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This opinion will be unpublished and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
A17-0835

State of Minnesota,
Respondent,

vs.

Misty Rose Ann Johnson,
Appellant.

Filed May 7, 2018
Affirmed
Jesson, Judge

Isanti County District Court
File No. 30-CR-16-248

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

Jeffrey Edblad, Isanti County Attorney, Cambridge, Minnesota; and

Scott A. Hersey, Special Assistant Isanti County Attorney, St. Paul, Minnesota (fo r
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Jesson,
Judge.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
On a spring evening in Braham, sheriff’s deputies descended on a home where they
believed two men with felony arrest warrants were residing. Appellant Misty Rose Ann
Johnson was inside the home when the deputies arrived. The deputies knocked but failed
to get a response from inside the house, then broke down the door and found Johnson lying
on a couch, face-down, and covering a purse. After ordering Johnson to get up, deputies
discovered drugs in the purse and arrested her for fifth-degree possession of a contro lled
substance.
A jury found Johnson guilty , and she raises two arguments on appeal. First, she
argues that testimony from an officer at her trial contained improper comments constituting
reversible prosecutorial misconduct. Second, she argues that the evidence against her was
not sufficient to sustain the jury’s verdict. We affirm.
FACTS
In April 2016, Isanti County deputies arrived at a house in Braham, which they
believed housed two men with felony arrest warrants. As the deputies closed in on the
home, they saw one of the men step outside. The man glanced up, saw the approaching
squad car, then darted back inside the home. Appellant Misty Johnson also stepped out of
the house around this time but quickly retreated back inside after catching sigh t of law
enforcement.
The deputies secured the perimeter of the home and then began loudly knocking on
the front door. The y yelled directly to Johnson, saying that they were only there for the

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two men with warrants, not for her. Still, the door remained shut. After about ten minutes
of loudly knocking on the door and leaving messages on one of the resident’s telephone,
there was still no response. One of the deputies left to obtain a search warrant while others
remained on the scene.
It took an hour t o obtain a warrant to enter the home, but once it was in hand, the
deputies broke open the door after giving the occupants one last chance to let them inside,
but failing to get a response . They poured into the home with weapons drawn and split
their numbers between the upstairs and downstairs levels. Deputies entered the living room
and saw Johnson alone in the room, lying face-down on a couch with her eyes closed. They
noticed that Johnson’s hands were completely underneath her body and they yelled for her
to get up and show her hands. Johnson opened her eyes and slowly got up from the couch.
As she rose, deputies could see that her body had completely covered a purse, cell phone,
and a pair of scissors lying on the couch. Deputies observed that Johnson would have been
able to access the purse while she was lying on the couch because of the way her hands
were placed.
After attending to Johnson, deputies peered into the open purse and saw a baggie
with white residue. They believed the residue was methamphetamine because the deputies
knew that all three people inside the home —including Johnson—were methamphetamine
users. A field test showed the presence of methamphetamine which was later confirmed
by lab testing. There was no identifying information inside the purse.
Johnson was charged with one count of fifth -degree possession of a controlled
substance. At trial, one of the men inside the home testified that the purse belonged to

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Johnson and he had seen her carrying it. Johnson called her own witness who testified that
earlier on the day of the incident, he was helping Johnson move out and they loaded
Johnson’s purse , different from the one found on the couch, into a car well before the
deputies arrived.
The jury found Johnson guilty and the district court sentenced her to a year and a
day, but stayed execution of that sentence for five years. Johnson appeals.
D E C I S I O N
Johnson makes two arguments on appeal. First, that the trial prosecutor committed
misconduct by eliciting two improper statements from an officer-witness. Second, that the
evidence against her was insufficient to sustain her conviction . We address each issue in
turn.
I. The state did not commit reversible misconduct.

Johnson argues that the state committed prosecutorial misconduct by eliciting two
statements that tainted the jury against her. The first statement occurred during the
prosecution’s direct examination of an officer who was at the scene. The prosecutor asked
the officer what the deputies did after seeing Johnson and Mr. Collins go back into the
home and the officer responded:
At that time we got to the house myself, Investigator Carlson,
Lieutenant Olson and several other deputies arrived at the
home. We knew that Mr. Enger who also rented this house had
a warrant for his arrest. We knew Mr. Collins had a warrant
for his arrest and that Misty Johnson all had been there. We’re
all familiar with these three parties from previous cases.

