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This opinion is nonprecedential except as provided by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
A20-0320

State of Minnesota,
Respondent,

vs.

Antonio Cortez Lewis,
Appellant.

Filed March 15, 2021
Reversed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-19-11555

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, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Reyes, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Moments after a drive-by shooting, poli ce saw appellant Antonio Cortez Lewis
riding in the front passenger seat of a vehicle speeding away from the scene. After police
made an unsuccessful attempt to stop the ca r, Lewis, the driver, and an unidentified

2
backseat passenger eventually abandoned the vehicle and fled from police on foot. Police
found a .45-caliber Springfiel d handgun in the car’s rear passenger area. Lewis was
apprehended on a later date and admitted that he was present when the shots were fired but
denied participating in the shooting.
The state charged Lewis with aiding and abetting the drive-by shooting 1 and
unlawful possession of a firearm or ammunition. 2 The state introduced cellphone videos
showing Lewis in possession of a purported 9 mm handgun in the days leading up to the
shooting and argued to the jury that Lewis possessed and fired a 9mm handgun—that police
never found—on the night of the shooting. The jury acquitted Lewis of aiding and abetting
the drive-by shooting, but guilty of unlawful possession of a firearm or ammunition. Lewis
challenges the sufficiency of the evidence supporting the jury’s guilty verdict. Because we
conclude that the evidence is not sufficient to prove, beyond a reasonable doubt, that Lewis
possessed a firearm or ammunition, we reverse.
FACTS
At trial, the state’s theory of the case was that Lewis and Jamar McLane participated
in a drive-by shooting near a Minneapolis residence, and that Lewis fired a 9mm handgun
during the shooting. The ju ry ultimately acquitted Lewis of aiding and abetting, but

1 Minn. Stat. § 609.66, subd. 1e(b) (2018).
2 Minn. Stat. § 624.713, subd. 1(2) (2018).

3
convicted him of unlawful possession of a firearm. With the exception of several details,
the parties generally agree as to the facts proved at trial:
On March 24, 2019, a group of people were visiting J.J.’s residence while J.J. was
away. At about 1:00 a. m., J.J. returned home and asked the guests to le ave. Suddenly,
gunfire broke out outside. Bullets entered the residence through the windows and hit walls.
J.J. and a guest were both shot.
Nearby, two police officers heard the gunf ire and drove towards the sound of the
shots. They saw a white Kia driving with its lights off at a high speed away from where
they heard the shots. The officers stopped the Kia by pulling their squad car in front of it.
Squad car and body camera videos depicting the interaction were played at trial, and police
officers involved in the stop testified to their recollection of it. There were three men in
the Kia—the driver (later identified as McLane), a front-seat passenger (later identified as
Lewis), and a back-seat passenger (who was neve r identified). When the officers got out
of their squad car and instructed the men to raise their hands, the men did not initially
comply. Lewis made movements that one offi cer testified looked like he “was probably
hiding something underneath the seats.”3 The officers had their guns drawn and pointed at
the men in the Kia.

3 We observe that, although the officer testified that Lewis’s movements made it look like
he was hiding something underneath the seats, the video evidence of the stop clearly
demonstrate that Lewis moved towards the front of the Kia, not toward the rear passenger
area where the gun at issue in this case was ultimately discovered.

4
Two more police officers arrived in a second squad car, pulled behind the Kia, and
exited their vehicle. In order to avoid a cro ssfire, an officer standing in front of the Kia
moved to its side. When she did, the Kia sped off.
All of the officers pursued the Kia in their squad cars. After a short chase, the Kia
stopped and its occupants fled from the poli ce on foot. Police a pprehended McLane not
long afterwards. McLane told police that “the gun” was in the Kia. When asked whether
it was just one gun, McLane responded that he did not know.
A K9 officer, attempting to locate the other occupants of the car, led police to a
shack in a nearby residential back yard where the dog alerted. There was no person in the
shack, but police found a black jacket that appeared to be similar to one that the front-seat
passenger in the Kia had been wearing.
Police searched the Kia. They discovered a Springfield .45-caliber handgun in the
rear passenger area, partially underneath the front seat. Fully loaded, the Springfield would
hold 14 rounds (one round in the chamber, 13 rounds in the magazine). There were no
rounds in either the magazine or the cham ber. Police also found a box of .45-caliber
ammunition in the vehicle. The box was missing exactly 14 rounds. There were no
discharged cartridge casings in the car. Bu t the officers found two cell phones and an
alcohol bottle in the Kia.
A team of forensic scientists was dispat ched to the residence to process the crime
scene. They found discharged cartridge casings along the exterior of the house, as well as

