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This opinion is nonprecedential except as provided by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
A23-1786

State of Minnesota,
Respondent,

vs.

James Jeffrey Bacon,
Appellant.

Filed December 2, 2024
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Scott County District Court
File No. 70-CR-20-13924

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

Ronald Hocevar, Scott County Attorney, Elisabeth M. Johnson , Assistant County
Attorney, Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jiaqi Li, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Reyes, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal from the judgment of conviction of first- and second-degree
controlled-substance possession, appellant argues that (1) the district court erred by
denying his motion to suppress evidence because the officer lacked reasonable, articulable
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suspicion of criminal activity to expand the traffic stop; and (2) the evidence offered at trial
is insufficient to prove that he constructively possessed the controlled substances found by
police in searching his vehicle. In the alternative, appellant argues that the district court
erred by imposing sentences arising from a single behavioral incident.
The district court properly denied appellant’s motion to suppress the evidence found
during the vehicle search, and the evidence at trial was sufficient to prove he constructively
possessed the controlled substances. However, because the two offenses arose from a
single behavioral incident, the district court erred by imposing two sentences. Therefore,
we affirm in part, reverse in part, and remand with instructions to vacate the second
sentence.
FACTS
In October 2020, respondent State of Minnesota charged appellant James Jeffrey
Bacon with first-degree possession of controlled substance ( methamphetamine) in
violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2020); and second-degree possession of
controlled substance (heroin) in violation of Minn. Stat. § 152.022, subd. 2(a)(3) (2020).
The charges stem from a traffic stop and subsequent search of the car Bacon was driving.
The following facts derive, as relevant to the issues raised by Bacon, from either the
omnibus hearing or the jury trial.
In the early morning hours on September 15, 2020, an officer observed a car cross
the fog line on Highway 169 twice and initiated a traffic stop.
After approaching the vehicle’s driver side, the officer obtained identification from
the driver and passenger. The officer learned that Bacon was the driver of the vehicle and
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learned the identity of the passenger. While visiting with Bacon, the officer observed
indicia of impairment. The officer testified that Bacon’s speech was slurred, that his eyes
were bloodshot, and that “his pupils [were] not responding to the light properly.”
The officer also noticed a bulge in Bacon’s pants pocket. The officer asked what
was in Bacon’s pocket, and Bacon retrieved a lighter. The officer asked what else was in
his pocket, and Bacon eventually produced a wrapper. The officer, however, did not
believe that Bacon was being truthful because the bulge in his pocket disappeared after he
produced the wrapper.
The officer asked Bacon if he had had anything to drink, to which Bacon responded,
“no.” The officer then asked Bacon to step out of the vehicle to perform a field sobriety
test. The officer testified that, as Bacon was stepping out of the vehicle, he observed a
“methamphetamine bubble pipe” between the driver’s seat and door. Upon completion of
the field sobriety tests , the officer retrieved the pipe and field tested it as positive for
methamphetamine. The officer then searched the vehicle and found methamphetamine
under a purse on the passenger seat and heroin in a container located in the center console.
The district court determined that the expansion of the traffic stop was supported by
a reasonable, articulable suspicion of driving while impaired and controlled-substance
possession and, therefore, denied Bacon’s motion to suppress the evidence.
During the jury trial, the state—in addition to the testimony of the officers and a
BCA analyst— presented Bacon’s Mirandized statement, which included his admission that
“[the] drugs you found were mine in the vehicle . . . all the stuff you found in the vehicle
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is mine.”1 Bacon also admitted that he grabbed the methamphetamine from the floor and
gave it to the passenger, stating “hey stash my sh-t in your purse real quick.”
The BCA analyst testified as to the weight of the controlled substances. She testified
that the methamphetamine mixture weighed just over 166 grams and the heroin weighed
just over 13 grams. The jury found Bacon guilty of first-degree controlled-substance
possession (methamphetamine) and second-degree controlled-substance possession
(heroin). The district court sentenced Bacon to 140 months’ imprisonment for first-degree
controlled-substance possession and to a concurrent 129 months’ imprisonment for
second-degree controlled-substance possession.
DECISION
I. The district court properly denied Bacon’s suppression motion.
When facts are not in dispute, an appellate court reviews a pretrial order on a motion
to suppress evidence de novo and determines whether the police articulated an adequate
basis for the search or seizure at issue. State v. Williams, 794 N.W.2d 867, 871 (Minn.
2011). An officer may conduct a limited, investigatory stop without a warrant if the officer
has “reasonable, articulable suspicion” of criminal activity. State v. Taylor, 965 N.W.2d
747, 752 (Minn. 2021) . But each subsequent intrusion must be “tied to and justified by
one of the following: (1) the original legitimate purpose of the stop, (2) independent

