State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1483

State of Minnesota,
Respondent,

vs.

Tywan Rulford,
Appellant.

Filed January 4, 2021
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-18-23182

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

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Reilly, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges his conviction for unlawful possession of ammunition, arguing
that the district court erred in its jury instructions and that he is entitled to relief on the
merits of his pro se claims. We affirm.

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FACTS
In September 2018, police officers executed a search wa rrant at a home where
appellant was living with several other people. Officers searched a bedroom, which
appellant stated belonged to him. In one of the drawers in a television stand they found a
box of 9-millimeter ammunition, a 30 -round extended magazine containing 9 -millimeter
ammunition, a W-2 tax form in appellant’s name listing the home’s address, and an expired
credit card in appellant’s name. Officers also found a loaded firearm in a filing cabinet in
the same bedroom. In the nightstand, o fficers found a wallet with appellant’s driver’s
license, a baggie with a substance later confirmed to be cocaine, pills that were later
confirmed to be methamphetamine, and a cigarette box containing .22-caliber ammunition.
In a post-Miranda statement, appellant admitted that there were “clips” with “bullets in it”
inside the home, although he denied knowing about the drugs or the firearms.
The state charged appellant with unlawful possession of a firearm ; unlawful
possession of ammunition —.22-caliber amm unition; unlawful possession of
ammunition—9-millimeter-caliber ammunition; and two counts of fifth-degree controlled-
substance possession. The district court conducted a jury trial. Appellant testified on his
own behalf and denied knowing anything about the firearms, ammunition, or drugs in the
home. Appellant stated he did not sleep in the bedroom because the bed had bedbugs,
although he admitted to storing his possessions in the room. The jury found appellant
guilty of unlawful possession of the 9-millimeter-caliber ammunition, and not guilty of the
other four charges. The district court sentenced appellant to 60 months in prison.
This appeal follows.

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DECISION
I. The district court did not plainly err by failing to give a unanimity instruction.
A. Legal standard
Appellant argues that the district court erred by failing to provide a unanimity
instruction. Appellant did not request a unanimity instruction or object to the district
court’s jury instructions. A defendant’s failure to propose specific jury instructions or
object to instructions generally constitutes a forfeiture of that issue on appeal. State v.
Cross, 577 N.W.2d 721, 726 (Minn. 1998) . Despite appellant’s failure to object to the
instructions, we may review the jury instructions for plain error. State v. Crowsbreast, 629
N.W.2d 433, 437-38 (Minn. 2001) (noting that an unpreserved claim of an omitted specific-
unanimity jury instruction is reviewed for plain error ). Under the plain -error test, we
examine the instructions to determine whether there was (1) an error, (2) that was plain,
and (3) that affected appellant’ s substantial rights. State v. Gunderson, 812 N.W.2d 156,
159 (Minn. App. 2012). If these elements are satisfied, we will reverse if the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings. State v. Kelley,
855 N.W.2d 269, 274 (Minn. 2014) . But i f “any one of the requirements” of the plain -
error test is not satisfied, we “need not address any of the others .” State v. Lilienthal, 889
N.W.2d 780, 785 (Minn. 2017) (quotation omitted).
B. The instructions were not plainly erroneous because appellant engaged in a
single behavioral incident.
Under the first two plain -error factors, appellant must show that an error occurred,
and that the error was plain. “An error is plain if it is clear or obvious.” State v. Webster,

4
894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted). An error is “clear or obvious” if
it “contravenes case law, a rule, or a standard of conduct.” Id. (quotation omitted). An
alleged error does not contravene case law unless the issue is “conclusively resolved.”
State v. Jones , 753 N.W.2d 677, 689 (Minn. 2008). “District courts are entitled to
considerable latitude when selecting language for jury instructions,” but a jury instruction
cannot materially misstate the law. State v. Carridine, 812 N.W.2d 130, 144 (Minn. 2012).
“We review jury instructions as a whole to determine whether the instructions accurately
state the law in a manner that can be understood by the jury.” Kelley, 855 N.W.2d at 274.
Appellant argues that the district court plainly erred by failing to provide a specific-
unanimity instruction on the unlawful-possession-of-ammunition charge. A criminal jury
must agree unanimously that the state proved each element of the offense beyond a
reasonable doubt. State v. Pendleton , 725 N.W.2d 717, 730 -31 (Minn. 2007) (“Jury
verdicts in all criminal cases must be unanimous.”); see also Minn. R. Crim. P. 26.01, subd.
1(5). That said, the jury need not un animously agree on each element’ s underlying facts
so long as the differing factual circumstances show “equivalent bl ameworthiness or
culpability.” Pendleton, 725 N.W.2d at 731 (quotation omitted) . Further, “the jury need
not always decide unanimously which of several possible sets of underlying brute facts
make up a particular element, such as which of several possible means the defendant used
to commit an element of the crime.” State v. Dalbec, 789 N.W.2d 508, 511 (Minn. App.
2010) (quotation omitted), review denied (Minn. Dec. 22, 2010).
Appellant argues that the jury instructions were plainly erroneous be cause the
verdict relied on two separate acts to comprise one of the counts of unlawful possession of

