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This opinion will be unpublished and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
A17-0894

State of Minnesota,
Respondent,

vs.

Joshua Scott Hacken,
Appellant.

Filed April 9, 2018
Affirmed
Kirk, Judge

Ramsey County District Court
File No. 62-CR-16-5795

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

John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Kirk, Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his conviction of possession of a firearm by an ineligible person,
arguing that the evidence is insufficient to establish that he possessed the firearm. Because
we conclude that the evidence presented is sufficient to support the jury’s verdict, we affirm.

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FACTS
On August 7, 2016, Ramsey County dispatch received a report of a man with a gun at
a hotel in St. Paul. At around 4:30 p.m., surveillance cameras in the hotel captured a white
male, later identified as appellant Joshua Scott Hacken, wearing boots and carrying a red bag,
walking down a hallway on the second floor of the hotel while H.M., a hotel porter, vacuumed.
H.M. testified that he saw the man walk past him and enter an open hotel room that was still
being cleaned. H.M. followed him into the room and asked for his reservation paperwork. In
response, the man pulled out a gun and said, “This is my paperwork.” The man then pulled
out a knife and said, “This is also my paperwork.” 1 H.M. testified that he was “not really
[scared.]” The surveillance video showed appellant and then H.M. enter room 230, and then
H.M. leave the room and walk immediately to the hotel’s front desk. The front-desk employee
then called 911.
H.M. told dispatch that the man had “brandished” a weapon by showing it to him. At
approximately 4:43 p.m., appellant left room 230, walked to the first floor of the hotel, and
then entered the pool area. When police officers arrived, hotel employees identified appellant,
who was standing in the pool area , as the suspect . Two officers approached appellant and
ordered him to put his hands up. Appellant refused and ran to the second floor of the hotel.
Rather than give chase, t he officers established a perimeter around the hotel to prevent
appellant from escaping. The officers viewed hotel surveillance video and determined that
appellant had entered room 231 after fleeing. They negotiated with appellant for several hours

1 The police did not subsequently discover a knife in the hotel or on appellant’s person.

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until he complied with their commands to leave the room, and they then took appellant into
custody.
Following appellant’s arrest, the officers conducted a sweep of the second-floor hotel
rooms. While searching room 231, an officer noticed that a tissue box had been moved from
its countertop holder over the lid of the toilet tank in the bathroom. The officer removed the
toilet lid and discovered a black pistol submerged at the bottom of the water tank. Subsequent
forensic testing revealed no usable fingerprint or DNA evidence on the pistol. The officers
found a red duffle bag, a pair of brown boo ts, a sunglasses case, and a brown wallet,
containing appellant’s identification card, in room 230, located across the hallway from room
231.
Appellant was charged with possession of a firearm by an ineligible person in violation
of Minn. Stat. § 624.713, subd. 1(2) (2016) , and second -degree assault with a dangerous
weapon in violation of Minn. Stat. § 609.222, subd. 1 (2016). At trial, a responding officer
identified appellant as the man shown in the surveillance video, and confirmed that appellant
did not leave room 231 until his arrest and that no other person entered or left room 231 during
that time. The jury found appellant not guilty of second -degree assault with a dangerous
weapon and guilty of possession of a firearm by an ineligible person. The district court
imposed the presumptive sentence of 60 months’ imprisonment.
This appeal follows.
D E C I S I O N
In considering a claim of insufficient evidence, this court’s review is limited to a
thorough analysis of the record to determine whether the e vidence, when viewed in the light

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most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they
did. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume
“the jury believed the state’s witne sses and disbelieved any evidence to the contrary.” State
v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court 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 conclude that the defendant was guilty of
the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
To convict appellant of possession of a firearm by an ineligible person, the state was
required to prove that he knowingly possessed the pistol. See State v. Salyers , 858 N.W.2d
156, 161 (Minn. 2015). “Possession of a firearm may be proved through actual or constructive
possession.” Id. at 159. Actual possession is generally proven by showing that the defendant
had “actual or physical possession [of the firearm] at the time of arrest.” State v. Florine, 303
Minn. 103, 104, 226 N.W.2d 609, 610 (1975). However, this court has held that “[t]he 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.” State v. Barker, 888 N.W.2d 348, 354 (Minn.
App. 2016).
Possession may be proven by direct or circumstantial evidence. “Direct evidence is
evidence 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).
Circumstantial evidence is “e vidence based on inference and not on personal knowledge or
observation.” Id. (quotation omitted).

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“A conviction based on circumstanti al evidence warrants heightened scrutiny.” State
v. Sam, 859 N.W.2d 825, 833 (Minn. App. 2015) (quotation omitted); see State v. Harris, 895
N.W.2d 592, 597-601 (Minn. 2017) (reaffirming circumstantial-evidence standard); see also
State v. Al-Naseer, 788 N.W.2d 469, 471 (Minn. 2010) (“[T]he heightened scrutiny applies to
any disputed element of the conviction that is based on circumstantial evidence. ”). Here,
H.M. testified that he observed a white male in physical possession of a gun in a second-floor
hotel room, but he was not asked to positively identify appellant as the suspect. Instead, the
state introduced surveillance video and a police officer’s testimony to identify appellant as
the man H.M. encountered in room 230 who showed him a gun. Because the evidence tending
to prove appellant actually possessed the firearm is based on a combination of direct and
circumstantial evidence, we will review the sufficiency of the evidence under the heightened
circumstantial-evidence standard. See State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013)
(applying heightened standard of review for sufficiency-of-the-evidence claim when state
presented both direct and circumstantial evidence to obtain conviction).
When reviewing a conviction based on circumstantial evidence, we apply a two -step
test. Sam, 859 N.W.2d at 833 . First, we determine the circumstances proved by “resolving
all questions of fact in favor of the jury’s verdict . . . [and] disregard[ing] evidence that is
inconsistent with the jury ’s verdict.” Harris, 895 N.W.2d at 600 -01. Second, we
“independently consider the reasonable inferences that can be drawn from the circumstances
proved, when viewed as a whole. ” Id. at 601. To sustain the conviction, the circumstances
proved must be “consistent with guilt and inconsistent with any other rational or reasonable
hypothesis.” Sam, 859 N.W.2d at 833.

