State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0149

State of Minnesota,
Respondent,

vs.

Shelly Sharon Watkins,
Appellant.

Filed January 11, 2021
Affirmed in part, reversed in part, and remanded
Klaphake, Judge*

Hennepin County District Court
File No. 27-CR-18-27709

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

Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Florey, Presiding Judge; Br yan, Judge; and Klaphake,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION

KLAPHAKE, Judge
In this appeal from appellant Shelly Shar on Watkins’s convictions for fifth-degree
sale of a controlled substa nce and fifth-degree possession of a controlled substance,
Watkins argues that the district court erred by admitting statements he made to the police
before they provided a Miranda warning. Watkins also argues the district court erred by
entering convictions for both the sale and possession offenses. Because all of Watkins’s
contested statements were either voluntary or any error in admitting them was harmless to
Watkins, we affirm his convictions. Because a ll parties agree that the district court erred
by entering convictions for both offenses, we remand for the district court to vacate the
conviction for fifth-degree possession.
DECISION
I.
Watkins first contends that the distri ct court committed prejudicial error by
admitting statements he made while subject to custodial interrogation and before the police
provided his Fifth Amendment Miranda warning. The Fifth Am endment to the United
States Constitution and article I, section 7 of the Minnesota Constitution protect criminal
suspects from compelled self-incrimination. U.S. Const. amend. V; Minn. Const. art. I, § 7;
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). Miranda established
a procedural safeguard for this right by ma king a suspect’s incriminating statements
inadmissible at trial if the suspect made them during a custodial interrogation and the police

3
failed to provide a Miranda warning before the interrogation. Id. A custodial interrogation
occurs when a suspect is in custody and the police conduct an interrogation. State v.
Heinonen, 909 N.W.2d 584, 589 (Minn. 2018). A suspect’s statements made prior to being
read the Miranda warning are admissible so long as they were made outside of a custodial
interrogation. See id. The parties do not dispute the fact s, and both agree Watkins was in
custody and was not given a Miranda warning. Watkins argues only that the district court
erred when it concluded that he was not subject to interrogatio n when he made the
statements, a legal conclusion we review de novo. Id. at 590.
An interrogation under Miranda includes both direct questioning by the police or
the functional equivale nt of questioning. Id. at 589. An officer’s actions constitute a
functional interrogation if the officer should have known that their actions were reasonably
likely to elicit an incriminating response. Id. at 589-90. We consider this standard met when
an objective person observing from the perspective of a susp ect could conclude from the
totality of the circumstances that the officer’s actions subjected the suspect to compulsion
“above and beyond that inherent in custody itself” to make incriminating statements. Id. at
589-90 (quotation omitted); State v. Tibiatowski, 590 N.W.2d 305, 310 (Minn. 1999). Our
analysis does not consider the office r’s subjective intent for their actions. Heinonen, 909
N.W.2d at 590. We consider a suspect’s statements voluntary if an objective observer could
not conclude that a suspect would feel extra compulsion. See Tibiatowski, 590 N.W.2d at
310.
Even if we conclude that Watkins was subject to interrogation, meaning the district
court erred by admitting the stat ements, we will still affirm the district court’s decision if

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the admission did not harm the suspect’s case. State v. Farrah , 735 N.W.2d 336, 343
(Minn. 2007). “When an error implicates a constitutional right, we will award a new trial
unless the error is harmless beyond a reason able doubt. An error is harmless beyond a
reasonable doubt if the [fact-finder’s] verdict was surely unattributable to the error.” State
v. Davis , 820 N.W.2d 525, 533 (Minn. 2012) (quotation and citation omitted). We
determine whether the verdict can be attributed to the error by considering “the manner in
which the evidence was presented, whether it was highly persuasive, whether it was used
in closing argument, and whether it was e ffectively countered by the defendant.” State v.
Al-Naseer, 690 N.W.2d 744, 748 (Mi nn. 2005). We conclude that all of Watkins’s
statements were either volun tary or their admission was harmless beyond a reasonable
doubt.
Watkins argues that he made incriminating statements to the police while subject to
interrogation, so those statements should ha ve been excluded from trial. The police had
received reliable information that Watkins wa s selling marijuana at a tavern. Officers
arrested Watkins and held him in custody in a squad car and then inside his girlfriend’s
house, where he was staying long-term, while they searched it. The officers located nearly
a kilogram of marijuana spread between his SUV and his girlfriend’s house. Watkins made
a series of incriminating statements in the squad car and then inside the house about having
marijuana in the SUV; how he kept his diabetic medicine an d two guns in the house; a
suggestion that police should use the garage to enter the house; that the house belonged to
his girlfriend; and that he was house-sitting fo r his girlfriend. He also had a key fob to
deactivate the house alarm. Watkins moved to suppress these statements as obtained in

