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This opinion will be unpublished and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
A19-1945

State of Minnesota,
Respondent,

vs.

Richard Vang,
Appellant.

Filed December 14, 2020
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-17-20407

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
A jury found appellant guilty of first -degree controlled-substance possession after
hearing evidence that police officers conducted a controlled delivery of a package

2
containing methamphetamine, observed appellant and a woman drive by and pick up the
package, and watched appellant discard the package behind a house a few blocks away.
On appeal, appellant challenges the sufficiency of the evidence to support his conviction.
Because the direct evidence was sufficient to prove that appellant unlawfully possessed
methamphetamine, we affirm.
FACTS
Respondent State of Minnesota charged appellant Richard Vang with first -degree
possession and first-degree sale of a controlled substance for actions arising out of police
officers’ controlled delivery of a package containing methamphetamine . The case
proceeded to a jury trial, at which various witnesses testified to these facts.
Police officers’ testimony
Airport police intercepted a package at the airport FedEx facility and became
suspicious because the package bo re several characteristics common among packages
containing drugs. The package had shipped from California and was addressed to a “Julie
Xiong” at a specific address in Brooklyn Center (Address A). Police determined through
their databases that there was no Julie Xiong associated with that address. Believing that
the package may contain drugs, police conducted a dog sniff, and the dog alerted to the
presence of narcotics. Police obtained a search warrant to open the package and discovered
more than five pounds of methamphetamine inside.
After replacing most of the drugs in the package with rock salt, the airport police
worked with the Northwest Metro Drug Task Force to conduct a controlled delivery to the
package’s intended location so that police could identify the individuals trying to acquire

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the methamphetamine. Detective Jeff Trevino testified that people who buy drugs often
put a fictitious name on the package and that they commonly have the package delivered
to a neighbor’s house, so that the pack age cannot be easily traced to them. Searches of
law-enforcement databases revealed that there were no Asian names associated with
Address A, so police expanded their search to neighboring addresses and discovered that a
family with an Asian last name lived across the street (Address B). Police retrieved a photo
from Minnesota Driver and Vehicle Services of a woman associated with Address B named
Panhia Lo.
Detective Trevino posed as a FedEx deliveryman , drove a van bearing FedEx
markings, and went to the area with the plan of leaving the package on the front porch of
Address A. As Detective Trevino walked up the driveway to the residence, a woman left
the house and was getting in her car when she told the detective, “If that’s for Julie, it’s for
across the street,” pointing to Address B. After the woman drove away, Detective Trevino
continued to the front door of Address A, where an older man answered the door, told him
that Julie Xiong did not live there, and said that he should try the house across the street at
Address B. Detective Trevino then walked across the street to Address B, where an elderly
Asian woman answered the door and told him that there was no J ulie Xiong at that
residence. Detective Trevino returned to the van with the package and drove away briefly,
before returning and parking in the same spot to wait and see if anyone showed up.
At one point Detective Trevino saw a vehicle drive up the street towards the van at
a high rate of speed before quickly decelerating. As the vehicle passed the van, he saw that
the driver was an Asian male —later identified as Vang —and that the passenger was an

4
Asian female whom Detective Trevino recognized from the Minnesota Driver and Vehicle
Services photograph as Panhia Lo. Lo was pointing at the FedEx van and talking with the
driver as they drove past. The vehicle parked in front of Address A for a few minutes and
then drove off, before reappearing a few minutes later and stoppin g a ways behind the
FedEx van. To find out if the peop le in the vehicle were waiting to pick up the package,
Detective Trevino went up to Address A, placed the package on the front porch, and drove
away.
Other officers surveilling the area witnessed Vang pull into the driveway of
Address A. Lo stepped out of the vehicle, picked up the package from the front porch, and
returned to the car, at which point Vang backed the vehicle into Address B’s driveway.
Both Lo and Vang got out of the car and looked around for five to ten minutes. A
surveilling officer testified that he believed that they were checking for police presence in
the area. Lo and Vang got back in the vehicle and drove away, and police followed them.
They drove for a few blocks and then pulled into a driveway (Address C). Officers watched
as Vang and Lo got out of the car and moved quickly towards the side and back of the
house. Vang was carrying the package. He and Lo then returned to the car without the
package and drove away. The officers conducted a traffic stop and arrested both of them.
Officers recovered the package from just behind the fence in the backyard of Address C,
where it appeared to have been hastily discarded.
Vang’s testimony
Vang testified in his own defense, prov iding a different version of events. Vang
said that Lo was the girlfriend of a friend of his, Jackie Xiong. Vang knew Xiong because

