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This opinion will be unpublished and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
A19-0960

State of Minnesota,
Respondent,

vs.

Suvwe Peter Ighovojah,
Appellant.

Filed June 29, 2020
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Ramsey County District Court
File No. 62-CR-17-8453

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

John Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
In this direct appeal from the judgment of conviction s for unlawful possession of a
firearm and ammunition, appellant argues that (1) the evidence was insufficient to prove
possession; (2) the district court erred by imposing sentences for both unlawful possession

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offenses; and (3) the district court erred by allowing in-court identification of appellant
because the procedure used to obtain the identification was unnecessarily suggestive .
Appellant also raises multiple issues in a pro se supplemental brief, which we conclude are
without support.
The evidence was sufficient to prove appellant knowingly possessed the
ammunition found inside of the firearm and the admission of the identification evidence
did not create a substantial likelihood of irreparable misidentification at trial. We therefore
affirm the verdicts on those grounds. However, because both of the possession convictions
arise from the same behavioral incident, we reverse and remand to allow the district court
to vacate one conviction and sentence.
FACTS
This case arises from a late-night argument on a residential street in St. Paul from
which the state charged appellant Suvwe Peter Ighovojah with possession of a firearm and
possession of ammunition by an ineligible person, each in violation of Minn. Sta t.
§ 624.713, subd. 1(2) (2016). The matter proceeded to a jury trial, and the following facts
are based on the testimony and exhibits presented at trial.
On October 13, 2017 at approximately 11:00 p.m., police dispatch received a report
that a black male with dreadlocks was yelling at a woman with “big hair” on the street and
asking her where his gun was. The reporting caller was at home with his girlfriend, T.G.,
who also observed the incident. The caller told dispatch the woman had a gun and that the
male was yelling at her and daring her to shoot him. T.G. later confirmed this account with
law enforcement and testified that the gun the female was holding was black . As the

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woman ran away from the man, T.G. observed the man yell at the woman to give him back
his gun.
Officers arrived at the scene and could not locate the man, but did find a woman
leaving a nearby alley. T.G. verified that this woman—later identified as A.B.—was the
woman from the argument. An officer noted leaves and brush on her clothing such that it
looked like she had been in the bushes. Another officer searched the nearby alley with a
canine trained to locate firearms by scent and found a black Glock 20 semi -automatic
handgun in some bushes on the side of the alley. An officer took DNA swabs from the
outside of the gun, including the handgrip, slide, trigger, and muzzle. He also collected
DNA from the cartridges and the magazine inside the gun. Analysis from the Minnesota
Bureau of Criminal Apprehension (BCA) later confirmed t hat the outside slide had a
mixture of DNA from four or more individuals, with a DNA profile matching appellant.
Appellant’s DNA was not, however, found on the cartridges or magazine inside of the gun.
The following day an officer went to T.G.’s apartment and spoke with her in attempt
to identify the man from the argument. The officer showed T.G. photos of two men, both
of whom were known by law enforcement as having associated with A.B. Notably, both
were black men with dreadlocks. T.G. told the officer that she saw both of the men at the
scene the night before and specifically identified the photo of appellant as the man from
the argument. She acknowledged, however, that the man in the argument had his back
turned to her for some of the time as he was chasing A.B. down the street.
Appellant stipulated prior to trial that he was ineligible to possess firearms or
ammunition at the time of the incident. After hearing testimony from the officers involved

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and from T.G., t he jury found appellant guilty of both counts . Appellant was later
convicted and sentenced to 60 -months’ imprisonment on each count to be served
concurrently. This appeal follows.
D E C I S I O N
I. The evidence was sufficient for the jury to convict appellant of possession of
ammunition.

Appellant argues that the state presented insufficient evidence for the jury to
conclude beyond a reasonable doubt that he knowingly possessed ammunition . In
considering a sufficiency-of-evidence challenge , we review the record to determine
whether the evidence, when viewed in the light most favorable to the conviction, is
sufficient to allow the jurors to reach the verdict that they did. See State v. Webb , 440
N.W.2d 426, 430 (Minn. 1989).
For the jury to fin d appellant guilty of possession of ammunition by an ineligible
person, the state must prove that he knowingly possessed ammunition. See State v. Harris,
895 N.W.2d 592, 601 (Minn. 2017) . Minnesota law recognizes two types of possession:
actual and constructive. Id. Because neither the firearm nor ammunition was found on
appellant’s person, the state was required to prove that appellant constructively possessed
ammunition. See State v. Florine , 22 6 N.W.2 d 609, 610 (Minn. 1975) ( stating that
constructive possession applies when the state “cannot prove actual or physical
possession . . . but where the inference is strong that the defendant at one time physically
possessed the [ contraband] and did not abandon his possessory interest in the
[contraband]”). To prove appellant was in constructive possession of ammunition, the state

