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This opinion is nonprecedential except as provided by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
A20-0306

State of Minnesota,
Respondent,

vs.

Richard Joseph Hamer,
Appellant.

Filed January 25, 2021
Affirmed
Worke, Judge

Lincoln County District Court
File No. 41-CR-19-33

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

Glen Petersen, Lincoln County Attorney, Ivanhoe, Minnesota; and

Abby Wikelius, Special Assistant County Attorney, Marshall, Minnesota (for respondent)

Jacob M. Birkholz, Michelle K. Olsen, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Reilly,
Judge.

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NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges the sufficiency of th e evidence supporti ng the jury’s guilty
verdicts on charges of felony fifth-degree controlled-substance possession and petty
misdemeanor possession of drug paraphernalia. We affirm.
FACTS
Appellant Richard Joseph Hamer owns a build ing (shop) that is approximately nine
blocks from his home. The shop serves seve ral purposes. Hamer uses it as a workshop,
for storage, and as a “pawn shop,” holding co llateral when he loans individuals money.
Hamer’s shop is filled with tools, guns, collectibles, and antiques.
Citizens complained ab out “people coming and going [from Hamer’s shop] . . . all
hours of the night.” Based on these reports, officers believed that there was drug activity
in the shop. Officers conducted surveillance at the shop approximately 80 times between
November 2018 and February 2019. During th is time, officers received information that
methamphetamine and marijuana were being us ed in the shop. Officers collected names
of individuals visiting the shop and recognized some of these individuals as those with
histories of drug incidents.
Officers applied for a sear ch warrant for the shop after receiving information from
M.D., an individual known to officers. M.D. reported that on Sunday, February 24, 2019,
he purchased an 8-ball of me thamphetamine—3.5 grams. He split it evenly with another
individual and consumed some of it. M.D. left roughly 1.5 grams of methamphetamine on
a shelf behind a large table in Hamer’s shop.

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Officers executed the sear ch warrant on February 27, 2019. A narcotics-detecting
dog indicated the presence of a controlled substance on a workbench. There was a pack of
cigarettes on the workbench that held a plas tic baggie with a crystal-like substance that
weighed 2.880 grams and fiel d-tested positive for methamphetamine. On or near the
workbench, officers also found two hollowed- out pens used to ingest methamphetamine
that field-tested positive for methamphetamine, a “shake tray” that field-tested positive for
methamphetamine, and loaded firearms. Add itionally, officers found scales and a glass
tube with white residue on it that field-te sted positive for methamphetamine, a box scale
and 83 small baggies underneath it, unused glass pipes, marijuana grinders, and a substance
that field-tested positive for marijuana. Officers also seized over 55 firearms and
ammunition.
An officer interviewed Hame r while the search warrant was executed. Hamer stated
that he spends a lot of time at the shop and others use it as a hangout. Hamer stated that
the day before the search, he was in and out of the shop until 10:00 p.m.
Hamer stated that he has used drugs, an d that he first used methamphetamine 30
years ago. Hamer could not remember the last time that he used drugs. The officer asked
Hamer if he used drugs a week ago, and Hamer replied, “no comment.” The officer asked
Hamer if a urinalysis (UA) that day would be clean. Hamer replied, “I don’t know.” Hamer
stated that he injured himself a couple of years ago and self-medicates with marijuana and
methamphetamine. He stated that his drug of choice is marijuana. Hamer stated that
“[t]here might be some [drugs] on the property,” but he does not sell drugs.

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Hamer admitted that people do drugs at th e shop and “hide their stuff” there. He
said that “maybe it’s like a safe house.” He said he “helped a few people out
that . . . needed it,” and that “when people are down and out it seems that [he has to] come
to their rescue” and now he was going to “pay the price.” The officer told Hamer that they
found some methamphetamine. Hamer replied, “I don’t know where that came from.” The
officer said that they found “a couple grams to an 8-ball in that . . . Marlboro cigarette
pack.” Hamer replied, “Yeah . . . well I guess I’m going to jail then [aren’t] I?”
Hamer went to trial on three charges: fifth-degree controlled-substance crime—
possession of methamphetamine, fourth-degree controlled-substance crime—intent to sell,
and possession of drug paraphernalia. Officers testified about the investigation, search,
and discovery of the methamphetamine and drug paraphernalia. Hamer’s audio-recorded
interview was played for the jury. Hamer did not testify.
The jury found Hamer guilty of the po ssession charges, but not guilty of the
intention-to-sell charge. The district court imposed a statutory stay of adjudication with 30
days in jail for the fifth-degree possessi on offense, and a $200 fine for the petty
misdemeanor drug-paraphernalia offense. This appeal followed.
DECISION
Hamer challenges the sufficiency of th e evidence supporting the jury’s guilty
verdicts. In reaching its guilty verdicts, the jury relied on circumstantial evidence because
there was no direct evidence showing that Hamer possessed the methamphetamine or the
drug paraphernalia found in his shop.

