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This opinion will be unpublished and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
A16-1764

State of Minnesota,
Respondent,

vs.

Martize Devone Roland,
Appellant

Filed August 28, 2017
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-15-35585

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Mark D. Nyvold, Special Assistant Public Defender, Fridley, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his conviction of possession of a firearm by a prohibited
person, arguing that the district court plainly erred in denying his motion for acquittal by

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applying the incorrect standard of review to the state’s circumstantial evidence, and abused
its discretion in instructing the jury on constructive possession. We affirm.
FACTS
On December 18, 2015, officers received a report of a gun fired in a residence. The
officers entered the residence and went to the basement staircase. The officers directed the
occupants of the basement to come up the stairs. Appellant Martize Devone Roland walked
up the stairs from the basement. An officer handcuffed Roland and found a live nine -
millimeter cartridge in Roland’s sweatshirt pocket during a pat search.
Officers went down into the basement and did not find anyone else. Under an
ottoman, officers found a black handgun with a r ound chambered in it. Next to the
handgun, officers found the handgun’s magazine , a plate, a straw, a digital scale, and a
credit card bearing Roland’s name. Roland was charged with possession of a firearm by a
prohibited person and possession of ammunition by a prohibited person.
At Roland’s jury trial, he stipulated that he is prohibited, under Minnesota law, from
possessing a firearm and ammunition. Officers testified regarding the events leading to the
discovery of the handgun and ammunition. A forensic scientist testified that six items were
submitted for DNA testing, including Roland’s DNA sample, swabs from the firearm and
its magazine, and swabs from the live cartridge. The handgun swab was the only item with
sufficient DNA present for profiling, and it included a mixture of DNA from five or more
individuals. Roland’s DNA could not be excluded as a possible contributor, although
27.6% of the general population could be excluded as contributors. Due to the complexity
of the mixture, the other five or more contributors could not be identified.

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Following the state’s case, Roland moved for judgment of acquitt al. The district
court denied the motion. Roland then testified that he went to the residence on the evening
of December 17 for a party. When he became intoxicated, he went to the basement to
sleep. Roland testified that he removed his gold hoodie before going to sleep. Roland
testified that when he woke up to the police calling him, he was covered with a black jacket
that did not belong to him and that he had never seen before. Roland similarly testified
that he had never seen the bull et found in the jacket pocket or the gun. Roland claimed
that he had not even been in the room where the ottoman was located. Roland testified that
he last saw his credit card on a table upstairs where he had used it to snort cocaine. Roland
testified that he did not put the gun or the credit card in the location where they were found.
The jury found Roland guilty of being a prohibited person in possession of a firearm
and not guilty of being a prohibited person in possession of ammunition. The district court
sentenced Roland to 60 months in prison. This appeal followed.
D E C I S I O N
Motion for judgment of acquittal
The district court denied Roland’s motion for judgment of acquittal at the close of
the state’s case, stating: “Viewing . . . the evidence in the light most favorable to the [s]tate,
I think a reasonable jury could conclude that there’s sufficient evidence in this case to find
[Roland] guilty.” Roland argues that the district court plainly erred by applying the
incorrect standard of review to the state’s circumstantial evidence.
“[W]hen a district court considers a motion for judgment of acquittal, it must apply
the same standard appellate courts use to review challenges to sufficiency of the evidence.”

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State v. Sam, 859 N.W.2d 825, 831 (Minn. App. 2015). When the state’s case rests largely
or entirely on circumstantial evidence, “there is sufficient evidence to sustain a conviction
if and only if ‘ no other reasonable, rational inferences [exist] that are inconsistent with
guilt.’” Id. (quoting State v. Al-Naseer, 788 N.W.2d 469, 474 (Minn. 2010)).
Because Roland did not object to the standard that the district court applied in ruling
on his motion for judgment of acquittal during trial, the district court’s alleged error may
be reviewed only for plain error. See State v. Schlienz, 774 N.W.2d 361, 365 (Minn. 2009)
(stating “unobjected-to error may be reviewed for plain error” ). Under the plain-error
analysis, there must be error that is plain, which affects substantial rights. State v. Simion,
745 N.W.2d 830, 843 (Minn. 2008). If these elements are present, this court considers
whether a new trial is necessary to ensure fairness and the integri ty of the judicial
proceedings. Id.
Because Sam states that, in a circumstantial-evidence case, the district court must
review a motion for judgment of acquitt al using a heightened standard, the district court
plainly erred when it concluded that: “Viewing . . . the evidence in the light most favorable
to the [s]tate . . . a reasonable jury could conclude that there’s su fficient evidence . . . to
find [Roland] guilty.” See 859 N.W.2d at 831; see also State v. Cao, 788 N.W.2d 710, 715
(Minn. 2010) (stating error is plain when it contravenes caselaw).
“[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). In applying the circumstantial -evidence standard, the court must first
identify the circumstances proved. Al-Naseer, 788 N.W.2d at 473. The court then

