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This opinion will be unpublished and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
A19-0841

State of Minnesota,
Respondent,

vs.

Robert James Yernatich,
Appellant.

Filed May 4, 2020
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

St. Louis County District Court
File No. 69VI-CR-18-795

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

Mark S. Rubin, St. Louis County Attorney, Karl G. Sundquist, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Pr esiding Judge; Reyes, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant seeks review from final judgmen ts of conviction for first-degree sale
of methamphetamine, first-degree possession of methamphetamine, being a felon in

2
possession of ammunition, and being a felon in possession of an electronic incapacitation
device, in this case, a “stun gun.” He raises three issues: (1) the record evidence is
insufficient to sustain his co nvictions for possession and sa le of methamphetamine and
possession of a stun gun, (2) the prosecuto r engaged in prejudicial misconduct during
closing arguments, and (3) the district c ourt incorrectly sentenced appellant for two
offenses that arose from the same behavioral incident. We conclude that the evidence of
appellant’s possession of methamphetamine and the stun gun is insufficient to sustain these
convictions because there is a reasonable hy pothesis inconsistent with guilt based on the
circumstances proved. We also conclude that any prosecutorial misconduct during closing
arguments does not warrant reve rsal of the remaining conv iction for being a felon in
possession of ammunition. Because our resoluti on of the first issue disposes of the two
convictions challenged in the th ird issue, we do not reach the third issue. We therefore
affirm in part, reverse in part, and remand for resentencing.
FACTS
On July 10, 2018, officers with the Lake Superior Drug and Violent Crimes Task
Force (task force) and other law-enforcemen t agencies obtained a warrant to search
appellant Robert Yernatich, his home, and a re staurant called the Black Bear Café (café),
in Tower. Yernatich’s brother owned the café at the time of the search, and Yernatich ran
the café’s day-to-day operations. Yernatich’s home was a separate building about 200 feet
behind the café.
Before the task force executed the search warrant, investigator Scott Williams and
three plainclothes officers entered the café to conduct surveillance. They identified

3
Yernatich and noticed two employees who were working at the café. After about an hour,
the officers identified themselves and placed Yernatich in handcuff s for safety purposes
while they conducted the searches. Williams searched Yernatich’s person and found $1,150
in his pocket, but no drugs. Yernatich told Williams that he had no drugs at the café.
Other officers began to videotape the café and its basement as part of the search.
The recording shows a basement crowded with many items. It had shelves in the
southwestern corner, shelves along the southe astern wall, and two storage areas in the
northeastern corner. The parties stipulated to the admission of a diagram of the basement
as a trial exhibit. The diagram has no dimensions and is not to scale. The exhibit is oriented
with north at the top.

There were two tables in the basement, one near the southwestern shelves and one
near the southeastern shelve s. Yernatich stored tools a nd other personal items on the
southwestern table and in the surrounding area. The café stored its inventory and supplies
in an area with a freezer in the northeastern corner of the basement.

4
As the search continued, Yernatich told Williams that there was a “user amount” of
methamphetamine in the café’s basement and showed Williams a small bindle of
methamphetamine on the southwestern table. Sheriff’s Deputy Chad Larson and other
officers searched the basement while Sh eriff’s Deputy Josh Berndt recorded,
photographed, and collected evidence. Larson found a large plastic bag containing a scale
and 122.568 grams of suspected methamphetamine behind a card table on the southeastern
shelves. Other officers found suspected methamphetamine pipes and a plate with suspected
methamphetamine residue on the southweste rn shelving, a second small bindle of
suspected methamphetamine on the southwestern table, and a stun gun on the southwestern
table. Later testing confirmed that the larg e plastic bag and two sm all bindles contained
methamphetamine.
Officers searched Yernatich’s home the same day and found cash totaling $4,000 in
one bedroom on the home’s main floor. In a nother bedroom on the main floor, officers
found Yernatich’s state identif ication card and a gun cabine t that contained a magazine
loaded with one .22-caliber cartridge. Officers also found ammunition in a plastic tub near
the home’s front entryway.
The state charged Yernatich with first- degree sale of methamphetamine under
Minn. Stat. § 152.021, subd. 1(1) (2016); first-degree possession of methamphetamine
under Minn. Stat. § 152.021, subd. 2(a)(1 ) (2016); being a felon in possession of
ammunition under Minn. Stat. § 624.713, su bd. 1(2) (2016); and being a felon in
possession of an electronic incapacitation devi ce under Minn. Stat. § 624.731, subd. 3(b)
(2016).

