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This opinion will be unpublished and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
A16-1439

State of Minnesota,
Respondent,

vs.

Raymon Freeman,
Appellant

Filed June 26, 2017
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-15-6272

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Cheri A. Townsend, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Worke, Judge; and Kirk, Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challen ges his third -degree possession -of-a-controlled-substance
conviction, arguing that the district court committed plain error affecting his substantial
rights by failing to instruct the jury on constructive possession. We affirm.

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FACTS
In February 2015, police w ere dispatched to an apartment building. Officers
encountered appellant Raymon Freeman sitting on a landing between the building’s second
and third floors. Freeman appeared to be intoxicated, and the officers noticed a kitchen
knife sitting on the landing next to Freema n’s leg. While Officer Kyle Toavs used an
alternative stairway to go up to the third floor, the other officers ordered Freeman to walk
down the stairs, towards them, and away from the knife. Freeman did not comply. Unsure
if Freeman could stand, the officers at the bottom of the stairs told him to remain sitting
and scoot down the stairs. Again, Freeman failed to comply. Freeman stood up and turned
to go up the stairs toward Officer Toavs.
Officer Toavs, who had his Taser out, saw Freeman turn and reach into his pocket.
Officer Toavs believed that Freeman was reaching for a weapon. He ordered Freeman to
go downstairs and get on the ground. Freeman failed to comply and did not take his hand
out of his pocket. Officer Toavs deployed his Taser, and Freeman fell facedown onto the
landing. When he fell, Freeman tucked his arms undernea th his body. He was ordered to
show his hands but did not comply. Officers pulled Freeman’s arms behind his back and
handcuffed him.
Officers rolled Freeman over and immediately noticed a small pla stic bag where
Freeman’s arms had been tucked under his body. Officer Toavs looked closely at the
landing before Freeman fell and saw only the kitchen knife and a beer bottle. The plastic
bag contained a substance that the officers believed was heroin. The officers searched
Freeman’s person and discovered a small scale typically used for narcotics and a significant

3
amount of cash. Subsequent testing confirmed that the substance in the plastic bag
contained heroin and weighed 4.812 grams.
Freeman was charged with third-degree possession of a controlled subst ance. A
jury found Freeman guilty, and the district court sentenced him to 24 months in prison.
This appeal followed.
D E C I S I O N
Freeman argues that the district court committed plain error affecting his substantial
rights by failing to instruct the jury on constructive possession. The district court gave the
standard instruction on the elements of third -degree possession of a controlled substance
from the Minnesota Jury Instruction Guides. See 10A Minnesota Practice, CRIMJIG 20.20
(2015). The instruction required the jury to find that Freeman “posse ssed” heroin. The
district court, however, did not define possession. Freeman did not object to the district
court’s instructions.
Because Freeman failed to object, we review only for plain error. See State v.
Milton, 821 N.W.2d 789, 805 (Minn. 2012). Under the plain-error test, this court considers
whether the district court’s instructions contained “an (1) error (2) that was plain and
(3) that affected the defendant’s substantial rights.” Id. If all three of these pr ongs are
established, we must determine whether it is necessary to “address the error to ensure [the]
fairness and the integrity of the judicial proceedings.” Id. (quotation omitted). If any one
of the prongs is not satisfied, we need not address the remaining prongs. Montanaro v.
State, 802 N.W.2d 726, 732 (Minn. 2011).

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The district court has wide latitude in crafting jury instructions. State v. Huber, 877
N.W.2d 519, 522 (Minn. 2016). The district court errs “if its jury instructions confuse,
mislead, or materially misstate t he law.” State v. Kelley , 855 N.W.2d 269, 274 (Minn.
2014). “[D]etailed definitions of the elements to the crime need not be given in the jury
instructions if the instructions do not mislead the jury or allow it to speculate over the
meaning of the elements.” State v. Davis, 864 N.W.2d 171, 177 (Minn. 2015) (quotation
omitted). This court reviews the “jury instructions as a whole to determine whether the
instructions accurately state the law in a manner that can be understood by the jury.”
Kelley, 855 N.W.2d at 274.
Possession of contraband “may be proved through actual or constructive
possession.” State v. Salyers, 858 N.W.2d 156, 159 (Minn. 2015). A person is in actual
possession of contraband if it is on his person or he is otherwise exercising “direct physical
control” over it. State v. Barker , 888 N.W.2d 348, 353 (Minn. App. 2016) (quotation
omitted); State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn.
Jan. 16, 2001). To prove constructive possession, the state must show:
(a) that the police found the substance in a place under [the]
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 from other evidence) that [the] defendant was at the
time consciously exercising dominion and control over it.

State v. Florine , 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975). The constructive -
possession doctrine’s purpose is to “include within the possession statute those cases where
the state cannot prove actual or physical possession at the time of arrest but where the

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inference is strong that the defendant at one time physically possessed the substance.” Id.
at 104-05, 226 N.W.2d at 610.
Freeman argues that because the heroin was not found on his person, th is was not
an actual possession case, and the state had to prove constructive possession, i.e., that he
was consciously exercising dominion and control over the substance at the time of arrest.
But the fact that a controlled substance is not on the defendant’s person at the time of arrest
does not preclude the possibility of actual possession, and “actual possession of a
controlled substance can be established by circumstantial evidence.” Barker, 888 N.W.2d
at 350, 355 (concluding that circumstantial evid ence provided probable cause of actual
possession when defendant purchased controlled substances in Chicago and similar
controlled substances were found in a ditch next to the Minnesota road defendant used to
flee from police). In reviewing a case based o n circumstantial evidence, we first identify
the circumstances proved and then “determine whether the circumstances proved are
consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”
State v. Silvernail, 831 N.W.2d 594, 598-99 (Minn. 2013) (quotations omitted) . The
circumstances proved are that before Freeman fell, there was no plastic bag on the landing.
When Freeman fell, he put his hands underneath his body. When police turned Freeman
over, they found the plastic ba g of heroin where Freeman’s arms had been tucked under
his body. Police also discovered a scale typically used for narcotics and a large amount of
cash in Freeman’s pockets. The only rational inference from this evidence is that Freeman
took the heroin out of his pocket while he was on the ground with his hands under his body.

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Because the evidence supported a finding of actual possession based on circumstantial
evidence, there was no reason to instruct the jury on constructive possession.
Freeman also claims that the state erroneously equated proximity with constructive
possession in closing argument. He is mistaken. The state argued that the circumstantial
evidence proved that Freeman was in actual possession of the heroin: “The heroin wasn’t
there on the ground when . . . Freeman fell, when he rolled over there it was. There’s no
other reasonable inference that can be drawn from those facts other than that it came
from . . . Freeman’s person.” The case was presented to the jury as one of actual
possession, and there was ample evidence that Freeman had actual possession of the heroin
immediately before police rolled him over. The district court did not err by not instructing
on constructive possession.
Even if the district court had erred, Free man has not shown that the error affected
his substantial rights. To satisfy this prong of the plain-error test, Freeman must show that
there is “a reasonable likelihood that the absence of the error would have had a significant
effect on the jury’s verdi ct.” See State v. Horst , 880 N.W.2d 24, 38 (Minn. 2016)
(quotation omitted). A n appellant bears a “heavy burden” of proving prejudice. State v.
Wenthe, 865 N.W.2d 293, 299 (Minn. 2015), cert. denied, 136 S. Ct. 595 (2015). Because
the overwhelming evid ence supported a finding of actual possession, it is not reasonably
likely that the district court’s decision to not instruct the jury on constructive possession
had any effect on the verdict.
Affirmed.