State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1239

State of Minnesota,
Respondent,

vs.

David Donald Ducado Menton,
Appellant.

Filed July 31, 2017
Affirmed
Peterson, Judge

Anoka County District Court
File No. 02-CR-15-6004

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Blair Buccicone, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Charles F. Clippert, Clippert Law Firm, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from convictions of ineligible person in possession of a firearm or
ammunition and fifth -degree controlled -substance crime while using or possessing a

2
firearm, appellant argues that the convictions must be reversed because the district court
erred when instructing the jury. Appellant also raises several issues pro se. We affirm.
FACTS
While on routine patrol in his marked squad car during the evening of September
14, 2015, Officer Daniel Freiberg checked the license plate of a car driven by appellant
David Donald Duca do Menton. 1 As Freiberg drove behind Menton, Menton suddenly
made an evasive turn or lane change, then a U-turn, and dramatically increased his speed
to 73 miles per hour in a posted 45 -mile-per-hour zone. Freiberg needed to drive “about
90 to 100 miles an hour” to keep up with Men ton, and Menton’s car was finally disabled
by police after he drove the wrong way on a busy street . Patricia Myers was sitting in the
front passenger seat of Menton’s car. Menton ran from the car and was apprehended by
police a short time later.
Police found various items of identification and contraband inside and outside the
car. A short distance from the car, they found a purse that contained a hypodermic needle
and a glass pipe with a white residue that tested positive for methamphetamine; the purse
also contained identification for Menton and Myers. Inside the car, they found Menton’s
driver’s license in the center console. On the driver’s side of the back seat , there were a
green-and-black “DC” brand backpack, a black backpack, and an open computer case. 2
The computer case held a box that contained 54 rounds of .22 caliber ammunition. The

1 Menton was not the registered owner of the vehicle.
2 On the passenger’s side of the back seat, there was a smaller black bag that contained no
contraband.

3
black backpack held men’s clothing and personal items, and, inside separate compartments
within the backpack, police found a holster, more ammunition, and two handguns: a loaded
.22 caliber silver revolver and a .25 caliber black Beretta. Inside two pairs of jeans in the
black backpack, police found a medium-size plastic bag that contained numerous smaller
plastic bags of the type that is typically used for packaging drugs, a metal pipe that had
marijuana residue, two hypodermic needles, and two bags of methamphetamine with a total
stipulated weight of less than 3 grams. The “DC” backpack contained women’s clothing,
a laptop computer with Myers’s name lit up on the screen , miscellaneous drug
paraphernalia, and 22 grams of methamphetamine.
Menton was charged with two counts of fifth-degree controlled-substance crime, in
violation of Minn. Stat. § 152.025, subd. 2(b)(1) (2014), one count of fleeing a peace officer
in a motor vehicle, in violation of Minn. Stat. § 609.487, subd. 3 (2014), and one count of
possession of a firearm by an ineligible person, in violation of Minn. Stat. § 624.713, subd.
1(2) (2014). Menton did not testify at trial, but he stipulated that the drugs found in the
black backpack were methamphetamine weigh ing less than three grams. Menton also
stipulated that he had a prior felony conviction in another state for manufa cturing or
delivering methamphetamine, which made him “ineligible to possess any firearms and
ammunition pursuant to Minn. Stat. § 624.713 and is an enhancing factor as to [Minn. Stat.]
§ 152.025.”