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Appellant contends that the jury “did not believe [appellant] actually possessed the
firearm” because it acquitted appellant of second-degree assault with a dangerous weapon .
On that basis, a ppellant argues that we should disregard the evidence presented by H.M.’s
testimony that a man, later identified as appellant, showed H.M. a gun, despite the general
rule that an acquittal sheds no light on the circumstances believed or disbelieved by the jury.
See State v. Montermini , 819 N.W.2d 447, 461 (Minn. App. 2012). However, not only did
the jury find that appellant knowingly possessed the firearm, as respondent points out, the
jury’s acquittal of the assault charge indicates only that the state failed to prove beyond a
reasonable doubt that appellant intended to cause H.M. to fear immediate bodily harm or
death. H.M.’s testimony that appellant “brandished” the gun by showing it to him rather than
pointing it at him and that he was “not really [scared],” evinces support for the jury’s acquittal,
but does not contradict the evidence of possession.
Here, the state proved the following relevant circumstances: (1) appellant entered room
230 carrying a red bag while H.M. vacuumed the second -floor hallway; (2) H.M. entered
room 230 t o ask appellant for his reservation paperwork; (3) H.M. observed appellant hold
up a gun and state, “This is my paperwork” 2; (4) H.M. left room 230 and contacted a front-
desk employee, who called 911; (5) appellant left room 230 and entered the pool area on the

2 H.M.’s description of the man who showed him a gun as having “scraggly hair” and wearing
a jacket and blue jeans , despite contrary evidence that appellant was bald and wore white
shorts and a blue t -shirt, is evidence that we may disregard as incon sistent with the jury’s
verdict. See Harris, 895 N.W.2d at 600-01. The surveillance video showed H.M. vacuuming
the hallway when a white male who carried a red bag entered room 230. The video showed
H.M. follow the man into the room, then leave the room and immediately report the man to
the front-desk employee. A responding officer identified appellant as the white male shown
entering room 230 in the surveillance video.

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first floor of the hotel; (6) when responding police officers made contact with appellant in the
pool area, he fled and entered room 231; (7) during appellant’s standoff in room 231, neither
appellant nor another person left or entered the room ; (8 ) after appellant’s arrest, officers
discovered a black pistol submerged in the toilet tank in room 231; (9) officers discovered a
red bag, brown boots, a sunglasses case, and a wallet, containing appellant’s identification
card, in room 230.
Next, we must determine whether the circumstances proved are consistent with a
finding that appellant knowingly possessed a firearm and inconsistent with any other rational
hypothesis. See Sam, 859 N.W.2d at 833.
Appellant argues that the evidence presented is consistent with the theory that he did
not know the pistol was in the toilet tank and that some person other than appellant put it
there. Appellant points out that no forensic evidence tied him to the pistol. Appellant does
not identify any evidence showing that another person placed the gun in the toilet, but
contends that because previous guests and employees accessed the room before appellant fled
there, and because the state introduced no evidence showin g when the room had been last
cleaned or when the toilet was last checked, it is rational that “any one of a number of people
who previously had access to the room” could have placed the gun in the toilet. Further,
appellant argues that he had no reason t o know that a gun was present because it was hidden
inside of the toilet.
Here, the circumstances proved demonstrate that appellant was in actual possession of
the firearm before his arrest. H.M.’s testimony, the surveillance video , testimony by a
responding police officer, and discovery of appellant’s red bag and identification in room 230

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establishes appellant’s identity as the man H.M. observed in physical possession of a gun in
room 230. The surveillance video captured appellant leaving room 230, ente ring the pool
area, and then fleeing to room 231 when the police arrived. See State v. Olhausen , 681
N.W.2d 21, 29 (Minn. 2004) (noting that evidence of flight may suggest “consciousness of
guilt” when the defendant disposed of contraband after fleeing). According to t he officers,
no other person entered or exited room 231 from the point at which appellant entered the room
until his surrender, confirming that the firearm found in room 231 was the same firearm that
H.M. observed in appellant’s physical possession in room 230. The officer’s testimony that
the tissue box in room 231 appeared to have been moved from its holder over the toilet lid
indicates more recent activity to open the toilet and place the gun inside , which implicates
appellant rather than a hotel employee or an unidentified alternative suspect.
Given the state ’s strong evidence in this case, including witness testimony and
surveillance video, in conjunction with the circumstances proved , appellant’s proposed
hypothesis is unreasonable. We conclude that the evidence is sufficient to support appellant’s
conviction of possession of a firearm by an ineligible person.
Affirmed.