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This opinion will be unpublished and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
A17-0027

State of Minnesota,
Respondent,

vs.

Jesus Octavio Peralta,
Appellant.

Filed December 26, 2017
Affirmed
Smith, Tracy M., Judge

Pennington County District Court
File No. 57-CR-16-295

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Alan G. Rogalla, Pennington County Atto rney, Thief River Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Pr esiding Judge; Reilly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
During a search of appellant Jesus Oc tavio Peralta’s home, probation officers
discovered multiple bullets and a bag containing methamphetamine in his shared bedroom.

2
Peralta challenges his subsequent convictions of felon in possession of ammunition and
fifth-degree possession of a controlled substa nce, arguing that (1) the felon-in-possession
conviction violated his due process right s because ammunition was not listed as a
prohibited item on his conditions of release following a pr evious conviction, (2) the
evidence is insuffici ent to prove that Peralta constructively possessed the
methamphetamine, (3) the district court made a number of errors amounting to a violation
of Peralta’s right to a fair trial, (4) the di strict court abused its discretion in denying a
downward durational departure from the pres umptive prison sentence for felon in
possession of ammunition, and (5) the district court abused its discretion by functionally
imposing an upward durational departure for possession of a controlled substance when it
relied on an incorrect criminal history score. We affirm.
FACTS
In April 2016, probation officers searched the home that Peralta shared with his
then-girlfriend R.V. and their two minor child ren, after R.V. failed a urine test during a
routine visit with her probation officer. R.V. was present at the search, but Peralta was not.
R.V. informed the probation officers that Peralta would arrive home for lunch, but he never
returned. In fact, Peralta absconded to North Dakota, violating his release conditions from
a prior conviction. Authorities arrested him in North Dakota five days later.
In searching the home, the probation offi cers observed a camera-based security
system with an outdoor surveillance camera and monitors only in the master bedroom. The
master bedroom, shared by Peralta and R.V., was locked with a padlock. Probation officers
opened it with a key from R.V. In a chest of drawers in the bedroom, probation officers

3
found a bag containing a white crystalline substance (later tested positive for the presence
of methamphetamine) in the top drawer, wh ich also contained women’s clothing.
Probation officers also found four Winchester .30-30 bullets in another chest of drawers in
the bedroom’s walk-in closet. The closet contained other items, including tools and men’s
clothing.
Before trial, Peralta filed a motion asking the district court to allow him to admit
into evidence the conditions-of-release document that he had been given by the department
of corrections upon his release from prison. That document stated that Peralta “must not
purchase or otherwise obtain or have in possession any ty pe of firearm or dangerous
weapon.” Peralta wanted to show that th e document did not iden tify “ammunition” as a
prohibited item. The district court denied the motion.
The jury found Peralta guilty on both count s as charged. Between the verdict and
final sentencing hearing, the court received a presentence investigation report and two
criminal-history worksheets. The second worksh eet corrected a mistake in the first
worksheet regarding Peralta’s cr iminal history score. The di strict court denied Peralta’s
motions for downward durational and di spositional departures, and imposed the
presumptive mandatory minimum sentence of 60 months in prison for the felon-in-
possession conviction and 17 months in prison for the possession-of-a-controlled-
substance conviction. The sentences were to be served concurrently.
Peralta appeals.

4
D E C I S I O N
I. The felon-in-possession-of-ammunition co nviction does not violate Peralta’s
due process rights.
Peralta asserts that his felon-in-possessi on conviction violates his procedural due
process rights because the department of co rrections document listing his conditions of
release, by not explicitly prohi biting his possession of ammun ition, affirmatively misled
him into believing that he was eligible to possess ammunition.1
This court reviews de novo whether the state has violated a defendant’s due process
rights. State v. Krause, 817 N.W.2d 136, 144 (Minn. 2012). The Due Process Clause of
the United States Constitution guarantees that no state shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The due
process protection provi ded under the Minnesota Constitu tion is identical to the due
process guaranteed under the Constitution of the United States.” Sartori v. Harnischfeger
Corp., 432 N.W.2d 448, 453 (Minn. 1988).
Due process prohibits representatives of the state from misleading individuals as to
their legal obligations. Whitten v. State, 690 N.W.2d 561, 565 (Minn. App. 2005) (citation
omitted). Minnesota “follows the long-established rule that a government may not

