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This opinion will be unpublished and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
A16-1286

State of Minnesota,
Respondent,

vs.

Fernell Damon Nickson,
Appellant.

Filed June 12, 2017
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CR-16-8987

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

Michael Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Cleary, Chief Judge; and
Connolly, Judge.
2
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Following his conviction of unlawful possession of a firearm, appellant argues that
(1) the evidence was insufficient to convict him because the state failed to prove that he
was in possession of a firearm; (2) a new trial is required because the dist rict court
wrongfully denied his request for alternative jury instructions; and (3) he is entitled to a
new trial because the prosecutor engaged in misconduct during closing argument. Because
the evidence in the record was sufficient to prove that appellant possessed the firearm, the
district court’s instructions were appropriate, and there was no prosecutorial misconduct,
we affirm.
FACTS
On November 17, 2015, a van carrying five men w as stopped for driving with an
expired registration. At first, the driver was unable to provide a proper driver’s license,
claiming he did not have one. Later, the driver gave the police officer his driver’s license.
Most, if not all, of the occupants of the vehicle were smoking. The van was registered to
the driver’s ex -wife, who, at the time, had a restraining order against him. Appellant
Fernell Damon Nickson was identified as a passenger in the vehicle, sitting in the back
behind the middle seats of the van on a pile of clothing. There was no seat installed in this
location. Appellant was the only passenger who gave a false name to the police officer.
The police officer suspected that one or more of the occupants of the vehicle were
involved in controlled-substance activity because (1) the driver said that he did not have a
license when he actually did have one; (2) the driver said he did not know whose vehicle
3
it was when it actually belonged to his ex-wife, who had a no-contact order against him;
(3) the driver did not want to look for his insurance; (4) when the vehicle was pulled over,
several of the occupants started smoking, which is sometimes done to mask the odor of a
controlled substance; and (5) while obtaining information from the passe ngers of the
vehicle, the police officer observed multiple BB’s1 on the floor along with “what appeared
to be [a] plunger [and] a white plastic piece of a syringe sticking out from under some
clothing.”
Based on these observations, the police officer conducted a K-9 sniff of the exterior
of the vehicle. The dog, trained to search for and recognize cocaine, crack, heroin,
methamphetamine, and marijuana, alerted to the presence of a controlled substance. Once
the K-9 alerted to the exterior of the van, the police officer searched the vehicle and found
a syringe, a strap, some Q-tips, and a glass ball pipe with residue consistent with smoking
methamphetamine.
Under the pile of clothes on which appellant was sitting , the police found a 40-
caliber semiautomatic handgun (the gun). Appellant was identified as the individual sitting
closest to the gun. Several 40-caliber bullets were found in the pockets of another
passenger. Throughout the search, the police officer was wearing rubber gloves. The
police officer did not remember if he changed gloves between searching through the van
and picking up the gun. The police officer carried the gun to the squad car by the sides of
its handle and the base of the magazine.

1 A shot pellet for use in an air gun. Webster’s Ninth New Collegiate Dictionary 136
(1985).
4
The gun was examined after it was transporte d to the police station. Fingerpri nt
analysis was done on the gun and the magazine cartridge , but the police did not discover
any fingerprints that they were able to analyze. Respondent ’s DNA analyst stated that
“[t]here [were] too many contributors of DNA [on the gun].” She admitted that there was
some DNA on the gun but she could not make a comparison to the DNA of the four people
that were arrested.
However, on the magazine there was a mixture of DNA from two or more
individuals. The DNA analyst test ified that she “obtained a predominant DNA profile 2
[from the magazine] that matched the DNA profile from [appellant] and [did] not match
the DNA profile from [the other men in the vehicle].” She also testified that a person who
touched something more often than another person might have a more predominant profile
on the object.
On cross -examination, the DNA analyst testified that there were too many
contributors to the DNA on the grip, the trigger, and the slide of the gun to test it for DNA.
She also testified that there were at least two contributors to the magazine sample and the
predominant DNA profile was appellant’s, but there was no match for the other contributor.
On redirect, the DNA analyst testified that a predominant profile is not likely to occur from
a secondary type transfer.3

