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This opinion is nonprecedential except as provided by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
A21-1324

State of Minnesota,
Respondent,

vs.

Israel Frederick Elder,
Appellant.

Filed November 14, 2022
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-20-12549

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa A. Haley, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Gaïtas, Presiding Judge; Worke, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges his conviction for ineligibly possessing a firearm, arguing that
the evidence was insufficient, the district court improperly instructed the jury, and the
prosecutor committed misconduct during closing argument. We affirm.
2
FACTS
On the evening of May 25, 2020, a 911 caller reported that he heard a gunshot and
saw a group on the street outside his house that included a person holding a firearm. The
caller provided a physical description of the male holding the firearm.
Two responding police officers searched on foot for the person with the firearm.
One of the officers saw appellant Israel Frederick Elder— who generally matched the
description from the 911 caller—emerge from nearby bushes onto the sidewalk . The
officer pointed his flashlight at Elder. Elder then walked away from the officer. The officer
pointed his firearm and flashlight at Elder and yelled at him twice to drop what was in his
hands. Elder continued walking away and briefly disappeared behind a tree before
emerging with a cellphone in his right hand and surrendering. The officer looked behind
the tree where Elder was concealed and found a pistol with a chrome slide under a car
parked next to the tree.
The state charged Elder with possession of a firearm by an ineligible person under
Minn. Stat. § 624.713, subd. 1(2) (2018). At Elder’s jury trial, the 911 caller and police
officers testified for the state. Of note, the officer who found the firearm testified that he
was “a hundred percent sure” he saw a firearm with a chrome slide in Elder’s right hand.
Elder stipulated that he was ineligible to possess a firearm and presented no evidence on
his own behalf.
The prosecutor began closing argument by telling the jury not to apply “a higher
burden . . . than the law requires.” He compared the proper standard to a “doctor
provid[ing]” a patient “with information,” stating that a doctor “is never going to say, [y]es,
3
with 100 percent certainty, we are going to cure this ailment. What they will do is give
you the tools to make the best decision possible for you.” The prosecutor then argued that
the state proved that Elder actually possessed the firearm.
In Elder’s closing argument, his counsel told the jury to compare the required level
of proof to that required in “the most important affairs of your life,” such as buying a house
or getting married. The defense also noted that when the officer who interviewed Elder
after his arrest testified, the state did not present the interview recording, so the jury did
not “know what all the questions were.” Additionally, the defense pointed out that the state
presented no evidence of fingerprints or gunshot residue.
On rebuttal, the prosecutor characterized the defense’s argument as “[i]t’s
everybody else’s fault.” As for the burden of proof, the prosecutor commented that “[i]t’s
the same standard we’ve used since the beginning of this country.” He also argued that
marriage and buying a house are inapt comparisons to the burden of proof because they
involve emotion and finances. He told the jury that the standard was “[b]eyond a
reasonable doubt, not all doubt. Is it reasonable?” The prosecutor then asked the jury,
what’s more reasonable? The defense is claiming this is a high
crime area so that gun just happened to be there . . . . Or is it
more reasonable that [the 911 caller] gave a very detailed
description of [Elder], told police he had a firearm? [The
officer] finds him about a minute to two minutes later with a
firearm, retrieving it from a bush, holding it, and then he comes
out from behind the tree and the gun is right next to him. What
is more reasonable? And I think you know the answer to that.
Regarding the lack of fingerprints or gunshot residue, the prosecutor told the jury to
“[r]emember . . . the CSI effect . . . This is real life, not TV.”
4
As to the recording of Elder’s postarrest interview, the prosecutor stated that both
parties “have the same access to the evidence. If they want to play [the recording] for some
reason, they can play it.” Elder objected that this statement shifted the burden of proof.
The district court did not rule but stated outside the jury’s presence that the prosecutor
prevented any further issue by moving on.
At the end of his rebuttal, the prosecutor stated that,
[t]o find this defendant not guilty would mean that you did
have to contemplate the testimony of [ the 911 caller] and that
what [the 911 caller] said was not true, that [the officer] did not
see that firearm in the defendant’s hand.
The jury found Elder guilty. This appeal followed.
DECISION
Sufficiency of the evidence
Elder argues that the evidence was insufficient to prove he possessed the firearm. 1
Our review of the sufficiency of the evidence depends on whether the “disputed element is
sufficiently proven by direct evidence alone.” See State v. Horst, 880 N.W.2d 24, 40
(Minn. 2016). “[D]irect evidence is evidenc e that is based on personal knowledge or
observation and that, if true, proves a fact without inference or presumption.” State v.
Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation and alteration omitted). In contrast,
“circumstantial evidence always requires an inferential step to prove a fact that is not
required with direct evidence.” Id.

