission of J.Z.’s statements and

2
interpretations; (3) the evidence was insufficient to prove possession of controlled
substances; and (4) he is entitled to be re-sentenced in accordance with the Drug Sentencing
Reform Act (DSRA). We affirm the district court’s determination that appellant was not
in custody and therefore not entitled to a Miranda warning. We conclude that the district
court erred in its determination that J. Z.’s statements were admissible, however, we
determine that the error was harml ess beyond a reasonable doubt . The evidence is
sufficient to support appellant’s first -degree controlled substances conviction. Because
appellant is entitled to re-sentencing in accordance with the DSRA, we reverse and remand
for further proceedings in accordance with this opinion.
FACTS
On October 22, 2015, appellant called 911 numerous times from an area on Savidge
Lake Road near Cleveland, Minnesota. Deputy Sheriff Todd Lau located appellant’s truck
parked in front of 300 Savidge Lake Road . A ppellant jumped in front of Deputy Lau’s
squad car waving his arms, and stated that his wife was kidnapped with “a gun held to her
head” inside the 300 Savidge Lake Road house. Deputy Sheriff Dan Tousley arrived on
the scene, pat-searched appellant, and found roughly $5,000 in cash in appellant’s pocket.
When questioned about the money, appellant stated it was “for the ransom” that needed to
be paid to the Mexican drug cartel to ensure the safety of his family in Mexico . When
Deputies Jeff Gilhousen and Matt Shouler arrived on the scene they observed appellant
acting “nervous” and “erratic.” After placing appellant in a squad car, the deputies checked
the 300 Savidge Lake Road house to investigate appellant’s kidnapping claims but no one
was home.

3
Meanwhile, appellant’s wife, J.Z., flagged down a police officer in a different part
of town. An officer took her to her husband. When J.Z. arrived at 300 Savidge Lake Road ,
she was “in a complete panic,” “irrational,” and “paranoid.” J.Z. explained that her
daughter would be kidnapped and killed if she did not “pay them off,” but J.Z. would not
say who “they” were. Additionally, J.Z. mentioned that appellant’s family in Mexico had
already been kidnapped.
Officers confirmed that J.Z.’s brother, M.G., was caring for J.Z.’s daughter and she
was safe. Investigator Vollmer interviewed appellant and J.Z. at the Le Sueur County Law
Enforcement Center (LEC). Investigator Vollmer observed that appellant “appeared to be
under the influence of controlled substances” and that he “was very deceptive in many
answers he gave” during the interview. Investigator Vollmer also suspected that J.Z. was
under the influence of a controlled substance. During her interview, J.Z. reiterated that the
Mexican drug cartel was holding her daughter and appellant’s family in Mexico hostage,
and she noted that the kidnappings may be related to appellant’s “drug debt.” Investigator
Vollmer ultimately concluded the kidnapping claims were “unfounded,” and appellant and
J.Z. were released from the LEC.
On October 28, 2015, the homeowner of 300 Savidge Lake Road found a suspicious
package in his garden. The package was tightly sealed with saran wrap and other layers of
plastic. The property owner cut it open and saw a white crystalline substance inside. The
property owner reported the information to law enforcement. Deputy Shouler retrieved the
package, conducted a fie ld test of the substance , and determined it tested positive for
methamphetamine. Deputy Shouler later determined that the package weighed 1.12