1 “Statements stemming from custodial interrogation are inadmissible unless the suspect
‘voluntarily, knowingly and intelligently’ waives these rights” after being informed of his
Miranda rights. State v. Ortega , 798 N.W.2d 59, 67 (Minn. 2011) (quoting Miranda v.
Arizona, 384 U.S. 436 (1966)).
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probable cause, or (3) reasonableness, as defined in Terry.” Id. (quotation omitted). 2
When determining whether an officer has reasonable, articulable suspicion of criminal
activity supporting the search or seizure, we consider the totality of the circumstances. Id.
Bacon does not challenge the initial stop but, rather, contests the expansion of the
stop to include a controlled-substance investigation. Bacon argues that the officer lacked
the requisite reasonable, articulable suspicion of criminal activity to justify the expansion
of the stop in this manner. We are not persuaded.
The officer stopped Bacon’s vehicle for a traffic violation. The officer observed
indicia of impairment including slurred speech, bloodshot eyes, and “his pupils not
responding to the light properly.” This information, as well as the observed driving
conduct, provided the officer with reasonable, articulable suspicion of criminal activity
sufficient to ask Bacon to complete a field sobriety test. See State v. Lugo, 887 N.W.2d
476, 488 (Minn. 2016) (reiterating that, when forming reasonable, articulable suspicion, an
officer may “draw inferences and deductions that might well elude an untrained person,”
though it requires more than an unarticulated hunch)(quotations omitted); see State v.
Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (stating that an odor of alcohol
emanating from defendant and bloodshot and watery eyes were indicia of intoxication
which “reasonably justified further intrusion”).

2 “Reasonable suspicion must be ‘particularized’ and based on ‘specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant
that intrusion.’” Taylor, 965 N.W.2d at 752 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
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Because expansion of the stop was legally justified, the district court properly
denied Bacon’s motion to suppress the evidence of the controlled substances obtained from
the search of the car.
II. The trial evidence sufficiently proved that Bacon constructively possessed the
controlled substances.

In a criminal trial, due process requires that the state prove each element of a charged
offense beyond a reasonable doubt. State v. Beganovic, 991 N.W.2d 638, 654 (Minn.
2023). To be guilty of first-degree possession of a controlled substance, the state was
required to prove that Bacon possessed a mixture of 50 or more grams of
methamphetamine. Minn. Stat. § 152.021, subd. 2(a)(1). To be guilty of second-degree
possession of a controlled substance, the state was required to prove that Bacon unlawfully
possessed a mixture of six or more grams that contained heroin. Minn. Stat. § 152.022,
subd. 2(a)(3).
Bacon argues that the evidence is insufficient to prove beyond a reasonable doubt
that he constructively possessed the methamphetamine and heroin discovered in the car,
that was owned by the passenger.
When considering a sufficiency-of-the-evidence challenge, we carefully review 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). We assume that the jury
disbelieved any testimony that conflicts with the verdict. State v. Balandin, 944 N.W.2d
204, 213 (Minn. 2020). And we will not overturn a conviction if the jury could have
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reasonably found the defendant guilty, giving due regard to the presumption of innocence
and the burden of proof beyond a reasonable doubt. State v. Griffin, 887 N.W.2d 257, 263
(Minn. 2016).
The state was required to prove that Bacon possessed the drugs. “Possession may
be proved through evidence of actual or constructive possession.” State v. Harris, 895
N.W.2d 592, 601 (Minn. 2017). Actual possession is proved by showing an individual
physically possessed an item. See State v. Florine, 226 N.W.2d 609, 610 (Minn. 1975).
Constructive possession may be proved in two ways: (1) by showing that “the police found
the [contraband] in a place under the defendant’s exclusive control to which other people
normally did not have access” or (2) by showing that the re is a strong probability that, at
the time, the defendant was consciously exercising dominion and control over the
contraband. Harris, 895 N.W.2d at 601. “[P]roximity is an important consideration in
assessing constructive possession.” State v. Smith, 619 N.W.2d 766, 770 (Minn. App.
2000), rev. denied (Minn. Jan. 16, 2001).
The parties disagree as to the proper standard of review we must apply to Bacon’s
sufficiency-of-the-evidence claim. Bacon argues that this court should review it under the
circumstantial-evidence standard because the controlled substances were not found in his
actual possession. The state claims that the direct-evidence standard applies because Bacon
admitted the controlled substances found in the car were his.
We need not resolve this dispute because, even if we apply the heightened standard
of review, the evidence sufficiently proves that Bacon constructively possessed the
contraband.
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When proof of an offense, or any element of that offense, is based on circumstantial
evidence, we apply a heightened standard of review to determine whether the evidence is
sufficient. State v. Loveless, 987 N.W.2d 224, 247 (Minn. 2023). Circumstantial evidence
is “evidence from which the factfinder can infer whether the facts in dispute existed or did
not exist.” Id. (quotation omitted). The circumstantial-evidence standard of review
involves two steps. State v. Westrom, 6 N.W.3d 145, 158 (Minn. 2024). First, we identify
the “circumstances proved, winnowing down the evidence presented at trial to a subset of
facts consistent with the jury’s verdict.” Id. During this step, we “disregard evidence
inconsistent with the verdict.” Id. Second, we “independently examine the reasonable
inferences that can be drawn from the circumstances proved, when viewed as a whole.”
Id. at 158-59. “To sustain [a] conviction, the circumstances proved, when viewed as a
whole, must be consistent with a reasonable inference that the accused is guilty and
inconsistent with any rational hypothesis except that of guilt.” Harris, 895 N.W.2d at 601.
The circumstances proved as consistent with the verdict are as follows:
• Bacon was driving the vehicle in which the controlled substances were
found;
• The methamphetamine was found underneath a purse on the passenger seat;
• The heroin was found in the center console of the car;
• The methamphetamine and heroin were within reach of Bacon;
• Bacon admitted the drugs in the car belonged to him;
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• Bacon admitted that when the officer signaled for him to pull over that he
grabbed the methamphetamine from the floor and told the passenger to
“stash” it in her purse; and
• The BCA testified that the mixture containing methamphetamine weighed
just over 166 grams and the heroin weighed just over 13 grams.
These circumstances proved are consistent with the jury’s verdict. We next turn to
the second step of our analysis to determine whether the circumstances proved are
inconsistent with any rational hypothesis except that of guilt. Bacon claims that the
circumstances proved are consistent with a rational inference other than guilt but he does
not identify from this record any such rational inference, and we find none. When applying
the circumstantial-evidence standard of review, “alternative hypotheses to guilt may not be
based on ‘mere conjecture.’” State v. Olson, 982 N.W.2d 491, 499 (Minn. App. 2022)
(quoting State v. Tscheu, 758 N.W.2d 849, 858 (Minn. 2008)).
The methamphetamine was
discovered under a purse on the passenger side to which Bacon had access. Bacon admitted
to grabbing it from the floor below his seat and giving it to the passenger. See Harris, 895
N.W.2d at 601 (noting that constructive possession may be shown by demonstrating the
defendant’s knowing exercise of dominion or control over the contraband). The heroin
that was found in a container in the center console was also accessible to Bacon. See Smith,
619 N.W.2d at 770 (noting proximity is an important factor when considering constructive
possession). There is no rational hypothesis other than guilt.
Bacon’s admission that the controlled substances were his demonstrates that “at the
time . . . [he] was consciously or knowingly exercising dominion and control over it.”
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Harris, 895 N.W.2d at 601. This admission, when considered with the other circumstances
proved, form a complete chain that leads directly to his guilt and excludes beyond a
reasonable doubt any reasonable inference other than guilt. See State v. Taylor, 650
N.W.2d 190, 206 (Minn. 2002). Accordingly, there was sufficient evidence to support the
jury’s verdict.
III. The district court erred by sentencing Bacon on second-degree possession of a
controlled substance because the offenses arose from a single behavioral
incident.