5
9-millimeter ammunition: (1) possession of the box of ammunition, and (2) possession of
the 30-round magazine containing 9-millimeter ammunition. Appellant relies on State v.
Stempf, 627 N.W.2d 352 (Minn. App. 2001). In Stempf, the state charged the defendant
with one count of possession of methamphetamine . Id. at 354. But the state introduced
evidence at trial that the defendant possessed methamphetamine in two places, in his office
and his truck, and on two separate dates. Id. The defendant presented different defenses
for each allegation. Id. On appeal, we concluded that the district court violated the
defendant’s right to a unanimous jury verdict because some of the jurors could have
believed the defendant possessed the drugs found in his office on one day, while other
jurors could have believed he possessed the drugs found in his truck the next day. Id. at
358.
Appellant claims this case is like Stempf because the jury had to unanimously agree
which act of possession supported the guilty verdict—possession of the ammunition in the
box, or possession of the ammunition in the magazine . We disagree. The facts here are
readily distinguishable from Stempf. In Stempf, the state charged Stempf with a single
count of possession . Id. at 354 . We noted that “[t] he two acts a lleged in this case lack
unity of time and place; they are separate and distinct culpable acts, either one of which
could support a conviction. ” Id. at 358 -59. One act occurred when the police officers
found drugs at the defendant’s workplace, while the other occurred when police officers
found drugs in the defendant’s truck the next day. Id. at 357. We reversed the conviction,
determining that the two acts were separate and distinct , and the district court erred by
failing to give a unanimous-verdict instruction. Id. at 358.

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Here, by contrast, the state presented evidence that appellant committed the charged
offense of possessing 9 -millimeter ammunition in the same place and at the same time .
And Stempf does not apply when a defendant engages in single behavioral incident. See,
e.g., State v. Infante, 796 N.W.2d 349, 356 -57 (Minn. App. 2011) (dis tinguishing Stempf
and holding that a unanimity instruction is not required when two alleged acts are part of
same incident). Police officers discovered a box of 9-millimeter ammunition, a loaded 30-
capacity 9-millimeter magazine, and a W-2 tax form with appellant’s name on it in the
television-stand drawer in appellant’s bedroom. Officers found t hese items in the same
place, on the same date, and at the same time. While appellant denied sleeping in the
bedroom because there were bedbugs, the jurors gave greater weight to the state’s evidence
and concluded that appellant engaged in the act of unlawfully possessing ammunition. We
determine that the facts presented here satisfy the “unity of time and place” elements set
forth in Stempf. Thus, the district court did not plainly err by not giving a unanimity
instructions.
C. Appellant was not prejudiced by the jury instructions.
While we need not reach the third prong of the plain-error test, we also determine
that appellant was not prejudiced by the lack of a unanimity instruction. A defendant’s
substantial rights are affected if “there is a reasonable likelihood that giving the instruction
in question had a significant effect on the jury verdict.” State v. Johnson, 915 N.W.2d 740,
746 (Minn. 2018) (quotation omitted). Appellant bears a “heavy burden” of proof on the
third element of the plain-error test. Kelley, 855 N.W.2d at 283. Generally, an erroneous