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determines “whether the circumsta nces proved are consistent with guilt and inconsistent
with any rational hypothesis except that of guilt.” State v. Silvernail, 831 N.W.2d 594, 599
(Minn. 2013 ) (quotation omitted) . 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.
Here, the circumstances proved are: (1) officers instructed occupants of the
basement to come up the stairs, (2) Roland walked up from the basement, (3) officers found
nobody else in the basement, (4) an officer found a black handgun with a round chambered
in it underneath an ottoman in the basement, (5) an officer found a credit card with Roland’s
name on it next to the handgun, (6) Roland could not be excluded as a possible contributor
to the DNA mixture on the handgun, and (7 ) 27.6% of the general population could be
excluded as contributing to the DNA on the handgun. These circumstances proved are
consistent with Roland possessing a handgun.
Roland argues that the state failed to pr ove that he resided in the home or had any
control over any part of the house. But the state did not need to prove that Roland resided
in the home or had control over the house to show that he constructively possessed a gun
found in the basement where he had been. Roland asserts that the circumstances proved
“do not exclude the reasonable inferences that one of the other three adults at the premises,
or person(s) unknown, had put the gun under the ottoman . . . , that Roland had never been
in that room, and that he thus had never previously had physical possession of the gun.”
But Roland fails to offer a reasonable alternative hypothesis based on the circumstances

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proved; rather, he is speculating about circumstances not proved, i.e., someone else putting
the gun under the ottoman and Roland not being in the specific room in the basement. See
State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (stating this court will not overturn a
conviction based on circumstantial evidenc e by relying on conjecture). R eview of
Roland’s motion for judgment of acquittal following the state’s case shows that had the
district court considered the motion under the heightened circumstantial-evidence standard,
it would still have denied the motion . Therefore, Roland’s substantial rights were not
affected and he fails to meet the plain-error test.
Jury instruction
Roland was convicted of possession of a firearm by a prohibited person. A person
who has been convicted of a crime of violence shall not be entitled to possess a firearm.
Minn. Stat. § 624.713, subd. 1(2) (2014). The statute does not define “possess,” but under
caselaw, “the state must establish either actual or constructive possession.” State v. Porter,
674 N.W.2d 424, 427 (Minn. App. 2004) . At trial, t he district court overruled Roland’s
objection to the jury instruction regarding constructive possession.
The district court instructed the jury on constructive possession: “ A person who is
not in actual possession of a thing but who knowingly has both the power and the intention
at a given time to exercise authority and control over it, either directly or through another
person, is then in constructive possession of it.” Roland argues that this instruction
“relieved the [s]tate of its burden to prove a completed act of possession.”
“District courts are allowed considerable latitude in the selection of language for
jury instructions.” State v. Ihle , 640 N.W.2d 910, 916 (Minn. 2002). Jury instructions