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violation of his Fifth Amendment right agains t compelled self-incrimination. The district
court concluded that Watkin s made these statements vol untarily, so it admitted them.
Watkins then agreed to a bench trial on s tipulated evidence, in cluding the receipts,
inventories, and photos from the searches of his person, the SUV, and the house; all the
police reports; the BCA lab report; the body camera video and transcript; and the testimony
and evidence from the pretrial evidentiary hearing on the suppression motion. The district
court convicted Watkins of fifth-degree sale of a controlled substance and fifth-degree
possession of a controlled substance.
We agree with the district court that Watkins voluntarily made his statement about
the garage. As the squad car pulled up to th e house, Watkins offered a suggestion to the
officers in the car that the police should use the garage to enter the house because the front
door was broken. The officers in the car bare ly spoke to Watkins be tween the arrest and
their arrival at the house, and they did not sa y or do anything leading up to that point that
could have compelled him to make the statement. An obje ctive observer would conclude
that Watkins made the statement spontaneous ly and voluntarily upon seeing the police
surrounding the house and realizing they were going to enter it.
We also agree that Watkin s voluntarily made his fi rst statements about the
marijuana in the SUV and the diabetic me dicine in the house. Watkins made those
statements to a nearby officer after waiting five minutes in the squad car outside the house.
He called the officer over to ask him to retrieve a diabetic syringe from the SUV, and during
that conversation told the offi cer that there was marijuana in the SUV and his medicine
was in a refrigerator in the house. The officer s on the scene barely spoke to Watkins, and

6
did not say or do anything that could have compelled Watkins to speak at all. An objective
observer would conclude that Watkins made the statements spontaneously and voluntarily.
The district court did not err by admitting these voluntary incriminating statements.
Moving to the remaining contested statements, we conclude that the district court’s
errors in admitting them were harmless be yond a reasonable doubt. Watkins argues that
the police functionally interrogated him by br inging him into the house where he could
observe their search and the evidence they ga thered, and by asking him several questions
during the search about items they found and his activities. He argues that in the totality of
the circumstances, the officers’ actions co mpelled him to make the incriminating
statements. We assume that the officers’ ac tions were a functional interrogation, so the
district court erred by admitting the remaining contested statements. But when we exclude
those statements from the district court’s findings of fact and conclusions of law, it leaves
the following uncontested evidentiary findings:
Mr. Watkins was in constructive possession of the
marijuana located in the Gucci bag in the backseat of his
vehicle. Officers observed Mr. Watkins place the bag in the
back seat of his vehicle before the car was placed on the tow
truck. . . . This demonstrates that Mr. Watkins was in
constructive possession of the marijuana located in the vehicle.

Mr. Watkins was also in constructive possession of the
marijuana located at [the house]. While the residence belonged
to Mr. Watkins’s girlfriend, M r. Watkins was known to stay
there and, through surveillanc e and GPS tracking, had been
staying in the house every night since October 17,
2018. . . . No one else was seen at the residence during the time
officers had Mr. Watkins under surveillance other than an
unknown female that stayed for a short period of time. Further,
the CRI observed Mr. Watkins in possession of narcotics
previously and indicated that Mr. Watkins sold drugs. This

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allows for an inference that Mr. Watkins stored narcotics at this
residence. Photos of Mr. Watkins were located in the bedroom
and kitchen, and he stored hi s diabetic medication in the
refrigerator. Additionally, Mr. Watkins kept two of his guns in
the bedroom. . . . This allows for an inference that Mr. Watkins
was also in constructive possession of the marijuana located in
the residence. These facts esta blish that Mr. Watkins was in
constructive possession of the marijuana recovered in the
[house].

Mr. Watkins was in possession of 2.83 pounds of
marijuana, an amount that is indicative of sale. Approximately
one pound of the marijuana recovered was packaged in smaller
baggies, weighing approximat ely one ounce each, which is
also indicative of an intent to sell. Further, Mr. Watkins had
$5,000 cash (primarily in twenty dollar bills) on his person and
$6,000 cash (primarily in twenty dollar bills) was found in the
bedroom closet. Such large amount s of cash in twenty dollar
denominations is also indicative of narcotics sales.
Additionally, during their surveillance, officers witnessed Mr.
Watkins conduct what appeared to be narcotics transactions
and the CRI had provided information that he/she observed Mr.
Watkins conducting dr ug sales. All these facts lead to a
reasonable inference that Mr. Watkins sold or intended to sell
marijuana.

The package of stipulat ed evidence directly supports these findings. Watkins did not
contest these findings during the bench trial or on appeal. These uncontested findings
therefore support the district court’s conclu sion beyond a reasonable doubt, so we cannot
attribute that conclusion to the contested statements.
Watkins specifically argues that the admission of his repeated statements about the
marijuana in the SUV prejudiced him because the district court relied on those statements
to conclude that he knew he was selling a c ontrolled substance. Watkins repeatedly told
officers about the marijuana in the SUV during th eir search of the house, all of which we
assume was a functional interrogation. But as we already indicated, he voluntarily and

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spontaneously told an officer about the marijuana in the SUV while he was sitting in the
squad car. The district court did not err by admitting and rely ing on that first voluntary
statement. We attribute the district court’s c onclusion to this first voluntary statement, so
the district court committed harmless error by admitting the others. We hold that all of
Watkins’s contested statements were either voluntary or harmless beyond a reasonable
doubt, so we affirm his conviction.
II.
Watkins and the state agree that the distri ct court erred when it convicted him for
both the sale and possession offenses, because the possession of the marijuana was an
included offense of the sale of that same ma rijuana. A defendant “may be convicted of
either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04, subd.
1 (2018). We grant the parties’ request and remand for the district court to vacate Watkins’s
conviction for the lesser-included possession offense.
Affirmed in part, reversed in part, and remanded.