“If a person’s conduct constitutes more than one offense . . . , the person may be
punished for only one of the offenses.” Minn. Stat. § 609.035 (2020). As a result, multiple
sentences for multiple offenses committed as part of the same behavioral incident are
prohibited. State v. Barthman, 938 N.W.2d 257, 265-66 (Minn. 2020). “Whether a
defendant’s offenses occurred as part of a single course of conduct is a mixed question of
law and fact.” State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014). Appellate courts review
the district court’s findings of fact under a clearly erroneous standard and its application of
the law to those facts de novo. Id. “To determine whether two or more offenses were
committed during a single behavioral incident, appellate courts examine two factors:
(1) whether the offenses occurred at substantially the same time and place, and (2) whether
the conduct was motivated by an effort to obtain a single criminal objective.” Barthman,
938 N.W.2d at 265-66 (quotation omitted). When a district court imposes multiple
sentences, “[t]he State bears the burden of proving, by a preponderance of the evidence,
that a defendant’s offenses were not part of a single behavioral incident.” State v. Bakken,
883 N.W.2d 264, 270 (Minn. 2016).
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Bacon’s convictions arise out of a single vehicle search and his possession of
controlled substances on September 15, 2020, and were motivated by the single criminal
objective of possessing those controlled substances.
Nevertheless, the state argues that imposing two sentences is proper because the
amount of methamphetamine possessed in the first-degree controlled-substance count is
indicative of Bacon’s intent to sell and, thus, it was not part of the same behavioral incident
as the second-degree controlled-substance count.3 But, the state did not charge Bacon with
controlled-substance sale. We, therefore, reverse the sentence imposed for second-degree
controlled-substance possession and remand to the district court with instructions to vacate
that sentence.
Affirmed in part, reversed in part, and remanded.

3 The state argues that, if Bacon’s sentence is reversed and remanded, it should be
allowed to further develop the record on remand. However, the state provides no legal
authority for such a remedy, and we are aware of none. In contrast, when a sentence is
challenged for the first time on direct appeal due to an incorrect criminal-history score,
legal authority provides for such a remand. See State v. Outlaw, 748 N.W.2d 349, 356
(Minn. App. 2008) (permitting the state to further develop the sentencing record to
determine whether the out-of-state convictions qualify as felonies).