4
pounds (or 544 grams) with its packing material and submitted a roughly 30-gram sample
of the suspected methamphetamine to the Minnesota Bureau of Criminal Apprehension
(BCA) for testing.
On November 16, 2015, Investigator Todd Waldron and BCA Senior Special Agent
Robert Nance went to appellant’s apartment to interview appellant and J.Z. The officers
advised appellant that he was not under arrest, that he did not have to answer their
questions, and that he could ask the officers to leave at any point during the conversation.
During the recorded interview, a ppellant spoke English intermittently and J.Z. assisted in
some interpretation. J.Z. also answered some questions on her own behalf. Appellant
made several admissions during the interview, including that he used methamphetamine
on October 22 and that he left the “little package” of methamphetamine at a r esidence on
Savidge Lake Road because he knew that the police were coming. Appellant also signed
a photograph of the package of methamphetamine found by the property owner in order to
indicate it was the same package he hid.
The state charged appellant wi th a first -degree controlled -substance crime in
violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2014), based upon his possession of 25
grams or more of methamphetamine on October 22, 2015. The matter proceeded to a three-
day jury trial. At trial, the state called six witnesses to describe the October 22 incident
and the October 28 discovery of the methamphetamine. In addition, the court received into
evidence a photograph depicting the close proximity of appellant’s truck to the property
owner’s residence on October 22, the 1.12 -pound package of methamphetamine that the
property owner found on October 28, BCA lab results indicating that the package contained

5
methamphetamine, and the recording of the November 16 interview. At the conclusion of
trial, the jury found appellant guilty.
This appeal follows.
D E C I S I O N
I. Appellant Was Not In Custody.
Appellant argues that the district court erred in its pretrial decision to admit his
November 16 non-Mirandized statements because a reasonable person would have
believed he was in police custody. Miranda v. Arizona provides procedural safeguards to
protect an individual’s Fifth Amendment privilege against self -incrimination. 384 U.S.
436, 478-79, 86 S. Ct. 1602, 1630 (1966). Statements made by a suspect during a custodial
interrogation are admissible only if the statements were preceded by a Miranda warning.
State v. Thompson, 788 N.W.2d 485, 491 (Minn. 2010). In other words, a Miranda warning
is required if two factors are present: custody and interrogation. Id. Because the state does
not dispute that appellant was subject to an interrogation , the question in this app eal is
whether appellant was in custody.
“[A]n interrogation is custodial if, based on all t he surrounding circumstances, a
reasonable person would believe he or she was in police custody to the degree associated
with formal arrest.” State v. Scruggs, 822 N.W.2d 631, 637 (Minn. 2012). The test is not
merely “whether a reasonable person would believe he or she was not free to leave.” State
v. Champion , 533 N.W.2d 40, 43 (Minn. 1995). The determination is an “objective
inquiry,” and the suspect’s subjective beliefs about whether he was in custody are therefore

6
irrelevant. See State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998) (noting that the standard
refers to “a reasonable person in the suspect’s situation”).
Factors suggesting that a person is in custody include:
(1) the police interviewing the suspect at the police station;
(2) the suspect b eing told he or she is a prime suspect in a
crime; (3) the police restraining the suspect’s freedom of
movement; (4) the suspect making a significantly
incriminating statement; (5) the presence of multiple officers;
and (6) a gun pointing at the suspect.

Scruggs, 822 N.W.2d at 637.
Factors suggesting that a person is not in custody include:
(1) questioning the suspect in his or her home; (2) law
enforcement expressly informing the suspect that he or she is
not under arrest; (3) the suspect’s leaving the p olice station
without hindrance; (4) the brevity of questioning; (5) the
suspect’s ability to leave at any time; (6) the existence of a
nonthreatening environment; and (7) the suspect’s ability to
make phone calls.

Id. A determination of whether a suspect was in custody involves a mixed question of law
and fact. State v. Horst, 880 N.W.2d 24, 31 (Minn. 2016). This court reviews the district
court’s underlying factual findings for clear error. 1 Id. But, whether those facts support a

1 Appellant specifically challenges five of the d istrict court’s factual findings : (1) that
appellant confirmed that the package was methamphetamine; (2) that he was using
methamphetamine when he was on Savidge Lake Road; (3) that he hid the package of
methamphetamine when he knew that officers were coming to his location; (4) that he did
not sell the methamphetamine because he no longer had it in his possession; and (5) that
he was fronted the methamphetamine. A factual finding is clearly erroneous only when
there is no reasonable evidence to support the finding or when the appellate court is left
with the definite and firm conviction that a mistake occurred. State v. Roberts, 876 N.W.2d
863, 868 (Minn. 2016). After careful rev iew of the record, we determine that the
challenged findings are properly supported by the record and , moreover, the contested