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was required to prove that the ammunition was found in a place under appellant’s exclusive
control to which others did not h ave access, or, if found in a place that others had access
to, there was a strong possibility that he knowingly exercised dominion and control over
the ammunition. Id. at 611.
The jury found appellant guilty based upon circumstantial evidence. We review
convictions based on circumstantial evidence with particular scrutiny, see State v. Bolstad,
686 N.W.2d 531, 539 (Minn. 2004) , and apply a two -step analysis when reviewing the
sufficiency of such evidence, see State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).
First, we identify the circumstances proved and construe the evidence in the light most
favorable to the verdict. See id. at 598-99. Then, we “determine whether the circumstances
proved are consistent with guilt and inconsistent with any r ational hypothesis except that
of guilt.” See State v. Palmer , 803 N.W.2d 727, 733 (Minn. 2011) (quotation omitted).
The state’s evidence need not exclude all inferences other than guilt, but must exclude all
reasonable inferences other than guilt. State v. Tscheu , 758 N.W.2d 849, 857 (Minn.
2008). The circumstances proved must form a “complete chain that, in view of the
evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a
reasonable doubt any reasonable inference other than guilt.” See State v. Al-Naseer, 788
N.W.2d 469, 473 (Minn. 2010) (quotation omitted).
The following circumstances were proved at trial:
 Through their apartment window, T.G. and her boyfriend heard an
argument on the s treet between a man and a woman. They observed
the man yell at the woman multiple times to give him back “his” gun
and tell her to “shoot him,” and saw the woman holding a black
handgun.

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 Soon after the argument, law enforcement arrived and saw a woman
who appeared to have been i n bushes leaving a nearby alley. T.G.
identified her as the same woman from the argument.

 Law enforcement searched the alley and found a black handgun
loaded with ammunition in bushes on the side of the alley.

 The day after the argument, T.G. identified the appellant as the man
involved in the argument.

 Appellant’s DNA was found on the outside of the gun . Appellant’s
DNA was not found on any ammunition cartridge or on the magazine
inside of the gun.

The circumstances proved are consistent with the jury’s verdict of guilty for the
possession of ammunition offense though appellant contends that they allow for a
reasonable hypothesis other than guilt because his DNA was not found on the ammunition
and no evidence was presented at trial establishing that he held the gun recently or knew
that the gun was loaded. We disagree that a reasonable hypothesis other than guilt exists.
The jury reasonably inferred that appellant possessed the ammunition located within
the firearm because of the evidence of his DNA on the outside of the firearm and because
he repeatedly referred to the firearm as “his” and asked the woman to give “his” gun back
to him. His statement asking the woman to “shoot him” also provided an inference for the
jury that he knew the gun was loaded. Moreover, because the circumstances proved
demonstrate that he was exercising dominion and control over the firearm itself, it is not
reasonable that he was not also in constructive possession of the ammuniti on inside the
magazine inside that same firearm. The circumstances proved are consistent with guilt and
inconsistent with any rational hypothesis except guilt.

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II. The district court did not err in declining to suppress the pretrial identification
procedure.

Appellant argues that the district court violated his right to due process and a fair
trial by allowing T.G. to identify him in court after she had previously identified him based
on an identification procedure that was unnecessarily suggestive . Appellant previously
sought to suppress the out-of-court identification on the same grounds in a pretrial motion.
The district cou rt delayed ruling until trial when T.G.’s identification was ultimately
admitted over appellant’s objection.
“The district court has broad discretion when it comes to the admission of evidence,
and [appellate courts] therefore will upset such rulings only if it can be said that the court
abused its discretion. ” See State v. Hall, 764 N.W.2d 837, 841 (Minn. 2009) (quotation
omitted). Whether an identification procedure is so suggestive as to violate due process is
an issue reviewed de novo. State v. Hooks, 752 N.W.2d 79, 83-84 (Minn. App. 2008).
We follow a two -part process in addressing the admissibility of identification
testimony. See State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). First, we determine
whether the procedure used to elicit the identification was unnecessarily suggestive. Id. In
doing so, we look to “whether the defendant was unfairly singled out for identification.”
Id. (citing Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 970–71 (1968)). If
the identification process is unnecessarily suggestive, the second part of the process
requires an analysis of whether the totality of the circumstances surrounding the
identification created “a very substantial likelihood of irreparable misidentification.” State
v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999) (quotation omitted). If not, it is considered

