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This opinion will be unpublished and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
A17-1325

State of Minnesota,
Respondent,

vs.

Jose Alarcon, Jr.,
Appellant.

Filed July 23, 2018
Affirmed
Halbrooks, Judge

Freeborn County District Court
File No. 24-CR-15-545

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

David J. Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nels on, Assistant
Public Defender, Max Kittel (certified student attorney), St. Paul, Minnesota (for
appellant)

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges his convictions of possession of a firearm by an ineligible
person and failure to reg ister as a predatory offender, arguing that the evidence is

2
insufficient to prove that he constructively possessed the firearm and that he knowingly
violated his predatory-offender registration requirement. We affirm.
FACTS
Appellant Jose Alarcon, Jr. is required to register as a predatory offender until
December 14, 2024, under Minn. Stat. § 243.166, subd. 1b(a)(2) (2014) . Alarcon began
living in a hotel on December 15, 2014, and submitted a change of information form to the
Bureau of Criminal Apprehension (BCA) that stated that the hotel would serve as his
primary address four days before he moved in . A few days after moving into the hotel,
Alarcon updated the BCA with his unit number. He initially paid the hotel on a monthly
basis but later changed to a weekly basis . On April 3, when the hotel staff charged the
credit card on file for Alarcon for the next week’s payment, the card was declined. As a
result, the hotel manager removed Alarcon’s posses sions from the unit, placed them in
storage at the hotel, and placed a boot on the unit door to prevent Alarcon from entering.
Alarcon did not return to the hotel that weekend.
On April 6, Alarcon was a passenger in a vehicle that was stopped by Officer Sy
Vanthavong for a broke n taillight . Alarcon’s friend, L.H., drove the vehicle and an
acquaintance, T.O., sat in the front passenger seat. Alarcon was in the rear passenger seat
behind L.H. After stopping the vehicle, Officer Vanthavong walked up to the driver-side
window, shined his flashlight into the vehicle, and observed the wooden grip of a handgun
and the silver part of the barrel that was partially covered by a napkin in the center of the
backseat. A second officer, Officer Adam Hamberg, arrived to assist. He opened the right
rear door and retrieved the gun from the back seat. The police arrested Alarcon.

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The state charged Alarcon with one count of unlawfully possessing a firearm under
Minn. Stat. § 624.713, subd. 1(2) (2014), and one count of violating his predatory-offender
registration requirements under Minn. Stat. § 243.166, subd. 5(a) (2014). Following a jury
trial, Alarcon was convicted of both counts. The district court sentenced Alarcon to 60
months for the ineligible -possession-of-a-firearm conviction and 18 months for the
registration-violation conviction. This appeal follows.
D E C I S I O N
I.
Alarcon argues that his ineligible -possession-of-a-firearm conviction must be
reversed because the circumstances proved did not e stablish that he constructively
possessed the gun. In considering a claim of insufficient evidence, our review is limited to
a thorough analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, is sufficient to allow the jury to reach the verdict
that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that “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 conclude that the defendant was guilty of the
charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
To convict Alarcon of this charge, the state was required to prove that he knowingly
possessed the gun and is ineligible to possess a firearm. See State v. Salyers, 858 N.W.2d
156, 161 (Minn. 2015). Alarcon stipulated that he is ineligible to possess a firearm under

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Minnesota law. Therefore, the state was only required to prove that he knowingly
possessed the gun.
The state may prove p ossession of a firearm through act ual or const ructive
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). To prove c onstructive
possession, the state must prove that either: (1) the firearm was found in a place under the
defendant’s exclusive control that other people did not normally have access to or (2) if the
firearm was found in a place that others had access to, there is a strong probability, inferable
from the evidence, that the defendant was consciously exercising dominion and control
over the firearm. State v. Porter, 674 N.W.2d 424, 427 (Minn. App. 2004). Constructive
possession may be exclusive or joint. State v. Porte, 832 N.W.2d 303, 308 (Minn. App.
2013). “Proximity is an important factor in establishing constructive possession.” Id. But
proximity, by itself, is insufficient to prove constructive possession. See State v. Ortega,
770 N.W.2d 145, 150 (Minn. 2009) (discussing that “mere proximity to criminal activity”
is insufficient to establish probable cause for contraband possession).
Possession may be proven by direct or circumstantial evidence. State v. Sam, 859
N.W.2d 825, 833 (Minn. App. 2015). Here, the state relied on circumstantial evidence
because the jury was required to make inferences to determine whether Alarcon exercised
dominion and control over the gun. See Bernhardt, 684 N.W.2d at 477 n.11 (providing
that c ircumstantial evidence is evidence “based on inference and not on pe rsonal
knowledge or observation” (quotation omitted)).

