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This opinion will be unpublished and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
A17-0157

State of Minnesota,
Respondent,

vs.

Kenneth James Harrison, Jr.,
Appellant.

Filed December 26, 2017
Affirmed
Rodenberg, Judge

Beltrami County District Court
File No. 04-CR-16-891

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

David P. Frank, Interim Beltrami County Attorney, Bemidji, 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 Worke, Presid ing Judge; Rodenberg, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Kenneth James Harrison, Jr., ap peals from his convictions for possession
of a short-barreled shotgun, felon in possession of a firear m, and fifth-degree possession
of methamphetamine, arguing that the evidence is insufficient to prove that he possessed

2
either the methamphetamine or the shotgun. Appellant also appeals his 120-month
sentence, arguing that the district court erred by accepting the state’s tardy Blakely notice
and that the sentence unfairly exaggerates his criminality. We affirm.
FACTS
On March 18, 2016, around 3:00 a.m., Leec h Lake Tribal Police Officers received
a report of multiple gunshots being fired. Sergeant Vincent Brown and Officer Anthony
Hanson, among others, responded to the call. Upon arriving to the general area where the
gunshots were reported, the officers dispersed to investigate. Eventually, Officer Hanson
radioed the other officers to report that a ca r had quickly reversed course away from him
as he approached it. Officer Hanson followe d the car, but lost sight of it when it pulled
into a driveway.
Sergeant Brown joined Offi cer Hanson about a minute la ter and the two officers
saw appellant walking down the driveway. Th e officers ordered appellant to show his
hands and to walk toward the squad cars. Appellant showed his ha nds, but did not walk
toward the squad cars, so Sergeant Brown and Officer Hanson approached him. Appellant
appeared intoxicated based on his speech, balance, and breath. The officers pat-searched
appellant’s clothing and did not find any weapons. They then detained appellant in Officer
Hanson’s squad car.
After appellant was detained, Sergeant Brown followed appe llant’s footprints
through the “fresh layer of snow on the grou nd that had just fallen.” Sergeant Brown
testified that he was sure that the footprints were appellant’s because he had seen appellant
walking on the driveway and there was only on e set of footprints in the fresh snow.

3
Sergeant Brown followed the footprints direc tly to the front passenge r’s side door of a
black GMC Yukon, parked in front of a trailer house. Sergeant Brown shined his flashlight
into the front passenger’s side window and saw a shotgun with a sawed-off barrel on the
left side of the front passenger seat, leaning against the center console.
Sergeant Brown walked around to the driv er’s side of the Yukon and noticed a
second distinct set of footprints leading from the driver’s door. Sergeant Brown followed
these footprints through the w oods to a house. He there found a man he recognized as
Randall Stangler. Stangler also appeared into xicated. Slurring his words, Stangler asked
Sergeant Brown what he wanted. Sergeant Br own detained Stangler, matched Stangler’s
shoes to the shoe prints that led to the house from the driver’s side door of the Yukon.
Stangler was detained in a squad car near the Yukon. It was later discovered that the license
plates on the Yukon were registered to a different vehicle titled in Stangler’s name.
Sergeant Brown returned to the Yukon and photographed the car’s interior, its
exterior, and the shotgun near the front passe nger’s seat. Sergeant Brown also saw some
cash, several shotgun rounds, a .38-caliber ro und, a lighter, and a wallet, all on the front
passenger’s seat. Sergeant Brown testified that the wallet was located directly next to the
shotgun; it contained a debit card and a Le ech Lake tribal iden tification card, both
identifying appellant. Upon closer inspecti on of the shotgun, Sergeant Brown saw that
there was a spent 12-guage shell in the chamber and one live round in the magazine.
Sergeant Brown also noticed a grey object near the passenger-side doorjamb, which
looked to him like a makeup cas e. Inside the grey case, Sergeant Brown found a bag
containing a crystal-like substance. The substance field tested positive as

