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This opinion will be unpublished and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
A16-1550

State of Minnesota,
Respondent,

vs.

Devante Lemuel Johnson,
Appellant.

Filed August 28, 2017
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CR-16-1595

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

Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, J odi Lynn Proulx, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Bjorkman, Judge; and
Toussaint, Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from his conviction of possession of a firearm by an ineligible person,
appellant argues that the evidence is insufficient to prove th at he possessed a firearm and
that he was denied a fair trial due to pros ecutorial misconduct during closing arguments.
We affirm.
FACTS
In October 2015, Hennepin County dispatch received a complaint reporting that the
occupants of a vehicle parked in front of a Minneapolis residence were playing loud music
and dealing drugs. After arriving at the residence, police officers located a parked vehicle
matching the complainant’s description. As the officers approa ched, they heard loud
music, smelled burnt marijuan a, and observed three men s itting in the vehicle. Two
individuals were sitting in the two front seat s, and the third, appe llant Devante Lemuel
Johnson, was sitting in the back-passenger seat on the left side of the vehicle. The officers
removed the occupants and searched the vehicle. During the search, one of the officers
located a handgun (the gun) lying on the floorboard between the vehicle’s back-passenger
seat and door on the right side of the vehicl e. After discovering the gun, the officers
arrested appellant.
The gun’s grip and hammer were swabbed for DNA, and a DNA sample was taken
from appellant. Subsequent testing revealed that the DNA on the gun belonged to two or
more people, but the predominant DNA profile found on the gun matched the sample taken
3
from appellant. The probability of randomly selecting someone with a DNA profile that
matched the predominant DNA profile found on the gun was one in twenty-five billion.
Respondent State of Minnesota charged ap pellant with possession of a firearm by
an ineligible person in viola tion of Minn. Stat. § 624.713, su bd. 1(2) (2014). At trial,
appellant stipulated that he was ineligible to possess a firearm. After a jury found appellant
guilty of the charged offense, the district court sentenced him to 60 months in prison. This
appeal follows.
D E C I S I O N
I. Sufficient evidence supports appellant’s conviction.
Appellant contends that his conviction must be reversed because the evidence was
insufficient to prove that he possessed the gun. We disagree.
“When considering a claim of insuffici ent 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. Porte, 832 N.W.2d 303, 307 (Minn. App. 2013) (quotation omitted). We
assume that “the jury believed the state’s w itnesses and disbelieved any evidence to the
contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted).
To convict appellant of possession of a firearm by an ineligible person, the state had
to prove that he knowingly possessed the gun. See State v. Salyers, 858 N.W.2d 156, 161
(Minn. 2015). “Possession of a firearm may be proved through actual or constructive
possession.” Id. at 159. Actual possession requires “proof that [the defendant] physically
had the [firearm] on his person.” State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000),
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review denied (Minn. Jan. 16, 2001). Constructive possession requires proof that there is
a strong probability, inferable from the evid ence, that the defendant was consciously
exercising dominion and control over the firearm at the time of arrest. See State v. Florine, 303 Minn. 103, 105, 226 N. W.2d 609, 611 (1975). “Proximity is an important
consideration in assessing constructive possession.” Smith, 619 N.W.2d at 770. Finally,
“constructive possession need not be exclusive, but may be shared.” Id.
Constructive possession may be proved by di rect or circumstantial evidence. See
Salyers, 858 N.W.2d at 160-61. Circumstantial evidence is “[e]vidence based on inference
and not on personal knowledge or observation.” Bernhardt v. State, 684 N.W.2d 465, 477
