State of Minnesota v. Terry Allen Stewart

This opinion is nonprecedential except as provided by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
A23-0188

State of Minnesota,
Respondent,

vs.

Terry Allen Stewart,
Appellant.

Filed December 18, 2023
Affirmed
Connolly, Judge

Otter Tail County District Court
File No. 56-CR-19-109

Keith Ellison, Attorney General, Lydia Villalva Lijo, Assistant Attorney General, St. Paul,
Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Segal, Chief Judge; and

Reyes, Judge.

NONPRECEDENTIAL OPINION

CONNOLLY, Judge

On appeal from his conviction of first-degree possession of a controlled substance,

appellant argues that the evidence was insufficient to prove beyond a reasonable doubt that

he constructively possessed the contraband found by law enforcement. We affirm.
 FACTS

Respondent State of Minnesota charged appellant Terry Stewart with first-degree

controlled substance crime—sale; first-degree controlled substance crime—possession;

fleeing police in a motor vehicle; and fleeing police on foot. At trial, the state presented

evidence that Stewart was under surveillance by law enforcement because he was

suspected of selling controlled substances. On January 10, 2019, during a surveillance of

Stewart’s storage garage, a county sheriff’s sergeant observed Stewart exit the garage,

place a bag in the back seat of a car, and drive away.

Because Stewart’s driver’s license was revoked, and the vehicle he was driving had

expired license plates, the sergeant requested that a local police officer conduct a traffic

stop of the vehicle driven by Stewart. But when the officer got close to Stewart’s vehicle

and activated the squad car’s emergency lights, Stewart failed to stop. Instead, Stewart

glanced back at the officer and proceeded to speed up and drive several more blocks until

he reached his residence.

Stewart stopped his car outside of his residence, got out of the car, and made eye

contact with the officer, but ignored the officer’s commands to stop. According to the

officer, Stewart’s hands were in front of his body, and “[i]t almost looked like he was a

running back holding the football. . . . [I]t just looked like his hands were holding something

in front of his body.” Stewart then fled around the building on foot and the officer gave

chase. During the chase, the officer could not see what Stewart had, if anything, in his

hands, nor did the officer observe Stewart drop or throw anything.

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 Stewart’s residence was located in a building that housed three separate apartment

units, and after the officer chased Stewart around the building twice, Stewart entered the

building through its main entrance. According to the officer, he followed Stewart and

found himself in an entry way with a “stairway that goes up and to the left,” and a stairway

going “straight down.” The officer testified that, because he was a “second or two” behind

Stewart, he was not “positive” which direction Stewart went. But the officer stated that,

because he “heard a little bit of a thumping or noises above” him, he “decided to take the

upstairs route.”

The officer proceeded up the stairway and encountered Stewart on a landing as

Stewart “was coming back down.” According to the officer, the lighting in the area was

“[p]oor” and Stewart’s momentum caused them to fall onto the “stairwell corner,” where

they struggled for about 20 seconds. During the struggle, the officer was on top of Stewart,

and Stewart’s right arm was closest to the wall. Eventually, with the help of another law

enforcement officer, Stewart was handcuffed, arrested, and escorted from the building. A

subsequent search of Stewart revealed no drugs. But in searching Stewart, and the area in

which the struggle occurred, the following items were discovered: a large amount of cash

in $20 bills, a knife, a glove, and a “pay/owe sheet” containing names that were familiar to

local law enforcement as persons involved in drug activity.

Law enforcement officers also searched Stewart’s vehicle. Although no drugs were

discovered in Stewart’s vehicle, officers found a tool bag on the driver’s side back seat.

Inside the tool bag was a PVC pipe with a removable cap containing numerous baggies

that are commonly used to package controlled substances.

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 Shortly after Stewart was arrested, a canine unit searched the perimeter of Stewart’s

residence. The initial search revealed no drugs. During a subsequent interview with law

enforcement, Stewart stated that he ran from law enforcement because he “freaked out.”

Stewart was also impliedly asked by law enforcement “how much” methamphetamine he

was carrying. Stewart responded, “not much,” but then stated that he did not want to admit

guilt. Stewart was then asked if he threw the drugs, to which he replied that he could not

remember if he threw it or just lost it. Finally, Stewart was asked if he threw the drugs

where children could find them, and Stewart replied not to worry about it, and stated that

there were no children in the building.