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reliable despite any suggestive procedure. Ostrem, 535 N.W.2d at 921. If the out-of-court
identification procedure is faulty, the identification must be suppressed. Id.
We need not decide whether the identification process was impermissibly
suggestive because we conclude that the identification is reliable under the totality of the
circumstances. In considering the totality of the circumstances, our court must assess five
factors: “1. The opportunity of the witness to view the criminal at the time of the crime;
2. The witness’s degree of attention; 3. The accuracy of the witness’ prior description of
the criminal; 4. The level of certainty demonstrated by the witness at the photo display;
[and] 5. The time between the crime and the confrontation. ” Id. We next consider each
factor.
The Opportunity of the Witness to View the Criminal at the Time of the Crime
T.G. testified about what she observed outside of her apartment the night of the
incident. She testified that she provided officers with a detailed description of the woman
and was able to positively identify her. She also got a “good look” at the man and saw him
several times that night. T.G. recalled describing the man as “wearing light colored
clothing, white, I believe, or cream, maybe” and as having approximately shoulder -length
dreadlocks. She testified that she could identify the man again if asked, and that she had a
clear, unobstructed look at both individuals involved in the argument, and that streetlights
were on so she could see him clearly despite it being nighttime.
Appellant argues that seeing a suspect for only a few minutes is not enough to make
a credible identification. He also asserts that T.G.’s observation may be tainted because it
was made when it was dark . However, T.G. testified that the street was well -lit by the

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streetlights, that she h ad a clear view of the argument through a large glass window for
about 10 to 15 minutes, and that she was focused on the man. Taken together, her testimony
supports a finding of reliability of the identification of appellant.
The Witness’s Degree of Attention
Appellant asserts that T.G. was distracted because there was a weapon involved,
thus limiting her ability to focus on his appearance. The record demonstrates that T.G. was
attentive during the incident, viewed the argument for between 10 and 15 minutes, and
provided officers with a detailed description of the man, including his hairstyle and
clothing, and a detailed account of the dialogue between the man and woman. She was
also able to accurately identify the woman. Such information would likely not have been
provided unless T.G. was paying particular attention. This factor supports reliability of the
identification of appellant.
The Accuracy of the Witness’s Prior Description of the Criminal
As noted, T.G. gave officers a detailed description of the man’s hairstyle, clothing,
and race. Appellant urges us to consider that these descriptions are vague and could
describe many people . However, the incident occurred on the street in front of T.G.’s
apartment building and the streetlights were on at the time. This factor suggests reliability
of the prior identification of appellant.
The Level of Certainty Demonstrated by the Witness at the Photo Display
T.G. testified that she was very certain in her identification , and the video of the
encounter in which she identified appellant’s photo in the photo display shows that T.G.
recognized both men in the photos as having been present during the incident the night

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before, and was confident in her identification of appellant. She was able to recall several
details about the clothing, size and hairstyles of the men from the night before. These
factors support the reliability of her identification of the appellant.
The Time Between the Crime and the Confrontation
T.G. made the identification the day after the incident, which supports the accuracy
of her identification of the appellant.
The totality of the circumstances show that T.G.’s pretrial identification of the
appellant was reliable and did not create a substantial likelihood of irreparable
misidentification at trial. Therefore, it was not error for the district court to permit T.G.’s
in-court identification of appellant.
III. The district court erred in imposing a conviction and sentence for both
offenses.

When a defendant’s conduct constitutes more than one offense under the laws of
Minnesota, the defendant may be punished for only one of the offenses. Minn. Stat.
§ 609.035, subd. 1 (2016) ; see also Minn. Stat. § 609.04, subd. 1 (2016) (“Upon
prosecution for a c rime, the actor may be convicted of either the crime charged or an
included offense, but not both.”). Minnesota Statute s section 609.035 provides an
exception to this rule for certain crimes involving firearms, stating that “a prosecution for
or conviction of a violation of section[]. . . 624.713, subdivision 1, clause (2), is not a bar
to conviction of or punishment for any other crime committed by the defendant as part of
the same conduct.” Minn. Stat. § 609.035, subd. 3 (2016) (emphasis added).

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Appellant argues that the ammunition-possession conviction and sentence must be
vacated because that offense is fundamentally the same as the firearm-possession offense.
Therefore, appellant argues, the ammunition-possession offense is not “any other crime,”
but instead the same crime, and so the exception does not apply and the conviction and
sentence must be vacated. The state disagrees, contending that the ammunition possession
is “any other crime” such that the exception applies and the multiple convictions and
sentences is proper.
A recent published opinion from our court, State v. Nowels, 941 N.W.2d 430 (Minn.
App. 2020) , review denied (Minn. June 16, 2020) , resolves this issue and directs our
decision to conclude it was an error to enter multiple convictions and sentences.
Like appellant, Nowels was charged with possession of both a firearm and
ammunition by an ineligible person pursuant to Minnesota Statutes section 624.713,
subdivision 1(2), after police found him with a loaded gun. Id. at 435, 440. After being
found guilty by a jury, Nowels was convicted and sentenced to concurrent 60-month prison
sentences involving each possession count. Id. at 436. Nowels appealed his conviction
and sentence, arguing that his possession of a loaded gun did not warrant two convictions
and sentences. Id. at 439.
We reversed and remanded with instruction to vacate one of the convictions,
determining that the statute required proof of the same elements: ineligibility to possess a
firearm or ammunition based on a previous conviction for a crime of violence, and a
subsequent possession of a firearm or ammunition. Id. at 443. Further, we concluded that

