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This opinion is nonprecedential except as provided by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
A20-0861

State of Minnesota,
Respondent,

vs.

Jayson John Rogahn,
Appellant.

Filed April 26, 2021
Reversed and remanded
Reilly, Judge

Otter Tail County District Court
File No. 56-CR-18-1040

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

Michelle M. Eldien, Otter Ta il County Attorney , Jacob J. Thomason, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Pres iding Judge; Reilly, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges his first-degree c ontrolled-substance conviction because
(1) the evidence was insuffici ent to establish beyond a reasonable doubt that he
constructively possessed a controlled substance, (2) the district court erred by allowing the

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state to introduce the substance of the confid ential informant’s statements into evidence,
(3) the prosecutor committed misconduct during closing argument, and (4) his sentence is
erroneous. While the evidence was marginally sufficient to support the guilty verdict, the
erroneously admitted evidence prejudiced appellant. We therefore reverse and remand.
FACTS
In April 2018, Officer Steven Branby, a narcotics officer with the Otter Tail County
Sheriff’s Office and a special agent with th e West Central Minnesota Drug and Violent
Crimes Task Force, seized a large amount of methamphetamine from an individual during
a traffic stop. That individual (the CI) offere d to act as a confidenti al informant. The CI
stated that he had previously dropped off a large amount of methamphetamine in Fergus
Falls and agreed to participat e in controlled phone calls, which the officer would record.
The CI placed three calls to J.F., asking him to collect the methamphetamine and setting a
time to meet the next day. J.F. stated on th e call that he might not be alone, and could be
bringing another person with him.
Based on these calls, the office rs suspected that J.F. was storing half a pound of
methamphetamine at an apartment in Fergus Falls. Fergus Falls Police Officer Nathan
Frieler placed the apartment under surveillance. Frieler saw a vehicle pull up to the curb
in front of the apartment build ing and recognized J.F. as the driver. J.F. stayed at the
building for about ten minutes. Later that evening, Frieler saw J.F.’s vehicle return to the
apartment building. J.F. and another man entered the building. After leaving the building,
J.F. and his passenger took an “indirect route” down residential streets. Frieler contacted
State Trooper and K-9 Officer Aaron Myren a nd notified him that the vehicle was likely

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traveling eastbound on the interstate, carrying what officers suspected was a large amount
of methamphetamine.
Myren saw the vehicle on I-94 and noticed that the vehicle’s registration was
expired and it was traveling over the posted speed limit. Myren initiated a traffic stop and
identified J.F. as the driver and appella nt Jayson Rogahn as the passenger. Myren
suspected that J.F. was under the influence of a controlled substance. Myren’s police dog
conducted a sniff and search of the vehicle and alerted on the passenger-side glove box and
a lockbox in the backs eat. In the glove box, Myren f ound a cigarette carton containing
three large plastic bags holding about half a pound of a substance that field-tested positive
for methamphetamine. In the lockbox, Myre n found a bag containi ng 1.5 ounces of a
material that field-tested positive for meth amphetamine, a used pi pe, a large amount of
empty plastic baggies, rubber bands, and cash.
The Minnesota Bureau of Criminal Apprehension (the BCA) tested the contents of
two of the four bags. The BCA determined that the first bag contained 91.036 grams of
methamphetamine, and the second bag contained 86.688 grams of methamphetamine. The
BCA did not analyze the third or fourth bags.
Respondent State of Minnesota charged appe llant with first-degree sale and first-
degree possession of methamphetamine. Following a two-day jury tria l, the jury found
appellant guilty of the possession charge and not guilty of the sale charge.1 The district
court sentenced appellant to the presumptive sentence, and this appeal follows.