4
methamphetamine, and was later confirmed as such by the Bu reau of Criminal
Apprehension (BCA). In the glove compartment of the vehicle, Sergeant Brown located a
snort tube which he said is us ed to ingest drugs or to scoop drugs into smaller bags.
Sergeant Brown also found a bag of marijuana in the driver’s side door pocket.
From this evidence, police concluded that Stangler had been the driver of the Yukon,
with appellant sitting in the front passenger’s seat. Police did not see appellant holding the
shotgun or sitting in the passenger’s seat of the car.
Sergeant Brown requested DNA testing on the shotgun and got a search warrant to
take buccal swabs from appellant and Stangler for comparison. The BCA found that the
DNA profile from the shotgun grips belonged to two or more individuals, but that the
partial major DNA profile matched appellant and not Stangler. Similarly, the DNA profile
found on the shotgun’s pump action was a mixture of three or more persons’ DNA, and the
partial major DNA profile matched appellant and not Stangler. The BCA’s expert noted
at trial that it is not uncommon to find DN A mixtures on inanimate objects because such
objects are touched by multiple people when th ey are moved. She also noted that it is
possible for a secondary transfer of DNA to occur when one person touches an object after
touching another person.
Appellant was charged with one count of possession of a short-barreled shotgun
under Minn. Stat. § 609.67, subd. 2 (2014); one count of felon in possession of a firearm
under Minn. Stat. § 609.165, subd. 1b(a) (Supp. 2015); an d one count of fifth-degree
possession of methamphetamine under Minn. St at. § 152.025, subd. 2(a)(1) (2014). A
contested omnibus hearing was held on April 12, 2016, and, on April 21, 2016, the state

5
filed a Blakely notice, indicating its intent to seek an aggravated sentence. Appellant
challenged the timeliness of the state’s fili ng. The district court allowed the late Blakely
notice because there was still at least a month until trial, a ppellant had not yet entered a
plea, and there was no prejudice to appellant. At a hearing on May 20, 2016, the district
court re-articulated that there was no prejudice in allowing the state to seek an aggravated
sentence because it was based on appellant’s criminal history, which was already known
to appellant and would involve no special preparation.
Appellant testified at trial that he had consumed tequila and malt liquor with his
brother and Stangler before going to a bar. The three men drank and played pool at the
bar, and smoked marijuana as they left the bar around midnight. Ac cording to appellant,
they left in a Yukon Denali and he was in the back of the car, with Stangler driving. The
next thing appellant remembered was Stangler shaking him awake in the back seat yelling
that the cops were there. Appellant testified that he got out of the back seat of the car. He
testified that he had no warrants and no reason to run. He also testified that he did not
know a gun was in the vehicle and had not seen a gun in it that night. He maintained that
he did not see the shotgun in the car that nigh t, touch the shotgun, or know that it was a
sawed-off shotgun. He also testified that he did not know there was methamphetamine in
the vehicle. Appellant stated that the only drugs in the car of which he was aware was the
marijuana. Appellant also testified that he does not know how his wallet ended up in the
front passenger seat. He said that he did not put it there.
A jury found appellant guilty of all three charged offenses. In the Blakely phase of
the trial, the jury found appellant to be a da nger to public safety . The district court

6
sentenced appellant to 120 months in pr ison on the felon-in-possession conviction, 1 a
double upward departure from the presumptive sentence of 60 months.
This appeal followed.
D E C I S I O N
I. The record evidence is su fficient to prove beyond a reasonable doubt that
appellant knowingly possessed both the methamphetamine and the shotgun.

In considering a claim of insufficient evidence, we thoroughly review the record “to
determine whether the evidence, when viewed in a light most favorable to the conviction,
was sufficient to permit th e jurors to reach the ve rdict that they did.” State v. Webb, 440
N.W.2d 426, 430 (Minn. 1989). We assume th at “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 factfinder, “acting with due regard for
the presumption of innocence and for the necessity of overcoming it by proof beyond a
reasonable doubt, could reasonably conclude that” the defendant was guilty of the charged
offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted).
A fact may be proven by direct or circum stantial evidence. “D irect evidence is
[e]vidence that is based on personal knowledge or observation and that, if true, proves a
fact without inference or presumption.” Bernhardt, 684 N.W.2d at 477 n.11 (quotation
omitted). Such evidence can be provided in the form of testimony by a person who
perceived the fact through his senses or physical evidence of the fact itself. State v.

1 Appellant was also sentenced for possessing a short-barreled shot gun (23 months) and
fifth-degree controlled substance crime (21 months) concurrent with this sentence.