1 In his pretrial motion, Peralta did not seek dismissal of the felon-in-possession charge on
due-process grounds but rather sought leave to present evidence of his release conditions
to the jury to defend agains t the charge. Generally, “thi s court will address only those
issues that the record shows were presented to and cons idered by the district court.”
Ernster v. Scheele, 895 N.W.2d 262, 265 (M inn. App. 2017). But regardless of whether
the district court’s denial of Peralta’s motion encompassed a ruling on the constitutionality
of the ammunition charge, we may, on appeal, still address the issue. See State v. Mellett,
642 N.W.2d 779, 784 (Minn. App. 2002) (invoking Minn. R. Civ. App. P. 103.04 to review
constitutional challenge not raised in district court).

5
officially inform an individual that certai n conduct is permitted a nd then prosecute the
individual for engaging in that same conduct.” Id. at 564 (quotation omitted); see also
Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257 (1959) (reversing contempt convictions after
state commissioner informed defendants they had the right to refuse to answer questions).
In Whitten, this court held that the district court affirmatively misled the defendant
at his felony-probation-discharge hearing by informing him that “[the court is] restor[ing]
. . . all civil rights . . . the same as if said conviction had not taken place” and not checking
a box on the discharge form that barred Wh itten from possessing a firearm. 690 N.W.2d
at 562. We vacated Whitten’s subsequent felon-in-possession conviction because he was
convicted for “exercising a privilege which the State clearly had told him was available to
him . . . the most indefensible sort of entrapment.” Id. at 565 (quotation omitted) (citation
omitted).
Minnesota law bars Peralta from possessing ammunition. See Minn. Stat.
§ 624.713, subd. 1(2) (Supp. 2 015). Peralta’s conditions of release stated that he was
barred from “possess[ing] any type of fir earm or dangerous weapon” and did not list
ammunition. But merely failing to list a law th at Peralta must follow does not amount to
affirmatively misleading him about his rights. Unlike in Whitten, here no representative of
the state indicated in any manner to Peralta that he was exempt from the law prohibiting
violent offenders from possessing an item.
We conclude that Peralta’s conviction for felon-in-possession does not violate his
due-process rights because the state did not affirmatively mislead Peralta into thinking he
could legally possess ammunition.

6
II. Sufficient evidence supports Peralta’s co nviction of fifth-degree possession of
a controlled substance.
Peralta argues that circumstantial evidence presented at trial failed to support his
conviction of fifth-degree possession of a c ontrolled substance because a rational theory
exists that R.V. alone possessed the methamphetamine.
In considering a claim of insufficient evidence, this court conducts a thorough
analysis of the record to de termine whether the evidence, wh en viewed in the light most
favorable to the conviction, supports the conviction. State v. Ortega, 813 N.W.2d 86, 100
(Minn. 2012) (citation omitted). We 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). We will not disturb the verdict if the jury, acting with due regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt, could
reasonably find the defendant guilty. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.
2004).
To support a conviction of fifth-degree controlled-substance crime, the state must
prove that Peralta unlawfully possessed one or more mixtures containing
methamphetamine. Minn. Stat. §§ 152.02 (Supp. 2015), .025, subd. 2(a)(1) (2014). “[T]he
state must prove that [the] defendant consciously possessed . . . the substance and that [the]
defendant had actual knowledge of the nature of the substance.” State v. Florine , 303
Minn. 103, 104, 226 N.W.2d 609, 610 (1975).
When, as here, a controlled substance is not found on the defendant’s person, the
state must prove the defendant construc tively possessed it by showing (1) that the

