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This opinion will be unpublished and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
A17-1696

State of Minnesota,
Respondent,

vs.

Deshawn Nairfe Jones,
Appellant.

Filed August 27, 2018
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-17-2593

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

Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his conviction for po ssession of a firearm by an ineligible
person, arguing the evidence pr esented to the jury was insufficient to support a guilty
verdict and that the district court erred by providing an instruction to the jury on appellant’s

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right not to testify without first obtaining ap pellant’s direct consent. Because the state
presented sufficient evidence to support a guilty verdict and because any error in giving
the instruction did not result in prejudice to appellant, we affirm.
FACTS
Appellant Deshawn Nairfe Jones was ch arged with unlawfully possessing a firearm
after he fled from officers and a gun was found in a dumpster that appellant passed while
he was fleeing. The case proceeded to trial.
During voir dire, defense counsel asked the district court to question the prospective
jurors about whether they would have any c oncerns if the defenda nt did not testify,
indicating he would support the district court using CRIMJIG 3.17 when putting the issue
before the jury. See 10 Minnesota Practice, CRIMJIG 3.17 (2015) (providing a model
instruction on the defendant’s right not to te stify and that no adverse inference may be
drawn from that fact). The district court granted the request and gave the following
instruction:
The State must convince you by evidence beyond a reasonable
doubt that the defendant is guilty of the crime charged. The
defendant has no obligation to prove innocence. The defendant
has the right not to testify. This right is guaranteed by the
federal and state Constitutions. Hearing this instruction, is
there anyone who would or could not follow this instruction?

Nobody answered in the affirm ative. Defense counsel sepa rately questioned the jury on
whether anyone would have strong feelings if appellant did not testify.
At trial, a deputy testified that, on January 9, 2017, he was conducting surveillance
on a residence in Brooklyn Center and it had snowed “off and on” throughout the day. He

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testified that a subject of the surveillance ha d multiple warrants for his arrest and that he
was seen coming and going from the residence. That person eventually exited the residence
with three other men, including appellant. The deputy and his part ner attempted to stop
the group in order to take the man with the warrants into custody. The deputy and his
partner raised their guns and told the men to stop and to raise their hands.
Appellant initially put his hands up, but “w ithin a second,” he “reached for his
waistband with both hands, turned around and started fleeing.” The deputy saw appellant
run with one arm “hugging the front of his waistband like he was holding something heavy”
with the other arm swinging “like . . . when you run.” The deputy immediately chased
appellant, but he was about 40 yards behind him and lost sight of him for “approximately
three to four seconds as [appellant] rounded [a ] corner.” Immediately before the deputy
lost sight of appellant, the deputy saw him digging around in the front part of his waistband
with both hands “like as if he was . . . trying to grab something.” When the deputy turned
the corner, he “immediately regained visual of [appellant] running still, only this time, he
was running with two hands” and “not holding his waistband anymore.” At that point,
other officers intercepted appellant as he ran into a parking lot.
The deputy then turn ed around to see if appellant had discarded anything. There
were two inches of fresh snow on the ground, and the deputy retraced their two sets of
footprints in the snow back towards a dumpster. He immediately noticed a firearm inside
of the dumpster. The firearm was located near the front of the dumpster and on top of other
trash. The deputy never saw appellant with a gun, but the gun stood out to him “because

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as the snow was hitting it, it was melting” which indicated to the deputy that it was warm.
The rest of the trash in the dumpster was covered in fresh snow.
Appellant stipulated to the element that he was prohibited from possessing a firearm
and waived his right to testif y. When discussing jury inst ructions, the district court
indicated that it would add CRIMJIG 3.17 and clarified that defense counsel wanted the
instruction. Defense counsel answered, “Yes.” The district instructed the jury, “The
defendant has the right not to testify. This right is guaranteed by the federal and the state
constitutions. You should not draw any inference from the fact that the defendant has not
testified in this case.” The jury returned a guilty verdict and appellant was sentenced to 60
months’ imprisonment.
This appeal followed.
D E C I S I O N
I. The state presented sufficient evidence to support a conviction.
Appellant argues that the evidence was insufficient to convi ct him because the
circumstances proved support a reasonable hypothesis that someone else placed the gun in
the dumpster.
When reviewing whether there is sufficient evidence to support a conviction, this
court undertakes a “painstaking analysis of the record to determine whether the evidence,
when viewed in the light most favorable to the conviction, was sufficient” to support the
conviction. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We
assume that “the jury believed the state’s w itnesses and disbelieved any evidence to the
contrary.” State v. Caldwell , 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted).