7
determination that the suspect was in custody is a legal conclusion which this court reviews
independently. Id. “If the district court applies the correct legal standard, we grant
considerable, but not unlimited, deference to the district court’s fact-specific resolution of
whether the interrogation was custodial.” Id. (quotation omitted).
A. The District Court Applied the Correct Legal Standard.
The Minnesota Supreme Court has consistently applied a deferential standard when
reviewing a district court’s custody determination for Miranda purposes. See, e.g., State
v. Sterling, 834 N.W.2d 162, 167 -68 (Minn. 2013) (stating that even though an appellate
court “ makes an independent review of the [district] court[’s] determination regarding
custody and the need for a Miranda warning,” it grants “considerable, but not unlimited,
deference to a [district] court’s fact -specific resolution of such an issue when the proper
legal standard is applied” (quotations omitted)).
Appellant argues that the district court did not apply the correct standard in this case.
In its pretrial order, the district court stated that the court must analyze whether the person
being questioned is in custody or deprived of his freedom of action in any significant way,
not whether the interrogation has coercive aspects to it or whether the investigation has
focused on the person being questioned. See Oregon v. Mathiason, 429 U.S. 492, 494, 97
S. Ct. 711, 713 (1977). Though the district court did not outline the appropriate factors to
consider when making a custody determination, it nevertheless considered relevant factors

findings are not particularly relevant to the determination of whet her appellant was in
custody. The district court did not clearly err in its factual findings regarding appellant’s
statements to officers.

8
as provided in Scruggs. 822 N.W.2d at 637 (detailing that factors a court could consider
include location of the i nterview, restraint of defendant’s freedom, information provided
to defendant, use of weapons, and extent of questioning). Here, the district court noted that
the interview took place at appellant’s home, appellant freely invited the officers inside,
and the officers told appellant that he did not need to speak with them and that he was not
under arrest. We therefore determine that the district court applied the correct standard in
this case.
B. The District Court Did Not Err When It Determined Appellant Was Not In
Custody.

Appellant argues that the district court erred in its determination of custody statu s.
This court independently reviews whether the facts support a determination that the suspect
was in custody. Horst, 880 N.W.2d at 31 . A determination regarding whether a suspect
was in custody is “based on all the surrounding circumstances” and “no factor alone is
determinative.” Thompson, 788 N.W.2d at 491.
First, appellant argues that there was a change in circumstance during the interview
that would lead a reasonable person to believe he was in custody. Appellant contends that
the discussion shifted when the officers made an accusation that appellant left
methamphetamine in the property owner’ s garden, told appella nt that they could present
the case to a county attorney, and discussed appellant signing the photograph to “put[] it
into evidence for you, you know.” However, the Supreme Court has unequivocally
declared that an interrogation may be noncustodial even if it occurs in a “coercive

9
environment” where “the questioned person is one whom the police suspect.” Mathiason,
429 U.S. at 495, 97 S. Ct. at 714.
Second, appellant argues that the mere fact that the questioning occurred inside his
home does not mean that it was noncustodial and the district court should have considered
other factors when making its custody determination . Appellant is correct that, “the mere
fact that questioning occurred in a suspect’s home does not by itself mean that the
questioning was not custodial in nature.” State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).
Though this factor is not dispositive, it remains a legitimate factor under the totality -of-
the-circumstances custody test. Horst, 880 N.W.2d at 32. Appellant also argues that the
district court did not consider certain factors which support a determination that he was in
custody (i.e. appellant was the prime suspect, appellant’s home was a part of the
investigation, and appellant made a significantly incriminating statement). However, “a
district court is not required to discuss every fact that is relevant to a determination of
custody so long as it considers the totalit y of the circumstances and makes sufficient
findings to support its decision.” Id. Without indicia of formal arrest or restraint of the
suspect’s freedom of movement, a coercive environment does not render the questioning
custodial. Id.
Here, the two officers went to appellant’s apartment building in plain clothes. After
the officers were buzzed into the apartment building, appellant greeted them at the door of
his apartment unit. The investigators followed appellant back to the entryway while he
retrieved his mail. After appellant brought them back to his apartment, the officers advised
appellant that he was not under arrest, that he did not have to answer their questions, and