7
controlled substance was in a place under the defendant’s exclusive control or (2) that there
is a strong probability that the defendant was, at the tim e of discovery, consciously
exercising dominion and control over the substance. Id. at 105, 226 N.W.2d at 611; State
v. Salyers , 858 N.W.2d 156, 159 (Minn. 2015) (n oting that Minnesota courts “have
consistently applied Florine’s analysis as the test for constructive possession”). The
constructive-possession doctrine allows a conviction where the state cannot prove actual
possession, but where “the inference is strong that the defendant physically possessed the
item at one time and did not abandon his possessory inte rest in it.” State v. Smith , 619
N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). Constructive
possession may be joint or exclusive. See State v. Ortega, 770 N.W.2d 145, 150 (Minn.
2009) (stating “[a] person may constructivel y possess contraband jointly with another
person”); Florine, 303 Minn. at 105, 226 N.W.2d at 611 (discussing exclusive control).
Knowing possession is typically proved through circumstantial evidence. State v.
Ali, 775 N.W.2d 914, 91 9 (Minn. App. 2009), review denied (Minn. Feb. 16, 2010). We
apply a two-step analysis when reviewin g a conviction supported by circumstantial
evidence. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, we identify the
circumstances proved, which are the circum stances supporting the jury’s verdict. Id. at
598-99. Second, we “determine whether the circumstances proved are consistent with guilt
and inconsistent with any rational hypothesis except that of guilt.” Id. at 599 (quotation
omitted). If the reasonable inferences are consistent with guilt, a defendant must point to
evidence in the record that is consistent with a rational hypothesis other than guilt. State
v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).

8
The circumstances proved here include the following: (1) Peralta lived at the home
with R.V. and shared the master bedr oom where probation officers found the
methamphetamine; (2) the entrance to Peralt a and R.V.’s home contained a surveillance
camera and the shared master be droom held the only monitor to view its footage; (3) the
shared master bedroom was locked with a pa dlock, and R.V. possessed a key to open it;
(4) probation officers found methamphetamine in the shared master bedroom in a dresser
drawer containing women’s undergarments; (5) there were tools, men’s clothing, and other
personal items presumed to belong to Peralta found throughout the shared master bedroom;
(6) Peralta was expected to re turn home for lunch on the da y of the search but instead
absconded to North Dakota in violation of his pr obation conditions; (7) Peralta had a
history of methamphetamine use.
We next consider whether the above circ umstances are consistent with Peralta’s
guilt. See Silvernail, 831 N.W.2d at 599. The securi ty system and the location of the
methamphetamine in Peralta’s locked bedroom lead to the reasonable inference that Peralta
constructively possessed the methamphetamine . Peralta also has a history of using
methamphetamine, from which the jury could r easonably infer he k nows what a bag of
methamphetamine looks like. Finally, because Peralta did not return home when he was
supposed to but instead absconded to North Dakota, the jury could reasonably infer that he
had purposefully absconded from the state be cause he knew what the probation officers
would find while searching his home. See State v. Bias , 419 N.W.2d 480, 485 (Minn.
1988) (“[E]vidence of flight suggests consci ousness of guilt.”). Together, all of these
circumstances allow a jury to reasonably infer that Peralta exercised dominion and control

9
over the substance in the bedroom sufficient to establish constructive possession of the
methamphetamine.
While Peralta acknowledges that the state presented evidence that he and R.V.
shared the master bedroom, Peralta asserts that this fact does not ru le out the reasonable
inference that R.V. alone possessed the methamphetamine. No deference is given to “the
fact finder’s choice between reasonable inferences.” State v. Andersen, 784 N.W.2d 320,
329-30 (Minn. 2010). “[I]f any one or more circumstances found proved are inconsistent
with guilt, or consistent with innocence, then a reasonable doubt as to guilt arises.” State
v. Al-Naseer, 788 N.W.2d 469, 474 (Minn. 2010) (quotation omitted).
“A person may constructively possess a controlled substance alone or with others.”
State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000), review denied (Minn. June 13,
2000). We concluded in Denison that the fact that marijuana was found in close proximity
to a wife’s personal effects in areas of the home over which she exercised at least joint
dominion and control with her husband was sufficient to establish joint constructive
possession and to support the conviction. Id. at 800. Likewise, here, although it may be
reasonable to infer from the circumstances that R.V. exercised dominion and control over
the substance, that inference is not inconsistent with Peralta’s guilt under the theory of joint
constructive possession.
Peralta argues that the fact that the methamphetamine was found in a drawer
containing women’s undergarments, especi ally in light of R.V.’s history of
methamphetamine use, leads to the reasona ble inference that R.V. alone knowingly
possessed it. But the narrow fact of the women’s clothing does not reasonably lead to the

