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This opinion will be unpublished and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
A18-0553

State of Minnesota,
Respondent,

vs.

David Alan Nielsen,
Appellant.

Filed April 8, 2019
Affirmed
Larkin, Judge

St. Louis County District Court
File No. 69VI-CR-17-550

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Bonnie A. Thayer, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided b y Larkin, Presiding Judge; Cleary, Chief Judge; and
Halbrooks, Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his conviction of possession of a firearm by a prohibited
person, arguing that the evidence was insufficient to sustain the conviction. Appellant also
makes several pro se arguments. We affirm.
FACTS
Respondent State of Minnesota charged appellant David Alan Nielsen with
possession of a firearm by a prohibited person. Nielsen stipulated that he was ineligible to
possess a firearm , and the case was tried to a jury. At trial, State Trooper David Rock
testified that on May 17, 2017, he was on patrol and observed a vehicle without working
taillights. Trooper Rock stopped the vehicle and approached the driver’s side. The trooper
spoke with the driver, who stated that he did not have his driver’s license with him. The
driver identified himself as Michael Alvin Nielsen and provided a date of birth. Trooper
Rock determined that Michael Alvin Nielsen had a date of birth different than the one the
driver had provided and that appellant was the driver.
Trooper Rock testified that he asked Nielsen where he was headed, and Nielsen
“mentioned something about moving.” As the trooper was speaking with Nielsen, he
observed that Nielsen was sweaty, had dilated pupils, and was making furtive movements.
Trooper Rock called for assistance and asked Nielsen to step out of the vehicle to perform
field sobriety tests.
Officer Elijah Allen of the Eveleth Police Department responded to the scene.
While standing on the passenger side of the vehicle, Officer Allen observed a gunstock

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sticking out of clothes and other items in the vehicle. Officer Allen testified that the barrel
of the firearm was on the “passenger side floorboard . . . leaning up against the front of the
seat.” The g unstock was visible from outside the vehicle and was within reach of the
driver’s seat. Officer Allen alerted Trooper Rock to the presence of the firearm.
Trooper Rock testified that initially, he did not notice the firearm because he was
focused on Nielsen’s hands and movements. Trooper Rock testified that only the gunstock
was visible because the vehicle was filled with garbage bags and “miscellaneous household
items.” Trooper Rock also testified that when he observed the firearm, it was located on
the “front passenger side [of the vehicle], . . . leaning up against the seat from the floor.”
Trooper Rock removed the firearm from the vehicle. The officer s did not photograph the
firearm in the vehicle before removing it. The police stored the firearm in an evidence
locker and did not arrange any DNA or fingerprint testing o f the firearm. Investigation
revealed that the firearm did not have a registered owner.
The officers searched the vehicle and found a wallet containing Nielsen’s Minnesota
identification card and prescription bottles with his name on them . Police eventually
determined that the vehicle was registered to S.C., and not to Nielsen.
The jury found Nielsen guilty of possession of a firearm by a prohibited person.
The district court en tered judg ment of conviction and sentenced Nielsen to serve a 60 -
month prison term. Nielsen appeals.

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D E C I S I O N
I.
Nielsen contends that the evidence was insufficient to sustain his conviction. When
considering a claim of insufficient evidence, an appellate court carefully analyzes the
record to determine whether the evidence, when viewed in a light most favorable to the
conviction, was sufficient to permit the jury to reach the verdict that it did. State v. Webb,
440 N.W.2d 426, 430 (Minn. 1989). The appellate court “assume[s] that the jury believed
the state’s witnesses and disbelieved contrary evidence.” State v. Brocks, 587 N.W.2d 37,
42 (Minn. 1998). An appellate court will not disturb a guilty 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 state proved that the defendant w as
guilty of the offense charged. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
When the state relies on circumstantial evidence to prove an element of an offense,
an appellate court applies a heightened standard of review. See State v. Harris, 895 N.W.2d
592, 601 -03 (Minn. 2017) (applying circumstantial-evidence stand ard to individual
element of criminal offense that was proved by circumstantial evidence). Circumstantial
evidence is “evidence from which the factfinder can infer whether the facts in dispute
existed or did not exist.” Id. at 599 (quotation omitted). Direct evidence is “evidence that
is based on personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” Id. (quotation omitted). Cir cumstantial evidence always
requires an inferential step that is not required with direct evidence. Id.