10
that he could ask the officers to leave at any point during the conversatio n. The officers
acknowledged that they presented appellant and J.Z. with false fingerprint evidence during
the interview as a “tactic,” both to gauge whether they were being truthful and to encourage
an honest confession. Appellant never denied that the package could con tain his
fingerprints. During the interview appellant signed a photograph of the package containing
methamphetamine to identify that it was the package referenced during the interview. At
trial, th e officers testified that they did not attempt to intimid ate app ellant into a false
confession, but rather, that their goal was to get to “the truth,” they treated him with respect
throughout the conversation, and they assured him that he was not under arrest . Based
upon the totality of the circumstances , we affirm the district court’s determination that
appellant was not in custody and therefore was not entitled to a Miranda warning.
II. J.Z.’s Statements to Police Were Not Admissible.
Before trial, appellant filed a motion to suppress all statements “stated by or
attributed to” his wife during the interview, and to preclude her prospective trial testimony
based on marital privilege. The district court denied the motion to suppress the statements
because they were neither confidential nor testimonial, but granted appellant’s objection to
his wife testifying at trial based on marital privilege. Appellant argues that the district
court deprived him of his Sixth Amendment right to confront a witness against him when
it allowed his wife’s statements into evidence when his wife was not available for cross -
examination due to spousal privilege. Generally, appellate courts review a district court’s
evidentiary ruling for an abuse of discretion. Miles v. State, 840 N.W.2d 195, 204 (Minn.
2013). But, whether admission of e vidence violates a criminal defendant’s rights under

11
the Confrontation Clause is a question of law that appellate courts review de novo. Hawes
v. State, 826 N.W.2d 775, 786 (Minn. 2013).
The Sixth Amendment to the United States Constitution provides that in all criminal
prosecutions “the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. The Sixth Amendment is applicable to the states via
the Fourteenth Amendment. Pointer v. Texas , 380 U.S. 400, 403, 85 S. Ct. 1065, 1068
(1965). The Confrontation Clause bars the admission of testimonial out -of-court
statements unless (1) the declarant is unavailable and (2) the defendant had a prior
opportunity to cross -examine the declarant. Andersen v. State , 830 N.W.2d 1, 9 (Minn.
2013) (citing Crawford v. Washington , 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004)).
“Testimony” means a “solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Crawford, 541 U.S. at 51, 124 S. Ct. at 1364.
A. J.Z.’s Statements Were Testimonial.
Appellant argues that the J.Z. ’s statements during the interview were testimonial
and therefore his Confrontation Clause rights were violated when J.Z.’s statements were
admitted into evidence without J.Z. being available for cross -examination. The district
court determined that J.Z. could not testify based upon spousal privilege. The district court
considered the two distinct marital -privileges: “(1) the privilege to prevent a spouse from
testifying against the other during the marriage; and (2) the privilege to prevent a spouse
from t estifying at any time concerning confidential interspousal communications made
during the marriage.” State v. Palubicki, 700 N.W.2d 476, 483 (Minn. 2005). However,
the district court determined that J.Z.’s statements were not confidential because they were