7
Williams, 337 N.W.2d 387, 389 (Minn. 1983). In contrast, ci rcumstantial evidence is
“evidence from which the factfinde r can infer whether the facts in dispute existed or did
not exist.” State v. Harris , 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted).
“[C]ircumstantial evidence always requires an in ferential step to prove a fact that is not
required with direct evidence.” Id.
“Possession may either be actual or constructive.” State v. Barker, 888 N.W.2d 348,
353 (Minn. App. 2016). An item may be possessed jointly with another person. Harris,
895 N.W.2d at 601 (citing State v. Lee, 683 N.W.2d 309, 317 n.7 (Minn. 2004)). Actual
possession involves direct physical control. Barker, 888 N.W.2d at 353. “The mere fact
that an item is not in a defendant’s physical possession at the time of apprehension does
not preclude prosecution for actual possession of contraband.” Id. at 354. In contrast,
constructive possession involves an item bei ng “in a place under appellant’s exclusive
control to which other people do not normally have access, or that there is a strong
probability that appellant was, at the time of discovery, consciously exercising dominion
and control over” that item. State v. Sam, 859 N.W.2d 825, 833 (Minn. App. 2015).
A. The record evidence suffi ciently shows that appe llant constructively
possessed the methamphetamine.

The state agrees that it cannot prove appellant to have actually possessed the
methamphetamine. The record contains no direct evidence of actual possession. As such,
we review whether there is sufficient circum stantial evidence to prove that appellant
constructively possessed the methamphetamine.

8
“[A] conviction based entirely on circumst antial evidence merits stricter scrutiny
than convictions based in part on direct evidence.” State v. Jones, 516 N.W.2d 545, 549
(Minn. 1994). However, “[w]hile it warrants st ricter scrutiny, circumstantial evidence is
entitled to the same weight as direct evidence.” State v. Bauer , 598 N.W.2d 352, 370
(Minn. 1990). When the verdict is the result of circumstantial evidence, it “will be upheld
if the reasonable inferences from such eviden ce are consistent only with the defendant’s
guilt and inconsistent with any rational hy pothesis except that of his guilt.” Webb, 440
N.W.2d at 430. In other words, the “[c]ircumstantial 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.” State v. Al-
Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quoting State v. Taylor, 650 N.W.2d 190, 206
(Minn. 2002)).
In applying the circumstantial-evidence standard, we use a two-step analysis. State
v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013); Al-Naseer, 788 N.W.2d at 473-74. The
first step is to “determine the circumstances proved, giving due deference to the fact-finder
and construing the evidence in the light most favorable to the verdict.” Sam, 859 N.W.2d
at 833 (citing Silvernail, 831 N.W.2d at 599). Second, “we determine whether the
circumstances proved are consistent with guilt and inconsistent with any other rational or
reasonable hypothesis.” Id. (quotation omitted). This part of the analysis gives “no
deference to the fact finder’s choi ce between reasonable inferences.” Silvernail, 831
N.W.2d at 599.

9
Applying the first step of the circum stantial-evidence test, we determine the
circumstances proved in the light most favorabl e to the verdict. The state proved that
officers received a call for shots fired. Officer Hanson saw Stangler’s car quickly reverse
course away from him into a driveway. Sergeant Brown arrived on scene and saw appellant
walking down the driveway toward the squad cars. Sergeant Brown followed appellant’s
footprints in the fresh snow directly back to the passenger’s side door of the car. Through
the car window, Sergeant Brown saw a short-barreled shotgun re sting on the left side of
the front passenger’s seat. Sergeant Brown no ticed a separate set of footprints leading
away from the driver’s door, followed them, and found the intoxicated Stangler. Sergeant
Brown searched the car where, on the front passenger’s seat, he found cash, miscellaneous
shotgun rounds, a .38-caliber round, a lighte r, and a wallet containing appellant’s tribal
identification card and debit card. A grey case containing methamphetamine was found on
the passenger’s side doorjamb. A DNA test of the shotgun later revealed DNA consistent
with appellant’s profile, but no t consistent with Stangler’s profile, on both the grip and
pump action of the shotgun.
Next, we consider “whether the circumstances proved are consistent with guilt and
inconsistent with any other rati onal or reasonable hypothesis.” Sam, 859 N.W.2d at 833
(citing Silvernail, 831 N.W.2d at 599). Relying on State v. Sam, appellant contends that
these circumstances are consistent with a r easonable inference that he did not know that
the methamphetamine was in the car or th at Stangler threw the case containing
methamphetamine towards the passenger’s door before fleeing from the car. But, this case
is unlike Sam. There, the defendant was the driver of a borrowed car in which