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“Possession of a firearm may be proved through actual or constructive possession.”
State v. Salyers, 858 N.W.2d 156, 159 (Minn. 2015). “Actual posses sion, also referred to
as physical possession, involves ‘direct physical control.’” State v. Barker , 888 N.W.2d
348, 353 (Minn. App. 2016) (quoting Jacobson v. Aetna Cas. & Sur. Co., 46 N.W.2d 868,
871 (Minn. 1951)). The purpose of the constructive -possession doctrine is to establish
possession in
those cases where the state cannot prove actual or physical
possession at the time of arrest but where the inference is
strong that the defendant at one time physically possessed the
[item] and did not abandon his possessory interest in the [item]
but rather continued to exercise dominion and control over i t
up to the time of the arrest.

State v. Florine, 226 N.W.2d 609, 610 (Minn. 1975).
To establish constructive possession the state must show either (1) the prohibited
item was found “in a place under [the] defendant’s exclusive control to which other people
did not normally have access” or (2) if police found the prohibited item “in a place to which
others had access, there is a strong pr obability (inferable from other evidence) that [the]
defendant was at the time consciously exercising dominion and control over it.” Id. at
611.1

1 Nielsen argues that the “strong probability” language in Florine “relieves” the state of its
burden to prove every element of a crime beyond a reasonable doubt. Thus, Nielsen argues,
“the Florine standard is constitutionally infirm.” Florine is supreme court precedent. And
“[t]he court of appeals is bound by supreme court precedent.” State v. Curtis, 921 N.W.2d
342, 342 (Minn. 2018). We therefore follow the standard set forth in Florine when
deciding this case. However, we note that the concern that Nielsen raises is not an issue
here because we ultimately conclude that the state proved, beyond a reasonable doubt, that
Nielsen consciously exercised dominion and control over the firearm.

6
Because the state relied on circumstantial evidence to prove constructive possession,
we evaluate the sufficiency of the evidence using the heightened standard of review. See
Harris, 895 N.W.2d at 601 -03. First, we determine the circumstances proved. Loving v.
State, 891 N.W.2d 638, 643 (Minn. 2017). When evaluating the circumstances proved, the
court “disregard[s] evidence that is inconsistent with the jury’s verdict.” Harris, 895
N.W.2d at 601. Next, we “determine whether the circumstances proved are consistent with
guilt and inconsistent with any rational hypothesis other than guilt. ” Loving, 891 N.W.2d
at 643. We will reverse a conviction based on circumstantial evidence only if there is a
reasonable inference other than guilt. Id.
The circumstances proved are as follows: (1) police discovered a firearm in the
vehicle that Nielsen was driving; (2) Nielsen was alone in the vehicle; (3) the firearm was
in the front passenger compartment , within reach of the driver’s seat; (4) the stock of the
firearm was clearly visible from outside the vehicle; (5) police found Nielsen’s state
identification card and oth er items with his name on them in the vehicle; and (6) Nielsen
gave the police a false name.
The state argues that, when Trooper Rock stopped Nielsen, “the firearm was under
[Nielsen’s] exclusive control.” However, the relevant inquiry is whether the fire arm was
found “in a place” under Nielsen’s exclusive control, that is, in a place “ to which other
people did not normally have access .” Florine, 226 N.W.2d at 611 (emphasis added).
Because the vehicle was registered to another person, it is reasonable to infer that at least
one other person (the registered owner) normally had access to the vehicle. We therefore