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The jury convicted Menton of all charges. The district court imposed a 60 -month
executed sentence for the firearm conviction and concurrent executed sentences of lesser
durations for the other convictions. This appeal follows.
D E C I S I O N
I.
Menton argues that the district court ’s jury instructions were erroneous. Menton
did not object to the instructions at trial.
Failure to object to jury instructions generally results in a
waiver of the issue on appeal. Even in the absence of objection
at trial, however, we have discretion to review a claim of error
on appeal if the jury instructions contain plain error affecting
substantial rights or an error of fundamental law. Such errors
may be addressed on appeal if there was (1) error, (2) that is
plain, and (3) a ffects substantial rights. If the error was
prejudicial and affected the outcome of the case, the third
prong of this test is met. Plain error will be considered
prejudicial if there is a reasonable likelihood that the error had
a significant effect on the jury’s verdict. If all three prongs of
the plain error test are met, we then determine whether we
should address the error to ensure fairness and the integrity of
the judicial proceedings.
We analyze jury instructions with the understanding
that trial courts possess significant discretion in the selection
of instruction language and that instructions must be read as a
whole to determine whether they accurately describe the law.
If the instructions, when read as a whole, correctly state the law
in lang uage that can be understood by the jury, there is no
reversible error.

State v. Laine, 715 N.W.2d 425, 432 (Minn. 2006) (citations and quotations omitted).

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Instruction for Possession of Controlled Substance While Possessing a Firearm
Minnesota imposes mandatory minimum sentences for certain offenses committed
by a defendant who possesses a firearm. Any defendant who commits a felony violation
of Minn. Stat. §§ 152.01-.205 (2014),3
in which the defendant or an accomplice, at the time of the
offense, had in possession or used , whether by brandishing,
displaying, threatening with, or otherwise employing, a
firearm, shall be committed to the commissioner of corrections
for not less than three years, nor more than the maximum
sentence provided by law.

Minn. Stat. § 609.11, subd. 5 (2014). “Possession of a firearm may be proved through
actual or constructive possession.” State v. Salyers, 858 N.W.2d 156, 159 (Minn. 2015).
The district court gave the following instruction on the posse ssion-of-a-firearm
element of the controlled-substance offense:

3 “‘Felony’ means a crime for which a sentence of imprisonment for more than one year
may be imposed.” Minn. Stat. § 609.02, subd. 2 (2014). “A person is guilty of controlled
substance crime in the fifth degree . . . if . . . the person unlawfully possess es one or more
mixtures containing a controlled substance classified in Schedule I, II, III, or IV.” Minn.
Stat. § 152.025, subd. 2(a)(1).
[I]f a person is guilty of a controlled substance crime in the
fifth degree and the conviction is a subsequent con trolled
substance conviction, the person convicted shall be committed
to the commissioner of corrections or to a local correctional
authority for not less than six months nor more than ten years .
. . if . . . the person unlawfully possesses one or more mixtures
containing a controlled substance classified in Schedule I, II,
III, or IV.
Minn. Stat. § 152.025, subd. 2(b)(1). Methamphetamine is classified in Schedule II. Minn.
Stat. § 152.02, subd. 3(d)(2). Menton stipulated that he was previously convicted of
manufacturing or delivering methamphetamine. Thus, his current conviction of possessing
methamphetamine is a felony violation.

6
If you find defendant guilty of controlled substance crime in
the fifth degree, you have an additional issue to determine, and
it will be put to you in the form of a question on the verdict
form. The question is: At the time of the commission of the
offense, was the defendant in possession of a firearm?
A firearm is a device designed to be used as a weapon
that expels a projectile in the form of any explosion or force of
combustion. You are further advised that possession can be
actual or constructive. Constructive possession can be inferred
when a firearm is in reasonable proximity to the defendant or
to the drugs.
In deciding whether to draw this inference, you should
consider, among other factors, whether the presence of the
firearm increased the risk of violence and the degree the risk
was increased, the nature, type, condition of the firearm, its
ownership, whether it was loaded, its ease of accessibility, its
proximity to the drugs and to the defendant, why the firearm
was present, and whether the nature of the offense of controlled
substance crime in the fifth degree is frequently or typically
accompanied by the use of a firearm.
Possession defined. A person possesses a firearm i f it
is on his person. A person also possesses a firearm if it was in
a place under his exclusive control to which other people did
not normally have access or if found in a place to which others
had access, he knowingly exercised dominion and control over
it.

