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This opinion is nonprecedential except as provided by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
A22-0048

State of Minnesota,
Respondent,

vs.

Kevin John LeClair,
Appellant.

Filed November 21, 2022
Affirmed
Gaïtas, Judge

Itasca County District Court
File No. 31-CR-20-452

Keith Ellison, Attorney General, Lisa Lodin Peralta, Assistant Attorney General, St. Paul,
Minnesota; and

Matti R. Adam, Itasca County Attorney, Grand Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Gaïtas, Presiding Judge; Worke, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Kevin John LeClair appeals his conviction, following a jury trial, for
fifth-degree possession of a controlled substance. LeClair argues that the trial evidence
was insufficient to establish that he knowingly possessed the methamphetamine found in a
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car and in his wallet. He also contends for the first time on appeal that the district court
erred when it did not give a specific-unanimity instruction because the jury was asked to
consider two distinct acts of drug possession. We conclude that (1) respondent State of
Minnesota proved beyond a reasonable doubt that LeClair possessed methamphetamine
and (2) the district court did not err in giving only a general unanimity instruction because
both acts of possession were part of a single behavioral incident. We therefore affirm
LeClair’s conviction.
FACTS
In February 2020, LeClair was a passenger in J.R.’s car when they were stopped by
police. J.R. accelerated and drove about a quarter mile before pulling over. When officers
approached the car, they smelled marijuana. While getting out of the car, J.R. handed the
officers a jar of marijuana, and a search revealed methamphetamine in his pocket. After
failing a field sobriety test, J.R. was arrested.
While searching J.R.’s car, officers found shards of a crystal-like substance in the
passenger’s area where LeClair had been sitting. There were shards on the passenger’s
seat, in the pocket of the passenger’s door, and in between the passenger’s window and the
rubber weather stripping. Officers suspected that these shards were methamphetamine,
although they typically found methamphetamine in small plastic bags. They found no
suspected methamphetamine on the driver’s side.
Given the location of the substance, LeClair was arrested. During the arrest, officers
removed LeClair’s wallet from his jacket pocket. LeClair initiated a brief physical struggle
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as the officers opened the wallet to search its contents. Officers found another shard in the
fold of the wallet.
Later laboratory testing confirmed that the shards found on the passenger’s side of
the car and in LeClair’s wallet contained methamphetamine. The weight of the shards
recovered from the car totaled approximately 4 grams, and the weight of the shard in the
wallet was 0.152 grams.
Based on this evidence, the state charged LeClair with a single count of fifth-degree
possession of a controlled substance. 1 See Minn. Stat. § § 152.02, subd. 3(d)(2), .025,
subd. 2(1) (2018). LeClair pleaded not guilty and requested a jury trial.
At trial, J.R. testified for the state . He testified that before the traffic stop, he was
at LeClair’s house, where he and LeClair smoked some of LeClair’s methamphetamine.
J.R. explained that he often gave rides to people in exchange for drugs, and that day he
offered to give LeClair a ride for more methamphetamine. According to J.R., the
methamphetamine that police found in J.R.’s pocket was LeClair’s payment for the ride.
J.R. testified that he was not aware of any other drugs in his car that day, but he admitted
he did not inspect the passenger’s seat before driving with LeClair.
LeClair provided a different version of the events during his trial testimony. He
denied smoking methamphetamine. According to LeClair, he planned to pay J.R. cash for
the ride. Because LeClair was already on probation, he specifically asked J.R. whether
there was anything illegal in the car before the ride. LeClair testified that J.R. said no. But