1 Appellant did not testify at trial.

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DECISION
I. Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence underlying his conviction. He
argues that respondent did not meet its burden to prove that he possessed the
methamphetamine found in the car. In evalua ting the sufficiency of the evidence, we
“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). We review the evidence
“in the light most favorable to the conviction” and “assume the jury believed the State’s
witnesses and disbelieved any evidence to the contrary.” State v. Ortega, 813 N.W.2d 86,
100 (Minn. 2012) (quotation omitted). We “will not disturb the verdict if the jury, acting
with due regard for the presumption of inno cence and the requirement of proof beyond a
reasonable doubt, could reasonably conclude that the defendant was guilty of the charged
offense.” Id.
We analyze the sufficiency of the evidence first because that determination dictates
the relief granted. The Double Jeopardy Clause of the United States Constitution precludes
retrial if a conviction is set aside because the evidence supporting it is legally insufficient.
State v. Cox, 779 N.W.2d 844, 853 (Minn. 2010). “Leg ally insufficient” means that “the
government’s case was so lacking that it should not have even been submitted to the jury.”
Id. (quotations omitted). We re view all of the evidence ad mitted by the district court—
even if erroneously admitted—to decide whether the defenda nt is entitled to retrial under

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the Double Jeopardy Clause. Id. Retrial is not barred if a conviction is reversed based on
trial error. State v. Harris, 533 N.W.2d 35, 36 (Minn. 1995).
In cases like this, proved through circumstantial evidence, we begin by considering
whether the circumstantial evidence supports the conviction. We apply a heightened
standard of review when the state’s evidence on one or more elements of a charged offense
consists solely of circumstantial evidence, as it does here. State v. Porte, 832 N.W.2d 303,
309 (Minn. App. 2013). Circumstantial evid ence is “evidence from which the factfinder
can infer whether the facts in dispute existed or did not exist.” State v. Harris, 895 N.W.2d
592, 599 (Minn. 2017) (quota tion omitted). We apply a two- step test to evaluate the
sufficiency of this evidence. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). At the first
step, we identify the circumstances proved. Id. We then indepe ndently examine the
“reasonableness of the inferences that might be drawn from the circumstances proved,”
and “determine whether the circumstances proved are consistent with guilt and inconsistent
with any rational hypothesis except that of guilt.” Id. (quotations omitted).
The jury found appellant guilty of first-degree posse ssion of methamphetamine
under Minn. Stat. § 152.021, subd. 2(a)(1) (2018) (prohibiting unlawful possession of “one
or more mixtures of a total weight of 50 grams or more containing . . . methamphetamine”).
Possession may be actual or constructive. State v. Salyers, 858 N.W.2d 156, 159 (Minn.
2015). Constructive possession may be established either by (1) proof that the item was in
a place under the defendant’s “exclusive cont rol to which other pe ople did not normally
have access,” or (2) proof of a strong probability that the “defendant was at the time
consciously exercising dominion and control over it,” even if the item were in a place to

6
which others had access. State v. Florine, 226 N.W.2d 609, 611 (Minn. 1975). Two people
may have joint constructive possession of an item. Harris, 895 N.W.2d at 601.
We begin by identifying the circumstances proved. State v. Hanson, 800 N.W.2d
618, 622 (Minn. 2011). The CI made a series of controlled phone calls to J.F. to arrange
for J.F. to pick up methamphetamine stored at an apartment in Fergus Falls. The CI asked
J.F. if he would be alone, and J.F. responded that he may not be alone. The police believed
that a large amount of methamphetamine was being stored at an apartment in Fergus Falls
and placed the apartment under surveillance. Frieler saw J.F. enter the apartment with
another man. Myren later stopped J.F.’s vehicle for a traffic violation and on the suspicion
that the driver may have been transporting methamphetamine. Appellant was a passenger
in this vehicle and seated in front of the glove box. Myren noticed that J.F. displayed signs
of impairment. Myren testified that appellant showed similar signs, such as fumbling with
his fingers and fidgeting, and had dilated pupils. Myren asked for the vehicle registration
and insurance information. J.F. and appellant looked at the glove box, but would not open
it. When Myren searched the vehicle, he uncovered a large amount of methamphetamine
in the passenger-side glove box and in a lockbox in the ba ckseat. In identifying the
circumstances proved, we assume “that the jury resolved any factual disputes in a manner
that is consistent with the jury’s verdict.” Moore, 846 N.W.2d at 88. While we recognize
that the record is thin, this is not a case in which the evidence is so lacking that the district