1 Unlawful possession of a firearm must also be knowing. See State v. Salyers, 858 N.W.2d
156, 161 (Minn. 2015). Mens rea is not at issue here, so we decline to address it. See id.
5
When reviewing the sufficiency of direct evidence, we “carefully examine the
record to determine whether the facts and the legitimate inferences drawn from them would
permit the factfinder to reasonably conclude that the defendant was guilty” of the charged
offense beyond a reasonable doubt. State v. Waiters, 929 N.W.2d 895, 900 (Minn. 2019)
(quotation and alteration omitted). Under this standard, we must “adopt the view of the
evidence most favorable to the state” and assume that “the jury believed the state’s
witnesses and disbelieved any contradictory evidence.” State v. Webster, 894 N.W.2d 782,
785 (Minn. 2017) (quotation omitted).
We apply a heightened standard of review when considering circumstantial
evidence. Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017). But because the direct
evidence here is sufficient, we need not apply the circumstantial-evidence standard. See
Horst, 880 N.W.2d at 40; Salyers, 858 N.W.2d at 161.
To prove that Elder possessed the firearm, the state must show that he “physically
had the handgun on his person.” See State v. Smith, 619 N.W.2d 766, 770 (Minn. App.
2000), rev. denied (Minn. Jan. 16, 2001). At trial, one of the officers testified that he was
“a hundred percent sure” he saw a firearm with a chrome slide in Elder’s right hand.
Assuming that the jury found the officer credible, this testimony is direct evidence
sufficient to sustain the verdict. See State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998)
(“The jury determines the weight and credibility of individual witnesses . . . and a
conviction may rest on the testimony of a single credible witness.”).
Elder focuses on the fact that the officer’s body-camera footage does not clearly
show what, if anything, Elder was holding before surrendering. But Elder’s hands are
6
obscured in the grainy and shaky footage preceding his arrest. Thus, the evidence here is
analogous to that discussed in a recent nonprecedential but persuasive opinion of this court.
See State v. Finley, No. A18-1597, 2020 WL 132168, at *3-4 (Minn. App. Jan. 13, 2020),
rev. denied (Minn. March 25, 2020).2 In Finley, we concluded that the evidence of Finley
inflicting bodily harm was sufficient despite unclear video recordings because “the
recordings d[id] not refute [the victim’s] testimony that Finley struck him in the face.” Id.
Likewise, the officer’s body-camera footage does not refute the arresting officer’s
testimony that he saw the firearm in Elder’s hand. The direct evidence is therefore
sufficient to sustain the verdict.
Jury instructions
Elder next argues that the district court improperly instructed the jury on the element
of possession. Elder did not object to this jury instruction; therefore, we review it for plain
error. See State v. Reek, 942 N.W.2d 148, 158 (Minn. 2020). Plain error exists when there
was (1) an error (2) that is plain (3) and that affected the appellant’s substantial rights. See
id. at 158-59. “[A]n error is plain if it was clear or obvious.” State v. Reed, 737 N.W.2d
572, 583 (Minn. 2007) (quotations omitted). Generally, an error is clear or obvious if it
“contravenes caselaw, a rule, or a standard of conduct.” Id. (quotation omitted). An error
affects the appellant’s substantial rights if “there is a reasonable likelihood that the absence
of the error would have had a significant effect on the jury’s verdict.” Id. (quotation
omitted). If the appellant shows plain error, we “may correct the error only if it seriously