1 The state also charged LeClair with obstructing legal process, Minn. Stat. § 609 .50,
subd. 1(2) (2018), but dismissed the charge before trial.
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when J.R. accelerated after police signaled for him to stop, J.R. roll ed down the driver’s
side window and LeClair then felt something hit him in the face. At first, he testified, he
thought it was snow and ice. But he soon realized it was methamphetamine. LeClair
admitted that, while officers were searching his wallet, he saw the shard in the wallet and
tried to knock it out of the officer’s hand. He believed the shard fell into his wallet when
the methamphetamine landed on his side of the car.
The jury found LeClair guilty of fifth-degree possession of a controlled substance,
and the district court stayed a 17-month prison sentence and placed him on probation for
5 years. On appeal, LeClair challenges the sufficiency of the evidence against him and the
district court’s jury instructions.
DECISION
I. The state’s evidence was sufficient to establish beyond a reasonable doubt that
LeClair knowingly possessed the methamphetamine in his wallet and on the
passenger’s side of the car.

We first consider whether the state’s evidence established LeClair’s guilt. In a
criminal case, the state must prove each element of the crime beyond a reasonable doubt.
State v. Martin, 293 N.W.2d 54, 55 (Minn. 1980). To convict LeClair of fifth-degree
controlled substance possession, the state was required to prove that he unlawfully and
knowingly possessed one or more mixtures of methamphetamine. See Minn. Stat.
§§ 152.02, subd. 3(d)(2), .025, subd. 2(1). Possession can be actual or constructive. See
State v. Florine, 226 N.W.2d 609, 610-11 (Minn. 1975) . Actual possession occurs when
an individual physically possesses an item. Id. at 610. Constructive possession is an
inference that “at one time [the individual] physically possessed the substance and did not
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abandon [a] possessory interest in the substance but rather continued to exercise dominion
and control over it up to the time of the arrest.” Id. Possession can also be joint or
exclusive. State v. Harris, 895 N.W.2d 592, 603 n.9 (Minn. 2017).
When evaluating a sufficiency-of-the-evidence claim, we view the evidence “in the
light most favorable to the verdict, and it must be assumed that the fact-finder disbelieved
any evidence that conflicted with the verdict.” State v. Griffin, 887 N.W.2d 257, 263
(Minn. 2016). But the level of scrutiny we apply depends on whether the elements of an
offense are supported by direct or circumstantial evidence. State v. Silvernail, 831 N.W.2d
594, 598 (Minn. 2013). “[D]irect evidence is evidence that is based on personal knowledge
or observation.” Harris, 895 N.W.2d at 599 (quotation omitted). When an element is
supported by direct evidence, our review is limited to “a painstaking analysis of the record
to determine whether the evidence, when viewed in a light most favorable to the conviction,
was sufficient to permit the jurors to reach the verdict which they did.” State v. Horst, 880
N.W.2d 24, 40 (Minn. 2016) (quotation omitted).
Circumstantial evidence is “evidence from which the factfinder can infer whether
the facts in dispute existed or did not exist.” Harris, 895 N.W.2d at 599 (quotation
omitted). A heightened two-step standard is used when reviewing the sufficiency of
circumstantial evidence. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). First, we
identify the circumstances proved. Silvernail, 831 N.W.2d at 598. In this step, we defer
to “the jury’s acceptance of the proof of these circumstances” and “assume that the jury
believed the State’s witnesses and disbelieved the defense witnesses.” Id. at 598- 99
(quotations omitted). Second, we determine if the circumstances are “consistent with guilt
6
and inconsistent with any rational hypothesis except that of guilt, not simply whether the
inferences that point to guilt are reasonable.” Id. at 599 (quotation omitted). During this
step of the analysis, reviewing courts do not defer to the factfinder’s choice between
reasonable inferences. State v. Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010).
A. There was sufficient evidence to prove that LeClair possessed the
methamphetamine in his wallet.

