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This opinion is nonprecedential except as provided by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
A22-0384

State of Minnesota,
Respondent,

vs.

Emilio Nieto,
Appellant.

Filed October 24, 2022
Reversed
Bryan, Judge

Nobles County District Court
File No. 53-CR-20-43

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

Joseph M. Sanow, Nobles County Attorney, Travis J. Smith, Special Assistant County
Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Slieter, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal from conviction of conspiracy to import a controlled substance
across state borders, appellant disputes the sufficiency of the circumstantial evidence
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presented against him. Because we conclude that the evidence is insufficient to exclude a
rational hypothesis consistent with innocence , we reverse the conviction.
FACTS
On January 14, 2020, respondent State of Minnesota charged appellant Emilio Nieto
with first-degree possession of methamphetamine. The state later amended its complaint
to add charges of importing controlled substances across state borders and conspiracy to
import controlled substances across state borders. The case proceeded to a bench trial, and
the district court found Nieto guilty of all three charges. The district court only adjudicated
Nieto guilty of importing a controlled substance across state borders.
Nieto appealed, challen ging the denial of his pretrial motion to suppress and
contesting the sufficiency of the evidence to support the conviction. This court affirmed
the district court’s denial of Nieto’s motion to suppress but reversed the convictions for
importing controlled substances across state borders, concluding that there was insufficient
evidence to show that Nieto constructively possessed the drugs. State v. Nieto, Case No.
A21-0209, 2021 WL 5872870, *3, 5-6 (Minn. App. Dec. 13, 2021). On remand, the district
court adjudicated Nieto guilty of the conspiracy offense. 1 Nieto now appeals the
conspiracy conviction. See Minn. R. Crim. P. 28.02, subd. 2(1) (allowing appeal as of right
from any adverse final judgment). Given the issues raised, we first summarize the evidence
presented at the trial regarding the elements of conspiracy to import a controlled substance

1 The district court also vacated the possession offense.
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across state borders. We also note the circumstances that we previously determined had
been proved by the trial evidence.
The state introduced testimony of the arresting officer, the video recording of this
officer’s body camera, which included statements that Nieto made during the encounter
with this officer , and the audio recording of Nieto’s post -arrest in terview with law
enforcement officers. According to the testimony of the arresting officer, in the early
morning hours of January 13, 2020, he saw a vehicle engaging in unusual behavior . A fter
observing potential traffic violations, he initiated a traffic stop. Nieto was the passenger .
The driver, Nieto’s aunt, consented to a search of the vehicle . Nieto also offered his
backpack for the officer to search, which did not contain any controlled substances or other
incriminating evidence. The officer recovered 25 pounds of methamphetamine from a
backpack and from the rear of the car. On the video from the body camera, Nieto is heard
saying that he was on the trip with his aunt “to help her . . . to drive.” During his
conversation with the officer, Nieto explained that he was nervous because he had never
been arrested before and because he did not understand English very well.
Nieto met with police after his arrest. During the interview, Nieto stated that he
lived in Mexico, but occasionally stayed with his aunt in Arizona. He explained that his
aunt called him and invited him to join her on a trip to Las Vegas. Nieto agreed to
accompany her to Las Vegas. When asked why he was in the car with his aunt, Nieto stated
“[t]o help her drive,” followed by the statement, “And no Minnesota.” Nieto said that his
aunt picked him up in Yuma, Arizona, and they drove past Las Vegas, into Utah. Nieto
stated when they were in Utah, he reached into the rear passenger compartment behind his
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seat and moved his aunt’s backpack. Nieto described the bag as “heavy,” and it was then
that his aunt told him that the backpack was filled with “sh -t,” which Nieto understood to
be illegal drugs. Nieto’s aunt also told him at this point that she planned to drive to
Owatonna, Minnesota, to deliver the drugs to someone there.
Nieto only admitted knowledge of the drugs in the backpack and claimed that he
never actually saw them or touched them. He also declared his aunt was the only one
“dealing with all the drugs in the car,” she w as the only one in contact with someone in
Minnesota, and he did not receive any money. Nieto agreed that he stayed with his aunt
after learning of the drugs in the backpack because he was “too far away ” from home. At
one point, Nieto also joked with the investigating officer, agreeing that he stayed with his
aunt because he wanted to see snow in Minnesota.
This court previously reviewed the trial record and determined that th e evidence
presented established the following circumstances:
Nieto accompanied his aunt on a trip to assist her with driving.
The trip started in Arizona. Nieto was unaware of the existence
of the drugs in the vehicle at the start of the trip. When Nieto
and his aunt reached Utah, Nieto picked up the grey backpac k
belonging to his aunt and discovered that it was heavy. Nieto’s
aunt informed him that the backpack contained “sh- t” and
Nieto understood his aunt’s statement to mean that the
backpack contained methamphetamine. An officer in
Minnesota stopped the vehi cle. The vehicle was driven by
Nieto’s aunt and Nieto was sitting in the front passenger seat.
Inside of the vehicle, the officer discovered two backpacks: an
empty black backpack belonging to Nieto located on the
middle rear passenger seat and a gray ba ckpack filled with
methamphetamine located on the floor behind the passenger
seat. Methamphetamine was also discovered in the rear of the
vehicle.

