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This opinion is nonprecedential except as provided by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
A20-0767

State of Minnesota,
Respondent,

vs.

Wayland Deshawn Jones,
Appellant.

Filed May 24, 2021
Affirmed
Smith, John, Judge*
Hennepin County District Court
File No. 27-CR-19-3056

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Florey, Judge; and Smith, John,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm appellant Wayland Deshawn Jones’ conviction for unlawful possession
of a firearm because sufficient evidence supports the jury verdict that he constructively
possessed the firearm, and the jury instructions were not improper.
FACTS
On May 24, 2018, Minneapolis Police Officer Joel Pucely was conducting
surveillance in an area in Minneapolis when he saw a vehicle without license plates stop in
the middle of the street and block traffic. Officer Pucely saw a man walk directly up to the
driver’s side window and make contact with the driver . The male handed “something
small” to the driver and “receive[d] something in return.” Based on his training and
experience, the officer believed that a hand-to-hand transaction such as this was consistent
with someone exchanging something small, such as narcotics, for money. The vehicle then
drove away from the intersection.
Police Officer Justin Stetson and another officer were assisting Officer Pucely with
the surveillance. Officer Pucely informed Officer Stetson that he had seen the driver of the
vehicle perform a hand-to-hand transaction at the intersection and directed Officer Stetson
to stop the vehicle . Officer Stetson stopped the vehicle and identified appellant as the
driver. Appellant was the only person in the vehicle. Officer Stetson’s partner noticed the
smell of marijuana coming from the vehicle, and Officer Stetson saw marijuana on
appellant. The officers removed appellant from the vehicle and placed him in a squad car.
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During a vehicle search, the officers found marijuana on the driver’s side seat and a purse
in the backseat containing a firearm and a loaded magazine.
Appellant told officers that the vehicle belonged to his girlfriend, B.W., and he
“denied any knowledge” of the purse. Officers later interviewed B.W. She acknowledged
that the vehicle belonged to her , but told officers that appellant was the primary driver of
the vehicle. B.W. also told officers that she did not own a handgun and did not leave a
handgun in a purse in the backseat of the vehicle.
The Minnesota Bureau of Criminal Apprehension (the BCA) obtained a DNA
sample from appellant via a cheek swab. The BCA also swabbed the firearm. The B CA
found that there was a mixture of DNA from three or more individuals on the gun swab.
The BCA analyst testified that i t is not uncommon to have a mixture of more than one
person’s DNA on an item, especially with “touch -type samples” such as handguns. The
BCA analyst testified that approximately 97.6 percent of the general population could be
excluded from the sample found on the firearm, but that appellant could not “be excluded
from being a possible contributor to that mixture.”
Respondent State of Minnesota charged appellant with possession of a firearm by
an ineligible person under Minn. Stat. § 624.713, subd. 1(2) (2016). Before trial, appellant
stipulated that he was prohibited from possessing a firearm due to his juvenile conviction
for second-degree assault. Following a four-day jury trial, the jury found appellant guilty
of the charged offense.