Based on Stewart’s responses, the canine unit was again asked to search the area

around Stewart’s residence. During the second search, the canine unit alerted by a wall on

the landing where Stewart struggled with the officer. According to the canine handler, the

wall is “not very well-built,” and there was a gap at the bottom of the wall where the

paneling was loose. The handler pulled back the paneling and found the following items

in the wall: a brown glove, plastic baggies, a potholder, and two square-shaped packages

wrapped in plastic and tinfoil. Although no fingerprints suitable for examination were

found on the packages, testing confirmed that one package contained 27.506 grams of

methamphetamine and the other contained 27.480 grams of methamphetamine.

After the methamphetamine was discovered in the wall of Stewart’s residential

building, Stewart was again interviewed by law enforcement. According to the sergeant,

Stewart replied, “Okay, good,” when told that the methamphetamine was found in the wall.

And when asked if the methamphetamine was the reason he ran, Stewart agreed.

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 The jury found Stewart guilty as charged, and that Stewart was a danger to public

safety. The district court sentenced Stewart to an upward departure of 240 months in prison

for first-degree possession of a controlled-substance, and a concurrent 19-month prison

sentence for the offense of fleeing police in a motor vehicle. This appeal follows.

DECISION

Stewart argues that the evidence is insufficient to prove beyond a reasonable doubt

that he is guilty of possessing methamphetamine. 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 conflicting with

that verdict.” State v. Balandin, 944 N.W.2d 204, 213 (Minn. 2020) (quotation omitted).

And we will not overturn a conviction if the jury could have 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).

To establish Stewart’s guilt for first-degree possession of a controlled substance, the

state had to prove that Stewart knowingly and unlawfully “possesse[d] one or more

mixtures of a total weight of 50 grams or more containing . . . methamphetamine.” Minn.

Stat. § 152.021, subd. 2(a)(1) (2018); State v. Florine, 226 N.W.2d 609, 610 (Minn. 1975).

“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 Florine, 226 N.W.2d at 610 (stating that there

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was no actual possession when there was clearly no evidence that the controlled substances

found in an abandoned vehicle were physically possessed by the defendant). 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 there is a strong probability

(inferable from other evidence) that[,] at the time[,] the defendant was consciously or

knowingly exercising dominion and control over [the contraband].” Harris, 895 N.W.2d

at 601.

The state can prove actual or constructive possession through direct or

circumstantial evidence. See State v. German, 929 N.W.2d 466, 472 (Minn. App. 2019).

“Direct evidence is evidence based on personal knowledge or observation that, if true,

proves a fact without inference.” State v. Olson, 887 N.W.2d 692, 700 (Minn. App. 2016).

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.

The parties do not dispute that circumstantial evidence was presented to establish

Stewart’s guilt. When reviewing the sufficiency of circumstantial evidence, we apply a

heightened two-step standard of review. State v. Ortega, 813 N.W.2d 86, 100 (Minn.

2012). Under the first step, the circumstances proved are identified. State v. Silvernail,

831 N.W.2d 594, 598 (Minn. 2013). 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).

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 Under the second step, we determine if the circumstances, when viewed “as a

whole,” are “consistent with guilt 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, no deference is afforded the factfinder’s choice

between reasonable inferences. State v. Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010).

The circumstantial evidence presented by the state “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). A defendant’s conviction will be

sustained based on circumstantial evidence only if the circumstances proved are “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.

Here, the following circumstances were proved by the state: (1) Stewart was under

surveillance by law enforcement because he was suspected of selling drugs; (2) while under

surveillance, Stewart was observed leaving a garage, putting a tool bag in his vehicle, and

then driving away; (3) when law enforcement attempted to stop Stewart, he looked back at

the squad car and continued to drive; (4) during the pursuit, Stewart glanced several times

to his right while reaching for something with this right hand until he reached his residence

where he fled on foot; (5) when Stewart exited his vehicle upon arriving at his residence,

the officer observed Stewart holding something in his hands and arms; (6) the officer

chased Stewart around the building twice, and did not observe Stewart discard any items;

(7) after chasing Stewart around his residential building, the officer entered the building