(Emphasis added.)
Citing only the emphasized language in this instruction, Menton argues that the
instruction significantly alters the plain language of Minn. Stat. § 609.11, subd. 5. Menton
contends that
the jury should have been instructed t o consider whether
Menton possessed or used a firearm during the offense. Instead
the jury was asked to consider whether the firearm increased
the risk of violence and instructed the jury to consider the type
of gun, its ownership, whether it was loaded. All these facts
are irrelevant in determining whether Menton use d or
possessed a firearm at the time of the offense. The instruction

7
seems to presume possession and then ask the jury to determine
whether the presence of the gun increased the risk of violence.

This argument ignores the language of the instruction in the two paragraphs
immediately preceding the emphasized language where the jury was explicitly instructed
that it would have to answer the question, “At the time of the commission of the off ense,
was the defendant in possession of a firearm?” The emphasized language in the instruction
was used to comply with the supreme court’s decision in State v. Royster, 590 N.W.2d 82
(Minn. 1999).
In Royster, the supreme court considered “what should be the test for determining
when constructive possession while committing the predicate offense should trigger the
mandatory minimum sentence under Minn. Stat. § 609.11, subd. 5.” Id. at 85. The supreme
court said:
The sentence enhancement amendment reflects the obvious
reality that possession of a firearm while committing a
predicate felony offense substantially increases the risk of
violence, whether or not the offender actually uses the firearm.
The firearm in possession was recognized by the legislature as
an insurance policy to be used to further the crime if need be
and clearly raises the stakes of severe injury or death as a result
of the commission of the predi cate offenses. It seems
reasonable then to examine all aspects of the firearm in
possession to determine whether it was reasonable to assume
that its presence increased the risk of violence and to what
degree the risk is increased: the nature, type and con dition of
the firearm, its ownership, whether it was loaded, its ease of
accessibility, its proximity to the drugs, why the firearm was
present and whether the nature of the predicate offense is
frequently or typically accompanied by use of a firearm, to
name a few considerations.

8
Id. (quotation and footnote omitted ). The supreme court concluded in Royster that the
evidence of the defendant’s constructive possession of a firearm was sufficient to trigger
the sentence enhancement when police recovered narcotics from a boot in the defendant’s
bedroom and a “fully -loaded .22 revolver from underneath [the defendant’s] mattress
located approximately three feet from the boot.” Id. at 83, 85.
Menton argues that relying on Royster is no longer appropriate because, in State v.
Barker, 705 N.W.2d 768 (Minn. 2005), the supreme court recognized that section 609.11
is unconstitutional. But, in Barker, the supreme court held t hat “section 609.11 is
unconstitutional to the extent that it authorizes the district cou rt to make an upward
durational departure upon finding a sentencing factor without the aid of a jury or admission
by the defendant.” Id. at 773. The holding of Barker addresses whether sentencing
enhancement under section 609.11 violates a defendant’s Si xth Amendment jury -trial
rights as set forth in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Id. at
771-73. Barker does not address a jury-instruction issue in a constructive-possession case.
Menton’s reliance on Barker is misplaced.
Contrary to Menton’s argument, and consistent with Royster, when considering
whether constructive possession of a firearm should trigger the mandatory minimum
sentence under Minn. Stat. § 609.11, subd. 5, the jury may consider “all aspects of the
firearm” to determine whether its presence increased the risk of violence. 590 N.W.2d at
85. The instructions, when read as a whole, correctly stated the law in language that could
be understood by the jury, and there was no plain error in the jury instructions.