2 A predominant profile “occurs when you have evidence of a single individual or single
profile within [a] mix sample [of DNA] that’s present at a disproportionately high level.”
3 A secondary transfer occurs when person A touches item one with person B’s DNA on it
or shakes hands with person B and then touches item two and places person B’s DNA on
item two.
5
Appellant requested special jury instructions be given defining “dominion,”
“control,” and the elements of “constructive possession.” The district court denied the
request.
The jury found appellant guilty, and he was sentenced to 60 months in prison.
D E C I S I O N
I. Was there sufficient evidence for a jury to find that appellant was in possession
of a firearm?
Appellant argues that respondent failed to provide sufficient evidence to prove,
beyond a reasonable doubt, that appellant had possession of the gun. In considering a claim
of insufficient evidence, an appellate court’s review is limited to 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 the verdict that they did. State v.
Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing cour t must assume “the jury
believed the state’s witnesses and disbelieved any evidence to the contrary.” State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the
verdict if the jury, acting with due regard for the presumpti on of innocence and the
requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant
was guilty of the charged offense. Bernhardt v. State , 684 N.W.2d 465, 476 -77 (Minn.
2004).
In order to convict appellant, respondent must establish either actual or constructive
possession of a firearm. State v. Breaux , 620 N.W.2d 326, 334 (Minn. App. 2001). In
order to prove constructive possession, respondent was required to show that there is a
6
strong probability, inferable from the evidence, that defendant was consciously exercising
dominion and control over it at the time. State v. Florine, 303 Minn. 103, 105, 226 N.W.2d
609, 611 (1975). “Proximity is an important factor in establishing constructive
possession.” Breaux, 620 N.W.2d at 334.
Respondent argues that it provided direct evidence of appellant’s constructive
possession of the gun, citing an unpublished decision holding that “in a gun -possession
case, physical evidence that the defendant’s DNA is on the gun[,] corroborated by
uncontested scientific testimony that the DNA likely got there by the defendant’s handling
of the gun[,] is direct evidence of possession.” State v. Jiggetts , 2014 WL 349609 at *3
(Minn. App. Feb. 3, 2014). D irect evidence is evidence that, if believed, directly proves
the existence of a fact without requiring any inferences by the fact -finder. State v. Horst,
880 N.W.2d 24, 40 (Minn. 2016). Circumstantial evidence, on the other hand, is evidence
based on inference and not on personal knowledge or observation. Bernhardt, 684 N.W.2d
at 477 n.11.
Although Jiggetts is unpublished, we conclude that it is persuasive. In Jiggetts, the
DNA material taken from the gun was a mixture from at least four people, with the
predominant profile matching the appellan t and testimony indicating that the profile was
unlikely to occur more than once among unrelated persons in the world’s population. Id.
at *1. Applying the rationale in Jiggetts to this case, we conclude that, because appellant’s
DNA was the predominant profile on the gun’s magazine, there is direct evidence that he
possessed the gun. As in Jiggetts, scientific evidence indicated that a secondary transfer
was unlikely to result in a predominant DNA profile. The DNA analyst testified that there
7
were at l east two contributors to the DNA on the magazine but only one predominant
profile, which belonged to appellant. The DNA profile obtained from the item “would not
be expected to occur more than once among unrelated individuals in the world’s
population.” She also testified that a person who touches an object more often than another
person might have a more predominant DNA profile on the object.
We also conclude that there is sufficient circumstantial evidence to prove that
appellant possessed the gun. “ [A] conviction based entirely on circumstantial evidence
merits stricter scrutiny than convictions based in part on direct evidence.” State v. Jones,
516 N.W.2d 545, 549 (Minn. 1994). “While it warrants stricter scrutiny, circumstantial
evidence is entitled to the same weight as direct evidence.” State v. Bauer , 598 N.W.2d
352, 370 (Minn. 1999). The 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. Jones, 516 N.W.2d
at 549. A jury, however, is in the best position to evaluate circumstantial evidence, and its
verdict is entitled to due deference. Webb, 440 N.W.2d at 430.
In applying the circumstantial evidence standard, the reviewing court uses a two -
step analysis. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). “The first step is to
identify the circumstances proved. In identifying the circumstances proved, we defer to
the jury’s acceptance of the proof of the se circumstances and rejection of evidence in the
