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This opinion is nonprecedential except as provided by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
A20-0654

State of Minnesota,
Respondent,

vs.

James Edward Smith,
Appellant.

Filed June 21, 2021
Reversed
Gaïtas, Judge

Hennepin County District Court
File No. 27-CR-19-4410

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

Michael O. Freeman, Hennepin County Attorn ey, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Pres iding Judge; Johnson, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant James Edward Smith appeals hi s conviction for posse ssion of a firearm
by an ineligible person, arguing that the district court erred in denying his pretrial motion
2
to suppress the evidence and that the jury’s verdict rests on insufficient evidence. Because
we agree that the verdict rests on insufficient evidence, we reverse.
FACTS1
In February 2019, Minneapolis police app lied for a no-knock wa rrant to search an
apartment for eviden ce of drug sales. The search warrant application identified three
individuals involved in the suspected drug ac tivity: Smith’s father E.S., Smith’s mother
T.C., and Smith. A judge issued the requested search warrant, and, around 7:00 a.m. on
February 20, 2019, a team of police officers executed it. Much of the search was recorded
by the officers’ body-worn cameras.
When they arrived to execute the warrant , officers entered the living room of the
apartment. On the right, there was a bedroom separated from the living room by two
“French doors.” To the left was a hallway that led to the kitchen, two other bedrooms, and
a bathroom. Officers announced their presence and called out for any occupants to show
themselves.
They first encountered Smith walking down the hallway from the rear bedroom and
through the kitchen. He was in his boxer shorts and seemed to have been awakened by the
officers’ entry. Officers inst ructed Smith to come forward with his hands up. Smith
complied, and officers then handcuffed him. In the front bedroom to the right of the living
room, officers encountered T.C. and two children in the bed. After seating Smith, T.C.,
and the children in the living room, officers began their search.

1 Our summary of the facts is derived from the evidence presented at Smith’s jury trial.
3
Some officers searched the rear bedroo m where Smith had come from. One officer
described the room as a “porch that was made into a bedroom . . . [b]ecause there was a
bed there, clothing, shoes, [and] other persona l items.” There were also a space heater,
sheets covering the windows as curtains, and about 12 to 15 shoeboxes stacked on a table.
Inside the shoeboxes officers found brass kn uckles, a birth certificate for Smith’s child,
Smith’s driver’s license, W-2 forms and a GED transcript bearing Smith’s name, suspected
marijuana seeds, drug paraphernalia, and nine-millimeter-caliber ammunition and a nine-
millimeter firearm magazine bo th wrapped in a red t-shirt. Nearby, officers located a
satchel containing white plastic bottles with marijuana residue, labeled “Sweet Leaf” and
“THC.” And inside other shoeboxes in the room, officers also discovered mail addressed
to Smith and various documents with Smith’s name and the apartment’s address on them.
Other officers searched the front bedroo m where T.C. and the children had been
located. On the top shelf of the bedroom cl oset, officers found a green woman’s purse.
Inside the purse, concealed within a white so ck, they discovered a nine-millimeter pistol
with a loaded magazine and an additional nine-millimeter magazine. Officers also found
marijuana, mail addressed to T.C., a checkbook bearing E.S.’s name, and a digital scale.
The pistol, ammunition, and magazines found in the apartment were later swabbed
for DNA. Those swabs, a nd a DNA sample taken from Sm ith, were submitted to the
Minnesota Bureau of Criminal Apprehension (BCA) for forensic testing.
The swabs from the ammunition and gun ma gazine found in the back bedroom
contained insufficient DNA for further testing. Likewise, the extra magazine concealed
with the pistol in the front bedroom did not contain identifiable DNA.
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Swabs from the pistol found in the front bedroom, however, had a mixture of DNA
from three or more individuals. The BCA scientist identified Smith as the contributor of a
partial major male DNA profile on the gun, noting that there was a “1 in 7.8 billion” chance
that another randomly selected person woul d have the same DNA profile. There was
insufficient DNA for the BCA sc ientist to identify the additio nal two contributors. The
BCA scientist was unable to de termine how or when Smith’s DNA was deposited on the
pistol. She observed that DNA can remain on an item for years unless it is disturbed by
subsequent handling or the environment. The BCA scientist also acknowledged that DNA
on one item can be transferred to another item by touch or contact with clothing.
Transferred DNA appears as a minor profile, however, and not as a major profile.
A scientist from the Minneapo lis Crime Lab examined the pistol for fingerprints.
The pistol had no identifiable fingerprints or ridge markings.
Based on the evidence discovered during the search, respondent State of Minnesota
charged Smith with two counts of ineligib le person in possession of a firearm or
ammunition, Minn. Stat . § 624.713, subd. 1( 2) (2018)—a count for the ammunition and
magazines found in the back bedroom of th e apartment (count one) and a count for the
pistol located in the closet in the front bedroom (count two). Smith moved to suppress the
evidence, arguing that the search warrant wa s invalid because it wa s not supported by
probable cause. The district court denied Smith’s suppression motion. Smith then had a
jury trial.
During the trial, the state introduced 55 exhibits into evidence, including video of
the search captured by the o fficers’ body-worn cameras. The state called officers who
5
participated in the search a nd the forensic scientists fro m the BCA and the Minneapolis
Crime Lab.
Smith exercised his constitutional right not to testify and called one witness, his
girlfriend, who also is the mother of his two children. His girlfriend testified that their
family did not live in the apartment with T.C. in February 2019. According to his
girlfriend, Smith would sometimes spend time with his family at the apartment, but he did
not have a key to the apartment.
Outside of the jury’s presen ce, the parties stipulated th at Smith was ineligible to
possess a firearm due to a prio r felony conviction. Rather than revealing the prior
conviction to the jury, the district court informed the jury:
The parties have stipulated that on or about February 20, 2019,
the defendant, James Edward Smith, was ineligible to possess
a firearm and/or ammunition under Minnesota law. The court
instructs you that you are bound by the stipulation agreed to by
the parties that defendant Sm ith was barred under Minnesota
law from possessing a firearm and/or ammunition on all
relevant dates in question. You are not to speculate about why
defendant Smith was ineligible to possess a firearm and/or
ammunition.