Here, the state used a combination of direct and circumstantial evidence to prove
that LeClair unlawfully possessed the methamphetamine in his wallet. Direct evidence
established that he physically possessed methamphetamine. Methamphetamine was found
in LeClair’s wallet, which was in his jacket pocket. And LeClair admitted that the wallet
belonged to him.
Circumstantial evidence proved that LeClair knowingly possessed the
methamphetamine in his wallet. The circumstances proved regarding his knowledge were
as follows. LeClair had methamphetamine on his person earlier that day because he gave
some of it to J.R. in exchange for a ride. Methamphetamine was scattered throughout the
passenger’s side of the car where LeClair was sitting at the time of the traffic stop. The
methamphetamine on the passenger’s side was in plain view. There was no
methamphetamine found on the driver’s side of the car. LeClair owned the wallet where
the methamphetamine was found. And LeClair admitted that he struggled with officers to
knock the methamphetamine from his wallet into the snow.
It can be reasonably inferred from these circumstances that LeClair knew he had
methamphetamine in his wallet. He possessed methamphetamine earlier that day, and he
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recognized that the substance in his wallet was methamphetamine . LeClair’s attempt to
destroy the methamphetamine during the search strongly suggested that he knew he
possessed the substance. Thus, the circumstances proved are consistent with LeClair’s
guilt.
LeClair argues that the circumstances proved also are consistent with a theory of
innocence— that the methamphetamine fell into his wallet without his knowledge. But this
alternative theory is not reasonable. It is unreasonable to infer from the evidence that,
unbeknownst to LeClair, a shard of methamphetamine fell into his coat pocket and
somehow nestled its way into the fold of his wallet in the moments before J.R. stopped the
car. Because the only reasonable inference is that LeClair knowingly possessed the
methamphetamine in his wallet, there was sufficient circumstantial evidence to establish
his guilt.
B. There was sufficient evidence to prove that LeClair constructively
possessed the methamphetamine in J.R.’s car.

The state proved LeClair constructively possessed the methamphetamine in the car
using circumstantial evidence. Along with the circumstances proved that support actual
possession, the state proved additional circumstances, including: (1) many shards of
methamphetamine were on and around the passenger’s seat where LeClair was sitting at
the time of the stop, (2) one shard was located between the weather stripping and the
passenger’s side window, (3) LeClair knew the shards in the passenger’s seat were
methamphetamine, (3) LeClair knowingly possessed a shard of methamphetamine found
in his wallet, and (4) LeClair was on probation and concerned about new criminal charges.
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These circumstances show that LeClair actually possessed methamphetamine
earlier in the day, had control over the drugs found in the car, knew the drugs were
methamphetamine, and attempted to destroy or conceal the methamphetamine when police
initiated a traffic stop. In other words, the circumstances proved are entirely consistent
with guilt.
We are not convinced by LeClair’s argument that these circumstances could also
support a reasonable inference that the drugs belonged to J.R. or a previous passenger. It
is unreasonable to infer that J.R. attempted to discard the drugs through the driver’s side
window, yet all of the shards landed on the passenger’s side where LeClair was sitting,
including under LeClair’s body. Moreover, b ecause the drugs were plainly visible, it is
unreasonable to infer that LeClair did not notice them before enteri ng the car. Again, the
only reasonable inference from the circumstances proved is that LeClair possessed the
methamphetamine. Thus, the trial evidence was sufficient to support LeClair’s conviction.
II. The district court did not plainly err when it failed to give a specific-unanimity
jury instruction because the two acts of drug possession that the state alleged
at trial occurred during a single behavioral incident.