n.11 (Minn. 2004) (quotation omitted). “A conviction based on circumstantial
evidence . . . warrants heightened scrutiny.” State v. Sam , 859 N.W.2d 825, 833 (Minn.
App. 2015) (quotation omitted); see State v. Harris , 895 N.W.2d 592, 597-601 (Minn.
2017) (reaffirming circumstantial-evidence standard). When reviewing the sufficiency of
circumstantial evidence, we apply a two-step analysis, which requires that we first identify
the circumstances proved, “giving due defe rence to the fact-finder and construing the
evidence in the light most fa vorable to the verdict.” Sam, 859 N.W.2d at 833. “Second,
we determine whether the circumstances proved are consistent with guilt and inconsistent
with any other rational or reasonable hypothesis.” Id.
Here, the state proved the following relevant circumstances: (1) after arriving at the
scene, the officers did not see anyone enter or exit the vehicle; (2) three men were sitting
in the vehicle; (3) appellant, who was sitting in the left rear-passenger seat, was the only
person sitting in the back row of seats; (4) the gun was f ound lying on the floorboard
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between the vehicle’s rear-passenger seat a nd door on the right si de of the vehicle;
(5) testing revealed that the predominant DNA profile found on the gun’s grip and hammer
matched appellant’s DNA; (6) the probability of randomly selecting someone with a DNA
profile that matched the predominant DNA pr ofile found on the g un was one in twenty-
five billion.
Next, we must determine whether these ci rcumstances proved are consistent with
guilt and inconsistent with an y other rational hypothesis. Id. Appellant admits that the
circumstances proved are consistent with a fi nding that he knowingly possessed the gun.
But, according to appellant, the circumstances proved are also consistent with reasonable
hypotheses other than his guilt.
Appellant first posits that, because he spen t a great deal of time and had sex in the
vehicle, his DNA could have transferred from “throughout the vehicle” and onto the gun’s
grip and hammer, without him knowingly posse ssing the gun, in a quantity sufficient to
become the predominant DNA profile. Second, appellant argues that one of the vehicle’s
other occupants may have possessed the gun and left it on the floorboard. Appellant relies
on this court’s decision in State v. Harris, which was affirmed by the supreme court after
the parties submitted their briefs in this case. No. A15-0711, 2016 WL 1396689 (Minn.
App. Apr. 11, 2016), aff’d 895 N.W.2d 592 (Minn. 2017).
In Harris, the defendant-driver was convicte d of possession of a firearm by an
ineligible person after officers effected a traffic stop and discovered a firearm concealed in
the vehicle’s sunroof. Id. at *1-2. The vehicle belonged to the defendant’s brother, and
there were three individuals in the vehicle at the time of the stop. Id. at *2. At trial, the
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state introduced forensic evidence showing that there was DNA from several people on the
firearm, and approximately 25% of the world’s population, including each of the vehicle’s
occupants, could have contributed to the DNA mixture. Id. at *3. This court reversed the
defendant’s conviction in light of the rational hypothesis that another person concealed the
firearm without the defendant’s knowledge. Id. at *5.
Harris is readily distinguishable. The st ate’s DNA evidence in this case is
substantially stronger than the evidence presented in Harris, where only approximately
75% of the general population could be excluded as contributors to the DNA mixture found
on the firearm. 895 N.W.2d at 597. Here, the probability of randomly selecting someone
with a DNA profile that matched the predominant DNA profile found on the gun was one
in twenty-five billion. Moreover, the concentration and location of the DNA evidence on
the gun directly contradicts appellant’s theo ry that his DNA was transferred from other
parts of the vehicle and onto the gun without him knowingly possessing it.
Accordingly, given the state’s strong DNA evidence in this case, in conjunction with
the other circumstances proved, appellant’s proposed hypotheses are unreasonable.
Therefore, we conclude that the evidence is sufficient to support appellant’s conviction.
II. Appellant was not deprived of his right to a fair trial.