10
inference of R.V.’s exclusive possession of th e substance in light of the totality of the
circumstances—specifically, that R.V. and Pe ralta shared the lock ed bedroom, and the
bedroom contained the personal effects of Peralta in close pr oximity to the dresser where
the substance was found. In addition, Peralta also had a history of methamphetamine use
and absconded the day of the search. This case is distinguishable from State v. Sam, cited
by Peralta, because in that case the defendant’s conviction was reversed when it was based
on constructive possession of a controlled substance found in the glove box of a borrowed
car, not in a home where the defendant resided. 859 N.W.2d 825, 835 (Minn. App. 2015).
Peralta argues that other inferences be sides knowledge of the methamphetamine
could be drawn from his absconding, specifically, that he fled because he feared retaliation
by his probation officers for a grievance he ha d filed earlier or because R.V. was using
methamphetamine. Even if these alternativ e inferences were supported by more than
conjecture, however, the fact of Pera lta’s absconding is just one among several
circumstances proved that are consistent w ith guilt. We are pe rsuaded that the only
reasonable inference from the circumstances proved is that Peralta constructively
possessed the methamphetamine join tly with R.V. On this re cord, we conclude that the
evidence is sufficient to prove beyond a reasonable do ubt that the Peralta knowingly
possessed a controlled substance.
III. The district court did not commit reversible plain error at trial.

Peralta next argues that the cumulative effect of alleged trial errors violated his right
to a fair trial. Peralta asse rts errors in the district c ourt’s evidentiary rulings, jury
instructions, and allowance of prosecutorial misconduct. Peralta failed to raise these issues

11
at trial; therefore, this court applies the pl ain-error standard. Minn. R. Crim. P. 31.02
(“Plain error affecting a substantial right can be considered by the court . . . on appeal even
if it was not brought to the trial court’s attention.”). The plain-error standard requires that
there be (1) error, (2) that was plain, and (3) that affected substantial rights. State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998). If we find the three plain-error prongs present, then
we should address the error only if we need to ensure the fairness and integrity of the
judicial proceedings. State v. Matthews, 779 N.W.2d 543, 549 (Minn. 2010).
As to the first and second prongs, an error is plain if it is “clear and obvious; usually
this means an error that violates or contradict s case law, a rule, or an applicable standard
of conduct.” Id. As to the third prong—whether the error affected substantial rights—we
must consider if the error was prejudicial and affected the outcome of the case. Id. Where
the alleged error is based on prosecutorial mi sconduct, however, the bu rden shifts to the
state to show that “there is no reasonable likelihood that the absence of the misconduct . . .
would have had a significant effect on the verdict.” State v. Ramey, 721 N.W.2d 294, 302
(Minn. 2006) (quotation omitted). If the claimed error did not affect substantial rights, we
need not consider the other plain-error factors. Montanaro v. State, 802 N.W.2d 726, 732
(Minn. 2011).
A. The court did not commit reversib le plain error in admitting the
officers’ testimony concerning constructive possession.
Peralta argues that the court erroneousl y admitted expert testimony from two law
enforcement officers who testified that th ey arrested Peralta for “constructively
possess[ing]” the ammunition and methamphetamine. He contends that admission of the