2 This court is not bound by its nonprecedential opinions but may consider them as
persuasive authority. See Minn. R. Civ. App. P. 136.01, subd. 1(c).
7
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Reek , 942
N.W.2d at 159 (quotation omitted).
The district court instructed the jury on possession as follows:
The defendant possesses a firearm or ammunition if it is
on the defendant’s person. The defendant also possess[es] a
firearm or ammunition if it was in a place under the defendant’s
exclusive control to which other people did not normally have
access or, if found in a place to which others have access, the
defendant knowingly exercised dominion and control over it.
This instruction incorporated the concepts of both actual and constructive possession. See
Smith, 619 N.W.2d at 770. A defendant actually possesses an item if it is “on his person.”
Id. A defendant constructively possesses an item if the item is “in a place under the
defendant’s exclusive control to which other people did not normally have access,” or if
the item is “in a place to which others had access, [] there is a strong probability . . . that
the defendant was . . . consciously exercising dominion and control over [the item].” State
v. Porter, 674 N.W.2d 424, 427 (Minn. App. 2004); see State v. Hunter, 857 N.W.2d 537,
542-43 (Minn. App. 2014) (holding that dominion and control is required over the item,
not the place where the item is found).
Elder frames the issue as whether the instruction on possession materially misstated
the law of possession. But he agrees that this instruction correctly defined actual and
construction possession in accordance with 10A Minnesota Practice, CRIMJIG 32.21
(2015), which sets forth the elements of possession of a firearm by an ineligible person
under Minn. Stat. § 624.713, subd. 1(2). Rather, Elder claims that failing to explicitly use
the terms “actual possession” and “constructive possession” in this instruction was plainly
8
erroneous by “forc[ing] the jury to create [its] own framework to determine” the possession
issue, making “it [] unclear how the jury determined that the [s]tate met its burden of
proof.” In other words, Elder argues that the district court’s instructions needed to lead the
jury to agree on a single legal theory of possession.
It is not apparent how explicitly delineating actual and constructive possession
would lead the jury to agree on one legal theory of possession. And even if jurors finding
guilt on different legal theories were an issue, the state only advanced an actual-possession
theory. Notwithstanding these observations, caselaw shows that the instruction on
possession here was not plainly erroneous. In State v. Ilhe, the supreme court held that
instructing the jury on “alternative means” of committing an element of the offense did not
violate Ilhe’s right to a unanimous verdict because the different means were “not inherently
different types of conduct grouped under a single offense.” 640 N.W.2d 910, 919 (Minn.
2002). The charged conduct was also “part of a single behavioral incident.” Id. In State
v. Stempf, we noted that “[u]nderlying facts about which the jury would not necessarily
have to agree would be whether the defendant had actual or constructive possession.” 627
N.W.2d 352, 357 (Minn. App. 2001).
Here, actual and constructive possession are not inherently different types of
conduct but are “alternative means” of committing “the act of possession,” which is one
“element of the crime” of ineligibly possessing a firearm. See Ilhe, 640 N.W.2d at 919;
Stempf, 627 N.W.2d at 357. And the state offered ev idence of only one incident of
possession. Thus, even if explicitly delineating actual and constructive possession could
have prevented the jurors from finding guilt on different legal theories, and even if the state
9
advanced multiple theories of possession, Elder has not shown that the jury was required
to agree on one legal theory of possession. The district court did not plainly err in its jury
instructions.
Prosecutorial misconduct
Elder also claims that the prosecutor committed misconduct during closing
argument by misstating or shifting the burden of proof. Misstating or shifting the burden
of proof is “highly improper and constitutes prosecutorial misconduct.” State v. McDaniel,
777 N.W.2d 739, 750 (Minn. 2010) (quotation omitted). “Prosecutors improperly shift the
burden of proof when they imply that a defendant has the burden of proving his innocence.”
Id. (quotation omitted) . To determine whether the prosecutor misstated or shifted the
burden of proof in closing argument, we look at the argument “as a whole, rather than just
selective phrases or remarks that may be taken out of context or given undue prominence.”
State v. Carridine, 812 N.W.2d 130, 148 (Minn. 2012) (quotation omitted).
Elder claims that the prosecutor misstated or shifted the burden multiple times. But
Elder objected to only one instance. We review the objected-to instance for harmless error.
State v. Whitson, 876 N.W.2d 297, 304 (Minn. 2016). We review the unobjected-to
instances under a modified-plain-error standard. See State v. Matthews, 779 N.W.2d 543,