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Nieto, 2021 WL 5872870, at *4. As noted above, w e concluded that these circumstances
did not support a conviction for importing a controlled substance because Nieto never
possessed the drugs in the backpack or the car:
The record contains no evidence that Nieto actually drove the
vehicle at any time or otherwise controlled the movement of
the drugs, including after he discovered the presence of drugs
in the vehicle. And none of the circumstances proved compel
such an inference to the exclusion of all others . . . .

Here, th e circumstances proved do not preclude the
rational hypothesis that Nieto did not drive the car after he
became aware of the presence of drugs in the vehicle. The
circumstances proved permit the rational hypothesis that Nieto
remained a passenger in the car as it traveled to Minnesota and
exercised no dominion or control over the drugs or transport of
those drugs. The circumstances proved permit the rational
hypothesis that Nieto did not exercise any control over the
movement of the drugs in the vehicle. Because the
circumstances proved do not preclude a rational hypothesis
inconsistent with guilt, we reverse Nieto’ s conviction for
importing controlled substances across state borders.

Id. at *5 (citation omitted).
On remand, t he district court adjudicated Nieto guilty of the conspiracy charge and
made the following findings regarding an agreement between Nieto and his aunt that the
district court inferred from the evidence presented at trial :
[T]here was an inferred agreement between [Nieto] and his
aunt. [Nieto] knew they would be crossing state borders as he
knew they were driving from Utah to Minnesota. [Nieto]
intended to “help” drive from Utah to Minnesota with the
controlled substance in the vehicle. Whether “help” meant
driving the vehicle himself or providing directions or keeping
the aunt awake is immaterial. [Nieto] knowingly intended to
assist the aunt in transferring the controlled substances across
state borders.