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The second statement came later during the same direct examination. The prosecutor
showed the officer one of the baggies that contained the drugs and asked if the officer could
identify it. The officer replied,
Yes, sir. This is the smaller of the three baggies that was in the
purse. It had a slight white residue in it. At that time, I believed
it to be methamphetamine because I knew the history of these
three. They were methamphetamine users . So I tested it for
meth and it tested positive as indicated in the blue test kit.

The crux of Johnson’s argument is that both of these statements implied she was a drug
user, which was improper and prejudiced the jury against her. She argues that this
misconduct was severe enough to require reversal.
Johnson failed to obj ect to these comments at trial , which means we analyze her
claim through the plain -error standard. State v. Ramey , 721 N.W.2d 294, 29 7 (Minn.
2006). Under this standard, we may reverse if three things occur: there is error, the error
is plain, and the error affected the defendant’s substantial rights. Id. In a prosecutorial
misconduct case such as this, the burden is on Johnson to prove the first two elements —
that is, there was error and that error was plain. Id. at 299-300. If Johnson succeeds, then
the burden shifts to the state to disprove the third element —that the plain error did not
affect Johnson’s substantial rights. Id.
In its brief, the state appears to concede that these two statements were plain error.1
To counter Johnson’s claim of prosecutorial misconduct, the state centers its argument on

1 In its brief, the state largely avoids analyzing the first two plain-error elements and instead
moves into an analysis of the third factor concerning substantial rights. The state also
explicitly writes that one of the comments was certainly improper.

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showing that the misconduct did not affect Johnson’s substantial rights. To analyze
whether the comments affected substantial rights, we remove the misconduct from the case
and ask ourselves, is there a reasonable chance the jury would have come to a different
result? State v. Hill, 801 N.W.2d 646, 654 (Minn. 2011) (stating that a defendant’s
substantial rights are not violated if there is “no reasonable likelihood that the absence of
the misconduct in question would have had a significant effect on the verdict of the jury”
(internal quotation omitted)). To assess this, we consider three factors:
 The strength of the evidence against Johnson,

 The pervasiveness of the improper conduct, and

 Whether Johnson had an opportunity to rebut the prosecutor’s improper
suggestions.

Id. at 654-55. If we decide that Johnson’s substantial rights were affected, we then discuss
whether the error should be addressed in order to ensure the fairness and inte grity of the
judicial proceedings. Ramey, 721 N.W.2d at 302. We address each factor below.
The evidence against Johnson was strong
The record shows that deputies entered the home and found Johnson in the living
room, lying face -down on a couch , and with her hands completely underneath her. As
Johnson rose from the couch deputies were able to see a purse previously hidden
underneath her and accessible only to her. Finally, one of the other occupants of the house
testified that the purse belonged to Johnson and that he had previously seen her carrying it.
Johnson argues that the only evidence linking her to the purse is proximity. She
argues that it makes little sense for her to leap face-first onto the couch to cover a purse she

7
knows contains methamphetamine and then lie there for an hour while deputies knock on
the front door, yelling to be let in. But Johnson’s argument must be framed against the
strength of the evidence, and after reviewing the record, we believe the evidence against
Johnson was strong. Johnson was the only person in the room, her body was completely
covering the purse, her hands were positioned such that she had access to drugs inside the
purse, and one of the other members of the house testified that he pre viously saw Johnson
with the purse. Al l of these facts support Johnson’s possession of the purse when the
deputies entered.
And while Johnson’s disbelief that she would have leapt onto the purse is
understandable, our task is not to interpret the situat ion through the lens of skepticism.
Instead, we examine the overall evidentiary picture as it is painted in the record and ask, is
that evidence strong? We believe it is, and this factor weighs in favor of the state.
The misconduct was not pervasive
We next turn to the pervasiveness of the misconduct. There is no bright -line rule
for determining pervasiveness; it is analyzed on a case-by-case basis. For example, in State
v. Davis, a prosecutor’s improper questions on cross-examination were not pervasive where
any implication was not repeated during closing arguments and the improper subject only
occupied less than one page of 64 transcript pages. 735 N.W.2d 674, 682 (Minn. 2007).
Likewise in State v. Valentine, this court found that less than seven improper questions and
answers at trial were not pervasive enough to affect the defendant’s substantial rights. 787
N.W.2d 630, 642 (Minn. App. 2010), review denied (Minn. Nov. 16, 2010). By contrast,
a prosecutor’s improper questions were pervasive in State v. Mayhorn where at least 20