We next consider whether the district court erred by not instructing the jury on the
requirement for specific unanimity. The district court instructed on the requirement for
general unanimity, informing the jury that the “verdict must be unanimous.” But LeClair
contends that a specific-unanimity instruction was necessary because the state relied on
two distinct theories of possession to prove a single count of fifth -degree controlled-
substance possession. The state alleged that LeClair actually possessed the
9
methamphetamine on his person. In addition, or alternatively, the state alleged that LeClair
constructively possessed the methamphetamine in the car.
At trial, neither party requested a specific-unanimity instruction. We review an
unobjected-to error under the “plain error test.” State v. Myhre, 875 N.W.2d 799, 804
(Minn. 2016). “In order to meet the plain error standard, a criminal defendant must show
that (1) there was an error, (2) the error was plain, and (3) the error affected the defendant’s
substantial rights.” Id. (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)). “An
error is plain if it is ‘clear’ or ‘obvious,’ which is typically established ‘if the error
contravenes case law, a rule, or a standard of conduct.’” State v. Webster, 894 N.W.2d
782, 787 (Minn. 2017) (quoting State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006)). If
LeClair satisfies all three factors of the plain-error test, we “may correct the error only if it
‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’”
State v. Huber, 877 N.W.2d 519, 522-23 (Minn. 2016) (quoting State v. Crowsbreast, 629
N.W.2d 433, 437 (Minn. 2001) (other quotation omitted)).
A. A specific-unanimity instruction is not required where, as here, two acts
of possession occurred during a single behavioral incident.

A unanimous verdict is required in all criminal cases. Minn. R. Crim. P. 26.01,
subd. 1(5); State v. Pendleton, 725 N.W.2d 717, 730 (Minn. 2007). This means that a jury
must unanimously agree that the state proved each element of the offense beyond a
reasonable doubt. Pendleton, 725 N.W.2d at 730-31. But a jury need not unanimously
agree on the facts underlying each element of an offense if different facts show “equivalent
blameworthiness or culpability.” Id. at 731; see also State v. Hager, 727 N.W.2d 668, 674
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(Minn. App. 2007). A jury, therefore, must unanimously agree on which acts a defendant
committed if different acts could satisfy a single element. State v. Stempf, 627 N.W.2d
352, 355 (Minn. App. 2001). However, unanimity is not required as to the “alternative
means or ways in which the crime can be committed.” Id. at 354 (quotation omitted).
Instructions that allow for the possibility of significant disagreement among jury
members
as to the specific act committed violate a defendant’s right to a unanimous
verdict. Id. at 354. “Because the very act of possession [is] an element of the crime, rather
than just a means of proving the element of possession, the jury [is] required to reach a
unanimous verdict on which act constituted the offense.” State v. Dalbec, 789 N.W.2d
508, 512 (Minn. App. 2010) (citing Stempf, 627 N.W.2d at 357), rev. denied (Minn.
Dec. 22, 2010).
The concept of alternate acts of possession is well illustrated by the factual
circumstances in Stempf. There, the state charged a single count of fifth-degree drug
possession for drugs found in the appellant’s workplace and drugs found in the appellant’s
truck. Stempf, 627 N.W.2d at 354. The jury found the appellant guilty. Id. On appeal, we
concluded that the appellant was denied jury unanimity because the district court failed to
instruct the jury that it was required to agree on the specific act of possession that the
appellant committed . Id. at 359. We reasoned that the two alleged acts of possession
lacked “unity of time and place,” and that the drugs in the workplace and in the truck were
two “separate and distinct culpable acts.” Id. at 358-59. But we declined to decide whether
“a different result would be warranted when the separate acts constitute a continuing course
of conduct.” Id. at 358 (citing Langdon v. State, 375 N.W.2d 474, 476-77 (Minn. 1985)).
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The supreme court has concluded, however, that if multiple acts are a part of a single
behavioral incident, a specific-jury unanimity instruction is not required. State v. Ihle, 640
N.W.2d 910, 919 (Minn. 2002) (relying on Richardson v. United States, 526 U.S. 813, 817-
18 (1999)). “ A single behavioral incident is the result of a single motivation directed
towards a single criminal goal.” State v. Infante, 796 N.W.2d 349, 356-57 (Minn. App.
2011) (holding that two acts of assault that occurred over a short time period, for the
purpose of a “single criminal goal,” were a single behavioral incident); see, e.g., Dalbec,
789 N.W.2d at 512-13 (holding that no specific-unanimity instruction was required when
a defendant committed multiple acts of domestic assault “at the same place” involving “a
single victim,” even though the acts occurred over 24 hours); cf. State v. Eaton, 292 N.W.2d
260, 267 (Minn. 1980) (holding that appellant’s objective of “one large plan to swindle as
much as possible” was too broad to be a single criminal goal, and thus, thefts of two
separate checks at two different times were not part of a single course of conduct).
Returning to the circumstances here, we note that LeClair’ s two acts of possession
were not separate and distinct, as in Stempf, but instead were part of a single behavioral
incident. The drugs in LeClair’s car seat and in LeClair’s wallet were found during a single
traffic stop. There was unity of time and place. Furthermore, in Stempf, we were persuaded
that the two acts were distinct, in part, because the defendant presented different defenses
for each act. 627 N.W.2d at 358. But here, LeClair asserted the same defense to each act
of possession.
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Both parties cite several nonprecedential opinions supporting their respective
positions as to whether the circumstances here involved a single behavioral incident.2 We
reviewed the cases cited, but they do not change our analysis. 3 Because the two acts of
possession alleged here were unified in time and place, no specific-unanimity instruction
was required.
B. Even if error, the district court’s failure to sua sponte provide a specific-
unanimity instruction did not affect LeClair’s substantial rights.