The jury found Smith not guilty of count one, which related to the ammunition and
magazines in the back bedroom. But the jury found Smith guilty of count two for
possessing the pistol found in the front bedroom. Following the jury’s verdicts, the district
court sentenced Smith to the mandatory mini mum term of 60 months in prison for count
two. See Minn. Stat. § 609.11, subd. 5(b) (2018).
Smith appeals.
6
DECISION
In a criminal case, due process requires the prosecution to prove every element of
the charged crime beyond a reasonable doubt. State v. Culver, 941 N.W.2d 134, 142 (Minn.
2020). “To determine whether sufficient evidence exists to support a jury verdict,
[appellate courts] view the evidence in a light most favorable to the verdict and assume the
fact-finder disbelieved any testimony conflicting with that verdict.” State v. Balandin, 944
N.W.2d 204, 213 (Minn. 2020) (quotation omitted). We will not disturb a verdict “[i]f the
jury, acting with due regard for the presumption of innocence and the requirement of proof
beyond a reasonable doubt, could reasonably have concluded that the defendant was guilty
of the charged offense.” State v. Thomas, 890 N.W.2d 413, 420 (Minn. App. 2017), review
denied (Minn. Mar. 28, 2017).
Smith was convicted for unla wfully possessing a firearm on February 20, 2019, in
violation of Minnesota Statutes section 624.7 13, subdivision 1(2). That statute prohibits
“a person who has been convicted of . . . a crime of violence” from possessing ammunition
or a firearm. Minn. Stat. § 62 4.713, subd. 1(2). Smith cont ends on appeal that the state
failed to prove beyond a reasona ble doubt that he possessed th e pistol found in the front
bedroom. Thus, he argues, his conviction must be reversed for insufficient evidence.
“Possession may be proved through evidence of actual or constructive possession.”
State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017). Here, the parties agree that Smith was
not in actual, physical possession of the pistol when the police found it. See State v. Barker,
888 N.W.2d 348, 353 (Minn. App. 2016) (def ining actual possession as the exercise of
“direct physical control” over an object). Thus, to establish the element of possession, the
7
state was required to prove beyond a reasonable doubt that Smith constructively possessed
the pistol.
Constructive possession can be proven in two ways. Id. at 353-54. The state can
provide “proof that the item was in a place under the defendant’s exclusive control to which
other people did not normally have access.” Id. (quotation omitted). Alternatively, when
an item was found in a place accessi ble to others, “the [s]tate must show that there is a
strong probability (inferable from other eviden ce) that at the time the defendant was
consciously or knowingly exercising dominion and control over it.” Harris, 895 N.W.2d
at 601. An individual can possess an item jointly with another person. Id.; see also State
v. Lorenz, 368 N.W.2d 284, 287-88 (Minn. 1985) (determining that evidence was sufficient
to prove defendant’s joint possession with ro ommate where marijuan a was found in the
shared kitchen).
The state may prove possession through eith er direct or circumstantial evidence.
State v. German, 929 N.W.2d 466, 472 (Minn. App. 2019). “[D]irect evidence is evidence
that is based on personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” Harris, 895 N.W.2d at 599 (quotation omitted). Circumstantial
evidence is “evidence from whic h the factfinder can infer wh ether the facts in dispute
existed or did not exist.” Id. (quotation omitted). The key distinction between these two
forms of evidence is that circumstantial evidence inherently “requires an inferential step to
prove a fact that is not required with direct evidence.” Id. (citing State v. Silvernail, 831
N.W.2d 594, 604 (Minn. 2013) (Stras, J., concurring)).
8
When an element of an o ffense is supported by circum stantial evidence alone, the
appellate court reviews the sufficiency of the evidence underlying that element with greater
scrutiny, applying a heightened standard of review. State v. Al-Naseer, 788 N.W.2d 469,
473 (Minn. 2010); see also State v. Porte , 832 N.W.2d 303, 309- 10 (Minn. App. 2013)
(discussing heightened standard of review for circumstantial evidence). We must initially
decide whether to apply that heightened standard of review here.
Smith asks us to utilize the he ightened standard of review. He argues that the state’s
evidence that he possessed the gun on or about February 20, 2019, was entirely
circumstantial. On the other hand, the state requests the traditional standard of review that