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transcript pages of the state’s 80 -page cross-examination covered improper matters. 72 0
N.W.2d 776, 791 (Minn. 2006).
In terms of numbers, Johnson complains about two statements made during her trial.
The first is a statement from one of the arresting officers who said that he was “familiar
with these three parties from previous cases.” But this statement was embedded in the
middle of a long er, narrative response. The second statement occurred later during the
same direct-examination where the prosecutor asked if the officer recognize d the baggie
that contained the methamphetamine.
Focusing on the numbers, the misconduct is three sentences that, in th eir
surrounding context, runs about half a page of transcript. The entire trial was
approximately 123 pages of transcript from openi ng statements to deliberation, meaning
that Johnson’s claim focuses on three allegedly improper sentences of transcript buried
within longer responses in a transcript totaling over one hundred pages.
Of course, the law does not require a statistical auditing of the improper conduct
inside a trial transcript in order to find a violation of substantial rights. A small but
prejudicial comment spoken in the middle of a lengthy trial has the potential to undermine
the entire proceeding. Johnson argues that this very situation occurred in State v. Strommen
and is similar to her case. 648 N.W.2d 681 (Minn. 2002). In Strommen, the supreme court
reversed a defendant’s conviction because of two improper statements made during trial.
Id. at 687-88. The first was an accomplice’s remark that the defendant had “killed
somebody” in the past. Id. at 684. The second was an officer’s testimony that he
recognized the defendant “[f]rom . . . prior contacts and incidents.” Id. at 685.

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In this case, neither statement Johnson complains of was as prejudicial and
suggestive as the accomplice’s remark in Strommen. In particular, a comment t hat the
defendant killed someone in the past is substantially more prejudicial than informing the
jury that the defendant is a drug user. Here, the two improper comments were fleeting and
buried in longer narrative s. And while we do not mean to diminish the fact that these
remarks were improper, we believe that in the context of the entire length of trial, they
were not especially pervasive. For these reasons we conclude that this factor also weighs
slightly in favor of the state.
Johnson had an opportunity to rebut the improper suggestions

Finally, we examine whether Johnson had an opportunity to rebut the improper
comments. Johnson did not object to these comments at the time, but at the end of cross -
examination the parties held a private bench conference that resulted in the court giving an
instruction cautioning the jury that it should not convict Johnson for anything other than
the underlying offense. This suggests that not only did Johnson have an opportunity to
rebut the improper stateme nts, her counsel recognized this and made a strategic decision
to request a cautionary instruction. This allowed the court to address the impropriety and
remind the jurors of their duties, but kept the focus away from these statements. We
generally presume that jurors follow a court’s cautionary instructions. State v. Clark, 755
N.W.2d 241, 261 (Minn. 2008). Although a cautionary instruction is not a panacea, its
presence in this case and the circumstances in how it was used tilt our a nalysis more
favorably towards the state. Because Johnson had the opportunity to rebut the suggestions,
we believe this factor falls in the state’s favor.

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Overall, we conclude that the evidence against Johnson was strong, the improper
statements were not pervasive throughout the trial, and Johnson had an opportunity to rebut
their impact . Viewed against the background of the case and the e vidence, we do not
believe these comments affected Johnson’s substantial rights and therefore, the comments
do not rise to the level of reversible misconduct.
II. The evidence against Johnson was sufficient to sustain her conviction.

Johnson also argues that the evidence against her was insufficient for the jury to find
her guilty. Her argument rests on two critical presumptions. First, Johnson presumes that
the case against her was for constructive —rather than actual —possession. Second, she
presumes that the evidence against her was only circumstantial, which implicates a higher
standard of review on appeal. Before addressing whether the evidence against Johnson
was sufficient, we will first address both presumptions.
Johnson’s case involves actual possession

Johnson’s first presumption for her sufficiency-of-the-evidence argument is that the
case against her was only proved by constructive possession, not actual possession. Actual
possession (sometimes referred to as physical possession) means that the person had “direct
physical control” over contraband. State v. Barker , 888 N.W.2d 348, 353 (Minn . App.
2016) (quoting Jacobson v. Aetna Cas. & Sur. Co. , 233 Minn. 383, 388, 46 N.W.2d 868,
871 (1951)). On the other hand, c onstructive possession can be established either (1) by
proof that the item was in a place under the defendant ’s “exclusive control to which other
people did not normally have access” or (2) by proof of a strong probability that the
“defendant was at the time consciously exercising dominion and control over it,” even if