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Convictions based on circumstanti al evidence are reviewed with heightened
scrutiny and require a two-step analysis. 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
disregarding evidence that is inconsistent with the jury’s verdict. State v. Harris, 895
N.W.2d 592, 600 (Minn. 2017). 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 a conviction based on circumstantial evidence , the circumst ances
proved must be “consistent with guilt and inconsistent with any other rational or reasonable
hypothesis.” Sam, 859 N.W.2d at 833.
At trial, the state proved the following circumstances : L.H. testified that Alarcon
rode as a passenger in the backseat of the vehicle for approximately 20 minutes before
Officer Vanthavong stopped the vehicle. Officer Vanthavong testified that he saw a gun’s
wooden handle and silver barrel sticking out from underneath a napkin in the backseat of
the vehicle near the center of the seat. He described the gun as “hastily covered up” by the
napkin. Officer Hamberg and Officer Vanthavong’s testimony established that Alarcon
was approximately 13 to 15 inches from the gun, he would not have had to move to reach
the gun, and nothing was between Alarcon and the gun. T.O. and L.H. both denied owning
the gun or knowing that a gun was in the vehicle. And L.H. informed the police that she
did not know of anyone who would have left the gun in her vehicle.
We next address whether the circumstances proved are consistent with guilt and
inconsistent with any rational hypothesis other than guilt. Id. at 834. The gun was found
in a place that others had access to. Therefore, the circumstances must show that there is

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a strong probability that Alarcon was “ consciously exercising dominion and control over
it.” Porter, 674 N.W.2d at 427.
Alarcon argues that the circumstances proved only establish his proximity to the
gun. We disagree. The state proved circumstances that are consistent with circumstances
in which the supreme court held that the defendant exercised dominion and control over
the contraband, in addition to being in close proximity to it.
In State v. Olson, for example, the supreme court held that a defendant, the driver
of a vehicle stopped by police officers, consciously exercised dominion or control over a
gun when the gun stuck out from between the driver’s seat and the backrest. 326 N.W.2d
661, 662-63 (Minn. 1982). The gun’s loaded cylinder was on the front passenger seat. Id.
Both the gun and the cylinder were in reach of the defendant, and both parts put together
would have made the gun operable. Id.
Like Olson, the circumstances proved here establish more than mere proximity.
They establish that Alarcon consciously exercised dominion and control over the gun
because (1) he was the only person next to the gun, (2) the gun was visible to Officer
Vanthavong immediately when he walked up to the vehicle , (3) L.H. and T.O. were not
aware of the gun’s presence in the vehicle and did not own the gun, and (4) Alarcon could
have picked up the gun from his position in the backseat . Tho se circumstances are
consistent with guilt.
Alarcon argues that the facts support the rational inference that “the firearm
belonged to and was left in the car by the ‘black guy from Owatonna’ who had borrowed
the car right before appellant had gotten into it.” This hypothesis is not rational based on

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the circumstances proved at trial. When Officer Hamberg questioned L.H. about the gun,
L.H. stated that she let another man use her vehicle earlier that day but did not know anyone
who would have left a gun in the vehicle. Additionally, neither L.H. nor T.O. testified that
they noticed a gun in the vehicle when they entered it.
Alarcon also contends that the facts support an inference that he was completely
unaware of the gun’s presence in the vehicle. We disagree. Alarcon rode as a passenger
in the backseat for at least 20 minutes, the gun was approximatel y 13 to 15 inches from
him, the gun was “hastily covered up” by a napkin with the handle sticking out from
beneath the napkin, and Officer Vanthavong noticed the gun immediately upon walking up
to the driver-side window. The only rational hypothesis that is suppo rted by the evidence
is that Alarcon had constructive possession of the gun. We conclude that there is sufficient
evidence to support Alarcon’s conviction of ineligible possession of a firearm.
II.
Alarcon argues that his failure -to-register conviction must be reversed because the
evidence does not sufficiently prove that he knowingly failed to register, particularly
because he did not know that he left hi s primary address. Minn. Stat. § 243.166, subd.
1b(a)(2), requires Alarcon to register as a predatory offender based on his 2014 conviction
of soliciting a child to engage in sexual conduct. Under the statute, Alarcon must register
at least five days before he starts living at a new primary address by giving written no tice
to his corrections agent. Minn. Stat. § 243.166, subd. 3(b) (2014). If he leaves a primary
address and does not have a new primary address, he must register with his corrections
agent and inform the agent of where he will be staying within 24 hours of the time that he