9
Menton also argues that the jury instruction for possession or use of a firearm while
possessing a controlled substance misstated the law and improperly deviated from the
pattern jury instruction . The district court instructed the jury that “[c]onstructive
possession can be inferred when a firearm is in reasonable proximity to the defendant or to
the drugs” and “[i]n deciding whether to draw this inference, you should consider, among
other factors, whether the presence of the firearm increased the risk of violence and the
degree the risk was increased .” Menton contends that this instruction was plain error
because it “included an improper inference and did not state the proper burden of proof.”
A district court should avoid giving “jury instructions advising that a particular fact
may be inferred from other particular facts, if proved.” State v. Litzau, 650 N.W.2d 177,
185-86 (Minn. 2002) (reversing for cumulative errors that included an erroneous inference
instruction on possession of a controlled substance). In State v. Flowers, the supreme court
reiterated the “admonition that jury instructions indicating that a particular fact may be
inferred from other particular facts, if proved, should be avoided.” 734 N.W.2d 239, 262
(Minn. 2007). The supreme court concluded that the district court’s failure “to properly
inform the jury that any inference was permissive” or “that [the jury] was not required to
accept that the inference necessarily followed from the facts” was error. Id. at 262.
In this case, the district court use d the phrase, “in deciding whether to draw this
inference, you should consider , among other factors ,” which properly informed the jury
that any inference was permissive and that it was the jury’s decision whether to draw an
inference. The instruction identified factors to consider, but it did not identify any particular

10
fact that would establish an inference. And the instruction did not limit the factors that the
jury could consider. The instruction did not include an improper inference.
Menton also argues that the jury instruction improperly deviated from the pattern
jury instruction and reduced the burden of proof because it asked the jury to find whether
the firearm increased the risk of violen ce. The pattern jury instruction states: “ In
determining whether Defendant possessed a firearm in a manner that substantially
increased the risk of violence, you may consider the nature, type and condition of the
firearm . . . , its proximity to the [drug s] . . . , why the firearm was present, and any other
factor that bears upon the risk of violence.” 10 Minnesota Practice, CRIMJIG 8.01 (2015)
(emphasis added).
In Royster, the supreme court referred to “the obvious reality that possession of a
firearm while committing a predicate felony offense substantially increases the risk of
violence” and stated that “[i]t seems reasonable then to examine all aspects of the firearm
in possession to determine whether it was reasonable to assume that its presence increased
the risk of violence.” 590 N.W.2d at 85 (emphasis added). And in a decision that applied
Royster, this court stated that the issue was “‘whether the constructive possession increased
the risk of violence.’” Salcido-Perez v. State , 615 N.W.2d 846, 848 (Minn. App. 2000)
(quoting Royster, 590 N.W.2d at 85 (emphasis added)), review denied (Minn. Sept. 13,
2000). Because these decisions do not clearly establish that a substantially increased risk
of violence, rather than a mere increased risk of violence, is the standard to apply when
determining constructive possession, instructing the jury to find whether the firearm

11
increased the risk of violence was not plain error. See State v. Ayala-Leyva, 848 N.W.2d
546, 555 (Minn. App. 2014) (finding no plain error in jury instruction when the state of the
law was “cloudy” or “unsettled”), review denied (Minn. Aug. 11, 2015).
Instruction for Possession of Firearm by an Ineligible Person
Menton argues that the district court’s jury instr uction for possession of a firearm
or ammunition by an ineligible person did not properly define the crime charged and
explain the elements of the crime. He contends that the district court should have instructed
the jury on the meanings of “firearm” and “ammunition.” Because “firearm” and
“ammunition” are both common words with well-known meanings, and the firearm s and
ammunition in this case were common types of those items, we observe no error in the
district court’s failure to define those words in its instruction for the offense of possession
of a firearm or ammunition by an ineligible person. The instruction, when read as a whole,
correctly stated the law in language that the jury could understand.
Menton argues that the district court erred by instructing the jury that, if ammunition
or a firearm “were found in a place where others had access,” to find Menton guilty, the
jury needed to find that “he knowingly exercised dominion or control over the ammunition
or the firearm.” (Emphasis added .) Menton contends that the phrase “dominion and
control” should have been used in the instruction. U sing the disjunctive “or” rather than
the conjunctive “and” was of no import because “dominion” and “control” have the same
meaning. See Black’s Law Dictio nary 594 (10th ed. 2009) (defining “dominion” as
“[c]ontrol.”). Further, the phrase “dominion and control” was used three other times in the