5
The district court held a two-day jury trial in January 2019. Yernatich stipulated that
the large plastic bag contained 122.568 gram s of methamphetamine and that he was an
ineligible person to possess ammunition and a stun gun. Yernatich did not dispute that the
stun gun qualifies as an elect ronic incapacitation device. The state called five witnesses
who testified to the facts summarized above.
Berndt testified that “all of the stuff for the bar and the restaurant were located in a
different area” from where police found the drugs and stun gun in the southwestern corner.
Berndt also testified that he knew from tr aining and experience that methamphetamine
dealers tend to keep their drugs at a location they have control over, often keep a large stash
near a personal-use stash, and “keep it in a place like this where they can make the argument
that somebody else had access to it or in a shed where they think that we won’t look.”
Officer Katherine Kral testified that the task force supplies confidential informants
with prerecorded money to use in controlled purchases of drugs. Kral received and
analyzed the money discovered during the searches of Yernatich and his home. She found
that $500 of the $1,150 on Yernatich’s person and $450 of the $4,000 in Yernatich’s home
matched the task force’s prerecorded money. Kral testified that the task force put the
prerecorded money into circulation the same day that the task force executed the search
warrant. Kral agreed on cross-examination that investigators di d not know how the
prerecorded money came into Yernatich’s possession.
The state called Yernatich’s brother, who is the café’s sole owner. The brother
testified that he did “more of the books” for the café and that Yernatich handled the café’s
day-to-day operations. The brother also testified that employees went into the basement’s

6
northeastern storage area “[s]everal times a day” to get items for the café but that it was
“[h]ighly unlikely” that empl oyees would go into the othe r areas of the basement. He
testified that the café did not have a credit -card machine at the ti me of the search, so
customers paid with cash or check. Yernatich did not testify.
The jury found Yernatich guilty on all counts. The district court convicted Yernatich
and imposed concurrent sentences of impris onment of 126 months for first-degree drug
sale, 60 months for being a felon in possession of ammunition, and 23 months for being a
felon in possession of an electronic incap acitation device, with cr edit for time served.
Yernatich appeals.
D E C I S I O N
I. The evidence is insufficient to sustain Yernatich’s convictions for first-degree
drug sale, first-degree drug possession, and being a felon in possession of an
electronic incapacitation device.
Yernatich challenges the sufficiency of the evidence supporting his convictions for
first-degree sale of methamphetamine, firs t-degree possession of methamphetamine, and
being a felon in possession of an electronic incapacitation de vice. He does not challenge
the sufficiency of the evidence supporting his conviction for being a felon in possession of
ammunition.
The elements of first-degree sale and first-degree possession require the state to
prove beyond a reasonable doubt that Yerna tich possessed the methamphetamine in the
basement; Yernatich stipulated that the la rge plastic bag contai ned 122.568 grams of
methamphetamine. See Minn. Stat. § 152.021, subds. 1(1), 2(a)(1). Similarly, the elements
of being a felon in possession of an electronic incapacitation device require the state to

7
prove beyond a reasonable doubt that Yern atich possessed the stun gun; Yernatich
stipulated that he was in eligible to possess one. See Minn. Stat. § 624.731, subd. 3(b). In
other words, Yernatich disputes only the possession element of all three convictions.
Officers found 130 grams of methamphetamine in the café, of which 122.568 grams
were in the large plastic bag discovered on the basement’s southeastern shelves. If the state
failed to prove that Yernatich possessed the methamphetamine in the large plastic bag, the
approximately seven grams of methamphetamine found elsewhere would be insufficient to
uphold his convictions for first-degr ee sale and first-degree possession. See Minn. Stat.
§ 152.021, subd. 1(1) (requiring state to pr ove defendant sold at least 17 grams of
methamphetamine); Minn. Stat. § 152.021, subd. 2(a)(1) (requiring state to prove
defendant possessed at least 50 grams of methamphetamine). We therefore focus our
analysis on whether the evidence is sufficien t to prove that Yernatich possessed the large
plastic bag on the southeastern shelves and th e stun gun on the table in the southwestern
corner.
The state may meet its burden of proof by establishing either actual or constructive
possession. State v. Porte, 832 N.W.2d 303, 308 (Minn. App. 2013). The parties agree that
the state’s theory at trial was that Yernatich constructively possessed the methamphetamine
and stun gun. Constructive possession requires the state to show either:
(1) that the prohibited item was found “in a place under
defendant’s exclusive control to which other people did not
normally have access,” or (2) f the prohibited item was found
“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”
the prohibited item.

