OPINION
A Rochester police officer found crack cocaine inside a van that Elvis Joko Porte was driving. An Olmsted County jury found Porte guilty of, among other things, first-degree and second-degree controlled-substance offenses. On appeal, Porte raises several issues. We conclude that the evidence is sufficient to support his controlled-substance convictions. But we conclude that the district court erred by giving a permissive-inference instruction to the jury. Therefore, we reverse and remand for a new trial.
FACTS
On February 24, 2011, a woman reported that her van, which she had lent to her boyfriend, A.R., was missing. That evening, Rochester police officer Kenneth Gal-lion observed Porte driving the van. Officer Gallion stopped the van and removed Porte from the vehicle.
Inside the van, officers found crack cocaine and marijuana. Officer Mitchell Jen-son found a plastic bag of crack cocaine on the floor near the left side of the front passenger’s seat. Officer Jenson also found a bаg of marijuana and a bag containing 50 individually wrapped packages of crack cocaine inside a small storage compartment below the dash in front of the center console. (The parties describe this space as a “glove compartment,” although it is not on the passenger’s side like most glove compartments. For the sake of clarity, we will refer to this space as a “center glove compartment.”) Porte initially told the officers that he had permission to use the van. After officers informed Porte that drugs were found inside the van, Porte claimed that the van was stolen.
The state charged Porte with seven offenses: first-degree controlled substance crime for possession with intent to sell more than 10 grams of cocaine, in violation of Minn.Stat. § 152.021, subd. 1(1) (2010);
During a two-day trial in February 2012, A.R. testified that he let Porte use the van in exchange for $40 worth of crack cocaine and that he later agreed to convey the van to Porte in exchange for money and crack cocaine. A.R. testified that, at the time of their agreement, he opened up the center glove compartment tо show Porte insurance papers and did not see any drugs inside. Porte’s front-seat passenger, R.M., testified for the prosecution that the cocaine on the floor near the passenger’s seat was his but that the drugs in the center glove compartment did not belong to him.
Porte testified in his own defense. He denied that the van transaction involved an exchange of drugs, but he admitted to using drugs in the van before acquiring it. Porte testified that he gave A.R. $500 as partial payment for the van and agreed to give A.R. an additiоnal $200 at a later date. Porte further testified that none of the drugs in the vehicle belonged to him and that he had never opened the center glove compartment or looked inside it.
Before the case was submitted to the jury, the state dismissed the charge of marijuana possession. The jury found Porte guilty on all remaining counts. In May 2012, the district court imposed a presumptive sentence of 98 months of imprisonment. Porte appeals.
ISSUES
I. Is the evidence sufficient to support Porte’s convictions of first-degree controlled substance crime and second-degree controlled substance crime?
II. Is Porte entitled to a new trial because the district court gave the jury a permissive-inference instruction?
ANALYSIS
I.
Porte first argues that the evidence is insufficient to support the convictions on the first-degree and second-degree controlled-substance offenses. Specifically, he argues that the state failed to prove both that he possessed the crack cocaine that was found in the center glove compartment and that he intended to sell it. We address his sufficiency-of-the-evidence argument first because it would, if successful, provide Porte with the greatest possible relief, outright reversal.
When considering a claim of insufficient evidence, this court conducts “a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction,” is sufficient to allow the jurors to reach a verdict of guilty. State v. Ortega,
Porte argues that the state did not introduce evidence sufficient to prove that he possessed the crack cocaine that was found inside the center glove compartment. He asserts that he “was only one in a series of persons who had recently had control of the van.” He contends that because he was in the process of buying the van, he never opened the center glove compartment and, thus, did not know that drugs were inside. The state must prove that Porte possessed crack cocaine to obtain convictions of first-degree and second-degree controlled-substance offenses. See Minn.Stat. §§ 152.01, subd. 15a(3) (2010), 152.021, subd. 1(1), 152.022, subd. 2(1).
A dеfendant may be deemed to have possessed controlled substances by constructive possession. State v. Florine,
(a) that the police found the substance in a place under defendant’s exclusive control to which other people did not normally have access, or (b) that, if police found it in a place to which others had access, there is a strong probability (inferable frоm other evidence) that defendant was at the time consciously exercising dominion and control over it.
Id. at 105,
The trial record contains sufficient evidence to allow the jury to find that Porte had constructive possession of the crack cocaine that was found in the center glove compartment. A.R. testified that he allowed Porte to use the van in exchange for crack cocaine and later agreed that Porte could acquire the van with money and crack cocaine. Porte also admitted to using marijuana in the van before agreeing to acquire it, and the marijuana was found next to the crack cocaine. In addition, all other persons known to have had access to the van denied placing the crack cocaine and marijuana inside the center glove compartment. A.R. testified that no drugs were inside the center glove compartment when he delivered the van to Porte. The above-described evidence is sufficient to allow a jury to believe that Porte constructively possessed the crack cocaine that was found in the van’s center glove compartment. See State v. Cusick,
Porte asserts that it is more likely that the crack cocaine belonged to A.R. or R.M., given their admissions to using drugs and R.M.’s proximity to the center glove compartment whilе Porte was driving. Porte also describes A.R.’s and R.M.’s testimony as “self-serving” and asks us to consider that A.R. was granted immunity. These arguments essentially ask this court to reweigh the evidence.