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they used to use methamphetamine together. Vang testified that Xiong called him and
asked for a ride because Lo’s parents were kicking him and Lo out of their house. Vang
drove to Lo’s pare nts’ house, which was at Address B.1 When he arrived, Xiong and Lo
came out of the house, and Lo’s parents were yelling at them. Xiong told Vang to drop Lo
off at Xiong’s house before leaving in a separate vehicle.
When Vang stopped at a gas station, Lo told him that she wanted to go back to her
parents’ house so that she could retrieve her belongings. Vang drove back to the house,
and Lo told him to slow down. He drove past the house to see if Lo’s parents had left and
then turned around and stopped th e car. Lo got out of the car, ran to a neighbor’s house,
and grabbed a package. Vang testified that he did not know why Lo took the package and
was concerned that Lo had just stolen something from her neighbors. Lo returned to the
car and threw the package in the back seat. Vang backed into the driveway of her parents’
house, and they sat there for several minutes. Vang got out of the car briefly, but Lo’s
parents came out of the house and told them to get off their property. Vang and Lo drove
away.
Vang testified that Lo was acting nervous and “freaking out” as they drove. He
asked Lo what was in the package, and she said, “It’s some sh -t.” Vang believed this to
mean that the package contained drugs. Lo was suspicious that police were nearby, and
Vang did not want to be around the package. Lo told him to go to Address C. Vang

1 Vang testified that Lo’s parents lived at Address A, but this appears to have been a
mistake, based on Detective Trevino’s testimony that Lo was linked to Address B, as well
as Vang’s later testimony that Lo picked up the package from a “neighbor’s house.”

6
testified that he had been to that house several weeks earlier because Xiong and another
friend used to live there and he had used drugs with them previously. After pulling into
the Address C driveway, Vang told Lo to take the package out of the car, but she refused.
Vang took the package, went to the back of the house, and threw it over the fence to the
backyard. Lo followed him to the backyard and back to the car. Vang t hen drove away
intending to drop Lo off at Xiong’s house, but they were stopped and arrested by police.
Verdict and Appeal
The jury found Vang guilty of first -degree controlled-substance possession but not
guilty of first -degree sale. The district court granted Vang a downward durational
departure and sentenced him to 42 months in prison. Vang appeals.
D E C I S I O N
Vang challenges the sufficiency of the evidence to convict him of first -degree
controlled-substance possession. To evaluate the sufficien cy of the evidence, appellate
courts “carefully examine the record to determine whether the facts and the legitimate
inferences drawn from them would permit the [factfinder] to reasonably conclude that the
defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.”
State v. Waiters, 929 N.W.2d 895, 900 (Minn. 2019) (quotation omitted). Appellate courts
review the evidence “in the light most favorable to the conviction” and “assume the jury
believed the State’s witnesses and d isbelieved any evidence to the contrary.” State v.
Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). Appellate courts “will not
disturb the verdict if the jury, acting with due regard for the presumption of innocence and

