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This opinion is nonprecedential except as provided by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
A20-0504

State of Minnesota,
Respondent,

vs.

Terrvante Rennicko Hicks,
Appellant.

Filed June 21, 2021
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-19-1545

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

Michael O. Freeman, Hennepin County Attorn ey, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Ross, Judge; and
Rodenberg, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal, appellant Terrvante Rennicko Hicks challenges his conviction
for third-degree possession of a controlled substa nce with the intent to sell. Hicks argues
that (1) the evidence presented by respondent State of Minnesota is insufficient to prove
beyond a reasonable doubt that he possessed the drugs found by police in his rental car and
(2) the district court erred by permitting the state to introduce Spreigl evidence recovered
from Hicks’s cell phone to show his intent to sell the drugs found in the car. Hicks raises
additional challenges in a pro se supplemental brief. We affirm.
FACTS
Hicks was charged with third-degree posse ssion with intent to sell a controlled
substance,1 check forgery, and theft of leased or rented personal prope rty. The following
facts were established at his jury trial.
In June 2018, a bank employee called 911 to report that a customer had tried to cash
a suspected fraudulent check. Police officers re sponded, and a bank employee identified
Hicks, who was still in the bank, as the customer. Officers spok e with Hicks. The
information that Hicks gave regarding the person he claime d was the account holder for
the check, together with further investigati on by the police, suggested that the check was
fraudulent.

1 Hicks was also charged with two fifth- degree possession-of-controlled-substance
offenses.

3
At first, Hicks told officers that he had walked to the bank, but he then admitted that
a female friend had driven him. Officers soon located a car, with a female driver and Illinois
license plates, sitting in the parking lot of the bank. On approaching the car, two officers
saw through the window a “tear off”—a common form of drug packaging—in the
passenger armrest. This prompted officers to search the car.
On the floor of the front passenger si de of the car, officers found a Styrofoam
container with a large amoun t of suspected marijuana, a mason jar containing more
suspected marijuana, an unma rked prescription bottle cont aining pills, and three cell
phones. In the glove box, officers found four plastic bags of suspected cocaine, two plastic
bags containing suspected opioids, more suspected marijuana, two digital scales, additional
apparently fraudulent checks, and a storage re ntal contract in Hicks’s name. One of the
checks had the same account numbe r and routing number as the check Hicks had tried to
cash, but Hicks was listed as the account holder. Finally, offi cers found Hicks’s driver’s
license in the center console of the car. Offi cers arrested Hicks and, while searching him
incident to his arrest, found another cell phone and small plastic bags in his pocket.
After testing, officers determined that, collectively, there were around 85 grams of
marijuana, 7.319 grams of cocaine, 0.165 grams of methamphetamine, and 0.194 grams of
a mixture of methamphetamine and cocaine found in the car.
Police were able to access data from one of the cell phones. Investigators extracted
several photos—including one of Hicks holding his driver’s license, a picture of an
employment stub in Hicks’s name, a picture of Hicks’s business card, and several photos
of what appeared to be mar ijuana and pills. Investigators also extracted several text
4
messages discussing the price of certain drugs, drug amounts, and potential sales. At trial,
the district court, over Hicks’s objecti on, admitted this cell- phone evidence under
Minnesota Rule of Evidence 404(b). A detective with the Anoka Hennepin Narcotics and
Violent Crimes Task Force testified regard ing the cell-phone evid ence, explaining the
slang used in the text messages and identifying the drugs that he believed were pictured in
the photos.
Finally, officers learned that Hicks rented the car from a rental-car company. Hicks
had signed the rental agreemen t for the car, and his driver’s license number was listed in
company’s records of the rental. Hicks rented the car for four days but remained in
possession of it for several weeks. After Hick s failed to return the car, the rental-car
company called and texted him, sent a demand letter by certified mail, and reached out to
Hicks’s family members. Hick s did not extend his contract, pay for the extra days, or
respond to most of the company’s efforts to contact him.
The jury found Hicks guilty of all charges. The district court sentenced him to 65
months in prison for third-degree possession of a controlled substance with the intent to
sell and to shorter, concurrent sentences for ch eck forgery and theft of leased or rented
property.2
Hicks appeals.