10
methamphetamine was found inside the glove compartment on the passenger’s side of the
car. 859 N.W.2d at 828-29. In Sam, a passenger sitting directly in front of that glove
compartment had other methamphetamine on his person. Id. at 834. Here, there is no
corresponding evidence. The footprints and th e other items left on the passenger’s seat
unequivocally indicate that appellant was the front-seat passenger in the vehicle. There is
no evidence consistent with th e jury’s verdict of a third occupant of the vehicle. The
methamphetamine was found on the doorjamb of the passenger’s side door, right next to
where appellant was seated.
In Sam, we expressly emphasized that there was no evidence tying the defendant
directly to the methamphetamine, and contrast ed the facts there w ith other cases where
“effects identifying the defendant were found near or on the items.” Id. at 835. This is a
case of the latter sort. A wallet containing appellant’s tribal identification card and a debit
card with appellant’s name on it was fou nd on the passenger seat, near where the
methamphetamine was found. While one can conjure up scenarios that might account for
this confluence of circumstances that migh t be inconsistent with appellant’s guilt,
speculation is not a permissible basis on which to find reasonable doubt. Al-Nasseer, 788
N.W.2d at 473. And, in find ing appellant guilty, the jury n ecessarily rejected appellant’s
testimony that he had been in the back seat of the Yukon and not where the drugs and gun
were located by police. The facts and circum stances proved here, considered in light of
the jury’s verdict, lead dire ctly to appellant’s guilt and ar e inconsistent with any other
reasonable hypothesis.

11
B. The record evidence is sufficient to prove beyond a reasonable doubt
that appellant possessed the shotgun.

Appellant’s conviction for possessing the shotgun rests primarily on circumstantial
evidence. Even under the circumstantial-evidence standard, the record evidence supports
the jury’s finding that appellant possessed the shotgun. Appellant agrees that the
circumstances proved are consiste nt with guilt, but argues that there is also a reasonable
inference of innocence: that his DNA eith er got onto the shotgun through secondary
transfer when Sergeant Brown detained hi m and patted him down before touching the
shotgun, or the DNA had been on the weapon for a long period of time. Appellant claims
that Stangler may have been the one to put the shotgun next to the passenger seat.
The circumstances proved render appellant ’s hypotheses unreasonable. First,
Sergeant Brown testified that he was wearing leather gloves when he detained and patted
appellant down, but wore latex gloves when searching the car to avoid transferring DNA.
Viewing the evidence in the light most favorable to the verdict, we regard the jury as having
accepted this testimony as true. Second, Sergea nt Brown also touched Stangler to detain
him before searching the car and handling th e shotgun, but after detaining and patting
appellant down. While DNA consistent with appellant’s profile was on the grip and pump
action of the shotgun, no DNA consistent with Stangler’s profile was present. It is
unreasonable to infer that appellant’s DNA would appear on the shotgun through secondary
transfer but Stangler’s would not, especially since Sergeant Brown touched Stangler closer
in time to handling the shotgun than he did appellant. Finally, while appellant claims that
the DNA could have been on the shotgun for a long time, when he was asked on direct

12
examination if he had ever seen the shotgun before, he responded, “No.” He then said that
he may have seen it weeks before. On cross-examination, he said he “didn’t touch it” when
asked if he had ever touched the shotgun. These statements belie appellant’s assertion that
his DNA might have been on the gun from an earlier occasion before the night he was
arrested.
The record evidence forms “a complete chain that, in vi ew 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.” Al-Naseer, 788 N.W.2d at 473 (quotation
omitted). Here, “the jury, acting with due regard for the presumption of innocence and for
the necessity of overcoming it by proof be yond a reasonable do ubt, could reasonably
conclude that” the appellant knowingly po ssessed both the methamphetamine and the
shotgun. Bernhardt, 684 N.W.2d at 476.
II. The district court did not err by allowing the state to submit a notice of intent
to seek an aggravated sentence after the omnibus hearing.

Minnesota Rule of Criminal Procedure 7. 03 provides that the state “must give
written notice at least seven days before the omnibus hearing of intent to seek an aggravated
sentence,” also referred to as a Blakely notice. Minn. R. Crim. P. 7.03, cmt. The rule
allows notice to be given later “if permitted by the court on good cause and on conditions
that will not unfairly prejudice the defendan t.” Minn. R. Crim. P. 7.03. “Because the
construction of procedural rules is reviewed de novo, we review de novo whether the notice
in this case fulfills that required in the rules.” State v. Robideau , 817 N.W.2d 180, 188
(Minn. 2012).