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The district court also found that “[t]he aunt both possessed the controlled substances and
physically drove the vehicle across state lines,” which were both overt acts in furtherance
of the crime. Nieto was sentenced to a term of 89 months in prison for conspiracy to import
controlled substances. This appeal follows.
DECISION
Nieto argues that there was insufficient evidence to convict him of conspiracy to
import controlled substances. We conclude that although the circumstances proved could
be consistent with the inference that Nieto affirmatively agreed to import controll ed
substances, this is not the only rational inference a fact finder can make. The circumstances
proved are also consistent with innocence, permit ting the rational hypothesis that Nieto
remained a passenger, exercised no dominion or control over the vehic le or drugs, and did
not intend to commit a crime or assist his aunt to commit a crime.
To establish a criminal conspiracy, the evidence must objectively indicate that the
defendant agreed with at least one other person to commit a crime and that one conspirator
performed an overt act in furtherance of the agreement. State v. Hatfield, 639 N.W.2d 372,
377 (Minn. 2002); see also Minn. Stat. § 609.175 (2020) (requiring proof of an agreement
and at least one overt act in furtherance of the conspiracy) . More specifically, the state
must show “both knowledge of an agreement and evidence of [the defendant’s] intent to
commit the crime or act that is the object of the conspiracy.” State v. Kahnau, 622 N.W.2d
552, 556 (Minn. 2001). “Proof of a formal agreement t o commit a crime is not required
for a conspiracy conviction,” as long as the evidence “objectively indicates an agreement.”
Hatfield, 639 N.W.2d at 376 (cit ing State v. Burns , 9 N.W.2d 518, 521 (Minn. 1943)
7
(concluding that “a conscious and intentional purpose to break the law is an essential
ingredient of [a conspiracy]”)). “[V]icarious intent is not sufficient to make a party a
conspirator.” Burns, 9 N.W.2d at 521.
When, as here, “the direct evidence of guilt on a particular element is not alone
sufficient to sustain the verdict,” we apply the circumstantial-evidence standard of review.
Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017) . “[C]ircumstantial evidence always
requires an inferential step to prove a fact that is n ot required with direct evidence.” State
v. Harris, 895 N.W.2d 592, 599 (Minn. 2017). To review the sufficiency of circumstantial
evidence, we conduct a two -part analysis. State v. Andersen, 784 N.W.2d 320, 329- 30
(Minn. 2010) . First, we “identify the circumstances proved,” deferring to the jury’s
credibility determinations. Id. at 329. Second, we consider whether the circumstances
proved are consistent with guilt and inconsistent with a rational hypothesis other than guilt.
Id. at 329-30. “Circumstantial evidence must form a complete chain that, in view of the
evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a
reasonable doubt any reasonable inference other than guilt.” State v. Al -Naseer, 788
N.W.2d 469, 473 (Minn. 2010) (quotation omitted) . In this second step, no deference is
given to the jury’s verdict. Loving, 891 N.W.2d at 643.
In this case, the evidence presented proved the following circumstances . Nieto
accompanied his aunt on a road trip beginning in Arizona. When Nieto began the road trip,
he believed they were traveling to Las Vegas. At that time, Nieto agreed to help his aunt
drive during that trip. Nieto and his aunt did not stop in Las V egas as he initially agreed.
While Nieto’s aunt drove into Utah, Nieto discovered that his aunt’s backpack was heavy.
8
At this point in time, Nieto’s aunt told him the backpack contained illegal drugs , and she
intended to drive to Minnesota to deliver the drugs to someone in Owatonna . According
to Nieto, he remained with his aunt because he was “too far away” from home. In addition,
the parties do not contest the following facts regarding Nieto’s conduct after the traffic
stop. Nieto was nervous during the traffic stop but stated that was because he had never
been arrested before . Nieto voluntarily offered his backpack for the officer to search ,
shared the details of his aunt’s plan that were known to him , and voluntarily offered the
passcode to unlock his phone.
The state argues that these circumstances are consistent with guilt. The rational
hypothesis test, however, requires more. For the state to prevail on appeal, the
circumstances proved must rule out or negate reasonable inferences co nsistent with
innocence. Here, the state introduced no evidence that Nieto ever drove the vehicle, ever
saw the drugs in the backpack or had any knowledge about the drugs recovered from other
compartments in the vehicle. There is no evidence that Nieto had any contact with anyone
in Minnesota or even knew who t he intended recipient was or where the delivery was to
occur. Thus, the circumstances proved do not preclude the alternative inference identified
by Nieto: Nieto remained a passenger after d iscovering his aunt’s true intentions because
he felt he was too far from his home in Mexico to return there by himself. Because the
circumstances are consistent with this inference, the state has not shown that Nieto intended
to form an agreement with his aunt to transport methamphetamine . We, therefore, reverse
Nieto’s conviction of conspiracy to import a controlled substance across state borders.
Reversed.