we apply in sufficiency-of-the-evidence cases. Although the state acknowledges that the
evidence of possession was mostly circumstantial, it contends that the DNA evidence was
direct evidence that Smith po ssessed the gun. In support of its argument that DNA
evidence is direct evidence of possession, the state cites two unpublished decisions of this
court. See State v. Nickson, No. A16-1286, 2017 WL 2535698, at *3 (Minn. App. June 12,
2017); State v. Jiggetts, No. A12-2216, 2014 WL 349609 at *3 (Minn. App. Feb. 3, 2014).
The cases cited by the state are not precedential. See Dynamic Air, Inc. v. Bloch ,
502 N.W.2d 796, 801 (Minn. App. 1993) (explaining that unpublished opinions are not
binding precedent). And the state cites no cont rolling authority holding that the presence
of an individual’s DNA on an item is direct evidence that the individual currently possesses
the item. Moreover, under the circumstances here, we disagree that the presence of Smith’s
DNA on the firearm was direct evidence that he constructively possessed it at the time of
the alleged offense. The DNA evidence certainly indicated that Smith touched or handled
9
the gun at some point in time. But to conclude from the DNA evidence that Smith was
consciously exercising dominion and control over the gun on February 20, 2019—when it
was located in a woman’s purse in Smith’s mother’s bedroom closet—requires an
inferential step. Harris, 895 N.W.2d at 599 (“[C]ircumst antial evidence always requires
an inferential step to prove a fact that is not required with direct evidence.”). The DNA
evidence therefore was circumstantial evidence of possession. Because the DNA evidence,
and the other evidence that Smith cons tructively possessed the gun, was entirely
circumstantial, we apply the circumstantial-evidence standard of review in considering the
sufficiency of the evidence of possession.
The first step in evaluating the sufficiency of circumstantial evidence is to identify
the “circumstances proved” by the state at trial. State v. Andersen, 784 N.W.2d 320, 329
(Minn. 2010). A reviewing court assumes the trier of fact believed the state’s witnesses
and rejected all evidence contrary to the verdict; all conflicting evidence is resolved in the
state’s favor. State v. Tscheu, 758 N.W.2d 849, 858 (Minn. 2008). After identifying the
circumstances proved, the reviewing court ne xt determines whether those circumstances
are “consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”
Silvernail, 831 N.W.2d at 599 (quotation omitted). At this step of the analysis, unlike the
first step, appellate courts do not defer to the fact-finder’s ch oice among reasonable
inferences. Al-Naseer, 788 N.W.2d at 474. If the circumstances proved are consistent with
a reasonable inference other than guilt, the evidence is insuffici ent and the resulting
conviction must be reversed. See Harris, 895 N.W.2d at 603.
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Viewing the evidence here in the light most favorable to the verdict, the relevant
circumstances proved are as follows. Early in the morning on February 20, 2019, officers
executed a no-knock search warrant on a Minn eapolis apartment as part of an ongoing
narcotics investigation. Smith, T.C., and tw o small children were in the apartment.
Officers immediately detained Smith, who came from the back bedroom in his boxer
shorts. During a search of the back bedroom, officers found Smith’s documents and mail,
marijuana and drug paraphern alia, and nine-millimeter-calib er ammunition and a nine-
millimeter magazine. T.C. and the two childre n were found in the front bedroom next to
the living room.2 When the police searched the closet in the front bedroom, they found a
green woman’s purse containing a pistol and a magazine concealed in a sock. They also
found marijuana, a check book belonging to E. S., and a digital scale. The ammunition,
magazines, and pistol were swabbed for DNA for comparis on with Smith’s DNA. The
partial major profile found on the swabs fro m the pistol matched Smith’s DNA sample.
There is a 1 in 7.8 billion chance that a random individual’s DNA profile would match the
profile found on the pistol. A small amount of DNA from at least two other individuals
was also found on the pistol but could not be identified. And DNA can remain on an item
for years unless it is subsequently handled by others or exposed to environmental factors.
Having identified the circumstances prov ed, we next examin e the reasonable
inferences that may be drawn from them. The circumstances are certainly consistent with