7
ask whether there was a strong pr obability that Nielsen was consciously exercising
dominion and control over the firearm as he drove the vehicle.
When the trooper stopped Nielsen, he was alone in the vehicle. The firearm was in
the front passenger compartment, and the stock of the firearm was visible and within reach
of the driver’s seat. In State v. Prigge, the supreme court held that “carry ,” in the context
of a statute prohibiting the carrying of a pistol by certain persons , includes “having the
[firearm] in one’s personal vicin ity while moving.” 907 N.W.2d 635, 639 (Minn. 2018).
Nielsen’s transportation of a visible firearm within his reach while driving a vehicle
constitutes “carrying” the firearm and shows that Nielsen consciously exercised dominion
and control over the firearm. Thus, the circumstances proved are consistent with guilt.
Nielsen argues that the circumstantial evidence is insufficient because “the
circumstances proved support another rational hypothesis [other than guilt]: the firearm
belonged to the owner of the [vehicle] and Nielsen never consciously exercised dominion
or control over it.” Moreover, Nielsen argues, even if he was aware of the firearm’s
presence, “knowledge and proximity alone are not sufficient to prove constructive
possession.”
Nielsen does not explain, and we do not discern, why another person’s ownership
of the firearm would be inconsistent with guilt, that is, a conclusion that Nielsen
consciously exercised dominion and control over the firearm by knowingly transporting it
in the vehicle. The relevant standard focuses on the conscious exercise of dominion and
control over the firearm, and not on ownership. Thus, the evidence could be sufficient to
prove guilt even if the firearm belonged to the vehicle’s owner.

8
Nielsen also argues that to prove constructive possession, the state must prove prior
actual possession. Nielsen argues that, “[u]nder Florine, the State needed to prove that
Nielsen ‘at one time physically possessed the [gun] and did not abandon his possessory
interest in the [gun] but rather continued to exercise dominion and control over it up to the
time of the arrest,’” and that “[t]he State did not prove that Nielsen ever physically
possessed the gun prior to the arrest.”
Florine’s statement regarding the purpose of the co nstructive possession doctrine
does not make prior physical possession an element of constructive possession that must
be proved beyond a reasonable doubt . When a case involves direct evidence of prior
physical possession, the case is treated as an actual-possession case. See State v. Olhausen,
681 N.W.2d 21, 23 -25 (Minn. 2004) (affirming conviction based on actual possession
where undercover agent testified that defendant agreed to sell him methamphetamine and
later produced package of methamphetamine); State v. Loyd, 321 N.W.2d 901, 902 (Minn.
1982) (affirming conviction of unlawful possession of firearm based on actual possession
where evidence showed that defendant threatened victim with firearm). The constructive-
possession doctrine is used when there is no proof of physical or actual possession, either
at the time of arrest or earlier. See State v. Lee , 683 N.W.2d 309, 316 -17 & n.7 (Minn.
2004) (affirming conviction of unlawful possession of firearm based on constructive
possession where evidence showed that stolen firearms were stored in defendant’s garage);
State v. Olson, 326 N.W.2d 661, 662 -63 (Minn. 1982) (affirming conviction of unlawful
possession of firearm based on constructive possession where evidence showed that loaded
firearm was found “within reach of where defendant had been seated” in car). In sum, the

9
state did not have to prove that Nielsen physically or actually possessed the firearm prior
to his arrest to prove constructive possession.
Lastly, Nielsen relies on two cases to argue that the state did not prove constructive
possession. In Harris, the defendant was driving a vehicle with two passengers when
police pulled him over. 895 N.W.2d at 596 -97. After removing all three occupants from
the vehicle, police discovered a firearm partially hidden in the headlining near the sunroof.
Id. at 597. The supreme court held that “the circumstances proved do not preclude a
reasonable inference that [the defendant] did not know the firearm was in the car.” Id. at
602.
In State v. Sam, the defendant was driving a vehicle with one passenger when police
pulled him over. 859 N.W.2d 825, 828 (Minn. App. 2015). The defendant did not own
the vehicle. Id. Police observed the passenger make furtive movements after the vehicle
was stopped. Id. Police removed both occupants from the vehicle and discovered a firearm
in the center console. Id. at 828-29. Police also discovered controlled substances in the
glove compartment. Id. at 829. This court held that “the state did not meet its burden of
proving constructive possession” because the circumstances proved did not preclude
reasonable inferences that either the vehicle’s owner or the passenger had placed the
controlled substances and the firearm in the vehicle. Id. at 835-36.
In both Harris and Sam, the defendant was not alone in the vehicle and the firearm
was not clearly visible. These facts distinguish those cases from the circumstances here,
where Nielsen was alone in the vehicle and the stock of the firearm was clearly visible and
within his reach in the front seat . By contrast, in State v. Smith , police discovered the