12
testimony was plain error because the testimony went to an element of the offense, was not
helpful to the jury, and usurped the jury’s role as factfinder.
First, we consider whether the district court erred. Courts may permit inquiry into
underlying facts when the defe ndant “introduc[es] certain mate rial . . . creat[ing] in the
[state] a right to respond with material that would otherwise have been inadmissible.” State
v. Guzman , 892 N.W.2d 801, 814 (Minn. 2017) (quotation omitted). Known as the
opening-the-door doctrine, this doctrine prevents either party from presenting the jury with
a “misleading or distorted re presentation of reality.” Id. at 815 (quotation omitted). A
district court does not plainly err by admitti ng otherwise impermissi ble testimony under
this doctrine. Id. (holding that the district court did not plainly err by finding that Guzman
opened the door to testimony a bout selling guns when on cr oss-examination the defense
asked a witness why inmates discuss money).
Here, on direct examination, neither witn ess opined whether they thought Peralta
constructively possessed the bullets or the me thamphetamine. But on cross-examination,
Peralta questioned each officer about whether they had witnessed or had any knowledge of
Peralta actually possessing the bullets or the methamphetamine. Similar to Guzman,
Peralta’s line of questioning “opened the door” for the st ate to clarify on redirect
examination why the officers arrested Peralta even though they had not found him in actual
possession of the items. The state elicited the officers’ opinions as to why they thought
they could arrest Peralta to clarify the implication of Peralta’s questioning that there could
be no basis for the arrest. Therefore, the district court did not commit error by admitting
the officers’ statements after Peralta “opened the door.”

13
Second, even if admission of the evidence was error, the error must also be plain.
“Minnesota’s rules of evidence permit expert opinion testimony on ultimate issues if such
testimony is helpful to the factfinder.” State v. Moore, 699 N.W.2d 733,740 (Minn. 2005).
Peralta has not cited any case holding that opinion testimony by a law-enforcement officer
that a defendant constructively possessed contraband is necessarily unhelpful and therefore
inadmissible, including in circumstances such as exist here. We conclude that any error
was not “clear and obvious.” See Matthews, 779 N.W.2d at 549.
Third, even if the district court did plai nly err, the error must have substantially
affected the verdict. When determining if erroneously admitted ev idence substantially
affected the verdict, we consider “(1) the manner in which the State presented the
testimony; (2) whether the testimony was highly persuasive; (3) whether the State used the
testimony in closing argument; and (4) whethe r the defense effectively countered the
testimony.” State v. Peltier , 874 N.W.2d 792, 802 (Minn. 2016) (citation omitted). In
analyzing these factors, we observe that th e state presented the testimony during redirect
examination after Peralta “opened the door ” and did not reference it during opening
statement; although the testimony was highly persuasive, the state presented other evidence
to persuade the jury of Peralta’s guilt; the state did not mention the testimony during closing
argument; and the defense had the opportuni ty to effectively recross-examine both
witnesses. The Peltier factors weigh against the conclusion that the officers’ testimony
substantially affected the verdict.
We conclude that Peralta has not satisfied the plain-error test regarding admission
of the officers’ testimony.

14
B. The court did not commit reversible plain error by failing to sua sponte
strike prior-bad-acts evidence.
Peralta argues that the court committ ed plain error by admitting into evidence
testimony concerning Peralta’s prior use of methamphetamine that had led to probation
violations.
Courts cannot admit evidence of a defendant’s prior bad acts, also known as Spreigl
evidence, to prove his or her pr opensity to act in conformity with a bad character. Minn.
R. Evid. 404(b); see State v. Spreigl, 272 Minn. 488, 490-91, 139 N.W.2d 167, 169 (1965).
Courts may admit Spreigl evidence to prove other relevant issues, such as knowledge. Id.
at 491, 139 N.W.2d at 169. But, for the evidence to be admissible, the state must, among
other things, give notice of its intent to admit the evidence and clearly indicate the purpose
of the evidence. State v. Ness, 707 N.W.2d 676, 686 (Minn. 2006).
Here, one of the state’s witnesses men tioned during redirect examination that
“Peralta has a history of methamphetamine use and has had some [probation] violations in
regards to that.” This testimony is the sole evidence concerning Peralta’s prior use of
methamphetamine, and Peralta did not object.
In State v. Vick, the Minnesota Supreme Court addressed a plain-error challenge to
admission of Spreigl evidence for which the state gave no notice and to which the defendant
made no objection. 632 N.W.2d 676, 685 (Minn. 2001). The supreme court explained that
the issue in those circumstances is “ not whether the trial court erred in admitting the
testimony, because the court was not given th e opportunity to make that decision.” Id.
Rather, “the precise question . . . is whether the trial court’s failure to sua sponte strike the

