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This opinion will be unpublished and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
A18-1588

State of Minnesota,
Respondent,

vs.

Lee Vang,
Appellant.

Filed August 12, 2019
Affirmed in part, reversed in part, and remanded
Reyes, Judge
Dissenting, Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-17-5085

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

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant 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 Rodenberg, Presiding Judge; Bjorkman, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this direct appeal from convictions of and sentences for second-degree possession
of methamphetamine and aiding and abetting second -degree possession of

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methamphetamine, appellant argues that (1) the state failed to present sufficient evi dence
to prove that she constructively possessed the drugs found in her vehicle; (2) the state failed
to present sufficient evidence to prov e that she aided and abetted possession of the drugs;
and (3) the district court erred by imposing separate convicti ons because the charges
involved the same act of possession. We affirm in part, reverse in part, and remand.
FACTS
In the early morning of September 22, 2016, U.S. Fugitive Apprehension Agent
Stewart Peters patrolled an area of Minneapolis looking for Jason Stone, who had a warrant
out for his arrest. Acting as a bail investigator, Agent Peters had received information that
Stone would be in a Chevrolet Malibu with his girlfriend, appellant Lee Vang. He found
the empty Malibu in an alley , called for b ackup, and proceeded to surveil it. At around
2:00 a.m., the agents observed Stone and appellant enter the Malibu and prepare to exit the
alleyway. Agent Peters and his partners boxed in the Malibu with their vehicles and
instructed Stone, the driver, to turn off and exit the Malibu. The agents also asked
appellant, sitting in the passenger seat, to exit the Malibu.
After the agents searched and secured Stone, Agent Peters asked appellant if there
were any weapons in the Malibu that he should know abou t. She replied that there was
methamphetamine in the car, and pointed to a black bag in the backseat. When Agent
Peters asked how much meth amphetamine was in the bag, she stated that it weighed “not
a little.” Agent Peters took the bag from the back seat and placed it on the hood of his
vehicle. He looked inside and noticed a baggie containing what he believed to be
methamphetamine. He immediately called the Minneapolis Police Department.

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Upon arriving at the scene, Minneapolis police officers searched the bag and found
drug paraphernalia, suspected marijuana, suspected methamphetamine, counterfeit U .S.
currency, and Stone’s cell phone. Appellant asked the police officers if she could keep the
cell phone but they refused and took it into custody along with the other items. The
suspected methamphetamine field-tested positive and weighed a total of 32 grams.
In February 2017, respondent State of Minnesota charged appellant wi th second-
degree possession of a controlled sub stance, in violation of Minn. Stat. § 152.022, subd.
2(a)(1) (2016). Appellant moved to dismiss, arguing that the complaint lacked probable
cause to show that she possessed the methamphetamine. The district court denied her
motion, finding that probable cause existed to support the charges, and that “the factual
determination as to whether [appellant] was in possession of the methamphetamine should
be determined by a factfinder.”
In February 2018, the state amended the complaint to add a charge of aiding and
abetting possession pursuant to Minn. Stat. § 609.05, subd. 1 (2016). The district court
held a jury trial from April 9-12, 2018. At trial, the parties stipulated to the following facts:
that the Malibu belonged to appellant’s father, that appellan t used the vehicle frequently,
and that she possessed the vehicle on the day of the incident. The jury found appellant
guilty of both counts. The district court entered convictions on both counts and sentenced
appellant to 75 months on count II. This appeal follows.

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D E C I S I O N
I. Sufficient evidence support s appellant’s conviction o f count I, possession of a
controlled substance.

Appellant first argues that the state failed to present sufficient evidence to prove that
she con structively possessed the methamphetamine because it only established her
proximity to and knowledge of the drugs, not her dominion and control over them. We
disagree.
In reviewing a claim of insufficient evidence, we painstakingly review the record to
determine whether the evidence and reasonable inferences drawn therefrom, when viewed
in the light most favorable to the conviction, are sufficient to support the conviction. State
v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). We assume that “the jury 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). “[W]e will not disturb the verdict if the jury,
acting with due regard for the presumption of innocence an d 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.
Under Minn. Stat. § 152.022, subd. 2(a)(1) , the state had to prove that appellant
unlawfully possessed 25 grams or more of methamphetamine. “A person is guilty of
possession of a controlled substance if she knew the nature of the substance and either
physically or constructively possessed it.” State v. Denison, 607 N.W.2d 796, 799 (Minn.
App. 2000). “ A person may constructively possess a controlled substance alone or with
others.” Id. “Constructive possession may be proved by showing either that (1) the