5
discharged cartridge casings across the street on the sidewalk. 4 There were two distinct
groupings of these casings across the street from the residence. There was one group of
9mm discharged cartridge casings and one gr oup of .45-caliber discharged cartridge
casings. In the .45-caliber group, there were 13 casings and one live round, totaling
14 rounds—the same amount of rounds that th e Springfield could hold and the amount
missing from the ammunition box. Forensic testing could not de termine whether the
.45-caliber discharged cartridge casings had been fired from the Springfield.
Other forensic scientists compared finge rprints and DNA found in and on the Kia
to known samples of Lewis and McLane. Lewis’s fingerprints and palm prints were found
in several areas—on multiple locations on the exterior of the Kia and on the alcohol bottle.
A DNA mixture of four or more individuals was discovered on the Springfield. The major
DNA profile of that mixtur e matched McLane’s DNA sample. The scientist conducting
the DNA analysis could not determine whose DNA might have been a minor profile in the
mixture. But Lewis’s DNA sample matched (or was very likely a contributor to) DNA
mixtures on the black jacket found in the shed and the alcohol bottle.
Turning to the cellphones in the Kia, po lice found two short videos on one that
depicted Lewis holding a 9mm handgun. The videos were “created” on March 21 and 23,

4 In total, the scientists found 13 .40-calib er discharged cartridge casings, 13 .45-caliber
discharged cartridge casings, 26 9mm discharged cartridge casings, and one live .45-caliber
round. A firearms specialist testified that the 26 9mm discharged cartridge casings that
were found at the scene were fired by four distinct 9mm guns.

6
2019, meaning that they were either filmed , downloaded to the p hone, or edited on those
dates.5
A police sergeant eventually interviewed Lewis about the incident. Lewis initially
denied being present or involv ed in the shooting and subsequent chase. But when the
sergeant gave the address of the shooting, Le wis appeared nervous. He denied knowing
McLane, but when shown a picture of him, he identified McLane by his nickname. Even
after the sergeant confronted Lewis with evidence that he was present—his fingerprints,
DNA, and the videos on the cellphone—Lewis maintained that he was not there. But
ultimately, after further questioning, Lewis admitted that he was present. He claimed that
McLane had set him up. He admitted that he saw McLane with a gun in the car. He
admitted that “shots were fired.” When asked what he had done with “his gun,” Lewis said
that “there was a gun” but refused to admit where it was.
In its closing arguments, the state attemp ted to persuade the jury that Lewis
participated in drive-by shooting by possessing and firi ng a 9mm handgun—likely the
9mm handgun shown in the cellphone videos. The state did not argue to the jury that Lewis
possessed the Springfield—instead , the state argued that it was likely that McLane fired
the Springfield because it had McLane’s DNA “all over it.”
The jury found Lewis not guilty of driv e-by shooting, but guilty of unlawful
possession of a firearm or ammunition. The di strict court sentenced Lewis to 60 months
in prison. This appeal follows.

5 The state also introduced ge neric photographs of a Taurus 9mm Slim handgun, which
appeared to be the model of the gun in the videos.

7
DECISION
Lewis argues that the evidence is not sufficient to support his conviction because it
fails to prove an essential element of unl awful possession of a firearm or ammunition—
that he possessed a firearm or ammunition.6
This case is somewhat unique in that the state argued to the ju ry that Lewis was
guilty of unlawfully possessing a 9mm han dgun, but now argues on appeal that the
evidence is sufficient to prove that Lewis possessed the Sp ringfield. In fact, the state
concedes that by acquitting Lewis of aiding and abetting the drive-by shooting, the jury
rejected the theory that Lewis possessed a 9mm gun that was fired during the shooting. We
agree that the jury clearly rejected the theory that Lewis possessed a 9mm handgun on the
night of the shooting. As a re sult, we restrict our analysis to whether the evidence is
sufficient to establish, beyond a reasonable doubt, that Lewis possessed the Springfield.7
When reviewing the sufficiency of the evidence, we conduct “a painstaking analysis
of the record to determine whether the evidence, when viewed in the light most favorable