13
It is undisputed that the state filed notice of its intent to seek an aggravating factor
outside of the timeline set forth in Rule 7.03. Despite this, the distri ct court stated that
there was no prejudice to appellant because there would be a contested hearing before trial
“to hear the issue on whether the aggravated sentencing will be allowed.” This hearing
was held on May 20, 2016. At the May 20 hear ing, appellant raised the issue of whether
there was good cause for the late notice, and the district cour t repeated that there was no
prejudice because the notice was filed a mont h before the trial da te, appellant and his
attorney knew appellant’s criminal history already, and it would not take much additional
time for appellant’s attorney to prepare to handle the aggravated-sentencing issue.
Appellant had the opportunity to contest the late notice. The district court allowed
the late notice, implicitly finding good cause as allowed by rule 7.03, and explicitly stating
that the late filing would not prejudice appellant. The district court did not err by accepting
the Blakely notice after the omnibus hearing.
III. The district court acted within its discretion in imposing a 120-month sentence.

“We ‘afford the [district] court great discretion in the imposition of sentences’ and
reverse sentencing decisions only for an abuse of that discretion.” State v. Soto , 855
N.W.2d 303, 307-08 (Minn. 2014) (quoting State v. Spain , 590 N.W.2d 85, 88 (Minn.
1999)). A sentencing court may depart from th e guidelines only when an aggravating or
mitigating circumstance is present and that circumstance provides a “substantial and
compelling” reason for the departure. Soto, 855 N.W.2d at 308 (citation omitted). “A
district court abuses its discretion when its reasons for departure are improper or
inadequate.” State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017).

14
The question of whether a st ated reason for departure is a proper one is a question
of law. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010), review denied (Minn.
July 20, 2010). “Once we determine as a matter of law that the district court has identified
proper grounds justifying a challenged departure, we review its decision whether to depart
for an abuse of discretion.” Id. This review is “extremely deferential.” Id. at 595-96. “If
the reasons given for an upward departure are legally permissible and factually supported
in the record, the departure will be affirmed.” State v. Hicks, 864 N.W.2d 153, 156 (Minn.
2015). “We have generally deferred entirely to the district court’s judgment on the proper
length of departures that result in sentences of up to double the presumptive term.” Dillon,
781 N.W.2d at 596.
Generally, in order to depart from the presumptive guidelines range, the offense
must involve “substantial and compelling circumstances.” State v. Jones, 745 N.W.2d 845,
848 (Minn. 2008). “Substantial and compe lling circumstances are those demonstrating
that ‘the defendant’s conduct in the offense of conviction was significantly more or less
serious than that typically involved in the commission of the crime in question.’” Id.
(quoting State v. Misquadace , 644 N.W.2d 65, 69 (Minn. 2002)). However, under the
dangerous-offender statute, the supreme court has stated that “[d]epartures under the statute
are justified on the basis of the offender’s criminal history, not on aggravating factors. In
addition, the terms of the statute do not limit the length of departures.” Neal v. State, 658
N.W.2d 536, 545 (Minn. 2003). The dangerous-offender statut e “authorizes the court to
impose a durational departure of any length, up to the statutory maximum, in all cases
where the offender satisfies the statute’s criteria.” Id. The district court need not find

15
“severe aggravating factors” to justify a de parture when the dangerous-offender statute’s
requirements have been met. Id. at 546.
Here, the jury found appe llant a danger to public safety based on his lengthy
criminal record. This jury finding authorized the district court to impose an upward
departure from the sentencing guidelines. The felon-in-possession statute, Minn. Stat.
§ 609.165, subd. 1b(a), under which appellant was sentenced, has a maximum sentence of
15 years, or 180 months. Appellant was sent enced to 120 months. Appellant’s sentence
is below the 180-month maximum sentence au thorized by Minn. St at. § 609.165, subd.
1b(a), up to which the district court had the discretion to go under the dangerous-offender
statute and Neal. And our review of the precise le ngth of a sentence within a legally
permissible range is “extremely deferential.” Dillon, 781 N.W.2d at 595-96. The district
court acted within its broad discretion in imposing a 120-month sentence.
Affirmed.