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This opinion will be unpublished and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
A18-0612

State of Minnesota,
Respondent,

vs.

Antonio Albert Schally,
Appellant.

Filed March 4, 2019
Affirmed
Hooten, Judge

Dakota County District Court
File No. 19HA-CR-15-1122

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

James Backstrom, Dakota County Attorney, Tori K. Stewart, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appel late Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Reyes, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this direct appeal from the judgment of conviction, appellant argues (1) that the
evidence was insufficient to prove his guilt of unlawful possession of a firearm when the

2
gun was found concealed in a drawer under his seat when he was a passenger in another
person’s car; and (2) that the district court erred by refusing to permit an incarcerated
defense witness to change into street clothes for his testimony at trial and by, without his
consent, giving a no-adverse-inference jury instruction regarding his right to remain silent.
We affirm.
FACTS
In May 2014, appellant Antonio Schally was in the front passenger seat of a van that
was driving in West St. Paul. Around three in the morning, a West St. Paul police officer
stopped the van when it failed to activate a turn signal after stopping at a stop sign. As the
officer approached the van, he smelled cigarette smoke, marijuana, and alcohol. Four other
people were in th e van at the time including Daniel Hillmer , who was sitting in the rear
center seat. The van belonged to Hillmer’s father.
After finding marijuana on one of the passengers, the officer had all the occupants
exit the van and sit on the curb. The officer saw in plain view the butt of what appeared to
be a pistol in the backseat pocket of the front passenger’s seat, and upon picking it up,
discovered it was a Hopkins & Allens Arms .38 caliber pistol with four .38 cartridges. The
officer searched the remainder of the van and found a Taurus .38 revolver loaded with five
.38 hollow point cartridges under the front passenger’s seat in a “drawer that pulled out
from under the seat.”
The Bureau of Criminal Apprehension (BCA) tested the firearms for DNA.
Schally’s DNA was found on the cylinder release and hammer of the revolver.
Additionally, Schally’s DNA could not be excluded from a sample found on the trigger of

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the revolver whereas 99.997% of the general population could be excluded. Hillmer ’s
DNA was found on the grips of the revolver and his DNA could not be excluded from the
pistol, whereas 98.6% of the general population could be excluded.
Because Schally has a 2007 Dakota County conviction of third -degree controlled-
substance crime, which qualifies as a crime of violence under Minn. Stat. § 624.712, subd.
5 (2012), the state charged Schally with felon in possession of a firearm under Minn. Stat.
§ 609.165, subd. 1b(a) (2012).
At the jury trial, Schally stipulated that he was a felon ineligible to possess a firearm.
The jury found Schally guilty, and the district court sentenced him to 60 months in prison.
This appeal follows.
D E C I S I O N
I. The evidence was sufficient to convict Schally of possession of a firearm.
Schally argues that the evidence was insufficient to convict him of constructive
possession of a firearm because the revolver was found under his seat as a passenger in
someone else’s vehicle. Schally concedes that he was ineligible to possess a firearm under
Minn. Stat. § 609.165, subd. 1b(a), but argues that he did not actually or constructively
possess the firearm.
When reviewing the sufficiency of the evidence , we undertake 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 witnesses and disbelieved any evidence to the contrary.” State v. Caldwell, 803

4
N.W.2d 373, 384 (Minn. 2011) (quotation omitted). “[W]e 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.” Ortega, 813 N.W.2d at 100.
Possession of a firearm may be actual or constructive. State v. Salyers, 858 N.W.2d
156, 159 (Minn. 2015). To establish constructive possession, the state must show either
(1) that the item was found where defendant had exclusive control to which other people
normally did not have access, or (2) if the item was found where o thers had access, there
is a strong probability inferred from other evidence that the defendant was consciously
exercising dominion and control over it at the time. Id. At trial, the state argued that the
jury could convict Schally based on actual posses sion of the firearm or constructive
possession of the firearm. On appeal, the state argues that at the very least, Schally had
constructive possession of the firearm.
When the conviction is based on circumstantial evidence, we apply a two -step
analysis. State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017). The first step is to identify
the circumstances proved by resolving all questions of fact in favor of the jury’s verdict
and in deference to the jury’s credibility determinations. Id. at 600. Second, we
“independently consider the reasonable inferences that can be drawn from the
circumstances proved.” Id. at 601. At the second step, we give no deference to the jury’s
reasonable inferences. State v. Fox , 868 N.W.2d 206, 223 (Minn. 2015). If the
circumstances proved when viewed as a whole are “consistent with a reasonable inference