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“[W]e will not disturb the verdict if the jury, acting with due regard for the presumption of
innocence and the requirement of proof bey ond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the charged offense.” Ortega, 813 N.W.2d at
100.
Appellant was convicted of being an ineligible person in possession of a firearm, in
violation of Minn. Stat. § 624. 713, subd. 1(2) (2016). Appella nt stipulated that he was
ineligible to possess a firearm. To convict appellant, the state was required to prove that
he knowingly possessed a firearm. State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017).
Possession may be proved through direct or circumstantial evidence of actual or
constructive possession. State v. Barker , 888 N.W.2d 348, 354 (Minn. App. 2016).
“Where direct evidence is not available, a conviction based on circumstantial evidence can
be entitled to the same weight as direct evidence.” State v. Olhausen, 681 N.W.2d 21, 26
(Minn. 2004) (quotation omitted).
The state relied on circumstantial evidence in proving that appellant possessed the
gun. “A conviction based on circumstantial evidence warrants heightened scrutiny.” State
v. Sam, 859 N.W.2d 825, 833 (Minn. App. 2015) (quotation omitted). We therefore apply
a two-step analysis to determine whether the circumstantial evid ence was sufficient to
support a conviction. See Harris , 895 N.W.2d at 598-601. First, we identify the
circumstances proved. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). In doing so, we
“assume that the jury resolved any factual disputes in a manner that is consistent with the
jury’s verdict.” Id. Second, we “examine independ ently the reasonableness of the
inferences that might be drawn from the ci rcumstances proved” and “determine whether

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the circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt.” Id. (quotations omitted). We do not give deference to the
jury’s choice between reasonable inferences. State v. Al-Naseer , 788 N.W.2d 469, 474
(Minn. 2010).
The state proved the following circumstances: (1) police were surveilling a property
on a snowy evening; (2) they attempted to apprehend appellant al ong with other men;
(3) appellant raised his hands when told to do so by the officers, but immediately lowered
them, grabbed his waistband with both hands, and fled on foot; (4) a deputy chased
appellant; (5) the deputy saw appellant runni ng with one hand holding his waistband;
(6) right before losing sight of appellant, the deputy saw him grab his waistband with both
hands; (7) the deputy lost sight of appellant for three to four seconds; (8) when the deputy
regained sight of appellant, he was no longer holding his waistband and was moving both
of his arms while running; (9) appellant was apprehended by other officers shortly after the
deputy regained sight of him; (10) the deputy retraced their two sets of footprints in the
snow while looking for contraband, eventually reaching a dumpster; (11) the deputy found
a gun on top of trash covered in fresh snow in the dumpster; and (12) there was no snow
accumulated on the gun, and any snowflakes that landed on it melted.
It is reasonable to infer from these circ umstances that the gun was warm when the
deputy located it and that it was warm beca use it had not been exposed to the winter
temperatures and snow for very long. It is also reasonable to infer that appellant possessed
the gun and placed it in the ga rbage dumpster while running fr om the deputy. Appellant
asserts that it is also reasonable to infer from the circumstances proved that he did not place

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the gun in the dumpster and that it was placed there by another. We disagree. The evidence
at trial indicated that it had been snowing throughout the day, and it was snowing at the
time the officer found the gun. The gun did not have snow on it, and the snow melted as it
landed on the gun. Appellant’s footprints led the deputy dir ectly to the dumpster, where
the gun sat on top of all other trash. The circumstances proved make appellant’s theory
that someone else brought the gun to the dumpster before he ran by, close enough in time
that the gun retained heat, seem unreasonable. See State v. Taylor, 650 N.W.2d 190, 206
(Minn. 2002) (indicating reversal is not required if the “evidence taken as a whole” makes
the defendant’s theory “seem unreasonable”). As such, the circumstances proved are not
consistent with a rational hypothesis other than guilt.
II. Appellant has not established that he was prejudiced by the district court’s
instructions on appellant’s right not to testify.

Appellant argues that the district court reversibly erred by providing instructions on
appellant’s right not to testify without his express and personal permission.
Appellant did not object to the giving of the instruction at trial or during voir dire.
We therefore review this issue for plain error. State v. Gomez, 721 N.W.2d 871, 880 (Minn.
2006). “For there to be plain error: (1) there must have been error; (2) the error was plain;
and (3) the error must have affected the party’s substantial rights.” Id. To prove prejudice,
appellant must establish that “there is a reasonable likelihood that giving the instruction in
question had a significant eff ect on the jury verdict.” Id. The defendant bears a heavy
burden of proving prejudice. Id. “Giving the no-adverse-infe rence instruction without
consent, absent a showing of prejudice, is harmless.” Id. If we conclude that one of the

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requirements of the plain-error standard has not been satisfied, we n eed not consider the
other requirements. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
Appellant has not established that he was prejudiced by the district court’s giving
of the instructions without his express and personal permission. We are satisfied that there
is no reasonable likelihood that the giving of the instruction impacted the verdict in light
of the evidence adduced at trial. Absent a showing of prejudi ce, it is not reversible error
for the district court to fail to receive a de fendant’s express permission before giving an
instruction on the defendant’s right not to testify. See Gomez, 721 N.W.2d at 880; State v.
Darris, 648 N.W.2d 232, 240-41 (Minn. 2002); State v. Thompson, 430 N.W.2d 151, 153
(Minn. 1988); State v. Rosen, 280 Minn. 550, 550-51, 158 N.W.2d 202, 202 (1968).
Affirmed.