2 Although the district court did not sent ence Hicks for the fift h-degree controlled-
substance possession offenses, it improperly entered convictions for those offenses in the
warrant of commitment. See Minn. Stat. § 609.04, subd. 1(1) (2016) (providing that a
person “may be convicted of either the crime charged or an included offense, but not both,”
and specifying that an included offense encompasses a “lesser degree of the same crime”).
5
DECISION
In his counseled brief, Hicks presents tw o arguments challenging his third-degree
controlled-substance conviction: that (1) the evidence is insufficien t to prove that he
constructively possessed the drugs found in th e car and (2) the district court erred by
admitting the Spreigl evidence from one of his cell phone s. Hicks also submitted a pro se
supplemental brief raising several issues. We address his arguments in turn.
I. The evidence is sufficient to prove that Hicks constructively possessed the
drugs found in the car.

To prove that a defendant possessed a controlled substance, “the state must prove
that defendant consciously possessed . . . th e substance and that defendant had actual
knowledge of the nature of the substance.” State v. Florine, 226 N.W.2d 609, 610 (Minn.
1975). Possession can take two forms: actual or constructive. Cf. State v. Salyers , 858
N.W.2d 156, 159 (Minn. 2015) (discu ssing firearm possession). Actual possession
involves “direct physical control.” State v. Barker , 888 N.W.2d 348, 353 (Minn. App.
2016) (quotation omitted). Constructive possessi on, on the other hand, applies when the
state “cannot prove actual or physical possession . . . but where the inference is strong that
the defendant at one time phys ically possessed the [contraba nd] and did not abandon his
possessory interest in the [contraband].” Florine, 226 N.W.2d at 610. The state may prove
constructive possession by two methods: (1) by proving that “the police found the item in
a place under the defendant’s exclusive cont rol to which other pe ople normally did not
have access” or (2) “if police found the item in a place to which others had access,” by
proving that “there is a strong probability (inf erable from other evidence) that at the time
6
the defendant was consciously or knowingly exercising dominion and control over it.”
State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017) (citation omitted).
Because officers found the drugs in the car while Hicks was still talking with officers
inside the bank, Hicks did not actually possess the drugs an d the state needed to prove
constructive possession. And, because the drugs were not fo und in a place under Hicks’s
exclusive control, the state needed to prove constructive possession by the second
method—by proving that Hicks consciously or knowingly exercised dominion and control
over the drugs. See id.
The state used circumstantial evidence to prove Hicks’s constructive possession of
the drugs. We analyze the su fficiency of circumstantial ev idence through a two-step
analysis. See State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, we identify the
circumstances proved. Id. In doing so, we “defer to the jury’s accept ance of the proof of
these circumstances and rejection of evidence in the record that conflicted with the
circumstances proved by the State.” Id. at 598-99 (quotations omitted). Because the jury is
in the best position to analy ze credibility, we “consider only those circumstances that are
consistent with the verdict.” Id. at 599. We assume “that the jury believed the State’s
witnesses and disbelieved the defense witnesses.” Id. (quotation omitted).
Next, “we determine whether the circumstances proved are consistent with guilt and
inconsistent with any rational hypothesis except that of guilt.” Id. (quotations omitted).
Here, we give no deference to the jury’s choice between any reasonable inferences. See
Harris, 895 N.W.2d at 601. To uphold a conviction based on circumstantial evidence, “the
circumstances must form a complete chain which, in light of the evidence as a whole, leads
7
so directly to the guilt of the accused as to exclude, 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 circumstances proved at trial were: (1 ) three weeks before his arrest, Hicks
rented the car in which the drugs were found; (2) Hicks failed to return the car on time and
was still in possession of it when officers arrested him; (3) Hicks acknowledged to officers
that he was driven to the bank by a female friend; (4) the car, with a woman in the driver’s
seat, was in the bank parking lot; (5) all of the cocaine and meth amphetamine recovered
by officers from the car was in the glove box; (6) some of the marijuana recovered from
the car was in the glove box; (7) officers f ound items in Hicks’s name in the glove box,
including a storage-unit rental agreement si gned by Hicks and a fraudulent check with
Hicks listed as the account holder; (8) officers found most of the marijuana recovered from
the car on the front passenger side floor; (9) all of these drugs were in multiple containers,
with the cocaine found in a tear-off plastic bag; (10) officers found more tear-off bags in
the passenger side armrest of the car and small plastic bags in Hicks’s pockets; (11) officers
found several cell phones on the front passe nger side floor of the car—one of them
definitively found to be long to Hicks; and (12) officers found Hicks’s driver’s license in