5
that the accused is guilty and inconsistent with any rational hypothesis except that of guilt,”
then we sustain the conviction. Harris, 895 N.W.2d at 601.
When viewed in the light most favorable to the conviction, the state proved the
following circumstances: Schally was in the passenger seat of the van with four other
occupants, including Daniel Hillmer ; the van belonged to Hillmer’s father; the pistol and
four cartridges were found in the seat back pocket of Schally’s seat; the revolver loaded
with five .38 cartridges was found under Schally’s seat in a compartment; Schally’s DNA
was found on the cylinder and release of the revolver; Schally’s DNA could not be
excluded fr om the trigger of the revolver whereas 99.997% of the po pulation could be
excluded; Hillmer’s DNA was found on the revolver; and Hillmer could not be excluded
from DNA collected on the pistol whereas 98.6% of the population could be excluded.
Schally argues that, from the circumstances proved, two reasonable inferences other
than guilt can be inferred: (1) that Schally did not exercise dominion and control over the
revolver found in the passenger seat compartment, and (2) his DNA was present on the
revolver due to secondary transfer s of DNA or from possessing it previously. Neither
inference is reasonable.
Schally first argues that it is reasonable to infer that he did not exercise dominion
and control over the revolver found under his seat, or that he did not consciously exercise
dominion and control over it because proximity itself is insufficient to establish
constructive possession. Schally argues that our decision in State v. Sam controls here.
859 N.W.2d 825, 829 (Minn. App. 2015). In Sam, the defendant was driving a car that
belonged to someone else with another passen ger inside. Id. at 829. We reversed the

6
defendant’s conviction for drug possession because other reasonable inferences could be
drawn that the owner of the car or the other pass enger put the drugs in the glove
compartment. Id. at 835–36. We reasoned that the circumstances in Sam precluded a
conviction because there was nothing to tie the defendant directly to the drugs, and because
driving a vehicle with illegal items inside, w ithout more, was insufficient to convict the
defendant. Id.
This case is clearly distinguishable from Sam. First, Schally’s DNA was found on
the revolver’s cylinder release and hammer. And his DNA could not be excluded from the
sample on the trigger. Second, the revolver was found in the compartment directly
underneath Schally’s seat, which was inaccessible f rom the backseat. Although Hillmer
testified that both firearms belonged to him, on review we assume that “the jury believed
the state’s witnesses and disbelieved any evidence to the contrary.” Caldwell, 803 N.W.2d
at 384. Additionally, we defer to the jury’s credibility determinations. State v. Barshaw,
879 N.W.2d 356, 366 (Minn. 2016). Therefore , an inference that Schally did not
constructively possess the revolver, when his DNA was found on the revolver that was
underneath his seat in a compartment only accessible from that seat, is unreasonable.
Schally’s DNA on the revolver is what ties him directly to the revolver, which was the
factual basis missing in Sam. This inference is therefore unreasonable.
Schally also argues that it is reasonable to infer that the DNA found on the revolver
was from a secondary transfer. Schally asserts th at Hillmer could have transferred
Schally’s DNA to the revolver after shaking hands with or high-fiving him. But the BCA
expert testified that while secondary transfer is possible, it is “unlikely.” He stated this

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four times and indicated that the “results are mixed” in the research literature on secondary
transfer. The expert also testified that “as things come in contact with other items that
some of [the DNA] is lost in that transfer or contact between items. A nd so you would
transfer less down the line than you had to start.” Because the BCA expert testified that
secondary transfer is possible but unlikely, we are unpersuaded that there is a reasonable
inference to be drawn that Schally’s DNA on the revolver occurred by secondary transfer.
Alternatively, Schally argues that his DNA on the revolver supports a reasonable
inference that he did not possess the gun on the day that he was charged with possessing
it. This argument lacks merit because the state did not have to prove that Schally had
contact with the revolver, therefore leaving his DNA on it, on the same day it was found in
Schally’s constructive possession. Instead, the presence of Schally’s DNA on the revolver
supports the reasonable inference that Schally constructively possessed the revolver hidden
under his seat when the van was stopped by police. We conclude that based on the
circumstances proved, only one reasonable inference can be drawn—Schally
constructively possessed the revolver.
II. Refusing to allow the defense’s witne ss to testify in street clothes was
harmless error.

Schally argues that the district court committed reversible error by refusing to order
the jail staff to allow Hillmer, the defense’s sole witness, to testify wearing stree t clothes.
The Minnesota Rules of Criminal Procedure state that, “an incarcerated defendant or
witness must not appear in court in the distinctive attire of a prisoner.” Minn. R. Crim. P.
26.03, subd. 2(b).

8
According to State v. Lehman, a defendant’s due-process rights are violated when a
defendant is required to wear jail clothes in open court. 749 N.W.2d 76, 84 –85 (Minn.
App. 2008), review denied (Minn. Aug. 5, 2008). But this is the first time Minnesota
appellate courts have analyzed whether a def ense witness testifying in prison attire
constitutes reversible error.1 Because a constitutional right is implicated when a defendant
is required to appear in prison attire, a new trial is required unless the state can show beyond
a reasonable doubt that the error was harmless. Id. at 85. If the ver dict was “surely
unattributable to the error, the error is harmless beyond a reasonable doubt.” Id. (quotation
omitted).
The district court’s refusal to order the defense witness to be dressed in street clothes
was error under Minn. R. Crim. P . 26.03, subd. 2(b). Because there is an error, the next
step is to determine which standard to apply on review. Schally asserts that we review to
determine whether the error sig nificantly affected the verdict. Meanwhile, the state
advocates a more favorable standard for the defendant, the harmless-beyond-a-reasonable-
doubt standard. But we need not determine if the error implicates Schally’s constitutional
rights because we conclude that the error was harmless beyon d a reasonable doubt, the
more stringent standard.
A jury’s deliberations may be influenced by seeing a defendant or witness in prison
attire. Lehman, 749 N.W.2d at 85. In Lehman, the district court required that the defendant

1 This issue has come before this court but has not been analyzed. See, e.g., State v.
Houston, No. A13-1358 (Minn. App. Oct. 20, 2014), review denied (Minn. Dec. 30, 2014)
(finding the defendant’s argument factually unsupported because the record did not
establish that the witness appeared in prison attire).