10
defendant alone and asleep in the driver’s seat of a rented vehicle. 619 N.W.2d 766, 768 -
69 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). Police found a firearm on the
vehicle’s driver’s seat “sticking out from underneath the right side of [the defendant’s]
leg.” Id. (quotation omitted). The defendant testified that he had never seen the firearm
and believed that another man, who got a ride from the defendant the day before, had placed
the firearm in the vehicle. Id. at 769. This court affirmed the defendant’s constructive -
possession conviction based on that evidence. Id. at 770-71. In Smith, unlike in Harris
and Sam, the defendant was alone in the vehicle. Moreover, the firearm was visible and in
close proximity to the defendant. The same reasoning used to affirm the constructive -
possession conviction in Smith applies to Nielsen’s case.
In sum, we are satisfied tha t the evidence shows, beyond a reasonable doubt, that
Nielsen consciously exercised dominion and control over the firearm and that the record
does not support a rational hypothesis other than guilt.
II.
Nielsen raises more than one dozen arguments in a pro se brief. Before addressing
his arguments, we set forth the principles that govern our review.
Although some accommodations may be made for pro se litigants, they are generally
held to the same standards as attorneys. Fitzgerald v. Fitzgerald , 629 N.W.2 d 115, 119
(Minn. App. 2001). “[O]n appeal error is never presumed. It must be made to appear
affirmatively before there can be reversal. . . . [T]he burden of showing error rests upon
the one who relies upon it.” Loth v. Loth , 35 N.W.2d 542, 546 ( Minn. 1949) (quotation
omitted). Mere assertions of error without supporting legal authority or argument are

11
waived unless prejudicial error is obvious on mere inspection . State v. Andersen , 871
N.W.2d 910, 915 (Minn. 2015 ). “[I]ssues not adequately briefed are waived.” Brooks v.
State, 897 N.W.2d 811, 819 (Minn. App. 2017), review denied (Minn. Aug. 8, 2017).
Lastly, the appellate court does not retry the case, weigh the evidence, or assess witness
credibility on appeal. See State v. Al -Naseer, 788 N.W.2d 469, 473 (Minn. 2010)
(recognizing that “the trier of fact is in the best position to determine credibility and weigh
the evidence”); DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984) (“The credibility of the
witnesses and the weight to be given their testimony are determinations to be made by the
factfinder.”).
Nielsen’s pro se brief primarily challenges the sufficiency of the evidence to sustain
his conviction, arguing that the state shifted the burden of proof to him b y failing to test
the firearm for DNA or fingerprints and by failing to photograph the firearm in the vehicle.
Nielsen also complains that he was not allowed to see the firearm before trial. Although
he argues that testing the firearm and photographing t he scene would have provided
evidence of his innocence, it is also likely that such evidence could have been
incriminating. Because Nielsen has not demonstrated prejudice, this claim does not
warrant relief. See Minn. R. Crim. P. 31.01 (“Any error that d oes not affect substantial
rights must be disregarded.”). Moreover, Nielsen’s sufficiency arguments based on
witness credibility are unavailing because we view the evidence in the light most favorable
to the verdict and assume the jury believed the state’ s witnesses. State v. Brocks , 587
N.W.2d 37, 42 (Minn. 1998).