In sum, the evidence is sufficient to prove that Porte had constructive possession of the crack cocaine that was found inside the van’s center glove compartment.
B.
Portе argues that the state did not introduce evidence sufficient to prove that he intended to sell the crack cocaine that was found in the van’s center glove compartment. The state must prove that Porte intended to sell crack cocaine to obtain a conviction of first-degree controlled substance crime. See Minn. Stat. §§ 152.01, subd. 15a(3), 152.021, subd. 1(1). The word “sell,” for these purposes, is defined to also mean “give away, barter, deliver, exchange, distribute or dispose of to another.” Minn.Stat. § 152.01, subd. 15a(l) (2010).
Intent tо sell or distribute controlled substances typically is proved with circumstantial evidence. State v. White,
Porte contends that we should apply heightened scrutiny when analyzing the sufficienсy of the evidence of intent to sell. Whether we apply the standard of review applicable to circumstantial evidence depends on whether the conviction necessarily depends on circumstantial evidence. Generally, if the state’s evidence on an element of an offense (or more than one element) consists solely of circumstantial evidence, the supreme court applies the circumstantial-evidence standard of review. See, e.g., Al-Naseer,
Although the state introduced some direct evidence that Porte had agreed to give crack cocaine to A.R. in exchange fоr the van, the state did not prove the amount of crack cocaine that Porte intended to give to A.R. To obtain a conviction of first-degree controlled substance crime pursuant to section 152.021, subdivision 1(1), the state must prove that Porte sold or intended to sell 10 or more grams of crack cocaine. The state sought to do so by proving that Porte intended to sell the crack cocaine found in the center glove compartment, which weighed 21.5 grams. Because the state's direct еvidence is insufficient by itself to prove Porte’s intent to sell 10 or more grams of crack cocaine, we must consider the state’s circumstantial evidence, which requires that we engage in the type of heightened scrutiny that is appropriate for circumstantial evidence.
We apply a two-step test to evaluate the sufficiency of the circumstantial evidence supporting a defendant’s conviction. State v. Andersen,
In this case, the circumstantial evidence is sufficient to prove that Porte possessed crack cocaine with intent to sell it. First, the circumstances proved are that Porte actually distributed crack cocaine when he provided $40 worth of crack cocaine to A.R. in exchangе for use of the van and that he later agreed to acquire the van in exchange for money and an unknown quantity of crack cocaine. In addition, the circumstantial evidence shows that Porte possessed 50 individually wrapped packages of crack cocaine. Second, the only reasonable inference is that Porte possessed the crack cocaine in order to sell it. Porte distributed crack cocaine in the recent past and had agreed to do sо again. Officer Brian Roussell testified that, in his opinion, Porte’s possession of 50 individually wrapped packages of crack cocaine indicates that crack cocaine was for sale. Likewise, Detective Tracy Nepper testified that, in her opinion, a person in possession of 50 individually wrapped packages intends to sell them. Detective Nepper has investigated narcotics crimes for seven years and frequently has arrested users possessing very small amounts оf drugs, but never has arrested a mere user possessing 50 individually wrapped packages. The evidence as a whole is “consistent with guilt and inconsistent with any rational hypothesis except that of guilt,” Andersen,
Thus, the evidence is sufficient to support Porte’s convictions of first-degree and second-degree controlled-substance offenses.
II.
Porte next argues that the district court erred by giving the jury a permissive-inference instruction.
A district court must instruct the jury in a way that “fairly and adequately explain[s] the law of the case” and does not “materially misstate[ ] the applicable law.” State v. Koppi,
In this case, the district court instructed the jury as follows:
In determining whether or not it has been proven beyond a reasonable doubt that defendant was in knowing possession of cocaine, you should consider all of the evidence presented. The law allows, but does not require, you to find knowing possession from proof beyond a reasonable doubt that defendant was the driver or in physical control of a passenger automobile and cocaine was present in the automobile.
If you find so beyond a reasonable doubt, you may, but are not required to, find that the defendant knowingly possessed cocaine.
Porte argues that this instruction “violated the supreme court’s express disapproval of permissive-inference instructions.” He relies on three supreme court opinions: State v. Litzau,
In determining whether or not it has been proven beyond a reasonable doubt that the defendant was in knowing possession of methamphetamine, you should consider all the evidence presented. The law allows, but does not require, you to find knowing possession from proof beyond a reasonable doubt that the defendant was the driver or in control of a passenger automobile and the methamphetamine was present in the automobile. If you so find beyond a reasonable doubt, you may, but are not required to, find that the defendant knowingly possessed methamphetamine.