To establish plain error, an appellant must also show that the error affected the
appellant’s substantial rights. Myhre, 875 N.W.2d at 804. “An erroneous jury instruction
affects a defendant’s substantial rights if the error was prejudicial and affected the outcome
of the case.” Huber, 877 N.W.2d at 525. Such an error “is prejudicial if there is a
reasonable likelihood that giving the instruction in question had a significant effect on the
jury’s verdict.” Id. (quoting State v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013 ) (other
quotation omitted).

2 See State v. Kampsula, No. A17-0990, 2018 WL 6273078, at *1, *5 (Minn. App. Dec. 3,
2018) (holding that multiple acts of theft that occurred over a span of months were not a
single behavioral incident), rev. denied (Minn. Feb. 27, 2019). Compare State v. Lubovich,
No. A05- 1777, 2006 WL 2529610, at *1, *5 (Minn. App. Sept. 5, 2006) (holding a
specific-unanimity instruction was needed when psilocybin mushrooms were found under
the driver’s seat, and methamphetamine was found on the side of the road and on the
driver’s person, but the defendant was a passenger), with State v. Boyd, No. A08-1850,
2009 WL 2591657, at *1 (Minn. App. Aug. 25, 2009) (holding no specific-unanimity
instruction was required when controlled substances were found in the passenger’s purse,
in a package of water bottles in the backseat, and on the defendant-driver himself).

3 Nonprecedential cases are not binding authority but may be persuasive. Minn. R. Civ.
App. P. 136.01, subd. 1(c).
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The evidence amply established LeClair’s guilt of both acts of possession. It is
therefore unlikely that a specific-unanimity instruction would have affected the outcome
of LeClair’s case.
LeClair argues that the prosecutor’s closing argument, in conjunction with the
district court’s failure to instruct on specific unanimity, prejudiced him. He contends that
the prosecutor misrepresented the jury’s duty to reach a unanimous verdict. The prosecutor
stated, “all you need is one. If you don’t think all—like if the drugs in the car were the
defendant’s or the one in the wallet wasn’t his, all you need is one.” But this statement did
not concern the evidence of LeClair’s acts of possession. Rather, the prosecutor was
referring to the BCA lab results, and how, among the many substances recovered during
the traffic stop, the jury needed to find just “one or more mixtures” of methamphetamine.
And unlike Stempf, where we held that a prosecutor’s express misstatement of the jury’s
duty was not harmless error, the prosecutor’s comments here did not misstate the jury’s
duty as to the possession element of the charged offense. 627 N.W.2d at 358. Moreover,
as noted, the district court provided a general-unanimity instruction, which explained the
requirement for unanimity.
In sum, we conclude that the evidence of LeClair’s guilt was sufficient to support
his conviction and the district court did not plainly err when it failed to give a specific-
unanimity instruction.
Affirmed.