8
State v. Salyers, 858 N.W.2d 156, 159 (Minn. 2015) (quoting State v. Florine, 226 N.W.2d
609, 611 (Minn. 1975)). Only the second test applies to the drugs and stun gun under the
fact of this case. Yernatich’s brother testified that café employees went into the basement
“[s]everal times a day” to get items for the café, meaning that the drugs and stun gun were
not found “in a place under defe ndant’s exclusive control to which other people did not
normally have access.” See Florine , 226 N.W.2d at 611. Acco rdingly, to prove that
Yernatich possessed the drugs and stun gun, the state needed to show that there was a
strong probability that Yernatich consciousl y exercised dominion and control over the
drugs and stun gun.
Either type of constructive possession ma y be proved by circumstantial evidence.
State v. Sam , 859 N.W.2d 825, 832 (Minn. App. 2015). Generally, when a defendant
challenges the sufficiency of the evidence, we conduct “a painstaking analysis of the record
to determine whether the evid ence, when viewed in the li ght most favorable to the
conviction, is sufficient to allow the jurors to reach a verdict of guilty.” Porte, 832 N.W.2d
at 307 (quotation omitted). Because the state offered only circumst antial evidence of a
possession element challenged by Yernatich, we review the convicti on under heightened
scrutiny using a two-part test. See State v. Harris , 895 N.W.2d 592, 598 (Minn. 2017).
First, we “identify the circumstances prove d and independently consider the reasonable
inferences that can be drawn from those ci rcumstances, when viewed as a whole.” Id.
During this step, we defer to th e jury’s acceptance or rejecti on of evidence that conflicts
with the circumstances proved. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010).

9
In the second step, we “independently cons ider the reasonable in ferences that can
be drawn from the circumstances pr oved, when viewed as a whole.” Harris, 895 N.W.2d
at 601. We do not defer to the jury’s choice between reasonable inferences at this stage. Id.
The circumstantial evidence proved by the state “must form a complete chain that, in view
of the evidence as a whole, leads so directly to the gu ilt of the defendant as to
exclude beyond a reasonabl e doubt any reasonable infe rence other than guilt.”
Al-Naseer, 788 N.W.2d at 473 (quotation omitted). We will sustain a conviction based on
circumstantial evidence only if the circumstances proved are “consistent with a reasonable
inference that the accused is guilty and inconsiste nt with any rational hypothesis except
that of guilt.” Harris, 895 N.W.2d at 601.
We begin our analysis of the first step by identifying the circumstances proved:
(1) Yernatich’s brother owned the café and Yernatich ran the café’s day-to-day operations.
(2) Yernatich initially denied having drugs a nd then later disclosed that he had a “user
amount” of methamphetamine in the café’s ba sement. (3) Yernatich showed officers a
“small bindle” of methamphetamine on the base ment’s southwestern table, in an area
surrounded by Yernatich’s tools. (4) Officers found a stun gun on th e same table as the
small bindle that Yernatich showed to police. (5) Officers discovered a scale and
approximately 122 grams of methamphetamine in a plastic bag behind a card table on the
southeastern shelves. (6) Officers found $1 ,150 on Yernatich’s person, of which $500
matched cash prerecorded by th e task force and given to a confidential informant to buy
drugs in a controlled purchase. (7) Officers found $4,000 in a be droom in Yernatich’s
home, of which $450 matched cash prerecorded by the task force. (8) The café was

10
check- or cash-only and did not accept card payment at the time of the search.
(9) Yernatich’s brother testified that he stored items in the basement but that the drugs and
stun gun were not his. (10) The café stored food and supplies in an area in the basement’s
northeastern corner. (11) The café had at least six employees who had access to the café’s
storage area in the basement and would retrieve supplies “[s]everal times a day.” (12) It
would be “[h]ighly unlikely” that the café’s employees would go into areas of the basement
other than the café’s storage area in the northeastern corner. (13) Officers testified that drug
dealers often keep a personal dr ug stash near their larger st ash, often will not keep the
larger stash at home, and often will disclose their personal stash to police in the hope that
police will stop searching. (14) Officers test ified that drug dealers seldom leave a large
stash of drugs at their place of employment.
Yernatich concedes that the circumst ances proved allow fo r the reasonable
inference that he constructively possessed the drugs and stun gun. He argues that the state’s
evidence fails on the second st ep because the circumstances proved are not inconsistent
with the reasonable alternative hypothesis th at one or more of the café’s employees
possessed the drugs and stun gun.
Minnesota caselaw guides our analysis. In two similar cases involving constructive
possession, the appellate courts upheld co nvictions based on circumstantial evidence
because the record included “evidence tying a defendant directly to the illegal items.” Sam,
859 N.W.2d at 835. In Harris, for example, the defendant drove another person’s car with
two passengers when an officer initiated a traffic stop. 89 5 N.W.2d at 59 6-97. Officers
searched the car and found a handgun hidden in the car’s headlining near the sunroof,