record that conflicted with the circumstances proved by the State.” Id. at 598-99 (quotation
and citation omitted). “The second step is to determine whether the circumstances proved
8
are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”
Id. at 599 (quotation omitted).
In this case, the circumstances proved are: (1) the predominant DNA profile on the
gun’s magazine was appellant’s and it was the only one that matched ; (2) appellant was
sitting on top of the clothes pile where the gun was found and the person closest to the gun;
(3) appellant was the only person in the vehicle to give a false name; (4) appellant had an
outstanding warrant for his arrest; (5) bullets for the gun were found in the pockets of
another passenger in the van; and (6) the police officer may have picked up the gun near
the magazine without first changing his gloves to prevent contamination fr om the other
items in the van.
Appellant argues that it is a reasonable and rational inference that the gun was
possessed by either the driver and owner of the van or the passenger who was in possession
of the bullets. We disagree. Neither of appellant’s suggeste d alternatives had a
predominant DNA profile anywhere on the gun ; appellant did. Appellant was also the
closest person to the gun at the time the vehicle was stopped. Proximity is significant when
considering constructive possession. Breaux, 620 N.W.2d at 334.
Appellant attempts to discredit having the predominant profile on the gun magazine
by arguing that the police officer did not change his gloves when he touched the gun after
searching through the vehicle. But the police officer’s testimony does n ot support that
argument. When he was asked if he changed his rubber gloves or used the same for the
search and the removal of the gun, he responded, “I don’t recall. I don’t recall.” Viewing
the evidence in the light most favorable to the verdict, we assume the jury concluded that
9
the officer changed his gloves, thus eliminating the potential for secondary transfer of
DNA. Moreover, the DNA analyst testified that a predominant profile would likely not
occur from a secondary transfer. Viewed in the lig ht most favorable to the verdict,
appellant cannot point to any evidence that indicates the police officer did not follow proper
protocol in collecting the gun or that suggests a secondary transfer is likely to have resulted
in a predominant DNA profile.
Moreover, the DNA witness testified that the DNA profile of a person who touched
an object more than others might be more predominant. Thus, a jury could reasonably find
that appellant handled the handgun more often than anyone else in the vehicle. Further, an
item that is constructively possessed may be possessed by more than one person. State v.
Porte, 832 N.W.2d 303, 308 (Minn. App. 2013). This supports the conclusion that, because
appellant’s was the predominant profile on the gun magazine, appellant constructively
possessed the gun.
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
that there was sufficient evidence that appellant possessed the gun.
II. Did the district court err in denying appellant’s requested jury instructions?
Prior to trial, appellant submitted proposed jury instructions defining “dominion ”
and “control ” and giving the elements of constructive possession. The distr ict court
rejected the proposed instructions. At trial, the district court instructed the jury:
The law recognizes two kinds of possession: “ [a]ctual
possession” and “constructive possession.” A person who
knowingly has direct physical control over a thi ng is in actual
possession of it. A person who is not in actual possession of a
thing, but who knowingly has the power and the intention to
10
exercise authority and control over it, is in constructive
possession of it.
(Emphasis added .) Appellant argues th at this instruction provided the jury with an
erroneous definition of “constructive possession” and prejudiced appellant’s right to a fair
trial. We disagree.
A district court has “considerable latitude” in the selection of language for the jury
instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted). The
refusal to give a requested jury instruction lies within the discretion of the district court and
will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn.
1996). “An instruction is in error if it materially misstates the law.” State v. Kuhnau, 622
N.W.2d 552, 556 (Minn. 2001). “[J]ury instructions must be viewed in their entirety to
determine whether they fairly and adequately explained th e law of the case.” State v.
Flores, 418 N.W.2d 150, 155 (Minn. 1988).
We conclude that the instructions given by the district court are the functional
equivalent of the model jury instruction, which has been found to state the correct legal
standard, and that the district court did not abuse its discretion in its instruction on
constructive possession.4 However, we caution the district court that, while the model jury
instructions are guidelines and are not mandatory rules, State v. Kelley, 734 N.W.2d 689,