Litzau,
Such instructions “ ‘are undesirable in that they tend to inject argument into the judge’s charge and lengthen it unnecessarily.’ ” [Olson,482 N.W.2d at 215 ] (quoting Manual of Model Criminal Jury Instructions for the Ninth Circuit, 48 (1989 ed.)). Such instructions also improperly influence the jury not only by isolating particular facts but also by giving a particular step of logic “the official legal imprimatur of the state.” Charles Collier, The Improper Use of Presumptions in Recent Criminal Law Adjudication, 38 Stan. L. Rev. 423, 456 (1986).
Id. at 186. The supreme court explained that the instruction in that particular case was erroneous for two reasons:
The instruction amounted to an intrusion on the jury’s deliberative process because it effectively told the jury in this case that the judge thought there was sufficient evidence for a conviction. It was undisputed that appellant was the driver and that methamphetamine was concealed in the body of the vehicle.
The only real issue was whether appellant knew that the vehicle contained methamphetamine. The instruction also focused the jury on some facts, rather than all the facts. “Permissive inferences ... permit juries to avoid assessing the myriad facts which make specific .cases unique.” Charles R. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187, 1192 (1979).
Id. at 186-87. The supreme court concluded that the instruction constituted plain error. Id. at 187.
In this case, the permissive-inference instruction that the district court gave to the jury is practically identical to the instruction in Litzau. Furthermore, the circumstances of this case are not materially different from the circumstances in Litzau. There was no dispute that Porte was driving the vehicle in which crack cocaine was found. Porte sought to persuade the jury that he did not know that the van contained crack cocaine. But the instruction, like the instruction in Litzau, focused on only some of the evidence and suggested that the district court believed that the evidence showed that Porte was aware of the crack cocaine. Thus, we conclude that the district court erred by giving the instruction.
B.
The rules of criminal procedure provide, “Any error that does not affect substantial rights must be disregarded.” Minn. R.Crim. P. 31.01. This rule is known as the harmless-error rule. State v. Bouwman,
In this case, the statе did not assert a harmless-error argument. The state did not argue in the alternative that, even if the instruction was erroneous, this court should affirm on the ground that the erroneous instruction did not affect Porte’s substantial rights because the erroneous instruction did not have a significant impact on the verdict. Rather, in response to Porte’s challenge to the permissive-inference instruction, the state’s only argument is that the instruction was not erroneous.
Because the state did not assert a harmless-error argumеnt, the question arises whether this court may conduct a harmless-error analysis on its own initiative. This specific question has not been answered by the supreme court or by this court. As a general rule, issues that are not raised by an appellant on appeal “are deemed waived unless prejudicial errors
The federal circuit courts have considered this issue in depth and appear to be relatively consistent in their approach. The prevailing view is reflected in an opinion of the United States Court of Appeals for the Eighth Circuit, which has stated, as a matter of federal procedural law, that the government’s failure to assert harmless error constitutes a “waiver” such that an appellate court is “not obliged to reach the issue in [its] analysis” but “has discretion to overlook the waiver in certain circumstances.” United States v. Ghane,
The leading case is United States v. Giovannetti
we have discretion to overlook a failure to argue harmlessness, and in deciding whether to exercise that discretion the controlling consideratiоns are [1] the length and complexity of the record, [2] whether the harmlessness of the error or errors found is certain or debatable, and [3] whether a reversal will result in protracted, costly, and ultimately futile proceedings in the district court.
Id. at 227. The Giovannetti approach appears to recognize both the justifications of
the waiver doctrine and the justifications for limited exceptions. The Giovannetti approach reflects the principle that sua sponte review is disfavored because it may be unfair to a defendant-appellant, who would be deprived of a fair opportunity to respond to the prosecution’s argument that an error is harmless, and because it imposes greater burdens on an appellate court, which would need to identify and become familiar with the relevant parts of the trial record without the benefit of briefing from the parties. See United States v. Gonzalez-Flores,
In this case, it is not obvious that the district court’s erroneous jury instruction is harmless. See Barnes,
DECISION
The evidenсe is sufficient to support Porte’s convictions of first-degree controlled substance crime and second-degree controlled substance crime. But Porte is entitled to a new trial because the district court committed reversible error by giving the jury a permissive-inference instruction.
Porte asserts additional reasons why he is entitled to a new trial, both through counsel and in a pro se supplemental brief. We need not consider those additional issues because we already have concluded that Porte is entitled to a new trial.
Reversed and remanded.
Notes
. The district court prepared its instruction by following two unpublished opinions in which this court distinguished permissive-inference instructions from the instructions given in Olson and LaBatte. See State v. Otterson, No. C1-00-1419,