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This opinion will be unpublished and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
A18-1386

State of Minnesota,
Respondent,

vs.

Jaycob Peter Hoffman,
Appellant.

Filed September 3, 2019
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-17-8171

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this direct appeal from the judgment of conviction of unlawful possession of a
firearm, appellant argues that the district court’s jury instructions materially misstated the
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law regarding constructive possession. Because the district court did not plainly err when
instructing the jury, we affirm.
FACTS
Isanti County law enforcement investigated appellant Jaycob Peter Hoffman for an
assault, based on information that he had fired a gun at his father. Deputy Bowker learned
that Hoffman was staying with S.S., with whom Hoffman had a romantic relationship and
shared an apartment in Brooklyn Park. S.S. and two others, neither of whom was Hoffman,
were listed as tenants on the lease. In addition, a fourth person was “subletting” a room in
the apartment.
Bowker obtained a warrant to search S.S.’s apartment, and he and two other officers,
Sergeant Nordan and Sergeant Lehmann, executed the warrant on March 2, 2017. Based
on the information about the prior assault, the officers believed that there “was the high
probability of the presence of a firearm” in the apartment.
Only Hoffman and S.S. were at the apartment when the officers arrived with the
warrant. Hoffman opened the door, “retreated back into the apartment closing t he door,”
and attempted to leave the apartment through the balcon y, but was stopped by officers.
Officers escorted S.S. out of the apartment for the duration of the search.
Bowker searched the apartment; when he reached the master bedroom, he found
men’s and women’s clothing, correspondence addressed to Hoffman and S.S., and a “small
Sentry security safe.” At some point, Bowker found a “lanyard with keys out in the living
room area.” One of the keys opened the bedroom safe. Inside the safe, Bowker found “a

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Smith and Wesson black over silver handgun,” an extra magazine, a box of ammunition, a
jewelry box, a key, and “two Social Security cards, one for Mr. Hoffman and one for
[S.S.].”
On April 4, 2017, the state charged Hoffman with being an ineligible person in
possession of a firearm under Minn. Stat. § 624.713, subd. 1(2) (2016). The case proceeded
to a jury trial in May 2018. At the start of trial, outside the presence of the jury, Hoffman
stipulated that he was ineligible to possess a firearm , which is an essential element of the
charged offense. Nordan, Lehmann, and Bowker testified to the facts described above.
Bowker also testified that, while he searched S.S.’s apartment, he received information that
the lanyard belonged to Hoffman, and that Hoffman put the Social Security cards in the
safe. On cross-examination, Bowker testified that he did not collect fingerprint evidence
from the lanyard, the key to the safe, the ammunition in the gun, the ammunition in the
safe, the magazine in the safe, the key in the safe, or the safe itself. Bowker also did not
obtain DNA samples from the other individuals living in the apartment or the individuals
on the apartment’s lease.
A forensic scientist at the Minnesota Bureau of Criminal Apprehension (BCA)
testified that the grip, slide, and trigger of the handgun were tested for DNA. The sample
from the slide contained a mixture of DNA from at least four or more individuals. The
BCA scientist also testified that 99.98% of the population could be excluded as
contributors, but Hoffman could not be excluded as a contributor to the DNA mixture on
the slide. The sample from the trigger contained a mixture of DNA from at least two
individuals, from which 99.9999999999% of the population could be excluded.
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Additionally, the BCA scientist testified that Hoffman “could not be excluded as a possible
contributor” to the DNA mixture on the trigger.
After deliberating, the jury found Hoffman guilty of being a prohibited pers on in
possession of a firearm. At sentencing, on May 24, 201 8, the district court denied
Hoffman’s motion for a downward durational departure and committed him to the
commissioner of corrections for 60 months. Hoffman appeals.
D E C I S I O N
Hoffman asserts that he is entitled to a new trial because the jury instruction
“defining constructive possession did not accurately explain the law.” District courts are
allowed “considerable latitude” in selecting language for the jury instructions. State v.
Baird, 654 N.W.2d 105, 113 (Minn. 2002). This court reviews the adequacy of jury
instructions for an abuse of discretion. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).
A district court abuses its discretion if the jury instructions “confuse, mislead, or materially
misstate the law.” State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). This court reviews
“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.” Id.
Hoffman acknowledges that he did not object to the jury instruction at trial, and
therefore, this court reviews the challenged instruction for plain error. See State v.
Robinson, 699 N.W.2d 790, 799 (Minn. App. 2005), aff’d, 718 N.W.2d 400 (Minn. 2006).
Under this test, the appellant must show (1) an error, (2) that is plain, and (3) that the error
affects the appellant’s substantial rights. Baird, 654 N.W.2d at 113. “If all three prongs are
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satisfied, the court determines whether the error must be addressed to ensure the fairness
and integrity of the judicial proceedings.” Id.
Accordingly, this court must first consider whether the district court erred when it
instructed the jury on constructive possession. A district court errs when its jury
instructions materially misstate the law. See State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.
2001).
In State v. Florine, the supreme court held that, to prove constructive possession of
an item, the state must show that: (1) the police found the item “in a place under defendant’s
exclusive control to which other people did not normally have access,” or (2) that, if the
police found the item “in a place to which others had access, there is a strong probability
(inferable from other evidence) that defendant was at the time consciously exercising
dominion and control over it.” 226 N.W.2d 609, 611 (Minn. 1975).
In this case, the district court instructed the jury by using the following definition of
constructive possession:
The law recognizes two kinds of possession, actual
possession and constructive possession. A person who
knowingly has direct physical control over a thing is then in
actual possession of it. A person who is not in actual possession
of a thing but who knowingly has both the power and the
intention to exercise authority and control over it, either
directly or through another person, is then in constructive
possession of it.