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DECISION
I. Sufficiency of the Evidence
A. Standard of Review
Appellant challenges the sufficiency of the evidence underlying his conviction. In
evaluating the sufficiency of the evidence, appellate courts “carefully examine the record
to determine whether the facts and the legitimate inferences drawn from them would permit
the fact[-]finder to reasonably conclude that the defendant was guilty beyond a reasonable
doubt of the offense of which he was convicted.” State v. Waiters, 929 N.W.2d 895, 900
(Minn. 2019) (quotation omitted). Appellate courts review the evidence “in the light most
favorable to the conviction” and “assume the jury believed the [s]tate’s witnesses and
disbelieved any evidence to the contrary.” State v. Ortega , 813 N.W.2d 86, 100 (Minn.
2012) (quotation omitted). Appellate courts “will not disturb the verdict if the jury, acting
with due regard for the presumption of innocence and the requirement of proof beyond a
reasonable doubt, could reasonably conclude that the defendant was guilty of the charged
offense.” Id.
If the state’s evidence on one or more elements of a n offense consists solely of
circumstantial evidence, we apply a heightened standard of review. State v. Porte , 832
N.W.2d 303, 309 (Minn. App. 2013); see also Bernhardt v. State , 684 N.W.2d 465, 477
(Minn. 2004). Circumstantial evidence is “evidence from which the fact[-]finder can infer
whether the facts in dispute existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599
(Minn. 2017) (quotation omitted). Direct evidence is “evidence tha t is based on personal
knowledge or observation and that, if true, proves a fact without inference or presumption.”
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Id. (quotation omitted). In a circumstantial-evidence case such as this, we apply a two-step
test. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). We first identify the circumstances
proved. Id. (citing State v. Andersen , 784 N.W.2d 320, 329 -30 (Minn. 2010)). “In
identifying the circumstances proved, [this court] assume[s] that the jury resolved any
factual disputes in a manner that is consistent with the jury’s verdict.” Id. (citing Andersen,
784 N.W.2d at 329). We then independently examine the “reasonableness of the inferences
that might be drawn from the circumstances proved,” and then “determine whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt.” Id. (quotations omitted). We consider the evidence as a
whole and do not examine each piece in isolation. Andersen, 784 N.W.2d at 332.
B. Constructive Possession
The jury convicted appellant of unlawful possession of a firearm under Minn. Stat.
§ 624.713, subd. 1(2) (prohibiting persons convicted of a “crime of violence” from
possessing a firearm or ammunition). Possession may be either actual or constructive.
State v. Salyers, 858 N.W.2d 156, 159 (Minn. 2015). Actual possession is “direct physical
control.” State v. Barker, 888 N.W.2d 348, 353 (Minn. App. 2016) (quotation omitted).
Constructive possession may be established either (1) by proof that the item was “in a place
under the defendant’ s exclusive control to which other people did not normally have
access,” or (2) by proof of a strong probability that “the defendant was at the time
consciously exercising dominion and control over it,” even if the item was in a place to
which others had access. State v. Florine, 226 N.W.2d 609, 611 (Minn. 1975). Two people
may jointly constructively possess an item. Harris, 895 N.W.2d at 601.
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At the first step, we identify the circumstances proved. State v. Hanson, 800 N.W.2d
618, 622 (Minn. 2011) . Here, a police officer observed appellant stop his vehicle in the
middle of the street and engage in a hand -to-hand transaction with someone who
approached him. The officer saw the man hand something small to appellant a nd receive
something small in return. Based on his training and experience, the officer believed he
had witnessed a drug transaction . Officers stopped appellant’s vehicle and noted that he
was the only occupant. As they were speaking with appellant, one officer noticed the smell
of marijuana coming from appellant, while another observed marijuana on appellant.
During the subsequent vehicle search, officers found marijuana on the driver’s seat and a
loaded handgun and magazine in a purse in the backseat of the vehicle. Appellant’s
girlfriend, B.W., acknowledged that the vehicle belonged to her, but she testified that both
she and appellant drove it. B.W. denied owning a firearm and testified that she did not
leave it in a purse in the vehicle. Analysts from the BCA collected DNA from appellant
and from the firearm. The BCA analyst testified that approximately 97.6 percent of the
general population could be excluded but that appellant could not “be excluded from being
a possible contributor to [the] mixture” found on the firearm. The evidence presented at
trial support s a determination that appellant exercised dominion and control over the
firearm. Thus, the circumstances proved are consistent with guilt.
We next evaluate “independently the reasonableness of all inferences that might be
drawn from the circumstances proved ,” including inferences consistent with a hypothesis
other than guilt. Id. (quotation omitted). Appellant argues that the circumstantial evidence
supports a reasonable inference that B.W., alone, possessed the firearm and appellant did
7
not know it was in the vehicle. B.W. was the registered owner of the vehicle and the
firearm and magazine were found in one of her purses. Appellant notes that officers did
not find his identification or ot her personal items in the purse. Appellant also argues that
the BCA could not find any usable fingerprints on the handgun, and that his DNA profile
was insufficiently defined. Appellant argues that these circumstances suggest that he is
not guilty of the offense.
We are not persuaded. The inferences presented by appellant do not support his
theory that B.W. possessed the firearm on her own . As stated, t wo people may jointly
constructively possess an item. Harris, 895 N.W.2d at 601. And here, B.W. testified that