551 (Minn. 2010). If Elder shows plain error, the burden shifts to the state to show that the
error did not affect Elder’s substantial rights. See id. If the state fails to meet its burden,
we “may correct the error only if it seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014)
(quotation omitted) (alteration in original).
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Objected-to instance
Elder argues that the prosecutor shifted the burden of proof by noting that the state
and the defense had the same access to evidence and that the defense could play the
postarrest interview recording for the jury if it wanted. But Elder does not dispute that the
prosecutor’s statement was correct. And Elder invited the prosecutor’s comment by
focusing on the absent interview recording. This comment likens to a “comment on the
lack of evidence supporting a defense theory ,” which is not a burden-shifting statement.
See McDaniel, 777 N.W.2d at 750. In fact, the prosecutor’s comment amounts to less than
a comment on the lack of defense evidence. The prosecutor remarked only that if the
postarrest interview recording was exculpatory, the defense could have played it for the
jury, but it is not the state’s burden to present such evidence. The comment about access
to evidence did not shift the burden of proof.
Unobjected-to instances
Elder first claims that the prosecutor plainly erred by telling the jury not to hold him
to a higher standard than the law requires and comparing proof beyond a reasonable doubt
to a doctor being unable to tell a patient with one hundred percent certainty that they would
cure an ailment. But Elder does not dispute that “beyond a reasonable doubt” is not “one-
hundred percent certainty.” He also does not explain how the prosecutor’s analogy about
medical decision-making misstated the burden of proof. The prosecutor—like the defense
later did in closing argument about marriage and buying a house—“attempt[ed] to explain
abstract legal phrases in terms that an average juror could understand and apply.” See State
v. Nowels, 941 N.W.2d 430, 438 (Minn. App. 2020) (noting that the “prosecutor’s
11
statements characterizing reasonable doubt were a direct response to the defense’s
statements on the same topic”), rev. denied (Minn. June 16, 2020). Elder has not shown
plain error in the prosecutor’s initial closing statements.
Second, Elder claims that the prosecutor plainly erred by characterizing the
defense’s argument as “it’s everybody else’s fault.” Regardless of any issues with this
characterization, “it is difficult . . . to discern how this remark bears on the burden of proof
at all.” See State v. Coleman, 373 N.W.2d 777, 783 (Minn. 1985). The remark did not
misstate or shift the burden of proof.
Third, Elder claims that the prosecutor plainly erred by stating that the reasonable-
doubt standard is “the same standard we’ve used since the beginning of this country.” This
comment seems to imply that the reasonable-doubt standard is not an impossible one
because people have been convicted under it since the countr y’s founding. Our supreme
court has permitted similar comments. For example, the supreme court in McDaniel
determined that the prosecutor did not misstate the burden of proof by saying in closing
argument that “many men and women have come into rooms jus t like this like [the
defendant] has, who have left these rooms after having been found guilty by proof beyond
a reasonable doubt.” 777 N.W.2d at 750; see also State v. Martin, 773 N.W.2d, 89, 105
(Minn. 2009) (holding it permissible for the prosecutor to state that “even with the
presumption of innocence” and the “stiff burden” of proof beyond a reasonable doubt,
“many people are still convicted”). Elder has failed to show that the same-standard
comment was plainly erroneous.
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Fourth, Elder claims that the prosecutor plainly erred by stating that marriage and
purchasing a home are unlike the reasonable-doubt standard because they involve emotion
and finance. While we might not agree with this statement, Elder cites no law suggesting
that the statement is improper, and a debatable claim is not obviously erroneous. See
Mosley, 853 N.W.2d at 801. Distinguishing marriage and purchasing a home from proof
beyond a reasonable doubt was not plainly erroneous.
Fifth, Elder claims that the prosecutor’s remark about the “CSI effect” was plainly
erroneous. But again, it is not apparent how this statement goes to the burden of proof, and
the statement responded to Elder’s arguments about the lack of fingerprints or gunshot
residue recovered. Because “[t]he prosecutor has the right to fairly meet the arguments of
the defendant,” the “CSI effect” comment was not plainly erroneous. State v. Jackson, 773
N.W.2d 111, 123 (Minn. 2009).
Finally, Elder claims that the prosecutor plainly erred by asking, “what’s more
reasonable,” and asserting that the 911 caller’s testimony and that of the officer who found
the firearm would need to be untrue to acquit Elder. Even if Elder showed plain error in
these comments, we conclude that any error would not seriously affect the fairness,
integrity, or public reputation of judicial proceedings.
3