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through its main door about a second or two behind Stewart; (8) because the officer heard

thumping noises overhead, he ran upstairs where he collided with Stewart on a landing; (9)

the stairwell was poorly lit and the officer struggled with Stewart for about 20 seconds,

during which Stewart’s right arm was close to the wall; (10) although no drugs were found

on Stewart’s person, law enforcement did find on Stewart, or near where he was

apprehended, a large amount of cash and a “pay/owe sheet” consistent with drug sales; (11)

in Stewart’s vehicle, officers found a PVC pipe in a tool bag that contained plastic baggies

consistent with the packaging of controlled substances; (12) Stewart made statements to

law enforcement indicating that he was not carrying much methamphetamine, that he did

not want to admit guilt, and that officers did not have to worry that children would find

methamphetamine in the area around his residence; (13) a canine unit alerted near the wall

where the officer struggled with Stewart, and two packages containing approximately 27

grams of methamphetamine each were discovered in the wall behind some loose paneling

near where Stewart’s right arm was during the struggle; and (14) after Stewart was told

that the methamphetamine was discovered in the wall, Stewart indicated to law

enforcement that he fled because of the methamphetamine.

Stewart agrees that a jury could find that the circumstances proved by the state are

consistent with guilt on the element of possession. But Stewart contends that “[w]hen

viewed as a whole, the circumstances proved do not preclude a reasonable inference that

[he] did not possess the methamphetamine police found” because the “methamphetamine

was indisputably found in a common area of the building where others had free access.”

We disagree.

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 In considering whether there is sufficient evidence to establish constructive

possession, courts consider several factors. One factor is proximity. State v. Smith, 619

N.W.2d 766, 770 (Minn. App. 2000), rev. denied (Minn. Jan. 16, 2001). “Ease of access

is . . . [another] factor relevant to establishing constructive possession, [but] it is not the

sole factor or necessarily even the most important factor.” State v. Salyers, 858 N.W.2d

156, 159 (Minn. 2015).

In this case, there are several factors that render unreasonable any inferences

inconsistent with Stewart’s guilt. For example, the methamphetamine was discovered in a

location very close to a door to Stewart’s residence. Given its proximity to an entrance to

Stewart’s residence, it is reasonable to infer that Stewart was aware of the loose paneling

by the landing and that it would be a quick and easy place to stash contraband. And the

location where the methamphetamine was discovered is compelling in light of Stewart’s

conduct during his flight from the officer; he ran around the building, but instead of

entering his residence through an outside door, he chose to enter through the building’s

main door and then proceed upstairs. Stewart’s path took him past the location where the

contraband was discovered.

Moreover, the gap in the paneling provided Stewart with easy access to hide the

methamphetamine behind the wall. The ease of access would have allowed Stewart to

shove the methamphetamine behind the wall during his struggle with the officer on the

landing. Or, because of Stewart’s ability to stay ahead of the officer during the chase, the

ease of access would have allowed Stewart to quickly stash the methamphetamine behind

the wall before the officer caught up to Stewart.

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 In addition, the items found in Stewart’s possession, such as the cash, “pay/owe

sheet,” and plastic baggies support the inference that Stewart was involved in the sale of

controlled substances. And Stewart’s suspicious conduct, such as his decision to flee from

law enforcement, suggests consciousness of his own guilt. See State v. Bias, 419 N.W.2d

480, 485 (Minn. 1988) (“[E]vidence of flight suggests consciousness of guilt.”).

Finally, and perhaps most importantly, Stewart’s answers to law enforcement’s

leading questions support the conclusion that Stewart constructively possessed the

methamphetamine. Law enforcement asked Stewart “how much [methamphetamine] he

was carrying,” to which he replied, “Not much.” And when Stewart was interviewed after

the methamphetamine was found in the wall, Steward replied, “Okay, good,” when told by

law enforcement that the methamphetamine had been located. Moreover, the sergeant

testified that Stewart agreed that the methamphetamine found in the wall was the reason

he fled. Stewart’s statements to law enforcement, when considered with the other

circumstances proved, form a complete chain that leads directly to Stewart’s guilt and

excludes beyond a reasonable doubt any reasonable inference other than guilt.

Accordingly, there is sufficient evidence to support the jury’s verdict.1

Affirmed.

1
Because there is sufficient evidence demonstrating that Stewart constructively possessed
the contraband, we need not address the state’s argument that Stewart actually possessed
the contraband.

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