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instructions to define constructive possession of a firearm with reference to the controlled-
substance conviction . The isolated use of “or” suggests that the district court merely
misspoke when orally delivering the instructions. The district court also permitted the
written instructions, which stated “dominion and control ,” to be used by the jury during
deliberations.
Even if every instruction that Menton challenges had constituted plain error, we
would not conclude that Menton’s substantial rights were affected under the plain-error
analysis.
An error affects substantial rights if it is prejudicial and
affected the outcome of the case. An error in instructing the
jury is prejudicial if there is a reasonable likelihood that giving
the instruction in question had a significant effect on the jury’s
verdict. The court’s analysis under this third prong of the plain
error test is the equivalent of a harmless error analysis.

Ayala-Leyva, 848 N.W.2d at 555 (quotations and citations omitted). Police found the
following items in a backpack behind the driver’s seat in the car that Menton was driving:
a loaded handgun, an empty handgun, bullets, methamphetamine, drug -packaging
materials, and clothing and other items that typically would belong to a male. Menton, a
male, stipulated that he was ineligib le to possess a firearm. Other controlled substances
and drug paraphernalia were found inside and outside the car. No fact issue was raised at
trial regarding whether the handguns were firearms, whether the bullets were ammunition,
or whether the drugs f ound were other than the types or amounts set forth by the state.
There is no reasonable likelihood that the claimed errors in the jury instructions given had
a significant effect on the jury’s verdict.

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II.
In a pro se brief, Menton argues that (1) police illegally recorded his conversations
while he was in jail, (2) a police officer incorrectly testified that Myers identified Menton
as the driver of the car, and (3) the prosecutor and an arresting officer were related and
went to lunch together on the second day of trial. Menton cites no factual support for these
claims in the record, and the only legal authority he cites is Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868 (1968), and he does not explain how that case supports the claims.
“Pro se litigants are generally held to the same standards as attorneys.” State v.
Meldrum, 724 N.W.2d 15, 22 (Minn. App. 2006), review denied (Minn. Jan. 24, 2007).
Claims are deemed waived if they fail to “contain an argument or citation to legal authority
in support of the allegations raised.” Id. Menton did not provide a record of the jail
recordings that he challenges and offer s no legal support for his assertion that law -
enforcement officers were prohibited from recording his conversations while he was in jail.
See State v. Palmer , 391 N.W.2d 857, 859 n.1 (Minn. App. 1986) (requiring appellant to
provide reviewing court with record sufficient to demonstrate error); State v. Taylor, 869
N.W.2d 1, 22 (Minn. 2015) (considering and rejecting claim that district court abused its
discretion by admitting recording of telephone call defendant made from jail).
Menton cites no admissible evidence to support his claim that he was not the driver
of the car. Menton argues that Myers told an officer at the s cene of the stop that Menton
was not the driver. That evidence was hearsay, however, and it was contradicted by Officer

14
Freiberg, who testified that he saw Menton when he got out of the driver’s side of the car.
See Minn. R. Evid. 802 (stating that hearsay is generally inadmissible).
Menton also argues that there is a family relationship between the prosecutor and
Officer Freiberg and that the two had lunch together on the second day of trial. Menton
contends that this family relationship had a very big impact on how poorly this case was
handled and that the two having lunch together during the trial seems unlawful or, at least,
unprofessional. The record, however, does not establish that the contact occurred or that
the issue was brought to the district court’s attention.
Finally, Menton argues that, although Myers did have his identification in her
possession, that evidence does not show that he is guilty of any of the charges. But the
evidence that Myers possess ed Menton’s identification is not the only evidence that was
admitted at trial. On appeal, this court reviews the entire record in the light most favorable
to the conviction in deciding whether the evidence is sufficient to support a jury verdict.
State v. Olhausen, 681 N.W.2d 21, 25 (Minn. 2004). The record evidence is sufficient to
support the verdict.
Affirmed.