12
made in the presence of two officers and were therefore admissible . See State v. Leecy ,
294 N.W.2d 280 , 283 (Minn. 1980) (explaining that c ommunications made when others
are present are not confidential and therefore are not privileged).
However, the s tate concedes that the district court erred when it determined that
J.Z.’s statements were admissible evidence because J.Z.’s statements were “testimonial”
for Crawford purposes.2 The facts of this case are analogous to those presented in State v.
Swaney, 787 N.W.2d 541 (Minn. 2010). In Swaney, the supreme court held that statements
by the defendant’s wife to a BCA agent during a recorded interview were testimonial
because they were “knowingly given in response to structured police questioning” and the
agent’s objective was to establish “past events potentially relevant to later criminal
prosecution.” Id. at 552. We conclude that the district court erred in its admission of J.Z.’s
statements because they violated appellant’s confrontation rights.
B. The Admission of J.Z.’s Statements Was Harmless Error.
We must then determine if the error was harmless beyond a reasonable doubt. Id.
at 555 (providing that confrontation -clause viol ations are subject to harmless -error
analysis). When making this determination, we examine the record as a whole, considering

2 We note that the definition of interrogation for Miranda purposes is distinct from the
definition of interrogation in a Crawford analysis. The United States Supreme Court has
determined that the definition of interrogation for Fifth and Sixth Amendment purposes is
not interchangeable. Rhode Island v. Innis, 446 U.S. 291, 300 n.4, 100 S. Ct. 1682, 1689
n.4 (1980). In the Crawford context, the term “interrogation” is to be used in its colloquial
sense and a recorded statement given in response to police questioning qualifies. Swaney,
787 N.W.2d at 552. The recorded interview was not a custodial interrogation for Miranda
purposes, but the statements were “testimonial” and given during an “interrogation” under
Crawford.

13
the manner in which the evidence was presented, whether it was highly persuasive, whether
it was used in closing argument, and whether it was effectively countered by the defendant.
State v. Courtney, 696 N.W.2d 73, 79-80 (Minn. 2005). We also consider the strength of
the evidence of guilt. State v. Hall, 764 N.W.2d 837, 842 (Minn. 2009).
Appellant argues that a defendant’s confession is the most probative and damaging
evidence that can be admitted against him and therefore the admission is not harmless
error.3 However, the question is not whether the entirety of the November 16 recording
impacted the verdict, but whether the portions admitted in error —J.Z.’s own statements
and interpretations—impacted the verdict. Based on our review of the entire record, we
determine that the district court’s error was harmless beyond a reasonable doubt for three
reasons: (1) the majority of J.Z.’s statements are unrelated to the charged offense; (2) many
of J.Z.’s statements were also admitted by appellant himself; and (3) the state presented
overwhelming evidence of appellant’s guilt.
During the interview, J.Z. independently provided st atements and answered
questions in response to police questions. However, the statements made by J.Z. during
the recorded interview were not particularly persuasive to prove appellant’s guilt. For
example, J.Z. provided background information; she descri bed her family, her health
concerns, and the couple’s employment. Upon review ,4 very little information of

3 We have already determined that appellant’s statements to investigators on November 16,
2015 were noncustodial and, therefore, admissible.
4 During our review of the record, we redacted all statements and interpretations made by
J.Z. from the interview transcript in order to determine the evidentiary value of J. Z.’s
statements in comparison to appellant’s statements.

14
evidentiary value was contained in J.Z.’s statements. Instead, appellant made the
incriminating statements.
We also note that during the trial, the prosecutor did not heavily rely on J.Z.’s
statements and did not extensively refer to them in closing argument. The prosecutor
referenced statements made by J.Z. approximately three times ,5 whereas, the prosecutor
referenced the much more damaging statements provided by appellant throughout his
closing argument. During the recorded interview, appellant stated that he used
methamphetamine on October 22, that he had previously sold methamphetamine , that he
knew the drug’s street value, and that he was “fronted” the methamphetamine in question
and still owed his supplier . Additionally, appellant admitted that he hid the
methamphetamine in the garden because he called the police and they were coming.
Finally, even if the interview was ex cluded, the state presented strong evidence at
trial. Testimony describing appellant’s proximity to 300 Savidge Lake Road on October
22, coupled with his and J.Z.’s behavior and their discussion of “drug debts” and ransom,