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Nielsen contends that evidence that he gave the police a false name was character
evidence, which should have been excluded under Minn. R. Evid. 404(b). Rule 404(b)(1)
provides that “[e]videnc e of another crime, wrong, or act is not admissible to prove the
character of a person in order to show action in conformity therewith.” Evidence of
offenses committed as part of a single course of conduct, also called immediate -episode
evidence, does not fall under the rule 404(b) exclusion. State v. Kendell, 723 N.W.2d 597,
608 (Minn. 2006). Appellate courts have “repeatedly affirmed the admission of
immediate-episode evidence when there is a close causal and temporal connection between
the prior bad a ct and the charged crime.” State v. Riddley, 776 N.W.2d 419, 425 (Minn.
2009). To be inadmissible, the probative value of immediate -episode evidence must be
“substantially outweighed” by the danger of unfair prejudice. Minn. R. Evid. 403.
“[T]he fact of an accused’s flight, escape from custody, resistance to arrest,
concealment, assumption of a false name, and related conduct, are admissible as evidence
of consciousness of guilt, and thus of guilt itself.” State v. McTague, 252 N.W. 446, 448
(Minn. 1934) (emphasis added). Nielsen’s use of a false name suggests that he was aware
of the firearm and gave the false name to avoid police detection of his ineligibility to
possess it. This falls within the immediate -episode exception to ru le 404(b), and the
probative value of such evidence was not substantially outweighed by the danger of unfair
prejudice. See Kendell, 723 N.W.2d at 608 (“When a defendant commits a second crime
to avoid apprehension for a previous crime committed close in time and location to the
second crime, the offenses constitute a single behavioral incident.”).

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Nielsen contends that he received ineffective assistance of counsel because his
counsel (1) failed to inform him of his right s to a pretrial suppression hearing and to
demand suppression of the firearm, (2) failed to provide him with discovery and would not
meet with him to discuss the case, and (3) conceded his guilt in closing argument.
An ineffective-assistance-of-counsel claim involves a mixed question of l aw and
fact that is reviewed de novo. State v. Rhodes , 657 N.W.2d 823, 842 (Minn. 2003).
Appellate courts generally analyze such claims as trial errors under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Id. “First, the defendant must show
that counsel’s performance was deficient. . . . Second, the defendant must show that the
deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at
2064.
Nielsen’s arguments regarding counsel’s failure to move for suppression of the
firearm do not warrant relief because Officer Allen observed the firearm from a legal
vantage point and therefore had probable cause to search the vehicle and seize the firearm.
See State v. Willis , 320 N.W.2d 726, 728 (Minn. 1982) (upholdi ng search of a vehicle
where police officer observed, in plain view, a firearm); see also State v. Lester , 874
N.W.2d 768, 771 (Minn. 2016) (stating that, under the “automobile exception,” police
“may search a car without a warrant, including closed contai ners in that car, if there is
probable cause to believe the search will result in a discovery of evidence or contraband”
(quotation omitted)). Here, Officer Allen saw the firearm from where he was standing
outside the vehicle, and the district court determined that the traffic stop was lawful. Under

14
the circumstances, we do not discern a basis to suppress the firearm, and Nielsen’s
counsel’s decision not to move for suppression therefore was not objectively unreasonable.
Nielsen’s assertions that his attorney failed to provide him with discovery and would
not meet with him to discuss the case are contradicted by the record. Nielsen’s attorney
told the district court that his office had “sent no less than four letters to [Nielsen] asking
him to make an appointment” and that Nielsen “still [had] a CD disc with all the discovery.”
As to Nielsen’s assertion that his attorney conceded his guilt, “if a defense counsel
impliedly admits a defendan t's guilt without the defendant’ s permission or acquiescence,
the defendant should be given a new trial even if it can be said that the defendant would
have been convicted in any event.” State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984).
Although an appellate court can never condone a n attorney admitting a defendant’ s guilt
without his consent or acquiescence, it “must be cautious in defining an ‘implied
admission’ to not allow the semantics of every questioned word, statement or misstatement
of counsel by inadvertence, negligence or p erhaps cleverness to be an automatic ground
for a new trial.” Dukes v. State , 660 N.W.2d 804, 812 (Minn. 2003). “We will find an
implied concession only where a reasonable person viewing the totality of the
circumstances would conclude that counsel conce ded the defendant [’]s guilt.” Torres v.
State, 688 N.W.2d 569, 573 (Minn. 2004) (quotation omitted).
Nielsen complains that his attorney said, in closing argument, “For one time in
[Nielsen’s] life, he possesses a gun that’s not stolen.” When viewed in isolation, that
statement could suggest an implied concession of guilt. But the statement stands in stark
contrast to the remainder of defense counsel’s closing argument, which spans over six