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controlled substance was found in an area under the defendant’s control and to which others
normally had no access; or (2) if others had access to the location of the controlled
substance, the evidence indicates a strong probability that the defendant exercised
dominion and control over the area.” Id. at 800.
Constructive possession can be proved through circumstantial evidence. State v.
Sam, 859 N.W.2d 2d 825, 832 (Minn. App. 2015). Convictions based on circumstantial
evidence require “heightened scrutiny.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn.
2010). In State v. Harris, the supreme court reaffirmed the two-step analysis to apply when
a conviction is based on circumstantial evidence . 895 N.W.2d 592, 600 (Minn. 2017).
First, we “winnow down the evidence presented at trial by resolving all questions of fact
in favor of the jury’s verdict, resulting in a subset of facts that constitute the circumstances
proved.” Id. (quotation omitted). In doing this, we reject evidence that conflicts with the
circumstances proved. State v. Anderson , 789 N.W. 2d 227, 241 -42 (Minn. 2010)
(quotation omitted).
Second, we consider “whether a reasonable inference of guilt can be drawn from
the circumstances proved, viewed as a whole, and whether a reasonable inference
inconsistent with guilt can be drawn from the circumstances proved, again viewed as a
whole.” Harris, 895 N.W.2d at 600. A reasonable inference cannot be based on “mere
conjecture.” State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012). And mere “possibilities
of innocence do not require reversal of a . . . verdict so long as the evidence taken as a
whole makes such theories seem reasonable.” State v. Stein, 776 N.W.2d 709, 714 (Minn.
2010) (quotation omitted). Both steps focus on the circumstances proved. Because the

6
state proved constructive possession through circumstantial evidence, we apply the two -
step standard above.
Here, the state proved the following circumstances: (1) Agent Peters looked for
Stone in Minneapolis because of an out standing warrant for his arrest; (2) Agent Peters
knew Stone would be with his girlfriend , appellant, in a Chevy Malibu; (3) the agents
located the Chevy Malibu and observed two people g et into it at around 2:00 a .m.;
(4) Agent Peters’ partners identified the driver of t he vehicle as Stone; (5) Agent Peters
recognized appellant sitting in the passenger seat; (6) appellant told Agent Peters about the
bag with methamphetamine and its exact location; (7) appellant sat in close proximity to
the bag; (8) appellant stated that the amount of drugs was “not a little;” (9) appellant asked
if she could have Stone’s phone located in the bag; ( 10) BCA testing later confirmed that
the drugs tested positive for 31.984 grams of methamphetamine; and (11) appellant’s father
owned the Chevy Malibu and appellant possessed it on that day.
Appellant argues that the circumstances do not eliminate a rational hypothesis “of
innocence that appellant did not constructively possess the methamphetamine. ” It is true
that proximity to the drugs alone is not enough to convict appellant. See Harris , 895
N.W.2d at 601 (stating that “the [s]tate must prove more than the defendant’ s mere
proximity to the firearm”). And her ease of access to the drugs is only “one factor relevant
to establishing constructive possession.” State v. Salyers , 858 N.W.2d 145, 159 (Minn.
2015). But appellant’s proposed reasonable alternative hypothesis—that she is innocent—
turns on circumstances that were not proved. She points to the lack of evidence of appellant
carrying the bag to the car and of appellant’s DNA or fingerprints on the