the center console of the car.
Hicks argues that the circumstances do not support the rational inference that he
constructively possessed the drugs because he was not in the car when police found the
drugs; therefore, he argues, he could not ha ve been exercising dominion and control over
them. But constructive possession is present when “the inference is strong that the
8
defendant physically possessed the item at one time and did not abandon his possessory
interest in it.” State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000) (citing Florine, 226
N.W.2d at 610), review denied (Minn. Jan. 16, 2001). Here, th e inference is strong that
Hicks was exercising dominion and control over the drugs in the car just prior to his arrest
and that he had not abandoned his possessory interest in the drugs. The drugs were found
in Hicks’s rental car, in the glove box and on the floor of the front passenger seat where
one could reasonably infe r that Hicks had just been sitting, along with other items in the
car linking Hicks to the drugs. In addition, Hicks’s rental car was parked in the parking lot,
suggesting that the driver was waiting for Hicks’s return. Constructive possession has been
upheld in other cases where evidence linked the defendant to contraband that was found by
police when the defendant was not present but was expected to return to the location. See,
e.g., State v. Mollberg, 246 N.W.2d 463, 472 (Minn. 19 76) (concluding that the evidence
was sufficient to prove constructive possession of drugs found during a search of an
occupied home, even though the defendant was not present at the time, because the
defendant often stayed at the residence wher e the drugs were foun d and letters to the
defendant and part of his motorcycle were found near the contraband).
Hicks also argues that the circumstance s proved support a rational hypothesis
consistent with innocence—specifically, that the female driver solely possessed the drugs.
Hicks asserts that a reasonabl e inference of the driver’s possession is established by
Minnesota Statutes section 152.028, subdivision 2 (2016), which provides that a fact-finder
may infer knowing possession of a controlled substance by the driver of an automobile
when controlled substances are found in the automobile. But Hicks cites no authority for
9
the proposition that a permissive inference under that statute necessarily creates a rational
hypothesis of innocence under the circumstantial-evidence standard of review. Cf. State v.
Sam, 859 N.W.2d 825, 832 n.4 (Minn. App. 2015) (observing that section 152.028 did not
change the court’s Silvernail analysis in that case).
Applying the circumstantial-evidence sta ndard of review to the circumstances
proved here, we conclude that Hicks’s propos ed hypothesis of possession by the driver is
not rational because it is based on speculation. It is true that the driver was alone in the car
when police officers approached the car, but they did not find evidence connecting the
driver to the drugs and they did not see her reach for, conceal, or move anything inside the
car. In State v. German , we rejected a similar argumen t for a rational hypothesis of
innocence based on the presence of another person. 929 N.W.2d 466, 474-75 (Minn. App.
2019). There, drugs were found in a duffel bag in the defendant’s truck and the defendant
argued that another occupant of the truck could have possessed the drugs and placed them
in the duffel bag when she was left alone wh ile police were securing the defendant in the
squad car. Id. at 474. We rejected that argument, reasoning that, even though the passenger
was alone in the car for a s hort time, “without additiona l evidence—such as furtive
movements indicating that [the passenger] plac ed the drugs in the bag or evidence of
methamphetamine on her person or in her pu rse” any hypothesis linking the passenger to
the drugs was “wholly speculative and untied to the evidence before the jury.” Id. at 475.
Moreover, even if the driv er here had a possessory in terest in the drugs, the
circumstances do not reasonably support the inference that she was the sole possessor. “A
person may constructively possess contraband jointl y with another person.” State v.
10
Ortega, 770 N.W.2d 145, 150 (Minn. 2009). Hick s argues that the state has forfeited the
argument that the driver and Hicks jointly possessed the drugs because the state conceded
during a pretrial hearing that the driver co uld jointly possess the marijuana but not the
cocaine. Hicks’s argument is unavailing. The jury was instructed on joint and exclusive
possession, and the state discussed joint cons tructive possession in its closing argument.
Regardless, when evaluating th e sufficiency of the evidence , we are not bound by either
the state’s theory of the case at trial or the jury instructions. Cf. Musacchio v. United States, 136 S. Ct. 709, 715 (201 6) (“All that a defendant is ent itled to on a sufficiency challenge
is for the court to make a ‘legal’ determination whether the evidence was strong enough to
reach a jury at all.”). Here, the circumstan ces proved at trial lead to the only rational
conclusion that Hicks, either exclusively or jointly, constructiv ely possessed the drugs
found in the car.
II. The district court did not abus e its discretion by admitting Spreigl evidence
from one of Hicks’s cell phones.

