State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0274

State of Minnesota,
Respondent,

vs.

Kenny Lashaun Robertson,
Appellant.

Filed December 24, 2018
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CR-17-4135

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this direct appeal from his conviction of unlawful possession of a firearm,
appellant argues that insufficient evidence exists to prove the element of knowing actual

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or constructive possession beyond a reasonable doubt because he only briefly handled the
firearm. We affirm.
FACTS
In February 2017, Brooklyn Park police executed a search warrant at a residence.
Upon entry, the officers made contact with appellant Kenny Lashaun Robertson and his
fiancée, I.M. During the execution of the search warrant, I.M. told the officers that she
kept a firearm in an upstairs bedroom. Officers located the firearm in the closet of the
upstairs master bedroom, stored in a case, with two magazines, hidden under clothing.
Officers interviewed appellant, who waived his Miranda rights. During the course
of the interview, a ppellant admitted that he handled the firearm. He explained that ,
approximately one month earlier , he came across the case while he was doing laundry.
Appellant opened it, picked up the firearm, looked at it, and then put it back in its case. He
told the officers that his DNA and fingerprints would likely be on the firearm. Appellant
claimed that he did not touch the firearm again after that encounter and that he did not tell
I.M. that he had come across it.
At a bench trial, appellant’s account of events changed. He testified that when he
discovered the firearm it was not in a case, and he came across it because he accidentally
knocked it off a shelf onto the floor. He testified that his only contact with the firearm was
picking it up and placing it back on the shelf . On cross-examination, appellant conceded
that, in his previous interview with the officers, he described the firearm as being in a case
and he omitted telling them that the firearm accidentally fell off a shelf. He also conceded

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that, after the interview, the officers gave him an opportunity to add anything that he may
have left out, and he declined to do so.
The district court found appellant guilty of possession of a firearm by an ineligible
person under Minn. Stat. § 624.713, subd. 1(2) (2016) , on the basis that he actually and
knowingly possessed the firearm prior to his arrest. Although not necessary to the verdict,
the district court also found that appellant constructively possessed the firearm.1 Following
the verdict, the district court sentenced appellant to an executed term of sixty months. This
appeal follows.
D E C I S I O N
Appellant argues that the state failed to prove beyond a reasonable doubt that he
actually or constructively possessed the firearm, because his contact with the firearm was
too fleeting to constitute knowing, actual possession, and because there was insufficient
evidence to prove that he exercised dominion and control over the firearm constituting
constructive possession. We disagree.
In considering a claim of insufficient evidence, we undertake a painstaking analysis
of the record to determine whether the evidence, when viewed in the light most favorable
to the conviction, is sufficient to allow the factfinder to reach the verdict that it did. State
v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court assumes that “the [factfinder]
believed the state’s witnesses and disbelieved any evidence to the contrary.” State v.

1 The district court based its finding of constructive possession on the fact that appellant
failed to reveal to I.M. that he had come across the firearm and this “strongly suggest[ed]
he wanted the gun to remain in the home.”

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Caldwell, 803 N.W.2d 373, 384 (Minn. 20 11) (quoting State v. Moore, 438 N.W.2d 101,
108 (Minn.1989)). “[W]e will not disturb the verdict if the [factfinder], acting w ith 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. ”
State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012).2
To convict appellant of possession of a firearm by an ineligible person, the state had
to prove that he knowingly possessed the firearm and is in eligible to possess a firearm.
State v. Salyers , 858 N.W.2d 156, 161 (Minn. 2015). Appellant stipulated that he is
ineligible t o possess a firearm. Therefore, the state only had to prove that appellant
knowingly possessed the firearm.
Possession of a firearm may be proved through actual or constructive possession.
State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017). Actual possession is generally proved
by showing that the defendant had “actual or physical possession [of the firearm] at the
time of arrest.” State v. Florine, 226 N.W.2d 609, 610 (Minn. 1975). However, this court
has held that actual physical possession at a time other than during arrest does not preclude
prosecution. State v. Barker, 888 N.W.2d 348, 354 (Minn. App. 2016). In addition, Minn.
Stat. § 624.713 does not specify that possession must be more than “brief” or “temporary.”
In re Welfare of S.J.J. , 755 N.W.2d 316, 31 9 (Minn. App. 2008) . For that reason,
Minnesota does not recognize a “fleeting -control” exception to the crime of unlawful

2 This standard of review is the same for a court or a jury acting as the factfinder and hearing
the evidence. State v. Ibarra, 355 N.W.2d 125, 130 (Minn. 1984).

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possession of a firearm. Id. at 318-319 (citing State v. Houston , 654 N.W.2d 727, 734
(Minn. App. 2003), review denied (Minn. Mar. 26, 2003)).
Actual possession may be proved through direct evidence or circumstantial
evidence. Barker, 888 N.W.2d at 354 . “Direct evidence is evidence that is based on
personal knowledge or observation and that, if true, proves a fact without inference or
presumption.” Bernhardt v. State, 684 N.W.2d 465, 477, n.11 (Minn. 2004).
Appellant argues that his contact with the firearm was too brief to constitute actual
possession. At trial, he testified that he touched the firearm only after it fell from a bedroom
closet shelf, and for the sole purpose of replacing it. While appellant acknowledges that
Minnesota does not recognize a “fleeting -control” exception, he nevertheless encourages
this court to follow other states in recognizing that actual possession requires more than a
mere “passing control, fleeting and shadowy in its nature.” We decline appellant’s
invitation.
Appellant’s argument lacks merit for two reasons. First, this court has definit ively
declined to recognize a fleeting-control exception. S.J.J., 755 N.W.2d at 319. Second,
appellant’s “fleeting-control” claim is undermined by direct evidence in the record that
appellant had physical possession of the firearm. When officers interviewed appellant, he
voluntarily admitted that he handled the firearm previously.
We conclude that, because appellant’s own statement is direct evidence that
supports the district court’s finding that he had actual and knowing possession of a firearm,
we need not consider the constructive-possession argument.
Affirmed.