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jury instruction does not have a significant effect on the verdict if there is “considerabl e
evidence of the defendant’s guilt.” Id. at 284.
Here, the record contains considerable evidence that appellant was guilty of
unlawful possession of ammunition. P olice officers found the box and magazine in a
television-stand drawer with appellant’s W-2 tax form and an expired credit card with his
name on it. Appellant acknowledged that he has “placed . . . storage things in the
[television-stand] drawer before.” An officer also testified that appellant admitted there
were “clips” with “bullets in it” inside the home. While appellant denied that the
ammunition belonged to him, the jury was free to discredit this testimony and resolve
conflicting evidence. State v. Tscheu, 758 N.W.2d 849, 858 (Minn. 2008).
Nor did appellant raise separate defenses at trial for the ammunition found in the
box and the ammunition found in the magazine. See State v. Rucker, 752 N.W.2d 538, 548
(Minn. App. 200 8) (distinguishing case from Stempf because, among other things,
appellant did not present separate defenses and “simply maintained throughout his trial that
he [did not commit the crime]”), review denied (Minn. Sept. 23, 2008). Appellant denied
that any of the ammunition belonged to him no matter where it was discovered. Appellant
testified that he told a police officer “[t]here’s nothing in the house,” and he “wasn’t aware
of other contraband in the house.” Thus, we conclude that even if the district c ourt erred
by not giving a unanimity instruction, appellant is not entitled to a new trial because he has
not met the heavy burden of proving prejudice.

II. Appellant is not entitled to relief on his pro se claims.
Appellant raises additional arguments i n his pro se supplemental brief, claiming
that: (1) the search warrant was not supported by probable cause , (2) his trial couns el’s
assistance was ineffective, and (3) the state violated his rights under the compulsory
process clause. We address each argument in turn.
A. Probable-Cause Challenge
Appellant challenges the probable cause supporting the search warrant for the home.
A search warrant must be supported by probable cause. U.S. Const. amend. IV; Minn.
Const. art. I, § 10. Appellant claims that a confidential informant told police officers that
drug transactions took place at appellant’s place of residence. Appellant argues that the
confidential informant’s statements constitute hearsay and were inconsistent. But
appellant failed to raise this is sue in district court and we do not consider it for the first
time on appeal. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). Thus, appellant
forfeited his probable-cause challenge.
B. Ineffective Assistance of Counsel
Appellant argues that his trial counsel was ineffective. When a defendant raises an
ineffective-assistance-of-counsel claim in a direct appeal, we examine the claim under the
two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 6 88, 104 S. Ct. 2052,
2064-65 (1984). See State v. Ellis -Strong, 899 N.W.2d 531, 535 (Minn. App. 2017)
(discussing Strickland). Under this test, “an appellant must demonstrate that counsel’s
performance fell below an objective standard of reasonableness, and that a reasonable
probability exists t hat the outcome would have been different but for counsel’s errors.”

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State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (quotation omitted). Appellate courts
need not address both prongs if one is dispositive. Andersen v. State , 830 N.W.2d 1, 10
(Minn. 2013).
Appellant argues that his defense attorney missed or prolonged court dates, failed
to file a motion to suppress, and failed to challenge the legality of his arrest. Generally,
when the trial record provides a sufficient basis to adjudicate an ineffe ctive-assistance-of-
counsel claim, the claim must be brought on direct appeal. Leake v. State , 737 N.W.2d
531, 535 (Minn. 2007). “But a claim of ineffective assistance of trial counsel that cannot
be resolved on the trial court record alone need not be b rought in a direct appeal and may
be brought in a postconviction petition.” Id. at 535-36. We conclude that the record before
us cannot fully resolve appellant’s ineffective-assistance-of-counsel claims. As a result,
we cannot decide appellant’s argument, which may be pursued in postconviction
proceedings.
C. Violation of Compulsory Process Clause
Appellant argues that the district court violated his rights under the compulsory
process clause. The compulsory process clause of the Sixth Amendment protects a
defendant’s right to call witnesses and the rig ht to call oneself as a witness. State v.
Holloway, 905 N.W.2d 20, 2 5 (Minn. App. 2017), aff’d, 916 N.W.2d 338 (Minn. 2018).
But the right s afforded under the compulsory process clause are not unlimited and “the
Sixth Amendment does not by its terms grant to a criminal defendant the right to secure
the attendance and testimony of any and all witnesses.” United States v. Valenzuela -
Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 3446 (1982).

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Appellant claims the district court interfered with his attempt to call a defense
witness. The district court asked appellant if he talked to the potential witness in the
presence of a third party. Appellant said that he spoke to the witness alone. The district
court informed appellant that he “made [himself] a witness in this case” by speaking to the
witness alone, and refused to allow any testimony from the witness.
Appellant must show that the district court improperly excluded the testimony of
his witness and that the t estimony “would have been both material and favorable to his
defense.” Id. at 867, 102 S. Ct. at 3446 . Appellant has not explained how the witness’s
testimony would have been material and favorable to his defense. In fact, appellant
informed the district court that after speaking with the witness, it was “unlikely” they were
going to call the witness . Appellant has not shown that the district court violated the
compulsory process clause.
Affirmed.