15
pages of transcript. In that argument, defense counsel vigoro usly argued that Nielsen did
not know the gun was in the car and that he therefore was not guilty of knowing possession.
Although one might question the efficacy of th e statement Nielsen quotes, when it is read
in the context of the entire closing argumen t, it is not a concession of guilt. See State v.
Vick, 632 N.W.2d 676, 688 (Minn. 2001) (“Because [defendant’s] attorney’s comments,
viewed in context, do not constitute a confession, a new trial is not warranted on this
basis.”).
Nielsen challenges the jury instructions, and in particular , the district court’s
instruction that “[t]he jury verdict must be unanimous.” Appellate courts “review the jury
instructions as a whole to determine whether the instructions accurately state the law in a
manner that can be understood by the jury.” State v. Kelley, 855 N.W.2d 269, 274 (Minn.
2014). When a defendant fails to object to jury instructions at trial, this court reviews those
instructions for plain error. State v. Milton, 821 N.W.2d 789, 802 (Minn. 2012). Nielsen
did not object to the jury instructions at trial, and the record indicates that the district court
followed the Criminal Jury Instruction Guides when instructing the jury. Nielsen has not
provided, and we do not discern, a basis to conclude that t he district court plainly erred in
instructing the jury.
Nielsen alleges that because the district court scheduled his omnibus hearing as a
telephone conference, he was not allowed to attend or participate in the hearing. Nielsen
also alleges that the dis trict court closed his trial to the public, barred his family from
attending the trial, and prevented witnesses from being called. The record indicates that
Nielsen waived his omnibus hearing and asked the district court to determine probable

16
cause based solely on “the file” given to the court. The district court found that probable
cause existed and set a date for a scheduling conference to be held via telephone
conference. The record does not indicate that the district court closed any part of the trial
to the public or otherwise barred any person’s attendance. In sum, the record does not
support Nielsen’s allegations.
Lastly, Nielsen alleges prosecutorial misconduct by the state. He states that
“[d]uring [the prosecutor’s] presentation she pointed the gun at the members of the jury,
making the gun jump against her shoulder, mimic[k]ing the recoil like she was shooting at
them. All the while quietly saying ‘pew, pew, pew.’” The record does n ot support this
allegation. T here is absolutely no indication in the record that the alleged misconduct
occurred.
Nielsen’s remaining assertions of error are either unsupported by legal authority or
argument or inadequately briefed. Such assertions are waived unless prejudicial error is
obvious on mere inspection. See Andersen, 871 N.W.2d at 915. We conclude that there is
no obvious prejudicial error stemming from Nielsen’s unsupported assertions of error,
including his challenges to venue, discovery, voir dire, and chain of custody; his allegations
of perjury; and his complaint that he was referred to throughout trial as “defendant” rather
than as “Mr. Nielsen.”
In conclusion, Nielsen’s pro se brief does not establish a basis for relief. And
because appellate courts will not disturb a guilty verdict if the jury, acting with due regard
for the presumption of innocence and the requirement of proof beyond a reasonable doubt,

17
could reasonably conclude that the state proved that the defendant was guilty of the offense
charged, we affirm.
Affirmed.