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the possession of the loaded firearm constituted one course of unlawful conduct and was
not subject to multiple convictions and sentences. Id. at 442-43.
Because the elements for proving each charge are identical and are charged under
the same statute, this court’s holding in Nowels is directly applicable here and compels us
to reverse and remand to the district court to vacate one conviction and sentence of the
appellant.
IV. Appellant raises no meritorious claims in his pro se supplemental brief.

Appellant raises three arguments in his pro se brief: (1) his conviction of possession
of a firearm by an ineligible person must be reversed due to insufficient evidence; (2) the
district court erred by allowing T.G. to testify about her identification of appellant in-court;
and (3) his conviction should be reversed on grounds of ineffective assistance of counsel.
The second argument was already addressed above. The oth er two arguments are
addressed below.
Possession of Firearm1
The relevant sufficiency -of-evidence standard and circumstances proved were set
forth earlier in this opinion. Appellant contends that the state did not meet its burden of
proof because it could not prove that he recently held or possessed the gun. We disagree.
Just l ike with possession of the ammunition, appellant’s possession of the gun was
established by circumstantial evidence. The jury concluded from the circumstances proved

1 We recognize that consistent with State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979)
we typically need address the sufficiency of evidence only as to the offense for which a
conviction or sentence is imposed. However, the unique situation here compels us to
address sufficiency of evidence for each possession offense.

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that appellant possessed the firearm, and disregarded the circumstances suggesting he did
not possess it, including the BCA analyst ’s testimony that she could not definitively state
whether he had recen tly held the firearm. Even if appellant had not recently held the
firearm, constructive possession does not require recent possession. Florine, 226 N.W.2d
at 610 (holding that constructive possession applies when “the inference is strong that the
defendant at one time physically possessed the [contraband]” ). Lastly, appellant’s
possession of the gun was also established by direct evidence when appellant referred to
the gun as “his.” A defendant’s statements may be considered direct evidence. State v.
Horst, 880 N.W.2d 24, 39-40 (Minn. 2016).
The circumstances proved supporting possession of the firearm are stronger than
those supporting the ammunition possession in that—unlike the ammunition—appellant’s
DNA was found on the outside of the firearm. Viewing the circumstances proved in the
light most favorable to the verdict, the evidence was sufficient for the jury to find appellant
guilty of this charge and there is no rational hypothesis inconsistent with his guilt.
Ineffective Assistance of Counsel
Appellant argues his counsel provided ineffective assistance because his attorney
did not adequately object to leading questions during direct examination by the state of its
witnesses. He raises this issue because the judge—outside the presence of the jury —told
defense counsel that the state was asking “a lot of leading questions on some pretty crucial
points” and that defense counsel was “not objecting.” The district court went on to state
“it should not fall to the court to stop that kind of inquiry” and “I implore you to be m ore
vigilant about objecting.”

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When an ineffective -assistance-of-counsel claim is properly raised in a direct
appeal, we examine the claim under the two -prong test set forth in Strickland v.
Washington, 466 U.S. 668, 6 94, 104 S. Ct. 2052, 20 68 (1984). “We review a district
court’s application of the Strickland test de novo because it involves a mixed question of
law and fact. If a claim fails to satisfy one of the Strickland requirements, we need not
consider the other requirement.” State v. Mosley , 895 N.W.2d 5 85, 591 (Minn. 2017)
(citation omitted).
Pursuant to Strickland, a defendant “must show that counsel’s representation fell
below an objective standard of reasonableness” and that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068. The burden falls on appellant
to overcome the strong presumption that his trial attorney’s conduct was reasonable. State
v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). The record does not show that appellant’s
counsel’s performance fell below an objective standard of reasonableness, or that appellant
has overcome the presumption that his attorney’s conduct was reasonable.
There may be times when an attorney chooses not to object as a means of t rial
strategy, and “[m]atters of trial strategy lie within the discretion of trial counsel and will
not be second-guessed by appellate courts.” Leake v. State, 737 N.W.2d 531, 536 (Minn.
2007). Because appellant has not established that his attorney’s conduct fell below an
objective standard of reasonableness, we need not address the second Strickland prong. In
sum, appellant has not established a meritorious ineffective-assistance-of-counsel claim.
Affirmed in part, reversed in part, and remanded.