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court should not have subm itted the case to the jury. 2 See Cox, 779 N.W.2d at 853. J.F.
told the CI he may not be alone. Appellan t was in the car with J.F. to deliver the
methamphetamine to the CI. Appellant was seated in front of the glove box and would not
open it when the officer suggested the registra tion might be in the glove box. A large
amount of methamphetamine was then found in the glove box.
We next evaluate “independently the reasonableness of all inferences that might be
drawn from the circumstances proved,” including inferences consistent with a hypothesis
other than guilt. Hanson, 800 N.W.2d at 622 (quotation omitted). Sufficient evidence
supports the jury’s determination that a ppellant jointly possessed the methamphetamine
with J.F. because he was “consciously exercising dominion and control over it.” Florine,
226 N.W.2d at 611. But appellant argues that there is a reasonable hypothesis that he did
not constructively possess the methamphetami ne and was merely a passenger in J.F.’s
vehicle. The record shows that J.F. told the CI he may have someone with him during the
drug exchange. J.F. then vis ited the apartment in Fergus Falls with another individual to
pick up methamphetamine. Soon after, an officer stopped J.F.’s car and identified appellant
as the only passenger. Both J.F. and appe llant displayed indicia of being under the
influence, and nervously looked at and would not open the gl ove box. The officer found
drugs in the glove box directly in front of appellant. We consider this evidence of
appellant’s guilt to be marginal. Yet, viewing the evidence in the light most favorable to

2 We note that at trial appellant did not m ove for a judgment of acquittal under Minn. R.
Crim. P. 26.03, subd. 18(1)(a), arguing that the evidence was insuffi cient to sustain a
conviction.

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the jury’s verdict, as we must, we determine it is narrowly sufficient. See id. at 600 (noting
that fact-finder “is in a unique position to determine the credibility of the witnesses and
weigh the evidence before it”). In viewing all of the evidence presented by respondent,
including any erroneously admitted evidence, we conclude that the evidence was marginal
enough to support the jury’s verdict.
II. Erroneous Introduction of Evidence
Appellant next asserts that the district court committed reversible error by allowing
the respondent to introduce and use the substance of the CI’s statements to law enforcement
and the content of the CI’s recorded calls to J.F. because they were hearsay statements. We
agree.
When a case “is sufficiently marginal” based on the evidence presented, we conduct
a “careful examination of the proceedings with respect to the claims of error occurring at
the time of the trial.” State v. Olson, 156 N.W.2d 89, 90 (Minn. 1968); see also State v.
Flowers, 261 N.W.2d 88, 89 (Minn. 19 77) (noting that “the st ate’s evidence, consisting
solely of the uncorroborated testimony of the complaining witness, is sufficiently marginal
to require a careful examination of defe ndant’s claims of error at trial”); cf. State v.
Budreau, 641 N.W.2d 919, 928 (Minn. 2002) (determining that Olson did not apply when
state presented “overwhelming” evidence of defendant’s guilt). We review evidentiary
rulings for an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). Even
if the district court abuses its discretion, an appellant is not entitled to a new trial if the
error was harmless. State v. Robinson, 718 N.W.2d 400, 407 (Minn. 2006).

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Hearsay is a statement, other than one made by the declarant while testifying at trial,
offered in evidence to prove the truth of the matter asserted. Minn. R. Evid. 801(c). While
hearsay is generally inadmissible, an out- of-court statement offe red for some other
purpose, such as to prove knowledge, is not considered hearsay. Minn. R. Evid. 801 1989
comm. cmt.; see State v. Litzau , 650 N.W.2d 177, 183 n.4 (Minn. 2002) (permitting
testifying officer to reconstruct steps in a cr iminal investigation a nd testify that officer
spoke to informant).
Before trial, appellant moved to exclude the CI’s statements to Branby and the
substance of the CI’s recorded phone calls with J.F. as inadmissible hearsay.3 Respondent
argued that the evidence was not hearsay because it would not go to the truth of the matter
asserted and would “give the jury some context on why surveillance is being set up.” The
district court permitted respondent to introduce the evidence:
And if the [controlled phone ca lls to J.F.] were to be
introduced as characterized by the defense, to show knowledge
and a sale and knowing possession, there would be hearsay that
would be subject to the hearsay rule and not admissible.
The State argues that its intent is to introduce the audio
recordings to show the impact on the law enforcement officer,
here Officer Branby, and so, I’m allowing the recordings in.
However, I want the questions relating to the calls from the
State to be narrowly crafted so th at we only have the calls for
the purpose that the State argues they should come in for, and
that is to set the context of the further police action and
investigation.