6 Lewis also argues that (1) the district court plainly erred by failing to instruct the jury as
to what act of possession he was guilty of, and (2) the district court erred by allowing the
state to introduce inadmissible evidence. Because we ultimately conclude that the evidence
is not sufficient to support the jury’s guilty verdict, we address only that issue.
7 We acknowledge that the state charged Lewis with possession of a firearm or ammunition,
and that the state introduced evidence that ammunition was also discovered in the Kia. But
it is clear, based on the evidence introduced at trial concerning the ammunition, that Lewis
could not be convicted of possessing the ammunition if the jury did not also conclude that
Lewis was guilty of possessing the Springfield. And there is no evidence of where in the
Kia the ammunition was discovered, making it even less connected to Lewis than the gun.
Thus, because we conclude that the evidence is not sufficient to prove that Lewis possessed
the Springfield, we also conclude that the evidence is not sufficient to prove that Lewis
possessed the ammunition discovered somewhere in the Kia.

8
to the conviction, was sufficient.” State v. Ortega , 813 N.W.2d 86, 100 (Minn. 2012)
(quotation omitted). We assu me that “the jury believe d the state’s witnesses and
disbelieved any evidence to the contrary.” State v. Caldwell , 803 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 innocen ce 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.
Lewis’s conviction is based on circumstan tial evidence. When the conviction is
based on circumstantial evidence, we conduct a two-step analysis. State v. Harris ,
895 N.W.2d 592, 601 (Minn. 2017 ). First, we identify the circ umstances proved at trial,
disregarding evidence that is not consistent with the jury’s verdict. Id. Second, we consider
the inferences that can be drawn from the circumstances proved. Id. We give no deference
to the jury’s choice among reasonable inferences at this second step. Id. The evidence is
sufficient if the circumstances proved, viewed as a whole, are “consistent with a reasonable
inference that the accused is guilty and inconsiste nt with any rational hypothesis except
that of guilt.” Id.
Before beginning this two-step analysis, we review the law governing possession.
Possession can be either actual or constructive. State v. Florine, 226 N.W.2d 609, 610-11
(Minn. 1975). A person is in actual possession of an item if he has direct physical control
over it—for example, if the person is holding it. State v. Barker , 888 N.W.2d 348, 353
(Minn. App. 2016). A person is in constructive possession of an item if the item is found
in a place under his exclusive control to which other people do not normally have access,

9
or if it is found in a place to which other people do have access, there is a strong probability
inferable from other evidence that the person was consciously exercising dominion and
control over it. Florine, 226 N.W.2d at 611. Here, Lewis was not in actual possession of
the Springfield. And the Springfield was found in a place to which other people had access.
Thus, the state could only prove Lewis’s guilt by proving that Lewis consciously exercised
dominion and control over the Springfield.
Possession may also be exclusive or joint. Ortega, 770 N.W.2d at 150. But,
generally, the defendant’s mere presence in an area, occupied by multiple people, where
an item is found is not suffici ent to demonstrate that the de fendant possessed that item.
State v. Lorenz, 368 N.W.2d 284, 288 (Minn. 1985); see also Harris, 895 N.W.2d at 602-03
(concluding that evidence was insufficient to prove that driver possessed handgun lodged
into headlining near sunroof when there were two other passengers in the car).
With this legal backdrop in mind, we tu rn to the first step in evaluating the
sufficiency of the evidence—to determine the relevant circumstances proved. The
circumstances proved relevant to Lewis’s possession of the Springfield are as follows:
(1) Lewis, McLane, and a third person were present in the Kia outside the residence.
(2) McLane was driving the Kia, Lewis was in the front passenger seat, and an unidentified
person was in the rear passenger seat. (3) A shooting occurred at the residence. (4) Police
found 13 .45-caliber discharged cartridge cas ings and one live .45-caliber round at the
scene of the shooting, across the street from the residence. (5) Police also found a grouping
of 9mm discharged cartridge casings across the street from the residence. (6) Lewis did
not immediately put his hands up when police ordered him to do so and made movements