5 First, on page 388-89 of the trial transcript, the prosecutor stated that J.Z. and appellant
“both admitted to using meth” on October 22. While J.Z.’s admission to using
methamphetamine on October 22 was inadmissible, there was other strong evidence
supporting drug use by both J.Z. and appellant. Second, on page 390, J.Z.’s statement that
appellant and she lived in the apartment since 2013 was mentioned during closing
arguments. That statement is not persuasive to prove appellant’s guilt. Third, on page 393,
the prosecutor stated that J.Z. indicated that packages are not coming to the home.
However, as the prosecutor noted, the appellant thereafter provided a statement that he
meets people in the cities to pick up the drugs which undercuts the evidentiary value of
J.Z.’s statement.

15
is strong circumstantial evidenc e. W e determine that the admission of J. Z.’s statements
was harmless beyond a reasonable doubt.6
III. The Evidence Was Sufficient to Convict Appellant.
Appellant argues that the evidence is insufficient to support his conviction for
possession of a controlled substance. When reviewing the sufficiency of the evidence, this
court undertakes “a painstaking analysis of the record to determine whether the evidence,
when viewed in the light most favorable to the conviction, was sufficient” to support the
conviction. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). This
court must assume that the fact -finder “believed the state’s witnesses and disbelieved any
evidence to the contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation
omitted). This court does “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
reasonably conclude that the defendant was guilty of the charged offense.” Ortega, 813
N.W.2d at 100. If the state’s evidence on one or more elements of a charged offense

6 Appellant argues that J.Z.’s interpretations of appellant’s statements should not have been
admitted because J.Z. was the declarant of those statements, they were testimonial, she was
unavailable due to spousal privilege, and there was no opportunity for cross -examination.
For the same reasons that the admission of J.Z.’s statements was harmless beyond a
reasonable doubt, we conclud e that the admission of J.Z.’s interpretation s was harmless
beyond a reasonable doubt . Appellant provided many incriminating statements with out
any interpreting assistance. Appellant independently answered, in English, numerous
questions posed by the officers. Additionally, appellant often answered the officer’s
English questions in Spanish without any interpretations by J.Z. We need not re ach the
merits of the argument because we determine that the admission of the inter preted
statements was harmless beyond a reasonable doubt. See State v. Sanders , 775 N.W.2d
883, 889 n.5 (Minn. 2009) (“When an alleged evidentiary error is harmless, an app ellate
court need not address the merits of the claimed error.”).

16
consists solely of circumstantial evidence, 7 this court applies a heightened standard of
review. State v. Porte , 832 N.W.2d 303, 309 (Minn. App. 2013); see also Be rnhardt v.
State, 684 N.W.2d 465, 477 (Minn. 2004).
When reviewing a conviction based on circumstantial evidence, this court applies a
two-step test to determine the sufficiency of the evidence. State v. Moore, 846 N.W.2d 83,
88 (Minn. 2014). First, this court “identif[ies] the circumstances proved.” Id. (citing State
v. Andersen , 784 N.W.2d 320, 329 (Minn. 2010)). “In identifying the circumstances
proved, [this court] assume[s] that the jury resolved any factual disputes in a manner that
is consistent with the jury’s verdict.” Id. (citing Andersen, 784 N.W.2d at 329). Second,
this court independently examines the “reasonableness of the inferences that might be
drawn from the circumstances proved,” and then “determine[s] whether the circumstances
proved are consistent with guilt and inconsistent with any rational hypothesis except that
of guilt.” Id. (quotations omitted). This court must consider the evidence as a whole and
not examine each piece in isolation. Andersen, 784 N.W.2d at 332.
A. Standard of Review
The parties dispute the appropriate standard of review. The state asserts that the
heightened standard of review does not apply in this case because appellant’s possession
of the methamphetamine was proven by a combination of direct and circ umstantial

7 Circumstantial evidence is “evidence from which the factfinder can infer whether the
facts in dispute existed or did not exist.” State v. Harris , 895 N.W.2d 592, 599 (Minn.
2017) (quotation omitted). Direct evidence is “evidence that is based on personal
knowledge or observation and that, if true, proves a fact without inference or presumption.”
Id. (quotation omitted).