15
testimony or to provide a cautionary in struction constituted plain error.” Id. In rejecting
the defendant’s argument, the Vick court wrote that it was “not compelled to depart from
the rule that a trial court’s failure to sua sponte strike unnoticed Spreigl evidence or provide
a cautionary instruction is not ordinarily plain error.” Id. Peralta has not given us any
reason to depart from that rule here.
Even if the district court did plainly err, Peralta has not established that the failure
to strike the testimony or give a limiting inst ruction affected the out come of the case.
Peralta argues that the jury convicted him based on his propensity to possess
methamphetamine. But the prosecutor used this testimony to argue that Peralta knew what
methamphetamine was, when he stated in cl osing, “Obviously [Peralta] knew what meth
was. [Peralta has] been violated before for meth use.” The prosecutor did not suggest that
Peralta’s prior methamphetamine use should be used for a ny purpose other than showing
that he knew what methamphetamine was. That knowledge, along with other evidence,
tended to show that Peralta knowingly po ssessed methamphetamine when he jointly
possessed the substance discovere d in his bedroom. Using Spreigl evidence for a non-
propensity purpose did not affect Peralta’s substantial rights.
We conclude that the dist rict court did not commit reversible error by failing to sua
sponte strike testimony and issue a limiti ng instruction concerning Peralta’s prior
methamphetamine use.
C. The jury instructions did not materially misstate the law.
Peralta argues that the court committed pl ain error by instructing the jury improperly
about the knowledge requirement for constructive possession. District courts are allowed

16
“considerable latitude” in phrasing jury instructions. State v. Baird, 654 N.W.2d 105, 113
(Minn. 2002). Jury instructions are erroneous if they materially misstate the law. State v.
Hunter, 857 N.W.2d 537, 542 (Minn. App. 2014).
The district court instructed the ju ry regarding possession of ammunition,
explaining that an ineligible person who “knowingly possesses ammunition” is guilty of a
crime. The district court then explained that the first elem ent of the crime is that the
defendant “knowingly possessed ammunition or consciously exer cised dominion and
control over it.” The district court then read the definition of “possession,” to include both
actual possession and constructive possession. Th e court explained that “[a] person is in
actual possession of ammunition if he has it on his person or is exercising direct physical
control over the ammunition at a given time.” Next, the court explained that “[a] person is
in constructive possession of the ammunition if the ammunition 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, the person knowingly exercised dominion and control over the
ammunition.”
Peralta challenges two aspects of these instru ctions. First, he argues that the district
court’s use of “or” between “knowingl y possessed ammunition” and “consciously
exercised dominion and control over [ammuniti on]” when explaining the first element of
the offense erroneously indicated two alterna tive mens rea requirements. We agree that
the district court’s instruction was not precise. It discussed “knowing possession” and just
one type of constructive possession (consciously exercising dominion and control over the
substance). But while the inst ruction may not have been preci se, neither is it materially

17
wrong. Knowing possession does , in fact, establish guilt. State v. Harris , 895 N.W.2d
592, 601 (Minn. 2017). And so does constr uctive possession as defined by “consciously
or knowingly exercising dominion and control” over the item. Id. The district court did
not materially misstate the law when it used the disjunctive in this part of the instructions.
Second, Peralta argues that the district cour t erred in its instruction explaining actual
possession (relating to both the ammunition a nd the methamphetamine charges) because
the court made no reference to the knowledge requirement. As explained above, however,
the district court had already explained that a person is guilty if the person “knowingly
possesses ammunition” and had already di scussed “knowingly possess[ing]” or
“consciously exercis[ing] dominion and control.” Consistent with these instructions, actual
possession would have to be know ing. The district court thus did not materially misstate
the law by not repeating “knowing” when it described actual possession of ammunition,
and the district court carried over its in structions regarding actual possession to the
methamphetamine charge. In any event, this case was entirely a constructive-possession
case, so any error, even if plain, in instructing on actual possession did not prejudice Peralta
or substantially affect the outcome.
D. The prosecutor’s alleged misconduct did not affect Peralta’s substantial
rights.
Peralta argues that the state committed pr osecutorial misconduct by misleading the
jury about the law under which they could convict Peralta and that the court plainly erred
by not sua sponte striking the prosecutor’s remarks. Specifically, Peralta challenges the
prosecutor’s statement that “[t]he State belie ves that that was proven here today, that