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wear prison attire and we held that the district court’s error was harmless beyond a
reasonable doubt because the jury already knew that the defendant was in custody. Id.
Similarly here, the jury already knew that Hillmer was in custody. Hillmer testified that
he pleaded gui lty to illegally possessing both guns. He testified that he currently or had
already served time for illegally possessing the guns. And he testified that he had served
time for other felonies. During opening arguments, Schally’s counsel also referenced that
Hillmer was currently incarcerated. The jury the refore was fully aware that Hillmer was
incarcerated, and his appearance in prison attire would only affirm this. For this reason,
the error was harmless beyond a reasonable doubt.
III. The district court did not plainly err by giving the no -adverse-inference
instruction to the jury.

Schally argues that the district court prejudicially erred by instructing the jury to
draw no adverse inferences from his choice not to testify without first obtaining Schall y’s
consent. When a defendant does not object to a no-adverse-inference instruction, this court
applies the plain-error test: (1) there must have been error (2) that was plain and (3) that
affected substantial rights. State v. Darris , 648 N.W.2d 232, 2 40 (Minn. 2002). The
defendant bears the heavy burden of showing that his substantial rights have been affected.
State v. Griller , 583 N.W.2d 736, 741 (Minn. 1998). “[P]lain error is prejudicial when
there is a reasonable likelihood that the giving of the instruction would have had a
significant effect on the jury’s verdict.” Darris, 648 N.W.2d at 240.
The state agrees that the district court erred because a defendant must consent
before a district court can give the no-adverse-inference jury instruction. See id. Because

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the record does not contain Schally’s consent to the instruction, the district court erred by
giving the instruction, and that error was plain, satisfying the first two prongs of the plain-
error test. See State v. Gomez , 721 N.W.2d 8 71, 881 (Minn. 2006) (finding the first and
second prong satisfied because the defendant did not consent to the instruction).
Turning to the third prong, the state argues that Schally did not meet his burden of
proving that his substantial rights were a ffected and that the instruction had a significant
effect on the jury’s verdict. We agree. The supreme court has frequently held this plain
error to be harmless. See id. (finding the defendant did not meet his burden that the
instruction had a significa nt effect on the jury because of the totality of evidence against
him); Darris, 648 N.W.2d at 2 40 (finding the error not prejudicial); State v. Thompson ,
430 N.W.2d 151, 153 (Minn. 1988) (upholding conviction because defendant was not
entitled to a new tri al based on the error); State v. Rosen , 158 N.W.2d 202, 202 (Minn.
1968) (affirming conviction despite error in light of the evidence in the record). Similarly
in Larson, the supreme court held that defense counsel opened the door to the giving of the
no-adverse-inference instruction by referring to the defendant’s silence as part of his
closing argument. State v. Larson, 358 N.W.2d 668, 671 (Minn. 1984).
Here, Schally’s counsel stated in his opening argument:
He has a right also the right to remain silent. Because you are
accused of a crime, you can’t be dragged into court to tell what
happened. You have the right to not say anything. He does
have that right.

And I ask you to follow the law and not to fault him for
not -- if he chooses to not testify, to blame him for not, because
he has that right. It’s guaranteed by the Constitution.

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Schally’s counsel essentially gave the no -adverse inference instruction to the jury in his
opening. In light of the weight of evidence against Schally and his counsel’s request of the
jury “not to fault him” for remaining silent at trial , the district court’s error in no way
affected Schally’s substantial rights.
Schally additionally argues that he chose not to testify because he understood that
the prosecutor and the district court were prohibited from commenting on his choice to
remain silent, and that the jury’s verdict was significantly affected by the district court’s
emphasis on his silence. By its terms, a no -adverse-inference instruction calls a
defendant’s silence to the jury’s attention. McCollum v. State, 640 N.W.2d 610, 617 (Minn.
2002). However, we presume that jurors follow instructions. State v. Griffin, 887 N.W.2d
257, 262 (Minn. 2016). And speculation as to prejudice caused by a no-adverse-inference
instruction is insufficient on plain -error review. State v. Johnson , 915 N.W.2d 740, 746
(Minn. 2018).
Here, Schally’s speculation as to the alleged prejudic e suffered is insufficient to
overcome the presumption that jurors follow instructions given by the district court. And,
as already discussed, his own counsel emphasized his silence at trial. We therefore
conclude that the district court’s jury instructio ns did not constitute prejudicial error that
warrants a new trial.
Affirmed.