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the item was in a place to which others had access. Id. at 353-54 (quoting State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975)).
The case against Johnson was proved by actual possession. Although deputies never
saw Johnson physically clasping the baggie of drugs in her hands, they did not need to.
Actual possession can be proven even though the contraband was not in the defendant’ s
physical possession at the time she was apprehended. Barker, 888 at 354; see also State v.
Molnau, 904 N.W.2d 449, 453 (Minn. 2017) (upholding defendant’s conviction for
possession of a controlled substance where police searched defendant’s unattended p urse
during the execution of a search warrant). Deputies saw Johnson lying on top of the purse
containing the drugs and had her hands underneath her and in a position to access the purse.
This was enough to illustrate that Johnson had “direct physical co ntrol” over the purse,
meaning that she was in actual possession of the drugs. Barker, 888 N.W.2d at 353.
There was direct evidence against Johnson

Johnson’s sufficiency -of-the-evidence argument also presumes that the deputies’
eyewitness testimonies were circumstantial evidence instead of direct evidence.
Circumstantial evidence is evidence “from which the factfinder can infer whether the facts
in dispute existed or did not exist.” State v. Harris , 895 N.W. 2d 592, 599 (Minn. 2017)
(citations omitted). Circumstantial evidence “always requires an inferential step to prove
a fact that is not required with direct evidence.” Id. In contrast, direct evidence is “based
on personal knowledge or observation and th at, if true, proves a fact without inference or
presumption.” Id. (citation omitted).

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Deputies testified that they observed Johnson lying face -down on a couch with her
entire body concealing the purse containing the baggie of methamphetamine. They also
testified that she was the only one in the room when they saw her, a nd a witness testified
that the purse belonged to Johnson. Johnson believes this is circumstantial evidence
because “there is dispute about the inferences that can be made from those circumstances.”
But this confuses an inference of the facts proved by the e vidence with an alternative
explanation of what those facts could mean. All evidence contains some inference, and as
this court recently stated, “even with eyewitness testimony, the factfinder must make some
inferences in considering the testimony, such as whether the witness’s memory is accurate,
whether the witness accurately perceived the subject of the testimony, and even whether
the witness is telling the truth.” State v. Brazil, 906 N.W.2d 274, 279 (Minn. App. 2017).
The fact that some inference is required in order for the jury to be able to interpret that
evidence does not mean that the evidence is circumstantial. Id.
The officers in this case directly observed Johnson lying on the couch and on top of
the purse containing drugs . There is no di spute about these facts, and therefore, no
inference required to prove these facts . While Johnson speculates about the “why” and
“how” she ended up in that situation, these are not disputes about the observed facts. For
this reason, we conclude that the eyewitness observations were direct evidence that
Johnson was in possession of the purse and, therefore, in possession of the drugs inside
that purse.

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The evidence against Johnson was sufficient

In considering whether the evidence against Johnson was sufficient to support her
conviction, we ask if the evidence was sufficient to allow the jury to reach its verdict. State
v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We view the evidence with a favorable eye
towards that verdict and assume the jury believed the state’s witnesses and disbelieved any
contradictory evidence. Id.; State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will
not disturb the verdict if the jury could reasonably conclude that the defendant was guilty
of the charged offense while taking seriously the presumption of innocence and the need
for proof beyond a reasonable doubt. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.
2004).
With an eye in favor of the verdict, and assu ming that the jury believed the state’s
witnesses while disbelieving any contrary evidence, we conclude the jury’s verdict was
reasonable in light of the evidence. We have already detailed the evidence against Johnson
in our previous discussion, but it bears repeating that Johnson was seen lying on top of the
purse containing the drugs in a room by herself with her ownership of the purse vouched
for by another occupant of the home. Even taking into account the presumption of
innocence, the jury acted reasonably in reaching its verdict. For this reason, we conclude
that the evidence against Johnson is sufficient to sustain her conviction.
Although the witness’s statements that Johnson was a known methamphetamine
user were clearly improper, we do not believ e they seriously affected Johnson’s rights or
the overall integrity of her trial. They were momentary comments made in the midst of
longer responses ingrained within a larger trial —and addressed by a curative instruction.

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While we continue to caution pro secutors and witnesses against improper comments that
run the risk of tainting a jury, we do not believe the conduct in this case was severe enough
to require reversal. Additionally, we believe the evidence against Johnson was sufficient
to sustain her conviction for actual possession of drugs with direct evidence. For all these
reasons, we affirm.
Affirmed.