Appellant argues that prosecutorial misconduct during closing arguments deprived
him of his right to a fair trial, includi ng (1) vouching for the Bureau of Criminal
Apprehension (BCA) analyst; (2) speculati ng about facts not in evidence; and
(3) misstating the law and the state’s burden of proof. We address each issue in turn.
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When the defendant fa ils to object, prosecutorial mi sconduct is reviewed under a
modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The
burden is on the defendant to show that the “error occurred and that the error was plain.”
Id. “An error is plain if it was clear or obvious.” Id. (quotation omitted). “Usually this is
shown if the error contravenes case law, a rule, or a standard of conduct.” Id. If the
defendant demonstrates plain error, then the burd en shifts to the state to show its
misconduct did not prejudice the jury. Id. at 299-300.
A. Vouching for BCA analyst
Appellant argues that he is entitled to a new trial because the prosecutor
inappropriately vouched for the BCA analyst’ s credibility by telling the jury to “assume”
and “trust” that the BCA analysist “was telling the truth.” We are not persuaded.
“It is improper for a prosecutor in clos ing argument to personally endorse the
credibility of witnesses.” State v. Porter , 526 N.W.2d 359, 364 (Minn. 1995).
“Prosecutorial misconduct occurs when the [prosecutor] implies a guarantee of a witness’s
truthfulness.” State v. Jackson, 773 N.W.2d 111, 123 (Minn. 2009) (quotation omitted).
“While a prosecutor must not personally endorse a witness’s credibility, the State may, in
closing argument, argue that a witness was or was not credible.” Id.
We conclude that the comments at issue amounted to an impermissible guarantee of
the analysist’s truthfulness. Because appellant has established error that is plain, the burden
shifts to the state to show that the misconduct did not prejudice the jury. See Ramey, 721
N.W.2d at 299-300. In light of the strength of the state’s case, the district court’s numerous
instructions to the jury that it was their duty to determine witness credibility, and the fact
8
that these comments only comprised a small part of the prosecutor’s closing argument, we
further conclude that there is no reasonable likelihood that such isolated comments had an
impact on the jury’s decisions to believe the analyst’s testimony and find appellant guilty.
See State v. Swanson, 707 N.W.2d 645, 656 (Minn. 2006).
B. Facts not in evidence
Appellant argues that the prosecutor’s comments about how appellant (1) might
have obtained the gun; (2) atte mpted to conceal the gun in the vehicle; and (3) possessed
the gun were speculation on facts not in evidence. We disagree.
“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.” State
v. McArthur , 730 N.W.2d 44, 53 (Minn. 2007). However, a prosecutor may make
reasonable inferences from evid ence produced at trial. State v. Young, 710 N.W.2d 272,
281 (Minn. 2006).
Appellant first takes issue with a portion of closing argument where the prosecutor
suggested various ways in which appellant might have obtained the gun. We conclude, as
the state argues, that such comments were not intended to “fill the gaps” in the state’s case.
The state was not required to prove how appe llant acquired the gun, and the prosecutor’s
comments, when viewed in the context of the full closing argument, permissibly served to
reiterate that point.
Appellant next argues that the prosecutor committed misconduct by stating that “the
most likely thing that happened was . . . wh en [the vehicle’s occupants] saw the police
coming, [appellant] tossed [the gun] behind hi m to the right, and that’s where the cops
9
found it.” This statement did not constitute misconduct as it is a reasonable inference based
on the evidence. Therefore, appellant has failed to show error.
Appellant also claims that the prosec utor committed misconduct when explaining
that multiple people can constructively possess an item jointly. To illustrate this concept,
the prosecutor explained, “So if we have three people sitting in the car, [appellant and the
two other individuals], and they are passing a gun back and forth . . . that’s still possession
because possession can be joint.” Appe llant argues that these comments were
impermissible because the state offered no evidence to prove that appellant constructively
possessed the gun jointly with the other occupants. However, like the comments regarding
how appellant obtained the gun, when considered in the broader context of the prosecutor’s
closing argument, this statement was permissible.
C. Misstating the law and burden of proof
Appellant’s final prosecut orial-misconduct argument a sserts that the prosecutor
misstated the law of constructive possessi on and the state’s burden of proof. If
demonstrated, a prosecutor’s misstatement of the law or the burden of proof constitutes
prosecutorial misconduct. See State v. Strommen , 648 N.W.2d 681, 6 89 (Minn. 2002);
State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).
Appellant’s argument relies on two of the prosecutor’s statements: (1) “The statute
with the definition of possession has a very low threshold for what qualifies as possession,”
and (2) “I am not proving that [appellant] intended to rob somebody or shoot somebody—
or anything like that, just that he possessed a gun in the same way th at if a 16-year-old
touches a liquor bottle . . . the DNA on the liquor bottle is enough to prove possession.”
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These statements did not have the effect of misstatements of the law or the burden
of proof. First, as the state points out, the prosecutor’s low-threshold comment “was part
of his larger theme that there is a broad range of conduct that qualifies as possession.” A
review of the prosecutor’s opening and closin g statements supports this characterization.
As such, we disagree with appellant’s claim that such a statement “diluted” the state’s
burden to prove each element be yond a reasonable doubt. Si milarly, the prosecutor’s
liquor-bottle comment was not improper as the prosecutor was merely using defense
counsel’s own analogy to argue the strength of the state’s case and emphasize that “[t]here
is no legitimate explanation for how . . . anybody else’s DNA got on the gun.”
Affirmed.