2 In the second step of this an alysis, the state suggests that the fact that T.C. was found in
the same room where the pistol was discovered is not a circumstance proved. But this fact
is not contrary to the verdict, so we include it here in our consideration of the circumstances
proved.
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a reasonable inference of Smith’s guilt, as th ey support the conclusi on that Smith jointly
possessed the firearm with T.C. But Smith argues that the circumstances do not exclude a
reasonable alternative hypothesis that he was not exercising dominion and control over the
firearm on February 20, 2019. We agree.
Initially, we note that the possession charge related to a specific date—on or about
February 20, 2019. Indeed, the prosecutor argued to the jury, “If you think he touched [the
gun] six months ago, . . . then the answer is not guilty.” Although the DNA evidence may
have established that Smith touched the gun at some point, it did not establish when he had
contact with it. The evidence proved that the gun was present in the apartment where Smith
stayed and kept some of his belongings. But it was not found in the bedroom where Smith
appeared to be sleeping and storing his belo ngings. Rather, it was in the bedroom where
T.C. was found sleeping. And the gun was not in plain sight. It was in the closet, hidden
in a sock inside a woman’s purse. Given these circumstances, there is a reasonable
hypothesis that Smith was not consciously exercising dominion and control over the gun
on or about February 20, 2019.
Because the jury found Smith not guilty of possessing the ammunition and magazine
in the back bedroom, it may be inapprop riate to include this evidence among the
circumstances proved. But even including this evidence, the circumstances proved support
a reasonable hypothesis of innocence. The pr esence of the items in the back bedroom do
support an inference that Smith also possessed the pistol found in the front bedroom. On
the other hand, because the pistol in the front bedroom was loaded and found with a spare
magazine, the items in the back bedroom could have been wholly unrelated to the pistol.
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Thus, the presence of the ammunition and magazine in the back bedroom does not change
our conclusion that the circumstances proved support a rational hypothesis other than guilt.
The state argues that Smith’s possession of th e pistol could have been joint. A joint-
possession theory cannot save the conviction, however, because the reasonable alternative
hypothesis remains—Smith may not have constructively possessed the pistol at all on or
about February 20, 2019.
The circumstances proved cannot exclude the reasonable possibility that Smith did
not possess the firearm on or about the date of the alleged offense. Thus, we must reverse
Smith’s conviction for insufficient evidence. Because we reverse Smith’s conviction, we
do not address his challenge to the constitutionality of the search warrant.
Reversed.