18
[Peralta] was in constructive possession of methamphetamine. He exercised exclusive
control over where that methamphetamine was found, along with his girlfriend, and the
same with the ammunition, exclusive control, a locked bedroom in his castle.” Peralta
failed to object. As noted above, we apply a modified plain-error test to unobjected-to
prosecutorial misconduct, which places the bur den of establishing a lack of prejudice on
the state. Ramey, 721 N.W.2d at 302.
We need not analyze whether the distri ct court committed a plain error if the
prosecutor’s remarks during closing did not a ffect Peralta’s substantial rights under the
third prong. See Montanaro, 802 N.W.2d at 732 (“Accordingly, if we find that any one of
the [plain-error doctrine] requirements is not satisfied, we need not address any of the
others.”). In determining if a prosecutor’s remarks during closing affect a defendant’s
substantial rights, this court considers (1) the strength of the evidence against the defendant,
(2) the pervasiveness of the erroneous conduct, and (3) whether the defendant had a chance
to rebut any improper remarks. Peltier, 874 N.W. 2d at 805-06.
While the state lacked direct evidence agai nst Peralta, as previously explained, it
presented enough circumstantial evidence for the jury to re asonably find Peralta guilty of
controlled-substance crime on the ground that he jointly exercised dominion and control
over the methamphetamine. The same is true regarding the ammunition, which Peralta
does not contest. Moreover, any alleged misstatement of law was not pervasive throughout
the state’s closing. While the state may not have articulated the knowingly-possesses
element clearly, it nonetheless did not pervasivel y misstate the law. In addition, Peralta
had a chance to rebut any confusing statements in the state’s closing argument, and, indeed,

19
did so. Defense counsel, in closing argument acknowledged that the state had correctly
referenced the knowledge requirement, stating, “You’ve been instructed [that constructive
possession requires knowledge] by the judge, and [the prosecutor] referenced that fact in
her closing argument.” Peralta’s acknowledgeme nt that the district court instructed on
knowledge and that the state correctly referred to the know ledge requirement undercuts
Peralta’s argument that any alleged misstatements substantially affected the verdict. State
v. Taylor , 869 N.W.2d 1, 19 (Minn. 2015) (hol ding defendant’s substantial rights
unaffected where court failed to sua sponte strike improper te stimony but the proper jury
instructions corrected any confusion). We conclude that any alleged erroneous statements
by the state in its closing argument did not affect Peralta’s substantial rights.
IV. The district court did not abuse its discretion by denying Peralta’s motion for
a downward durational departure in sentencing for felon in possession.

Peralta argues that his conduct represents significantly less-serious conduct than
typically involved in committing a felon-in- possession offense and provides a substantial
and compelling reason to depart durationally from the sentencing guidelines.
We apply an abuse-of-discretion standard to a sentencing court’s decision to deny a
motion for a downward sentencing departure. State v. Bertsch , 707 N.W.2d 660, 668
(Minn. 2006). We will affirm the imposition of a presumptive sentence when “the record
shows that the sentencing court carefully evaluated all the testimony and information
presented before making a determination.” State v. Johnson, 831 N.W.2d 917, 925 (Minn.
App. 2013) (quotation omitted), review denied (Minn. Sept. 17, 20 13). By affirming a
presumptive sentence, this court is merely stating that the di strict court acted within its