4 In several unpublished opinions this court has conside red and upheld the use of similar
jury instructions as functional equivalents of the model jury instruction . See e.g., State v.
Nelson, 2010 WL 24846688 at *4-5 (Minn. App. June 22, 2010). Although an unpublished
decision and therefore of no precedential value, this court’s analysis in Nelson is persuasive
and applicable to this case. See Minn. Stat. § 480A.08, subd. 3 (2016).

11
695 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007), the district court should use
them, unless there is a clear reason not to do so.
Appellant also argues that the district court erred when it failed to use his proposed
instructions defining “dominion” as “‘supreme authority’; ‘absolute ownership’; [and t]he
right of the owner of a thing to use it or dispose of it at his pleasure” and “control” as “to
direct the actions or function of an object: to cause the object to act or function in a certain
way.” But this court “hold[s] that ‘dominion’ simply means ‘control’ in the context of the
‘dominion and control’ standard . . . much like ‘null and void,’ ‘force and effect,’ ‘free and
clear,’ ‘full and complete,’ and so on.” State v. Arnold, 794 N.W.2d 397, 404 (Minn. App.
2011). Moreover, defining “dominion” as “supreme authority” or “absolute ownership ,”
as appellant proposed would undermine State v. Robinson , 517 N.W.2d 336, 340 (Minn.
1994) (holding that “dominion may be shared with others”).
In any event, it would have been confusing to the jury to define “dominion,” because
the district court did not use the word “dominion” anywh ere in its instructions, and it was
not necessary to define “control.” The jury was instructed that, if a word or phrase was not
defined, it was to “apply the common, ordinary meaning of that word or phrase.” Common
meanings of “control” include “to exercise restraining or directing influence over,” or “to
have power over.” Webster’s Ninth New Collegiate Dictionary 285 (1986). A district
court is not required to define words of common usage that are within the jurors’ ordinary
understanding. See State v. Harlin , 771 N.W.2d 46, 52 (Minn. App. 2009) (lack of
definition of “intent” was not error because it has a common meaning). Because “control”
12
has a common meaning within the jury’s ordinary understanding, the failure to define
“control” was not in error.
We conclude that the district court did not abuse its discretion in instructing the jury.
III. Is appellant entitled to a new trial because of prosecutorial misconduct in
respondent’s closing arguments?
“If the defendant failed to object to the misconduct at trial, he forfeits the right to
have the issue considered on appeal, but if the error is sufficient, this court may review.”
State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). When the defendant fai ls to object,
prosecutorial misconduct is reviewed under a modified plain -error standard. State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Appellant must show that an error occurr ed
and that the error was plain, b ut the burden shifts to the prosecution on the third or
“prejudice” prong, to prove that there is no reasonable likelihood that the absence of the
misconduct would have a significant effect on the jury’s verdict. Id.
Appellant failed to object to the misconduct at trial , but he now argues that the
prosecutor committed misconduct by (1 ) arguing facts not in evidence, (2) misstating the
law on constructive possession, and (3) shifting the burden of proof.
Facts Not in Evidence
Appellant argues that the prosecutor argued f acts not in evidence when he told the
jury that (1) methamphetamine was being smoked in the van, and (2) appellant hid the gun
13
under himself. We conclude that t he prosecutor made reasonable inferences and did not
argue facts not in evidence.
“It is misconduct for a prosecutor to intentionally misstate evidence or to appeal to
the passions of the jury. . . . [A] prosecutor should not refer to facts not in evidence or
vouch for the veracity of any particular evidence.” State v. McArthur, 730 N.W.2d 44, 53
(Minn. 2007) (citation omit ted). The state’s closing argument “must be based on the
evidence produced at trial, or the reasonable inferences from that evidence .” State v.
Young, 710 N.W.2d 272, 281 (Minn. 2006) (emphasis added).
Evidence in the record shows that (1) a syringe an d a glass pipe containing
methamphetamine residue were on the floor of the van; (2) the K-9 alerted to the smell of
narcotics in the van; (3) several of the van’s occupants were smoking which, based on the
officer’s training and experience, is common when attempting to mask the smell of drugs;