10
in his seat towards the front of the Kia. (7) Lewis fled from police on foot after a short car
chase. (8) Police found a .45-caliber Springfield handgun in the rear passenger area of the
Kia. (9) Police also found a box of .45-caliber ammunition that was missing 14 rounds, a
bottle of alcohol, and two cellphones. (10) McLane’s DNA matched the major DNA
profile found on the Springfie ld. (11) Lewis’s DNA was on the alcohol bottle and his
fingerprints were found on the car. (12) Police found Lewis’s black jacket in a nearby shed
after Lewis fled from police on foot. (13) Lewis initially told police that he was not present
for the shooting, but eventually admitted that he was. (14) Lewis knew that McLane had
a gun in the Kia.
Our second step in evalua ting the sufficiency of the evidence is to determine
whether the circumstances proved are “consiste nt with a reasonable inference that the
accused is guilty and inconsistent with any rational hypothesis except that of guilt.” Harris,
895 N.W.2d at 601. The parties disagree over both prongs of this step.
The state argues that the circumstances pr oved are consistent with a reasonable
inference that Lewis possessed the Springfield based on his presence in the vehicle, his
movements in the front passenger seat, his proximity to the Springfield, his knowledge that
the Springfield was in the Kia and was used in the drive-by shooting, and Lewis’s decision
to flee from police and initially be untruthful in his interview. Lewis argues that the
circumstances proved do not support a reasona ble inference that he exercised dominion
and control over the Springfield.
We conclude that the circumstances proved support a reasonable—though not
particularly strong—inference of guilt. There are many circumstances that may support an

11
inference that a defendant exercised dominion and control over an object. Proximity to the
item is one consideration. State v. Sam , 859 N.W.2d 825, 834 (Minn. App. 2015).
Evidence that the defendant handled the item is another. State v. Arnold, 794 N.W.2d 397,
401 (Minn. App. 2011). And evidence of th e defendant’s knowledge of the item should
also be considered. Harris, 895 N.W.2d at 602-03. He re, the circumstances proved
demonstrate that Lewis was in close proximity to the Springfield, knew that the Springfield
was in the vehicle, and evad ed police after the shooting by fleeing and not immediately
being truthful in his police interview. Thes e circumstances are sufficient to establish a
weak, but reasonable, inference that Lewis ex ercised some level of dominion and control
over the Springfield.
The circumstances proved, however, do not foreclose all reasonable inferences of
innocence. To support a conviction, “[c]ir cumstantial evidence mu st form a complete
chain that, as a whole, leads so directly to the guilt of the de fendant as to exclude beyond
a reasonable doubt any reasonable inference other than guilt.” State v. Hanson ,
800 N.W.2d 618, 622 (Minn. 2011). Here, it is reasonable to infer from the circumstances
proved that Lewis, although he was aware of McLane’s Springfield and was present for
the shooting, did not exercise dominion and cont rol over it. In reachi ng this conclusion,
we observe that, although it would be possibl e for the three occupa nts to jointly possess
the Springfield, Lewis was the most unlikely to have exercised dominion and control over
it. McLane’s DNA was found on the gun. The unidentified backseat passenger was sitting
behind where police ultimately found the gun. Although Lewis was present in the vehicle
and aware of the Springfield, he did not participate in the drive-by shooting that occurred.