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must “fairly and adequately explain the law of the case.” Id. “[T]he court’s instructions
must define the crime charged and the court should explain the elements of th e offense
rather than simply read statutes.” Id. “An instruction is in error if it materially misstates
the law,” id., or “confuses” or “misleads” the jury. State v. Larson, 787 N.W.2d 592, 601
(Minn. 2010). This court “review[s] a district court’s de cision to give a requested jury
instruction for an abuse of discretion.” State v. Carridine , 812 N.W.2d 130, 142 (Minn.
2012).
Roland argues that the district court’s instruction misstated the law because it varied
from the definition of constructive p ossession stated in State v. Florine , 303 Minn. 1 03,
226 N.W.2d 609 (1975). In Florine, the defendant was convicted of unlawful possession
of cocaine. 303 Minn. at 103, 226 N.W.2d at 610. Because there was no evidence of actual
or physical possession, the supreme court reviewed whether there was sufficient evidence
of constructive possession. Id. at 104, 226 N.W.2d at 610. The supreme court explained:
The purpose of the constructive -possession doctrine 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 inference is strong that the defendant at
one time physically possessed the [item] and did not abandon
his possessory interest in the [item] but rather continued to
exercise dominion and control over it up to the time of the
arrest. Having in mind the purpose of the constructive -
possession doctrine, we beli eve that in order to prove
constructive possession the state should have to show (a) that
the police found the [item] 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 pl ace to which others
had access, there is a strong probability (inferable from other
evidence) that defendant was at the time consciously
exercising dominion and control over it.

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Id. at 104-05, 226 N.W.2d at 610-11 (citation omitted). The supreme court concluded that
there was sufficient evidence of constructive possession to support the conviction. Id. at
105, 226 N.W.2d at 611.
Roland claims that the district court’s instruction “erroneously allowed the [s]tate
to obtain a conviction based on constructive possession by not requiring proof of the act of
possession.” But the evidence in Florine that the supreme court concluded was sufficient
to prove constructive possession did not include an act. See id. at 103-05, 226 N.W.2d at
610-11. In Florine, an officer found cocaine in a packet on top of a notebook on the back
seat of an unlocked abandoned vehicle. Id. at 103, 226 N.W.2d at 610. In the vehicle, the
officer found several items belonging to the defendant. Id. at 103-04, 226 N.W.2d at 610.
While the defendant did not own the vehicle, the owner had left it with the defendant to
sell for him. Id. at 104, 226 N.W.2d at 610. Florine does not require an “act” of exercising
dominion and control to establish constructive possession; rather, it requires evidence that
the defendant was “consciously” exercising dominion and control. Id. at 105, 226 N.W.2d
at 611.
In State v. Owens, this court concluded: “It is apparent from the evidence in Florine
that constructive possession does not require an ‘act’ of exercising dominion and control.”
No. A16-0559, 2017 WL 958474, at *3 (Minn. App. Mar. 13, 2017). The district court’s
instruction on constructive possession in Owens was identical t o the instruction given in
this case and determined not to be erroneous. See id. at *2-3; see also State v. Nelson, No.
A09-956, 2010 WL 2484668, at *4 -5 (Min n. App. June 22, 2010) (holding identical

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instruction on constructive possession “fairly and accurately explained the law regardin g
constructive possession”), review denied (Minn. Aug. 24, 2010).
The district court’s instruction did not materially misstate the law or confuse or
mislead the jury. See Ihle, 640 N.W.2d at 916; Larson, 787 N.W.2d at 601. In fact, as the
prosecutor ar gued at trial, the instruction was less likely to confuse the jury than the
instruction Roland proposed. T he prosecutor stated: “[i]f you give the dominion and
control definition, undoubtedly the jury will always return with, can you tell us what
dominion and control means. It ’s just antiquated language.” The clar ity of the jury
instruction was recognized in Owens:
[T]he district court selected the language it used in its
constructive-possession instruction to avoid confusing the jury
by suggesting that proving constructive possession required
evidence of an “act” of e xercising dominion and control. . . .
Owens testified that he did not know that there was a gun in
the SUV. The instruction informed the jury that, in order to
consciously exercise domini on and control over the . . .
handgun, Owens needed to know that he had the power and the
intention to exercise authority and control over it; simply being
within reaching distance from the gun was not enough to prove
constructive possession.

2017 WL 9584 74, at *3. Similarly, here, Roland testified that he had not gone in to the
room where the ottoman was located and had never seen the gun before. The instruction
informed the jury that Roland needed to know that he had the power and the intention to
exercise authority and control over the gun in order to constructively possess it. The district
court did not abuse its discretion in instructing the jury on constructive possession.
Affirmed.