Hicks next argues that the district cour t committed reversible error by admitting,
over his objection, messages and photos found on one of Hicks’s cell phones as evidence
of his past involvement with drug transactions. We review a district court’s decision to
admit evidence of other bad acts for an abuse of discretion. State v. Griffin, 887 N.W.2d
257, 261 (Minn. 2016). “Evidentiary errors warrant reversal if there is any reasonable doubt
the result would have been different had the evidence not been admitted.” State v. Grayson,
546 N.W.2d 731, 736 (Minn. 1996) (quotation omitted). The defendant bears the burden
11
of showing that an error occurred and that the defendant was prejudiced as a result. Griffin,
887 N.W.2d at 261.
A. The district court did not abuse its discretion by admitting the Spreigl
evidence.

Minnesota Rule of Evidence 404(b) governs admission of evidence of other crimes
or bad acts—commonly referred to as “ Spreigl evidence.” State v. Kennedy, 585 N.W.2d
385, 389 (Minn. 1998) (citing State v. Spreigl , 139 N.W.2d 167 (Minn. 1965)). Spreigl
evidence is not admissible to prove that a pe rson acted in conformity with the other bad
acts. Minn. R. Evid. 404(b). But the eviden ce may be admissible for another purpose,
including “showing motive, intent, knowledge, identity, absence of mistake or accident, or
a common scheme or plan.” State v. Ness, 707 N.W.2d 676, 685 (M inn. 2006) (citations
omitted). For the evidence to be admissible, the following conditions must be satisfied:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indi cate what the evidence will be
offered to prove; (3) there must be clear and convincing
evidence that the defendant participated in the prior act; (4) the
evidence must be relevant and material to the state’s case; and
(5) the probative value of the evidence must not be outweighed
by its potential prejudice to the defendant.