8
leaves his p rimary address. Id., subd. 3a(a) (2014). A person’s primary address is the
mailing address of his “dwelling.” Id., subd. 1a(g) (2014). A “dwelling” is defined as “the
building where the person lives under a formal or informal agreement to do so.” Id., subd.
1a(c) (2014). Minn. Stat. § 243.166, subd. 5(a), makes it a crime to “knowingly ” violate
any part of the predatory-offender registration statute. To prove a violation of Minn. Stat.
§ 243.166, subd. 5(a), the state must show that Alarcon is required to register, that Alarcon
knowingly violated his requirement to register, and that the time period in which Alarcon
is required to register had not elapsed.
The state specifically alleged that, under Minn. Stat. § 243.166, subd. 3a(a), Alarcon
failed to report to a corrections agent th at he left his primary address within 24 hours of
April 3—the date the hotel manager put a boot on his door. Alarcon stipulated that he was
required to register as a predatory offender and that the time period in which he was
required to register had not yet elapsed. Therefore, the state was only required to prove
that he knowingly violated his registration requirements.
Alarcon argues that the evidence does not prove beyond a reasonable doubt that he
“knowingly” violated his registration requirement b ecause the evidence does not
demonstrate that he understood that he left his primary address. Although ignorance of the
law generally does not excuse criminal liability, the supreme court has previously stated
that when knowledge of the law is an element of the offense, mistake of law is a defense
because it negates the existence of the required mental state. State v. Watkins, 840 N.W.2d
21, 30 (Minn. 2013). To be convicted under Minn. Stat. § 243.166, subd. 5(a), Alarcon
must have known that he violated the statute when the violation occurred. State v. Mikulak,

9
903 N.W.2d 600, 603-04 (Minn. 2017). To determine whether Alarcon knowingly violated
the registration statute, the jury was require d to make inferences about Alarcon’s state of
mind based on the state’s evidence. Therefore, in evaluating the sufficiency of the
evidence, we again rely on the two -step circumstantial -evidence analysis. Sam, 859
N.W.2d at 833.
The state introduced BCA records that demonstrate that o n August 26, 2014 , and
January 12, 2015, Alarcon confirmed that he understood the following language, “I
understand that if I do not have a primary address I must report to the law enforcement
authority with jurisdiction in the area where I will be staying within 24 hours of leaving my
former primary address .” Alarcon’s corrections agent also testified that she informed
Alarcon of his duty to register at least four times between December 15, 2014, and January
28, 2015 . Alar con submitted a change-of-information form to the BCA to update his
address before he moved into the hotel and later updated his address to include the unit
number four days after moving in.
The hotel manager testified that Alarcon was required to pay in advance for the next
week’s stay, but that Alarcon did not pay for the week of April 3 and therefore could not
live at the hotel until he paid . The hotel manager attempted to communicate this
information to Alarcon by placing a note on his door , stating “Mr. Alarcon, your rental is
due today at 11 a.m. It was not paid due to a declined credit card. We have secured your
room, and to gain access to the room and your property, payment must be made.” The
hotel manager removed Alarcon’s property from the room and place d it in storage. The

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hotel manager testified that Alarcon did not return to the hotel until approximately two
weeks later to pick up his belongings.
These circumstances are consistent with guilt. Alarcon’s primary address is the
mailing address of the building where he lives under a formal or informal agreement to live
there. Minn. Stat. § 243.166, subds. 1a(c), (g). Because Alarcon no longer had access to
a room at the hotel and had no arrangement to continue living there once his payment was
declined, the hotel no longer served as his primary address. Alarcon’s history with his
registration requirements demonstrates that he previously understood his registration
requirements and support s a rational inference that he continued to understand his
registration requirements at the time he left his primary address.
But Alarcon argues that he intended on returning to the hotel and therefore did not
knowingly violate his registration requirements. Alarcon relies on Mikulak, in which the
supreme court determined that the defendant did not “ knowingly” violate his registration
requirement when the defendant repeatedly made statements indicating that he did not
know that he was required to register within 24 hours of entering a new county. 903
N.W.2d at 604-05. The supreme court concluded that these statements “negated the mens
rea element of the charged offense.” Id. at 605. Mikulak’s conclusion does not guide our
analysis here because no evidence suggests that Alarcon did not understand his registration
requirements.
Alarcon also relies on an unpublished case, State v. Reynolds, No. A15-0241, 2016
WL 208207 (Minn. App. Jan. 19, 2016), to argue that he intended to return to the hotel
because he left his belongings there. Unpublished cases are not binding authority on this

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court. Minn. Stat. § 480A.08, subd. 3 (201 6). We conclude that the state proved beyond
a reasonable doubt that Alarcon knowingly violated his registration requirements under
Minn. Stat. § 243.166, subd. 5(a).
Affirmed.