Hoffman contends, and the state agrees, that the district court modified the pattern jury
instruction on constructive possession. The pattern instruction for constructive possession
is drawn from Florine, and states: “A person is in constructive possession of [an item] if
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[it] was in a place under [his] exclusive control to which other people did not normally
have access, or if found in a place to which others had access, the person knowingly
exercised dominion and control over [the item].” 10A Minnesota Practice, CRIMJIG 32.42
(6th ed. 2015). The use of the pattern instruction is not required. See State v. Kelley, 734
N.W.2d 689, 695 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007) (“[J]ury
instruction guides merely provide guidelines and are not mandatory rules; jury instruction
guides are instructive, but not precedential or binding on this court.”).
Still, Hoffman makes three arguments why the jury instruction in this case misstated
Minnesota law on constructive possession. First, he argues that the district court’s
instruction removed Florine’s requirement for possession at the time of the arrest because
it allowed the jury to find constructive possession based on “a future” “intention to exercise
authority and control,” rather than requiring the jury to find that Hoffman actually
exercised “dominion and control” over the handgun at the time of the offense. But the
instruction required the jury to find that Hoffman “knowingly ha[d] both the power and the
intention to exercise authority and control” over the handgun. (Emphasis added.) Thus, the
jury instruction directed the jury to determine whether Hoffman had power and intention,
not just that he had the intent. This language is substantially similar to the “consciously
exercising dominion and control” language found in Florine, and is not a misstatement of
the law. 1 See Florine, 226 N.W.2d at 611. Additionally, the district court instructed the

1 We observe that “knowingly ha[d] both the power and the intention to exercise authority
and control” is substantially synonymous with “consciously exercising dominion and
control” because “knowing” is defined in part as “conscious”; “power” is defined in part
as having “[d]ominance, control, or influence”; and “intentional” means “[d]one with the
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jury that, to convict Hoffman of “possession of a firearm by a prohibited person,” it must
find that the possession “took place on or about March 1, 2017 in Hennepin County,” which
alleviates any concern that the jury may have convicted Hoffman for any “future” intent.
Second, Hoffman argues that the given instruction “expands Florine’s requirement
that the defendant personally exercise control over an object to possess it.” Hoffman argues
that the instruction allowed the jury to conclude that he constructively possessed the
handgun “through another person.” It is true that the district court’s instruction stated that
a person may be in constructive possession “either directly or through another person.”
This language is supported by caselaw that states constructive possession “exists where an
owner intentionally gives actual possession . . . of the property to another.” See State v.
Simion, 745 N.W.2d 830, 842 (Minn. 2008). Thus, the “through another person” language
correctly states the law because a defendant may constructively possess a handgun
“through another person” if the defendant’s domi nion and control continued aft er
relinquishing a handgun to another person. See id. Consequently, the district court’s
instruction did not improperly expand liability under the constructive-possession doctrine.
Third, Hoffman argues that the given instruction “vitiates the purpose of the doctrine
of constructive possession” because it did not require the jury to find that Hoffman at one
time “physically possessed” the handgun. Hoffman correctly points out that Florine states
that the “purpose” of the constructive-possession doctrine is to extend possession to include
“those cases . . . where the inference is strong that the defendant at one time physically

aim of carrying out the act.” Black’s Law Dictionary 1003 (defining knowing), 1358
(defining power), 932 (defining intentional) (10th ed. 2014).
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possessed the [item]” and then maintained that possessory interest through “dominion and
control.” Florine, 226 N.W.2d at 610 . But Florine did not hold that the defendant must
have physically possessed the item in the past. See id. at 610-11; see also State v. Willis,
320 N.W.2d 726, 728- 29 (Minn. 1982) (stati ng that, under the constructive-possession
doctrine, “the state has to prove beyond a reasonable doubt that, although not in actual or
physical possession of the item at the tim e of arrest, the defendant consciously exercised
dominion and control over it”). Accordingly, we conclude that the district court did not
materially misstate the law in its jury instruction regarding constructive possession.
Because the district court’s instruction defining constructive possession of a firearm
did not materially misstate the law, the district court did not err in instructing the jury.
Therefore, we decline to consider the remaining steps of the plain-error test.
Affirmed.