Id. at 686.
Hicks argues that the state failed to meet the fourth and fifth prongs under Spreigl—
that the evidence was relevant and material to the state’s case and that the evidence’s
probative value was not outweighed by its potential prejudicial impact.
Hicks makes three arguments why the ce ll-phone evidence was not relevant and
material to the state’s case. First, Hicks c ontends that the district court’s reason for
12
admitting the cell-phone evidence was improper. He points to the district court’s statement
that the cell-phone evidence would go to prove “that [Hicks] was engaged in drug
transactions.” But the district court further explained that the purpose of proving those drug
transactions was to prove the disputed issue of Hicks’s intent to sell the contraband. The
state, in its motion in limine, explained that it planned to use the cell-phone evidence to
prove that Hicks “intended to sell the cocaine found in the vehicle and [Hicks’s] knowledge
of drug dealing practices including quantities, values, and arranging transactions.” Spreigl
evidence may be admitted when it is relevant to prove the defendant’s criminal intent. See
State v. Fardan, 773 N.W.2d 303, 317 (Minn. 2009).
Second, Hicks argues that the cell-phone ev idence was not relevant or material
because the state introduced other evidence of Hicks’s in tent through officer testimony
about the drugs found in the ca r. Relevant evidence is br oadly defined as any evidence
tending to make the existence of a material fact more prob able or less probable than it
would be without the evidence. Minn. R. Evid. 401. “I n determining the relevance and
materiality of Spreigl evidence, the [district] court should consider the issues in the case,
the reasons and need for the evidence, and whether there is a sufficiently close relationship
between the charged offense and the Spreigl offense in time, place or modus operandi.”
Kennedy, 585 N.W.2d at 390 (quotation omitte d). Intent is commonly shown with
circumstantial evidence. State v. McAllister , 862 N.W.2d 49, 53 (Minn. 2015). The text
messages show Hicks’s familiarity with drug slang, prices, and quantities. The photos show
Hicks with drugs in vari ous forms—including pills a nd marijuana buds—and Hicks
holding large amounts of cash. The district court did not abuse its discretion by finding the
13
cell-phone evidence relevant to prove Hicks’s intent to sell the large quantity of drugs
found in the car.
Finally, Hicks argues that, because several months ha d passed between the text
messages and photos and Hicks’ s arrest, the cell-phone eviden ce was stale and therefore
not relevant and material. Appellate courts will uphold the admission of Spreigl evidence
“notwithstanding a lack of closeness in time or place if the relevance of the evidence was
otherwise clear.” Kennedy, 585 N.W.2d at 390 (quotation omitted). Though three to six
months had passed between when Hicks sent the messages or took the photographs and the
date of his arrest, the relevance of the ce ll-phone evidence in proving Hicks’s intent
remains clear.
Hicks also argues that any probative value of the cell-ph one evidence was
outweighed by the danger of unf air prejudice. Unfair prejudice “is not merely damaging
evidence, even severely dama ging evidence; rather, unfair prejudice is evidence that
persuades by illegitimate means, givi ng one party an unfair advantage.” State v. Schulz ,
691 N.W.2d 474, 478 (Minn. 2005). In balancing the probative value of Spreigl evidence
against its potentially prejudicial effect, we consider the state’s need for the evidence in its
case against the defendant. See Ness, 707 N.W.2d at 690. Hicks argues that the cell-phone
evidence was not needed because officers testified at trial about the drugs seized during
Hicks’s arrest and whether the quantity of drugs recovered was consistent with his personal
use. In response, the state argues that the cell-phone evidence bolstered that circumstantial
evidence. The state’s argument is persuasi ve. The cell-phone evid ence showed Hicks’s
knowledge of and familiarity with the drug market and thus bolstered the state’s argument
14
that Hicks intended to sell the drugs found in his car. The probative value of the evidence
was not outweighed by the danger of unfair prejudice.
B. Any abuse of discretion by admitting the evidence was harmless error.
Even if we were to assume that the district court abused its discretion by admitting
the cell-phone evidence, we would not reverse. An appellate court will reverse a conviction
based on the improper admission of Spreigl evidence only if there “is a reasonable
possibility that the wrongfully admitted evidence significantly affected the verdict.” State
v. Smith , 940 N.W.2d 497, 503 (Minn. 2020) (quotation omitted). When determining
whether the evidence affected the verdict, we look to factors including whether there was
a limiting instruction, whether the state dwelled on the evidence during closing argument,
and the strength of the case against the defendant. See State v. Thao, 875 N.W.2d 834, 839
(Minn. 2016). Here, the state did not dwell on the cell-phone evidence in its closing
argument, and the case against Hicks was stro ng. As to a limiting in struction, the state
requested that the district court give one in its final jury instructions, but the district court
did not do so because Hicks objected, fearin g it would highlight the evidence. Not giving
a limiting instruction sua sponte is not plain error. State v. Taylor, 632 N.W.2d 676, 685
(Minn. 2001). And, considering all of the factors, we conclude that any error by admitting
the Spreigl evidence did not significantly affect the verdict.
III. None of the claims in Hicks’s pro se supplemental brief are meritorious.
In his supplemental brief, Hicks first argues that the evidence is insufficient to prove
he stole the car because “there was no police report filed or made.” But, because Hicks
presents this argument through conclusory statements unsupported by legal authority, his
15
argument is forfeited. See State v. Bartylla, 755 N.W.2d 8, 22-23 (Minn. 2008) (“We will
not consider pro se claims on appeal that are unsupported by either arguments or citations
to legal authority.”).
Hicks next argues that the district cour t erred by imposing multiple sentences.
Minnesota Statutes section 6 09.035, subdivision 1 (2016), prohibits the imposition of
multiple sentences for crimes committed du ring a single behavioral incident. In
determining whether multiple offenses arose from a single behavioral incident, courts
consider whether the acts were unified in time and place and whether the conduct was
motivated by the same criminal objective. State v. Bookwalter , 541 N.W.2d 290, 294
(Minn. 1995). Hicks was senten ced for three counts—check forg ery, theft of a leased or
rented property, and third-degr ee possession of a controlled s ubstance with the intent to
sell. Leaving aside questions regarding unity of time and place, each of these acts had a
different criminal objective. Thus, the district court did not err by imposing a sentence for
each crime.
Hicks next claims that the state improp erly relied on perjured testimony from a
detective during trial. But Hicks’s argument is based on conclusory statements, and there
is nothing in the record contradicting the detective’s testimony. See Bartylla, 755 N.W.2d
at 22-23.
Finally, Hicks argues that the district court violated his right to due process when it
did not make a record of the state’s pret rial continuance request. Even assuming for
purposes of argument that Hicks is correct th at the district court erred by not creating a
record of the state’s motion for a continuance, Hicks has not identified any prejudice from
16
the absence of the record. See State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016) (establishing
that the defendant bears the burden of showing that the error was prejudicial).
Affirmed.