and (4) several people in the vehicle were “smoking in . . . nervousness ,” which was
reasonable if someone had recently been smoking methamphetamine in the van. Based on
this evidence in the record, the officer’s in ference that someone in the van had been
smoking methamphetamine was reasonable. Even if there were other reasons that the
occupants of the vehicle would be nervous, the inference that they were nervous because
someone had been smoking illegal drugs in the car was reasonable.
Evidence in the record also reflects that (1) appellant’s DNA was on the gun
magazine, (2) appellant was sitting on the pile of clothing concealing the gun , and
(3) appellant lied about his identity. From this evidence, the prosecutor could reasonably
14
infer that, because a gun is not commonly kept under a pile of clothing, appellant hid the
gun under himself.
Appellant’s argument that the prosecutor wrongfully referred to appellant as
nervous is unfounded. The prosecutor does not state that appellant specifically was acting
nervously, but rather that “the people in the van became nervous.” Because the closing
argument was supported by reasonable inferences, we conclude that the prosecutor did not
argue facts not in evidence.
Misstating the Law on Constructive Possession
Appellant next argues that the prosecutor misstated the law on constructive
possession by saying that “the law of Minnesota is that if you put something somewhere,
you have the authority and control over that item.” Appellant argues that this is a
misstatement of the law because it “expand[s] constructive possession to include any item
that a person may have ‘put somewhere,’ regardless of whether the person had abandoned
the item.” While we recogni ze that this is a misstatement of the law of constructive
possession, we conclude that , in the context of the argument, the misstatement was
harmless.
“This court has . . . held that a defendant may constructively possess a firearm if he
placed the firearm where it was discovered.” State v. Smith, 619 N.W.2d 766, 770 (Minn.
App. 2000), review denied (Minn. Jan. 16, 2001). In his closing argument, the prosecutor
said that appellant actually posses sed the gun and shoved it in the clothes under him , and
that, even t hough appellant was no longer in physical possession of the gun, he still had
possession of it under the law. The prosecutor then added, “The law of Minnesota is that
15
if you put something somewhere, you have the authority and control over the item.” Taken
out of context, this is a misstatement of the law because it does not account for a person
abandoning the weapon so anyone who held a gun and set it down could be said to be i n
constructive possession. However, in context, it was clear that a ppellant did not abandon
the gun, but rather hid it from the police.
Shifting the Burden of Proof
Appellant argues that the prosecutor improperly shifted the burden of proof onto
appellant by stating: “They’re going to suggest he had no knowledge of the gu n. He had
nothing to do with the gun. There is no evidence to support that. The only evidence here
shows he had the gun, touched the gun and held the gun. He hid the gun. He possessed
the gun.”
A prosecutor improperly shifts the burden of proof when he implies that a defendant
has the burden of proving his innocence. State v. Martin , 773 N.W.2d 89, 105 (Minn.
2009). “A prosecutor’s misstatement of the burden of proof is highly improper and
constitutes misconduct.” Id. (quotation omitted). A prosecutor may not comment on a
defendant’s failure to call a witness. State v. Mayhorn, 720 N.W.2d 776, 787 (Minn. 2006).
But “a prosecutor’s comment on the lack of evidence supporting a defense theory does not
improperly shift the burden.” State v. Nissalke , 801 N.W.2d 82, 106 (Minn. 2011)
(quotation omitted).
While the prosecutor’s comment was inappropriate, we conclude that, in this
particular case, the comment was not an imp roper burden-shifting statement. R ather, it
was a comment that there was “an absence of evidence to support theories that [appellant]
16
put before the jury.” See id. at 107. It was not a comment on appellant’s failure to call
witnesses or his failure to testify, but rather a statement that nothing in the record indicated
that appellant had no knowledge of the gun and had nothing to do with it. In this case, the
prosecutor’s comments, taken as a whole, do not show plain error. See Finnegan v. State,
764 N.W.2d 856, 865 (Minn. 2009).
Because there was no misstatement of the law and no improper burden shifting, we
conclude that there was no prosecutorial misconduct.
Affirmed.