7
methamphetamine’s packaging. She also points to the fact that “she did not try to run or
engage in furtive behavior when confronted.” This argument is inconsistent with our task
of focusing on the “subset of facts that constitute the circumstances proved.” Harris, 895
N.W.2d at 600 (quotation omitted). In other words, we do not consider facts not proved at
trial.
Here, appellant sat in very close proximity to the bag and could easily access it. She
knew that the bag contained methamphetamine and that it was “not a little.” She also knew
that the bag contained Stone’s cell phone, and even asked to keep it. Appellant possessed
the C hevy Malibu, in which the methamphetamine was located , and accompanied her
boyfriend, Stone, to her car at 2:00 in the morning . The key circumstances here are the
specific details that appellant knew about the bag. Unlike the defendant driver in Harris,
who stated he had no knowledge of the gun concealed in the roof of the vehicle, appellant
clearly knew about the drugs located in a bag sitting in the backseat . Combined with the
other circumstances proved, and viewed as a whole, these facts are “consistent with a
reasonable inference that the accused is guilty and inconsistent with any rational hypothesis
except that of guilt .” Id. at 601. The record therefore supports the district court’s
determination that appellant knowingly exercised do minion and control over the bag
sufficient to support her conviction of second-degree possession of a controlled substance.
II. We need not decide t he issue of whether sufficient evidence supported
appellant’s conviction for aiding and abetting possession of a contr olled
substance.

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Appellant also argues that the state failed to support her conviction on count II of
aiding and abetting possession of a controlled substance with sufficient evidence. We
decline to decide this issue.
The district court entered judgments of conviction on both counts, but only imposed
a sentence on count II. Because we conclude that sufficient evidence supports her
conviction on count I, we do not need to address the sufficiency of the evidence on count
II. See State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979) (“We need not decide whether
the evidence also was sufficient to support convictions on the other two counts . . . because
defendant was not sentenced . . . [and] defendant was never formally adjudicated guilty of
these two counts.”); see also State v. Byers, 570 N.W.2d 487, 489 (Minn. 1997) (affirming
on other grounds when the reviewing court agrees with the result reached but not the
analysis). Furthermore, even if we did reach this issue, the state provide s no caselaw
supporting the charge or conviction of aiding and abetting possession of a controlled
substance.
III. The district court erred in entering convictions on both counts.

Appellant finally argues that the district court erred i n entering judgments of
conviction on count I and count II because both charges arose from the same criminal act
of possession. We agree.
Minn. Stat. § 609.04 (2016) states that a defendant “ may be convicted of either the
crime charged or an included offense, but not both.” “[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.

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The remaining conviction(s) should not be formally adjudicated at this time.” State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). Here, the jury found appellant guilty on
both charges. The proper procedure therefore was for the district court to adju dicate and
sentence on only one charge because both charges were based on the same criminal act of
methamphetamine possession. Because sufficient evidence supports her conviction on
count I, we reverse and remand for the district court to va cate her convi ction of count II
and resentence.
Affirmed in part, reversed in part, and remanded.

D-1

RODENBERG, Judge (dissenting in part)
I agree with t he court’s analysis in parts II and III, but I must r espectfully dissent
from part I of the court’s opinion. Appellant probably jointly possessed the
methamphetamine. Her joint constructive possession of it is certainly consistent with the
circumstances proved. But I cannot say on this record that the only reasonable inference
from the circumstances proved is that appellant constructively possessed the
methamphetamine.
The Minnesota Supreme Court reaffirmed the two -step analysis concerning the
sufficiency of circumstantial evidence supporting a conviction in State v. Harris , 895
N.W.2d 592, 600-01 (Minn. 2017). That two-step analysis requires that we first identify
the cir cumstances proved, deferring to the jury’s acceptance of the proof of these
circumstances and its rejection of the evidence in the record that conflicted with the
circumstances proved by the state. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010).
We then independently examine the reasonableness of all inferences that might be
consistent with a rational hypothesis other than guilt. Id. at 473-74. In this second step ,
“[w]e give no deference to the fact finder’s choice between reasonable inferences.” Id. at
474 (quotation omitted). If any reasonable inference is inconsistent with guilt, then the
circumstantial evidence is insufficient. See id.
We have here another example of the problem with appellate revie w of a jury’s
verdict after the jury has been instructed concerning direct and circumstantial evidence to
the effect that “ [t]he law does not prefer one form of evidence over the other.” 10
Minnesota Practice , CRIMJIG 3.05 (Supp. 2018); see Harris , 895 N.W.2d at 603 -11