11
slightly behind the driver’s seat. Id. at 597. The handgun had a DNA mixture on it; forensic
testing excluded 75% of the general population as contributors but could not exclude any
of the car’s three occupants as contributors. Id. Based on this evidence, the supreme court
reversed defendant’s conviction for being a felon in possession of a firearm because it was
reasonable to infer that defendant did not know the firearm was in the car. Id. at 603. See
also Sam, 859 N.W.2d at 835-36 (reversing conv iction for insufficient evidence because
no direct evidence tied defend ant to the contraband and the state’s evidence did not
eliminate the reasonable alternative hypothes is that the car’s owner or the passenger
possessed the contraband).
Harris and Sam show that a person’s physical proximity to contraband, without
more, is insufficient to su stain a conviction based on circumstantial evidence of
constructive possession. The state’s proximity-b ased evidence in this case is even more
attenuated than the r ecord evidence in Harris and Sam. Rather than showing the
contraband’s proximity to Yernatich’s person, the state showed the contraband’s proximity
to Yernatich’s personal items. For example, the state proved that the stun gun was on the
same table in the southwestern corner where Yernatich kept his personal bindle of drugs.
But police documented many other items in the southwestern co rner. And the state
produced no eviden ce tying Yernatich to items in the southeastern corner, where police
found the large plastic bag of drugs and the sc ale. In fact, the southeastern corner is
significantly more proximate to the café’s supplies that employees accessed “[s]everal
times a day” than it is to th e southwestern corner, where Yernatich’s personal bindle was
located.

12
With no evidence linking Yerna tich directly to the large plastic bag, we conclude
that the circumstances proved do not eliminate the reasonabl e alternative hypothesis that
another café employee possessed the drugs and stun gun. But cf. State v. Mollberg ,
246 N.W.2d 463, 472 (Minn. 1976) (affirm ing sufficiency of evidence supporting
conviction for constructive possession of marijuana found in bedroom frequently occupied
by defendant that contained letters addressed to defendant and parts of a motorcycle owned
by defendant).
The state attempts to refute Yernatich’ s alternative hypothesis as unreasonable
based on two pieces of evidence. 1 First, Yernatich’s brother testified that it was “highly
unlikely” that the café’s employees would go anywhere in the basement except the café’s
storage area in the northeaster n corner. This testimony is insufficient to rebut another
employee’s constructive possession of the pr ohibited items because it does not create a
“strong probability” that Yernatich consciously exercised dominion and control over the
drugs and stun gun.
Second, the state’s evidence about the prerecorded cash in Yernatich’s possession
is too speculative. The café ma inly operated in cash at the time of the search and police
conceded that they did not know how the pr erecorded cash came to be in Yernatich’s
possession. Yernatich’s alternative hypothesis reasonably assumes that customers paid for
food at the café with the prer ecorded money. While the jury appropriately weighed this

1 We observe that the officers’ testimony that employees rarely store a dealer-sized stash
of drugs at their place of employment cannot make the alternative hypothesis unreasonable
because it is inconsistent with the conviction. Yernatich hi mself was an employee of the
café; his brother was the café’s owner and Yernatich was a supervisor.

13
evidence, and was well within it s role to reject it, for ex ample, because the amount of
money seems high for a small-town café, we cannot do likewise because we do not defer
to the jury’s choice between reasonable inferences at this stage. See Harris, 895 N.W.2d at
601. The state has identified no record evidence to change our conclusion that Yernatich’s
alternative hypothesis is reasonable.
In sum, the circumstances proved at tria l do not create a chain of evidence that
leads so directly to Yernatich’s guilt as to exclude the reasonable a lternative hypothesis
that someone other than Yernatich possessed the drugs and stun gun. See Al-Naseer,
788 N.W.2d at 473. As a re sult, we conclude that the circumstantial evidence against
Yernatich was insufficient to sustain his convictions for first-degree sale of
methamphetamine, first-degree possession of methamphetamine, and being a felon in
possession of an electronic incapacitation device.
II. Yernatich has no right to a new trial on his remaining conviction because of
prosecutorial misconduct.
Yernatich argues that he is entitled to a ne w trial because the prosecutor misstated
the law governing constructive possession by stating that he possessed the drugs, stun gun,
and ammunition by exercising dominion and control over the café’s basement and the home
at the time of his arrest. Becau se we reverse Yernatich’s convictions for first-degree sale,
first-degree possession, and being a felon in possession of an electronic incapacitation
device, we consider only whether Yernatich is entitled to a new trial for being a felon in
possession of ammunition.