although she owned the vehicle, appellant was the primary driver. B.W. testified that she
did not own a firearm and did not place a purse containing a firearm into the vehicle.
Uncontroverted testimony established that appellant was the sole occupant of the vehicle
at the time of the traffic stop. Cf. id. at 596 (considering reasonable hypothesis other than
guilt when driver had two additional occupants in vehicle). Lastly, although officers did
not find any of appellant’s personal items in the purse, the BCA analysts found a mixture
of DNA on the firearm and appellant could not be excluded as a contributor to this mixture.
Based on the evidence presented and viewed in the light most favorable to the jury’s
verdict, we conclude that the state proved beyond a reasonable doub t that appellant
constructively possessed the firearm and is therefore guilty of the charged offense.
II. Jury Instructions
Appellant argues that he is entitled to a new trial because the district court provided
an improper supplemental instruction to the jury when the jury indicated it was deadlocked.
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A district court is afforded broad discretion to formulate appropriate jury instructions and
only abuses that discretion if the jury instructions “confuse, mislead, or materially misstate
the law.” State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014).
During deliberations, the jury sent a note to the district court. The note indicated
that the jury would “like to state as a hung jury” because five jurors believed appellant was
guilty and seven jurors believed he was not guilty . The district court discussed the note
with counsel and informed them , “[the court’s] intention is to —they’ve only been
deliberating a few hours —tell them to continue to deliberate. They’ve only done about
two and a half hours of delib eration, maybe three.” Counsel did not object to the district
court’s proposed instruction. The jury returned to the courtroom and the district court
instructed them as follows:
Here is my response and instruction to you in [regard to
the request to stop deliberating]. The jury room is no place for
pride of opinion or for espousing and maintaining either side
of a cause in the spirit of controversy. The single object to be
affected in the jury room is to arrive at a true verdict. This can
be done only by deliberation, mutual concession, and a due
deference to the opinions of each other.
Both a verdict to which a juror agrees must, of course,
be his or own verdict and the result of his or her own
convictions rather than a mere acquiescence in the conclusions
of his or her fellow jurors. In order to bring 12 minds to a
unanimous result, you must examine the questions submitted
to you with candor and with a proper regard and deference to
the opinions of each other.
Though no juror is required to sacrifice conscientious
convictions, he or she ought nevertheless to weigh carefully the
opinions of his or her fellow jurors and the arguments and the
reasons upon which they are founded. And if upon due
consideration he or she is convinced they are right and he or
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she is in error, it is his or her duty to agree with them. It is
therefore your duty, ladies and gentlemen, to make all
reasonable efforts to reach an agreement.
So, with these words, I am going to as k you to resume
your deliberations at this time.
The jury continued deliberating for the rest of the day and for several additional hours on
the following day.
We apply an abuse -of-discretion standar d of review to a district court’ s
supplemental instruction concerning a jury’ s obligation to continue de liberating if it may
be deadlocked. State v. Cox, 820 N.W.2d 540, 550 (Minn. 2012). In so doing, we consider
whether the instructions, when taken as a whole, fairly and adequately explain the law.
State v. Moore , 699 N.W.2d 733, 736 (Minn. 2005). When a jury seems deadlocked, it
“may be discharged without a verdict if the court finds there is no reasonable probability
of agreement.” Minn. R. Crim. P. 26.03, subd. 20(4). A district court may not instruct a
jury that it must continue deliberating if there is no reasonable probability of agreement.
See id. But a district court may require the jury to continue deliberating for a reasonable
amount of time. State v. Kelley, 517 N.W.2d 905, 909 (Minn. 1994). “The reasonableness
of the deliberation period depends on such factors as the length of the trial, the nature or
complexity of the case, the volume and nature of the evidence, the presence of multiple
counts or multiple defendants, and the jurors’ statements to the court concerning t he
probability of agreement.” Id. The supreme court has recommended a jury instruction in
situations such as this, which is contained in the jury instruction guides. See 10 Minnesota
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Dist. Judges’ Ass’n, Minnesota Practice—Jury Instruction Guides, § 3.04, at 42-43 (6th ed.
2015).
Here, the jury trial lasted several days. The jury delivered a note to the district court
after they had only been deliberating for approximately three hours. Given this short
amount of time, the district court decided to give an instruction encouraging the jurors to
continue their deliberations. The district court discussed its proposed instructi ons with
counsel, who did not object. The district court then told the jurors that a verdict could be
reached through “deliberation, mutual concession, and a due deference to the opinions of
each other.” However, the district court cautioned that “a verd ict to which a juror agrees
must, of course, be his or own verdict and the result of his or her own convictions rather
than a mere acquiescence in the conclusions of his or her fellows jurors.” The district
court’s instruction to deliberate with a view to reaching an agreement is well within its
discretion. See, e.g., State v. Martin, 211 N.W.2d 765, 773 (Minn. 1973) (noting that trial
court may instruct jury “to consult and deliberate with a view to reaching an agreement
consistent with their individual judgments”). Accordingly, we conclude that appellant is
not entitled to a new trial on the basis of improper jury instructions.
Affirmed.