D-2

(Lillehaug, J., dissenting) (explaining that, despite this admonition to juries, “on appellate
review, we do not follow that admonition”); see also State v. McCormick, 835 N.W.2d 498,
505 n.2 (Minn. App. 2013) (discussing the benefit s that would flow from a complete and
robust explanation to juries of the proper framework for analyzing the sufficiency of
circumstantial evidence) , review denied (Minn. Oct. 15, 2013) . Nevertheless, Harris
reaffirms Minnesota’s two -step appellate review of convictions that rest solely on
circumstantial evidence, 895 N.W.2d at 600, and we are bound by the law as established
by the Minnesota Supreme Court, see State v. Curtis, 921 N.W.2d 342, 343 (Minn. 2018)
(“The court of appeals is bound by supreme court precedent.”). That being so, I cannot
agree that the circumstances here are inconsistent with any reasonable inference other than
that appellant constructively possessed the methamphetamine.
To be sure, appellant knew about the methamphetamine, and knew that there was
more than “a little” of it. And the record establishes that the car in which the
methamphetamine was found was one regularly used by appellant, although on this
occasion it was driven by Stone. Appellant asked the police if she could have Stone’s
phone, which she also knew was in the bag containing the methamphetamine. But how the
methamphetamine got into the car, who put it in the car, and under what circumstances are
unknown from this record.
I disagree with the notion that we cannot consider what was “not proved at trial.”
Harris discussed at length both what the evidence failed to show about what Harris knew
and what the police officers did not see. 895 N.W.2d at 602 -03. The enterprise
contemplated by the supreme court’s jurisprudence necessarily requires consideration of

D-3

reasonable hypotheses in light of the circumstances proved. In other words, an appellate
court is required to consider the significance of what the state did not prove. And surely a
defendant cannot constitutionally be required to prove any circumstances as a precondition
to arguing that her guilt has not been proved beyond reasonable doubt. See State v.
Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (“Due process requires that the state
prove beyond a reasonable doubt the existence of every element of the crime charged.”).
Constructive possession requires that the state prove either that the item in question
was found in an area under the defendant’s control and to which others normally have no
access (which the state does not argue here) or that it was found where the evidence
“indicates a strong probability that the defendant exercised dominion and control over the
area.” State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000), review denied (Minn.
June 13, 2000). Here, the methamphetamine was found in a bag with Stone’s phone. The
situation discovered by police when they arrested Stone could have come about in a ny
number of ways , one of which is that Stone and appellant were jointly possessing the
methamphetamine. But it is easy to formulate a hypothesis consistent with the
circumstances proved at trial and yet inconsistent with appellant’s guilt. There is no record
evidence of appellant having so much as touched the methamphetamine. The
circumstances proved here do not eliminate the reasonable inference that Stone possessed
the methamphetamine, and appellant knew that Stone possessed the methamphetamine but
did not herself possess or control it.1

1 Appellant did not testify at trial, and our situation is not one where the circumstances
proved include the jury’s rejection of the defendant’s version of events. Although

D-4

An analogous circumstance would be a person lending a car to another and, when
the borrower returns with the car , the borrow er places a computer and phone into a
backpack in the back seat without the owner ever having touched either of them; the owner
knows that the bag and contents are there as the two drive away in the car, with the
borrower at the wheel. That evidence, without more, proves neither that the owner of the
car exercised “dominion and control” over the backpack and contents nor that she jointly
possessed the contents.
It is far more likely than not that appellant did, in fact, constructively possess the
methamphetamine. But the proof of that is entirely circumstantial. Being bound by Harris
and similar cases to like effect, I cannot join in affirming the conviction here.

unpublished opinions are not precedential, Minn. Stat. § 480A.08, subd. 3 (2018), they may
be of persuasive value. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App.
1993). We have held in several cases, including a recent unpublished decision, that when
considering on appeal the circumstances proved at trial, the circumsta nces do not include
the testimony of a defendant who has been found guilty by the trier of fact. Cf. State v.
Bradley, No. A17-1659, 2019 WL 3412314, at *6-7 (Minn. App. July 29, 2019). To the
extent that we consider a convicted defendant’s testimony at all, we would consider only
the finder of fact having rejected the testimony that is inconsistent with guilt. In other
words, the circumstances proved in such a case would include that the finder of fact
concluded beyond all reasonable doubt that the defendant’s testimony was untrue. See id.;
see also State v. Hawes, 801 N.W.2d 659, 670-71 (Minn. 2011) (concluding that, because
defendant’s testimony conflicts with the state’s evidence that supports the verdict, the
supreme court would not consider testimony when identifying the circumstances proved).