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This court examines the sufficiency of circumstantia l evidence using a two-step
approach. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 20 13). First, this court must
“identify the circumstances proved.” Id. In doing so, this court “defer[s] to the jury’s
acceptance of the proof of these circumstances” and its rejection of evidence that conflicts
with these circumstances proved by the state. Id. at 598-99 (quotation omitted). Because
the jury is in the best positio n to analyze credibility , this court will “consider only those
circumstances that are consistent with the verdict.” Id. at 599.
Second, this court must “determine whether the circumstances proved are consistent
with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.
(quotations omitted). If there is any rationa l hypothesis pointing to innocence, then the
evidence is insufficient and the co nviction must be overturned. State v. Al-Naseer , 788
N.W.2d 469, 474 (Minn. 2010). To sustain a conviction based on circumstantial evidence,
“the circumstances must form a complete chain which, in light of the evidence as a whole,
leads so directly to the guilt of the accused as to excl ude, beyond a reasonable doubt, any
reasonable inference other than that of guilt.” State v. Reed, 737 N.W.2d 572, 581 (Minn.
2007) (quotation omitted).
The jury found Hamer guilty of fifth-degree controlled-substance possession. The
state had to prove that he unlawfully poss essed one or more mixtures containing
methamphetamine. See Minn. Stat. § 152.025, subd. 2(1) (2018). The jury found Hamer
guilty of possession of drug paraphernalia. Th e state had to prove that he knowingly or
intentionally possessed drug paraphernalia. See Minn. Stat. § 152.092(a) (2018). Hamer

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argues that the circumstances proved failed to establish the possession element of both
crimes.
To prove possession, the state must show that the defendant “consciously possessed,
either physically or constructively, the substance.” State v. Florine, 226 N.W.2d 609, 610
(Minn. 1975). Here, the state relied on the theory of constructive possession. Constructive
possession applies when the state “cannot prove actual or physical possession . . . but where
the inference is strong that the defendant at one time physically possessed the [contraband]
and did not abandon his possessory interest in [it].” Id.
There are two ways to prove constructive possession. State v. Harris, 895 N.W.2d
592, 601 (Minn. 2017). First, the state can prove constructive possession by showing that
the contraband was found in a place under the defendant’s exclusive control to which others
did not have access. Id. The state can also prove constructive possession by showing that
the contraband was found in a pl ace to which others had access, but that there existed “a
strong probability (inferable fro m other evidence) that at the time the defendant was
consciously or knowingly exercising dominion and control over it.” Id. An individual can
jointly possess an item with another person. Id. Here, because others had access to
Hamer’s shop, the state sought to prove th at Hamer exercised dominion and control over
the methamphetamine and drug paraphernalia through circumstantial evidence.
Hamer claims that the eviden ce is insufficient because others regularly used his
shop, and he was not near the methamphetami ne when it was found because he was at
home, approximately nine blocks away. Hamer claims that there are at least two reasonable

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inferences that show his in nocence—the methamphetamine belonged to M.D., or it
belonged to someone else.
But an evaluation of the ci rcumstances proved do not lead to a rational hypothesis
supporting Hamer’s innocence. The circ umstances proved are (1) law enforcement
received complaints about Hamer’s shop leadi ng them to believe there was drug activity
there; (2) during surveillance, officers recognized individuals with drug-use histories and
received information that drugs were being used in the shop; (3) M.D. reported that three
days before the search warrant was executed he left 1.5 grams of methamphetamine on a
shelf in Hamer’s shop; (4) a narcotics-detecting dog indicated the presence of a controlled
substance on a workbench in the sh op; (5) officers found 2.880 grams of
methamphetamine—nearly twice as much as M.D. said he le ft there—in a plastic baggie
inside a cigarette pack on the workbench; (6) officers found hollowed-out pens that field-
tested positive for methamphetamine on the workbench; (7) officers found a “shake tray”
that field-tested positive for methamphetamine near the workbench; (8) officers found
loaded firearms within arm’s reach of the workbench; (9) officers found scales and a glass
tube that field-tested positive for methamphetamine; (10) officers found a box scale and 83
small baggies; (11) officers found unused glass pipes, marijuana grinders, and a substance
that field-tested positive for marijuana; (12) Hamer was at the shop until 10:00 p.m. the
day before the search warrant was executed; (13) Hamer has used drugs; (14) Hamer self-
medicated with marijuana an d methamphetamine; (15) Hamer did not know if his UA
would be clean; (16) Hamer admitted that there might be drugs on the property; (17) Hamer
admitted that people do drugs at the shop and “hide their stuff” there; (18) Hamer helped

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people out when they needed drugs; and (19) when the officer told Hamer that they found
methamphetamine in a cigarette pack, he replied, “Yeah . . . well I guess I’m going to jail
then [aren’t] I?”
These circumstances proved “form a complete chain which, in light of the evidence
as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable
doubt, any reasonable inference other than that of guilt.” See Reed, 737 N.W.2d at 581
(quotation omitted). These ci rcumstances show that Ha mer constructively possessed
methamphetamine and drug paraphernalia beca use when they were found, there was a
strong probability that Hamer was exercising dominion and control.
Further, the evidence does not support any rational theory that Hamer was innocent
because constructive possession can be join t. Thus, even if the methamphetamine
belonged to M.D., which is unlikely because the amount found was more than M.D. said
he left and it was found in a different location than where M.D. said he left it, Hamer could
still be guilty. Further, M.D.’s possession of the methamphetamine does not account for
the drug paraphernalia. And even if the methamphetamine and paraphernalia belonged to
someone else, they were in Hamer’s shop, and he admitted that there were drugs there.
Further, it seems unlikely that Hamer would have allowed anyone in his shop when he was
not there because of the shop’s contents. Hamer would likely protect his property and not
allow known drug users to be in his shop when he is not there. T hus, the evidence is
sufficient to support the jury’s verdicts.
Affirmed.