3 The state failed to argue that any unobjected-to misconduct did not affect Elder’s
substantial rights. The state argued only that Elder failed to show plain error. Thus, the
state failed to meet any burden of showing no substantial-rights violation. See Matthews,
779 N.W.2d at 550; cf. State v. Porte, 832 N.W.2d 303, 312-14 (Minn. App. 2013)
(declining to review sua spontae whether erroneous jury instructions were harmless
because the state argued only that no error occurred and thereby waived the argument that
any error was harmless).

13
We first note that any unfairness from the “what’s more reasonable” comment might
be speculative. This comment occurred in the context of the prosecutor’s broader argument
about any doubt regarding Elder’s guilt needing to be reasonable. See Carridine, 812
N.W.2d at 148. It is therefore unlikely that the jury took this comment as an invitation to
decide guilt based on whether the state’s or defense’s theory was more reasonable.
More fundamentally, Elder “was afforded a complete adversarial trial” in which he
“presented his defense and theory of the case” that someone else left the firearm where
police found it. See State v. Kelley, 832 N.W.2d 447, 457 (Minn. App. 2013). The jury
considered and rejected Elder’s strained defense after the state presented overwhelming
evidence. See id. Specifically, the 911 call recording established that a man largely fitting
Elder’s description was holding a firearm near the 911 caller’s house on the same street
and block where police arrested Elder. The 911 caller testified that he saw only one person
on the street fitting that description. Body-camera footage showed Elder emerging from
the bushes and walking away from police with his hands toward his front pockets, even as
an officer pointed his flashlight and firearm at Elder and yelled at him multiple times to
drop what was in his hands.
4 The footage showed that seconds later, the officer found a
pistol with a chrome slide next to where Elder had momentarily disappeared behind a tree.
The officer testified that he was “a hundred percent sure” that he saw such a firearm in
Elder’s hand moments earlier. The body cameras recorded the officer’s corroborative
statement that he had just seen the firearm in Elder’s hand in immediate response to Elder’s

4 The other arresting officer corroboratively testified that Elder kept his hands toward his
front pockets in response to commands to drop what was in his hands.
14
claims that the firearm was not his and that he was “getting [his] phone.” And the body
cameras showed no one in the close vicinity of the officers and Elder throughout the
encounter except a single pedestrian who passed the other way on the sidewalk soon before.
“Based on the specific facts of this case,” we conclude that any prosecutorial
misconduct was not “particularly egregious” enough to seriously affect the fairness,
integrity, and public reputation of judicial proceedings. See State v. Huber, 877 N.W.2d
519, 528 (Minn. 2016) (quotation omitted); cf. State v. Little, 851 N.W.2d 878, 886 (Minn.
2014) (quoting State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)) (noting that the
fairness-and-integrity prong is not met when a new trial would be futile and waste judicial
resources); Kelley, 832 N.W.2d at 457.
Affirmed.