14
Yernatich did not object to the state’s alleged misconduct in district court. We thus
review under the modified plain-error standard. See State v. Ramey, 721 N.W.2d 294, 302
(Minn. 2006). The first step of this test requires the defendant to “prove the existence of an
error that is plain.” State v. Parker , 901 N.W.2d 917, 926 (Minn. 2017). A prosecutor
plainly errs by misstating the law. See, e.g., State v. Strommen, 648 N.W.2d 681, 689-90
(Minn. 2002) (concluding that prosecutor engaged in misconduct by misstating the law).
Caselaw establishes that the state may prove constructive possession in two distinct
ways: first, by showing that the contraband was found in an area over which the defendant
had exclusive control and others normally could not access; or second, if other persons did
have access to the area, the evidence shows a strong probability that the defendant
exercised dominion and control over the contraband itself rath er than the area where the
contraband was found. Salyers, 858 N.W.2d at 159; see also State v. Hunter, 857 N.W.2d
537, 542 (Minn. App. 2014).
During closing arguments, the prosecut or blended these distinct types of
constructive possession as he argued that Yernatich possessed the ammunition in his home.
For example, the prosecutor stated, “Who is th e only person who lives [in] that residence
other than on weekends when Mr. Yernatich’s daughter comes to visit? It’s Mr. Yernatich.
He has dominion and control over that residence.” The prosecutor also stated, “This is Mr.
Yernatich’s residence. This is where he lives. . . . He cannot have [ammunition] and it’s in
the place he lives. He had domin ion and control over it.” By conflating the two types of
constructive possession, the prosecutor told the jury that Yernatich had dominion and
control over the ammunition because he lived alone and others did not normally have

15
access to the home. This is confusing, at the very least, and not an accurate statement of
the law governing constructive possession.
But even if we assume that Yernatich has established error that was plain, his claim
of prosecutorial misconduct fails. The second step of the modified plain-error test requires
the state to show that the plain error did not affect the defendant’s substantial rights. Parker,
901 N.W.2d at 926. “A plain error affects a defendant’s substantial rights if it was
prejudicial and affected the outcome of the ca se. An error is prejudicial if there is a
reasonable likelihood that the error had a significant eff ect on the jury’s verdict.” Id.
(quotations omitted). While analyzing whet her the error affected the defendant’s
substantial rights, we consider factors like the pervasiveness of the erroneous conduct, the
strength of the evidence against the defe ndant, and whether the defendant had an
opportunity to rebut the improper remarks. State v. Peltier , 874 N.W.2d 792, 805-06
(Minn. 2016).
We conclude that there is no “reasonabl e likelihood” that the prosecutor’s
misstatements of law affected Yernatich’s s ubstantial rights. The state presented strong
evidence that Yernatich posse ssed the ammunition in the ho me because he exclusively
controlled the home and others did not norma lly have access to it—the first type of
constructive possession. Officers also found th e magazine loaded w ith one cartridge in
Yernatich’s bedroom—a place within the home that others did not normally have access
to—near his state identification card, and found the plastic tub of ammunition in the home’s
front entryway. The prosecuto r’s misstatements of law were not pervasive because they

16
occurred infrequently during closing argument. Yernatich had an opportunity to rebut the
prosecutor’s misstatements during his closing argument.
Importantly, the district court correctly instructed the jury on the law of constructive
possession and instructed the jury to disregard the attorneys’ statements of law that differed
from those given by the district court. We presume that the jury followed the district court’s
instructions, which in turn reduced the ha rm caused by the prosecutor’s infrequent
misstatements of law. See State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005) (finding
prosecutor’s misconduct harmless because “the court’s ruling and instructions adequately
addressed the misconduct”).
In sum, even if we conclude that the prosecutor plainly erred by misstating the law
in closing arguments, we determine that the error did not affect Yernatich’s substantial
rights. Yernatich is therefore not entitled to a new trial for his conviction of being a felon
in possession of ammunition.
Because we reverse Yernatich’s convictions for first-degree sale of
methamphetamine, first-degree possession of methamphetamine, and being a felon in
possession of an electronic incapacitation device, we do not consider Yernatich’s argument
that the district court erred while senten cing him for those offenses. We remand for
resentencing for his remaining conviction.
Affirmed in part, reversed in part, and remanded.