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the requirement of pro of beyond a reasonable doubt, could reasonably conclude that the
defendant was guilty of the charged offense.” Id.
To convict Vang of first -degree controlled-substance possession, the state had to
prove that he unlawfully possessed a mixture weighing at l east 25 grams containing
cocaine, heroin, or methamphetamine. Minn. Stat. § 152.021, subd. 2(a)(1) (2014). The
only element of the offense that Vang challenges is unlawful possession. To prove
unlawful possession, the state must show that the defendant “consciously possessed, either
physically or constructively, the substance and that [the] defendant had actual knowledge
of the nature of the substance.” State v. Florine, 226 N.W.2d 609, 610 (Minn. 1975). The
state argues that the evidence sufficiently proved Vang’s possession of the
methamphetamine in the package based on three theories: actual possession, constructive
possession, and aiding and abetting Lo’s possession. We conclude that the state presented
sufficient evidence to prove that Vang possessed the methamphetamine.
Although the parties frame the issue using the circumstantial-evidence standard, see
Loving v. State , 891 N.W.2d 638, 643 (Minn. 2017) ( outlining the two -step standard of
review that appellate courts apply when the state proves an element of the offense using
circumstantial evidence), we need only look to the direct evidence presented at trial to show
Vang’s actual possession of the package. Direct evidence is “evidence that is based on
personal knowledge or observation and that, i f true, proves a fact without inference or
presumption.” State v. Harris , 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted).
Vang’s own testimony established these facts through direct evidence: (1) after Lo picked
up the package, Vang asked Lo what w as in the package, and she said, “It’s some sh -t”;

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(2) based on Lo’s answer, Vang believed that the package contained drugs; and (3) Vang
physically carried the package around to the back of Address C and threw it over the fence.
A surveilling officer als o testified that he observed Vang holding the package while
walking to the back of Address C. These facts show, without inference or presumption,
that Vang in fact possessed the methamphetamine when he carried the package while
knowing it contained drugs.
Vang, though, argues that his actual possession of the drugs was not “unlawful,” as
the statute requires, based on the doctrine of “fleeting control.” Some jurisdictions have
recognized the fleeting -control doctrine as a defense to drug possession when t he
defendant’s possession was merely a “momentary handling” of the drugs before
abandoning them. See People v. Mijares, 491 P.2d 1115, 1120 (Cal. 1971). Minnesota has
never recognized the fleeting-control doctrine. We have expressly rejected the defense in
the context of firearm possession. In re Welfare of S.J.J. , 755 N.W.2d 316, 319 (Minn.
App. 2008). We have also refused to recognize the defense in drug -possession cases, in
unpublished opinions. See Littlewolf v. State , No. A17-0867, 2018 WL 1247460, at *2
(Minn. App. Mar. 12, 2018); Freeman v. State , No. A15-2035, 2016 WL 4421203, at *3
(Minn. App. Aug. 22, 2016), review denied (Minn. Nov. 15, 2016). We decline to adopt
the fleeting-control doctrine here.
And we doubt the facts here would support a finding of fleeting control even if we
were to recognize the doctrine . Vang testified that he had been to Address C recently,
knew that Xiong and another friend had lived there, and had used drugs with them in the
past. Vang did not passively hold the package for a few moments, nor did he dispose of

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the package immediately in a random location as soon as he discovered it contained drugs.
Rather, he deliberately left a package containing drugs at a residence he was familiar with
and where he knew that drug use occurred. This differs from the type of momentary
possession that other jurisdictions have found to support application of the fleeting-control
doctrine. See Mijares, 491 P.2d at 1119 (applying the doctrine when defendant remo ved
drugs from a friend’s pocket and immediately threw them out the car window); Moreau v.
State, 588 P.2d 275, 285 -86 (Ala. 1978) (applying the doctrine when defendant merely
picked up napkin containing heroin that codefendant had just spat out of his mou th);
Sanders v. State , 563 So. 2d 781, 781, 783 (Fla. Dist. Ct. App. 1990) ( holding that
“momentary holding and looking at” cocaine was insufficient to prove possession).
Because the testimony presented at trial established that Vang actually possessed
methamphetamine when he carried the package containing the drugs , the evidence is
sufficient to sustain Vang’s conviction of first-degree controlled-substance possession.
Affirmed.