3 The CI did not testify at trial.

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But the record establishes that respondent went far be yond what it represented to
the district court, and thus far beyond the dist rict court’s ruling at trial. The prosecutor
stated during opening argument that appellant “was an active participant in moving a very
large amount of methamphetamine out of Fergus Falls.” At trial, the prosecutor elicited
the substance of the CI’s statements from Branby and Frieler. The prosecutor also played
two of the CI’s recorded phone calls to J.F. for the jury and highlighted the substance of
the statements in those calls. The prosecuto r again emphasized the CI’s statements and
phone calls during his closing argument and re buttal. The prosecutor argued that J.F.’s
statement in one of the recorded calls that “he will not be alone” was “highly, highly
important” evidence. It may have been “highly important” evidence, but it was erroneously
admitted hearsay evidence.
The use of the controlled phone calls as substantive evidence was erroneous. Litzau
guides us. 650 N.W.2d at 177. In that case, a police officer testified that he received a tip
from a confidential informant that the defendant possessed a controlled substance. Id. at
181. Testimony that law enfo rcement received a tip, to explain their actions, is not
inadmissible hearsay. Id. at 182. As the supreme court explained, “[a] police officer may
reconstruct the steps taken in a criminal inve stigation, may testify about his contact with
an informant, and may describe the events leading up to a defe ndant’s arrest.” Id. at 183
n.4 (quotation and citations omitted). But the supreme court cautioned that “the officer’s
testimony must be limited to the fact that he spoke to an informant without disclosing the
substance of that conversation.” Id. Thus, a law enforcement officer “testifying in a

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criminal case may not, under the guise of explaining how the investigation focused on
defendant, relate hearsay statements of others.” Id. at 182 (quotation omitted).
But that is what happened here. Respondent used the content of the CI’s controlled
phone calls as substantive evidence. This went far beyond “giv[ing] the jury some context”
of the police action, and the statements should have been excluded. The failure to exclude
them constitutes plain error. 4 See State v. Jones , 753 N.W.2d 677, 686 (Minn. 2008)
(noting that an error is plain if it “is clear or obvious”); State v. Ray, 659 N.W.2d 736, 744
(Minn. 2003) (stating that it is plain error for a prosecutor to intentionally elicit
inadmissible testimony).
We also determine that this error was prejudicial. An error in ad mitting evidence
does not automatically lead to reversal of a conviction and a new trial. State v. Juarez, 572
N.W.2d 286, 291 (Minn. 1997). If the verdict “actually rendered was surely unattributable
to the error, the error is harmless beyond a reasonable doubt” and the verdict may stand.
Litzau, 650 N.W.2d at 184 (quota tion omitted). But “[w]here the evidence was aimed at
having an impact on the verdict, we cannot say that the verdict was surely unattributable
to the error.” Id. As discussed above, the circumstan tial evidence against appellant was
marginal at best. The erroneously admitted calls, coupled with th e scant evidence of
appellant’s guilt, compels us to conclude th at appellant was prejudiced. We therefore

4 The state argues in the altern ative that the CI’s phone call s were admissible under the
residual exception to the hearsay rule. See Minn. R. Evid. 807 (discussing residual
exception). The state did not present this argument to the district court and we decline to
address it. Roby v. State , 547 N.W.2d 354, 357 (Minn. 19 96) (declining to consider
arguments raised for the first time on appeal).

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reverse and remand. 5 See Harris, 533 N.W.2d at 36 (noting that retrial is not barred if
conviction is reversed based on trial error).
Reversed and remanded.

5 Appellant also argues that the prosecutor committed prosecutorial misconduct during
closing argument and that his sentence is erroneous. We need not reach these arguments.