17
evidence. Appellant cites to State v. Silvernail, 831 N.W.2d 594 (Minn. 2013) to support
the use of the heightened standard of review for a conviction based on both circumstantial
and direct evidence. But in Silvernail the court determined that it “need not resolve the
parties’ dispute regarding the standard of review” because there was sufficient evidence
under either standard. Id. at 598. In this case, appellant’s possession of the
methamphetamine is supported by both direct and circumstantial evidence.
Appellant’s incriminating statement s are direct evidence of guilt. 8 See State v.
Weber, 137 N.W.2d 527, 535 (Minn. 1965) (“The ‘admissions’ of the defendant constituted
direct and not circumstantial evidence.”) ; see also Horst, 880 N.W.2d at 40 (determining
that defendant’s statement—“I want him dead” —was direct evidence of her mens rea for
first-degree premediated murder). Accordingly, we may apply our traditional standard of
review. However, w e note —just as the Silvernail court did —that e ven under the
heightened standard of review, appellant’s argument is not persuasive.
B. Possession
To convict appellant of first -degree possession of a controlled substance, the state
was required to prove that he unlawfully possessed a total weight of 25 grams or more of
methamphetamine. Minn. Stat. § 152.021, subd. 2(a)(1);9 see also 10 Minnesota Practice,

8 Appellant argues that the state’s direct evidence —appellant’s statement—was admitted
in error. We analyzed appellant’s argument regarding his statements above and affirmed
the district court’s decision.
9 Minnesota Statutes section 152.021, subdivision 2(a)(1) was amended in 2016. The
amendment changed the requirement for first-degree possession of methamphetamine from
25 grams to 50 grams. The amendment went into effect on August 1, 2016 and applied to
crimes committed on or after that date.

18
CRIMJIGS 20.03 (2016). Appellant argues that the evidence was insufficient to prove that
he possessed the methamphetamine found in the garden beyond a reasonable doubt.
Possession may be either actual or constructive. Harris, 895 N.W.2d at 601. Actual
possession is defined as “direct physical control.” State v. Barker, 888 N.W.2d 348, 353
(Minn. App. 2016) (quotation omitted). Constructive possession may be established either
(1) by proof that the item was in a place under the defendant’s “exclusive control to which
other people did not normally have access” or (2) by proof of a strong probability that “the
defendant was at the time consciously exercising dominion and control over it,” even if the
item was in a place to which others had access. State v. Florine, 226 N.W.2d 609, 611
(Minn. 1975) . Though the parties contend that this case centers on ly on constructive
possession, we determine that there is sufficient evidence to support appellant’s prior actual
possession of the controlled substance . Barker, 888 N.W.2d at 354 (“The mere fact that
an item is not in a defendant’s physical possession at the time of apprehension does not
preclude prosecution for actual possession of contraband.” ); see also State v. Olhausen ,
681 N.W.2d 21, 23, 26 (Minn. 2004) (affirming first-degree controlled substance offenses,
including possession, where there was a wealth of circumstantial evidence that the
defendant had possessed methamphetamine but did not possess the substance when
arrested).
When taken in the light most favorable to the verdict, the evidence proves the
following circumstances: (1) appellant c alled police on October 22; (2) appellant had a
large package of methamphetamine with him on October 22; (3) appellant hid the package
of methamphetamine at 300 Savidge Lake Road because police were coming; (4) appellant