20
discretion. State v. Dokken, 487 N.W.2d 914, 918- 19 (Minn. App. 1992), review denied
(Minn. Sept. 30, 1992). Only a “rare case . . . warrant[s] reversal of the refusal to depart”
from a presumptive sentence. State v. Jackson, 749 N.W.2d 353, 360 (Minn. 2008).
This is not such a case. The presum ptive mandatory minimum sentence for
unlawfully possessing ammunition is a 60-mont h prison term. Minn. Stat. § 609.11,
subds. 5(b), 8(b), (2014), subd. 9 (Supp. 2015) (referencing Minn . Stat. § 624.713,
subd. 1(2) (Supp. 2015)). 2 The district court sentenced Peralta to the presumptive 60-
month sentence. The district court considered, and rejected, Peralta’s arguments that his
crime was significantly less se rious than the typical felon-in-possession offense, and the
record supports the district court’s conclusion. Peralta emphasizes that he possessed only
four bullets, and they were no t found with a weapon. But the felon-in-possession statute
does not require more than possession of amm unition to convict an offender—it does not
require a gun or an inte nt to endanger someone. See Minn. Stat. § 624.713, subd. 1(2).
Moreover, Peralta committed the offense while on supervised re lease. The district court
did not abuse its discretion by denying Peralta a downward durational departure.
V. The district court properly sentenced Peralta for possession of a controlled
substance.
The district court imposed a 17-month co ncurrent sentence for possession of a
controlled substance. At Pera lta’s sentencing hearings, the di strict court stated that 17

2 While Minn. Stat. § 609.11, subd. 9, was am ended in 2015, the change did not affect
Peralta’s conviction as requiring a mandatory-minimum sentence.

21
months was the presumptive sentence and the parties did not disagree. 3 On appeal,
however, Peralta argues that the district court based the sentence on an incorrect criminal-
history score and that the presumptive sentence based on his actual criminal-history score
was 15 months. By adding two months to th e presumptive sentence without finding any
aggravating circumstance, Peralta argues, the district court abused its discretion. The state
agrees.
Peralta and the state claim error based on a sentencing worksheet that listed Peralta’s
criminal-history score as thr ee. But the district court r eceived a revised sentencing
worksheet that listed Peralta’s criminal-history score as four, and at sentencing the district
court stated it was relying on the amended sentencing worksheet.
We do not discern error in the amended sentencing wo rksheet. The date of the
offense determines which sentencing guidelines apply. Minn. Sent. Guidelines 3.G (Supp.
2015). Peralta’s offense occurred in April 2016; therefore the 2015 sentencing guidelines
apply. See Minn. Sent. Guidelines (2016) (“[not] [e]ffective [until] August 1, 2016”). The
initial sentencing worksheet assi gned three criminal-history points based, in part, on the
determination that Peralta’s felon-in-possession offense had a severity level of three. But
the amended sentencing worksheet correctly adjusted the sever ity level of that offense to
six. Minn. Sent. Guidelines 5.A (Supp. 2015). Based on the adjusted severity level, the
sentencing worksheet changed Pe ralta’s criminal-history scor e from three to four. The

3 The presumptive sentence is a stayed term, but the district court granted Peralta’s request
to execute the sentence so he could serve it concurrently with his felon-in-possession
sentence. Minn. Sent. Guidelines 4.A. (Supp. 2015).

22
amended sentencing worksheet correctly lists fifth-degree possession as a severity-level
two offense. A severity-level two offense with a criminal-history score of four carries a
presumptive (stayed) sentence of 17 months. Minn. Sent. Guidelines 4.A (Supp. 2015).
Thus, the district court imposed the proper pr esumptive sentence based on the corrected
criminal history score.
The parties do not identify, and we not disc ern, any error in the calculations in the
amended sentencing worksheet or in the di strict court’s reliance on that worksheet.
Without a basis in the record to support the parties’ claim of error, we cannot conclude that
district court abused its discretion. See State v. Hannuksela , 452 N.W.2d 668, 673 n.7
(Minn. 1990) (“[I]t is the responsibility of appe llate courts to decide cases in accordance
with law, and that responsibility is not to be diluted by counsel’s oversights . . . .”) (citation
omitted).
Affirmed.