12
There is no DNA evidence linking Lewis to th e Springfield, and therefore no evidence
suggesting that Lewis handled it. 8 Simply put, the evidence does not form a “complete
chain” leading so directly to the conclusion that Lewis exercised dominion and control over
the Springfield such that it is unreasonable to infer that he did not. Id.
The state’s argument to the co ntrary runs headlong into Harris, another case
involving a firearm discovered in a vehicle occupied by multiple people. 895 N.W.2d 592.
When police clearly attempted to stop the vehicle that Harris was driving, Harris continued
driving for several blocks. Id. at 596. Police saw moveme nt in the vehicle as Harris
continued to drive. Id. When stopped, Harris complie d with the officers’ command to
raise his hands, but at some point, Harris lowered his hands below the window. Id. at 597.
When instructed to raise his hands again, Harris complied. Id. Police ultimately searched
the vehicle and discovered a handgun lodged into the headlining of the car, behind a
sunroof. Id. The butt of the gun was protruding from the headlining. Id. On the gun,
police found a DNA mixture of five or more persons’ DNA. Id. About 75% of the general
population could be excluded from being a contributor to the DNA mixture, but Harris and
the other two occupants could not be excluded. Id. The jury found Harris guilty of
possessing the firearm. Id. at 596-97.
The supreme court disagreed and reversed the conviction. The court noted that the
theory that Harris fled to allow time to hide the fire arm was not the only reasonable

8 To the extent that the state argues that Le wis’s movements in the Kia suggest that he
handled the gun and attempted to hide the Sp ringfield under the seat, we conclude that
Lewis’s movements in the vehicle are not pr obative to his possession of the Springfield
because Lewis leaned away from where the Springfield was eventually located.

13
hypothesis for why Harris fled; it was reasonable to infer that Harris fled because he was
aware of a warrant for his passenger’s arrest. Id. at 603. Nor did the circumstances
foreclose an inference that Harris was unaware of the gun. Id. at 602. Other critical facts
in the supreme court’s analysis were that (1) Harris did not own the car; (2) the presence
of others in the car; (3) there was no evidence that a lay person would have recognized the
butt of the gun protruding from the headlining, which was behind the driver (Harris);
(4) there was no evidence that Harris ever reached toward the sunroof; and (5) the DNA
evidence was not particularly st rong and did not exclude the other passengers in the car.
Id. at 602-603.
We acknowledge the factual distin ctions between this case and Harris. But these
distinctions cut both wa ys and guide us to the conclusion that, as in Harris, the
circumstances proved do not foreclose a rational inference that Lewis is innocent. Unlike
in Harris, Lewis’s knowledge of the Springfield in the Kia is a circumstance proved. But
as in Harris, there are reasonable, alternative expl anations for Lewis’s elusive behavior
after the incident—it is reasonable to infer that Lewis attempted to elude police because he
was concerned they would erroneously believe, based on his presence in the car, that he
was involved in the drive-by shooting.9

9 The state places particular emphasis on Lewis’s flight. While Lewis was more successful
in eluding police—Harris merely failed to stop for several blocks and failed to totally
comply with police directives to raise his hands—his motivation for fleeing is the key factor
in considering whether his flight is evidence of guilt. Because it is reasonable to infer that
Lewis fled for reasons other than that he wo uld be caught in possession of a firearm, the
success of his flight is not particularly im portant to the sufficien cy of the evidence
supporting his conviction.

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Moreover, the evidence that Lewis might have hand led the Springfield is even
weaker than that in Harris. Although a police officer te stified that it looked like Lewis
was hiding something underneath the seat, the video evidence demonstrates that Lewis did
not reach toward the area that the Springfield was discove red—he reached towards the
front of the Kia. Nor does the DNA eviden ce provide any link between Lewis and the
Springfield. In Harris, the evidence indicated that 75% of the general population could be
excluded as a contributor to the DNA mixture found on the gun, but Harris could not be
excluded as a contributor. 895 N.W.2d at 597. Here, the DNA evidence says nothing of
the probability that Lewis’s DNA contributed to the mixture on the Springfield. Instead,
as the state argued to the jury, McLane’s DNA was “all over it.”
Accepting the jury’s verdict that Lewis did not aid or abet the drive-by shooting,
and acknowledging that there are reasonable e xplanations for Lewis’ s behavior after the
shooting that are consistent with innocence, we are left only with the fact that Lewis was
in a car which he knew cont ained a gun. But proximity and knowledge alone do not
establish possession. Thus, we conclude that the evidence is consistent with a rational
hypothesis of innocence—that Lewis was merely present in the Kia, and although he was
aware of the Springfield, he did not exercise dominion and control over it.
Because the circumstances proved are co nsistent with a ra tional hypothesis of
innocence, the evidence is not sufficient to support the jury’s guilty verdict. We therefore
reverse Lewis’s conviction.
Reversed.