19
was located by police at 300 Savidge Lake Road; ( 5) appellant was acting erratic and was
under the influence of controlled substances; (6) appellant used methamphetamine on
October 22; (7) six days after the incident with appellant, the property owner found a 1.12-
pound (or 544 gram) package containing methamphetamine in his garden; (8) appellant
had been fronted the methamphetamine by a supplier; (9) appellant would need to work off
his debt for the drugs; and (10) the package found on October 28 was the same package
left by appellant on October 22.
Under the heightened-review standard, we must then determine if “there are no other
reasonable rational inferences that are inconsistent with guilt.” State v. Al-Naseer, 788
N.W.2d 469, 474 (Minn. 2010). Here, the circumstances proved are consistent with the
hypothesis that the package found by the property owner was placed there by appellant.
There is no other reasonable rational inference inconsistent with appellant’ s guilt.
Accordingly, we determine that there is sufficient evidence to convict appellant for his
possession of methamphetamine.
IV. The District Court Erred in Sentencing.
Appellant argues that he is entitled to be re-sentenced in accordance with section 18
of the DSRA and that he should be re-sentenced to a 56-month term, which is the bottom-
of-the-box sentence under the Drug Offender Grid. The DSRA, in part, modified statutory
provisions of the sentencing guidelines to make certain presumptive sentences less severe.
See 2016 Minn. Laws ch. 160, §§ 1 -22, at 576 -92. In State v. Kirby , the supreme court

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held that section 18 of the DSRA applies to crimes committed before May 23, 2016 ,10 so
long as three requirements are satisfied: (1) there is no statement of legislative intent “to
abrogate the amelioration doctrine; (2) the amendment mitigates punishment; and (3) final
judgment has not been entered as of the date the amendment takes effect.” 899 N.W.2d
485, 488-90 (Minn. 2017).
The state agrees that these three factors are all met in this case, and that appellant is
entitled to resentencing under the DSRA. Even with the state’s concession, this court must
decide cases in accordance with the law. State v. Hannuksela, 452 N.W.2d 668, 673 n.7
(Minn. 1990). First, in Kirby the supreme court concluded that “the Legislature made no
statement that clearly establishes its intent to abrogate the amelioration doctrine with
respect to DSRA § 18 [(reducing sentencing range for those convicted of first -degree
possession)].” 899 N.W.2d at 495. Second, at the time of appellant’s sentencing the
presumptive range was 74 to 103 months. Minn. Sent. Guidelines 4.A (Supp. 2015). This
changed under the DSRA-amended sentencing guidelines to a presumptive range of 56 to
78 months. Minn. Sent. Guidelines 4.C (2016). Third, the district court imposed
appellant’s sentence on April 17, 2018, so his conviction was not final when the DSRA
became effective. This Court must accordingly remand appellant’s case to the district court
for re-sentencing. 899 N.W.2d at 496; see also State v. Otto, 899 N.W.2d 501, 504 (Minn.
2017) (holding that “for the reasons discussed in Kirby” the amelioration doctrine required

10 Section 18 of the DSRA provides that the section “is effective the day fo llowing final
enactment.” 2016 Minn. Laws ch. 160, § 18, at 591. Because the governor signed the
DSRA into law on May 22, 2016, section 18 became effective on May 23, 2016. See 2016
Minn. Laws ch. 160, at 592; see also Kirby, 899 N.W.2d at 488.

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that Otto, convicted of first-degree possession of methamphetamine, be re-sentenced under
the DSRA-amended sentencing grid).
Appellant also argues that he should be re -sentenced to a 56-month bottom-of-the-
box term under the Drug Sentencing Grid because that sentence is consistent with the
bottom-of-the-box term that appellant received at sentencing on April 17, 2018. Appellant
argues that because both the prosecutor and presentence interview preparer recommended
the lowest end of the presumptive range below, this court should simply apply that here.
Because the district court is in the best position to weigh sentencing options, Massey v.
State, 352 N.W.2d 487, 489 (Minn. App. 1984), we deny appellant’s request to remand for
imposition of a 56-month commitment. The district court has discretion to determine the
appropriate sentence within the presumptive range of the DSRA-amended sentencing grid
on remand. See State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998) (noting that the district
court “is in the best position to evaluate the offender’s conduct and weigh sentencing
options”). Therefore, we remand back to the district court for resentencing.
Affirmed in part, reversed in part, and remanded.