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This opinion is nonprecedential except as provided by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
A25-1579

State of Minnesota,
Respondent,

vs.

David Lee Kingbird,
Appellant.

Filed July 27, 2026
Affirmed
Bentley, Judge

Beltrami County District Court
File No. 04-CR-25-730

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

David L. Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Bentley,
Judge.
NONPRECEDENTIAL OPINION
BENTLEY, Judge
In this direct appeal from a judgment of conviction for possession of a firearm by
an ineligible person, appellant argues that the district court erred by omitting the definition
2
of constructive possession from the jury instructions . Kingbird also makes several
additional arguments in a self-represented supplemental brief. We affirm.
FACTS
The following facts derive from the testimony and evidence admitted in a jury trial.
In March 2025, Beltrami County law enforcement responded to a report that a man dressed
in black had shot a dog. The responding officers observed a deceased dog with a single
gunshot wound and saw “quite fresh” foot tracks in the snow nearby. Officers followed the
tracks through a nearby wooded area to an ATV trail, where the officers saw a “male party
kind of dressed in black” who did not respond when they called out to him. In the area
where the man was spotted, officers found a black jacket “that looked like it kind of had
been thrown into the bushes.” An identification card for a person, C.H., was found in the
pocket of the jacket.
1 Officers continued to follow the foot tracks until the tracks stopped
outside a nearby home. After obtaining a warrant to search the home, officers entered and
found appellant David Lee Kingbird inside and dressed in “dark clothing.” Kingbird’s pant
legs were wet, and a pair of shoes on the floor near him were also wet and had a similar
tread pattern to the foot tracks officers had followed. Kingbird was arrested.
An officer with a canine searched the area where the jacket was found and located
an “old .22 rifle” that was “just off the trail” and looked “[k]ind of like it had just been
thrown.” The top of the firearm was “dry” despite a recent snowfall.

1 We refer to the witnesses and officers by their initials instead of their full names in
accordance with our rules of public access. See Minn. R. Pub. Access to Recs. of Jud.
Branch 8, subd. 2(b) (recommending that appellate opinions limit disclosure of witness
identities “to what is necessary and relevant”).
3
Deputy F. drove Kingbird to jail, gave him a Miranda warning, and attempted to
take a statement. According to Deputy F.’s testimony, Kingbird made a “spontaneous
statement,” while still in the squad car outside the jail, that Kingbird “didn’t think that there
[were] any witnesses . . . that saw him. That he had shot a dog, and he was inquiring why
wasn’t [he] being charged with shooting a dog.” The conversation was not captured on
Deputy F.’s body-worn camera.
Respondent State of Minnesota charged Kingbird with possession of a firearm by a
person convicted of a crime of violence, Minn. Stat. § 609.165, subd. 1b(a) (2024), and
fleeing a peace officer by means other than a motor vehicle, Minn. Stat. § 609.487, subd. 6
(2024).2
A jury trial was held in May 2025. The state presented testimony of four of the
responding officers, C.H., an evidence technician, and three forensic scientists with the
BCA. It also introduced exhibits including body-worn camera footage of the pursuit
through the woods, a photograph of the dog, and a photograph of the rifle. C.H. testified
that he had lost his identification “[m]aybe a week or so before the 17th” and that he owned
a black coat but it “went missing” from his home. A BCA forensic scientist testified that
the rifle was swabbed for DNA and they “obtained a mixture of DNA from 5 individuals”
but “[t]he major male DNA profile obtained from the swabs . . . matched the DNA profile
from [Kingbird].” Deputy F. testified about Kingbird’s confession in the squad car. The

2 The state also charged Kingbird with overworking or mistreating animals—cruelty, in
violation of Minn. Stat. § 343.21, subd. 7 (2024). The state dismissed this count at trial.
4
defense presented an intake employee from the county jail to testify about the identification
card found in the jacket. Kingbird did not testify.
While discussing jury -instruction language, the state requested, and Kingbird
agreed, to include only the definition of actual possession and to refer to it simply as the
definition of “possession.” The state also requested an instruction on exclusive versus joint
possession because of the mixed DNA evidence found on the firearm, which the district
court granted over Kingbird’s objection. The district court instructed the jury on possession
as follows:
Elements: First, the defendant knowingly possessed a
firearm. Knowingly requires only that the defendant believe
that he possessed the item. . . . A person is in possession of an
item if the person has the item on the person or is . . . exercising
direct physical control over the item at a given time. The law
also recognizes that possession may be either exclusive or
joint. If one person alone has actual or constructive possession
of an item, possession is exclusive. If two or more persons
share actual or constructive possession of an item, possession
is joint. Possession, as that term is to be used in these
instructions has been proven, if you find beyond a reasonable
doubt that the defendant had actual or constructive possession
of the item, whether exclusively or jointly with others.

The jury found Kingbird guilty of both the firearm-possession and fleeing-a-peace-
officer counts. The district court convicted Kingbird of both counts and sentenced him to
71 months’ imprisonment for the firearm-possession count.
Kingbird appeals.
DECISION
Kingbird argues in his principal brief that the district court erred by referring to
“exclusive or joint constructive possession” in the jury instructions but failing to define
5
“constructive possession.” In a self-represented supplemental brief, Kingbird also argues
that the self-incriminating statement he made to police was admitted in violation of his
Miranda rights, that he received ineffective assistance of counsel, and that a prejudicial
photo was erroneously admitted at trial. We begin with his jury instruction challenge before
turning to the arguments in his supplemental brief.
I
Jury instructions “must define the crime charged and explain the elements of that
crime to the jury.” State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (quotation omitted).
Reviewing courts give “broad discretion and considerable latitude” to the district court in
choosing the language of the instructions. Id. (quotation omitted).
The issue on appeal involves the instruction on the possession element of the
offense. The state may prove that a defendant possessed a firearm through actual or
constructive possession. State v. Salyers, 858 N.W.2d 156, 15 9 (Minn. 2015). Actual
possession involves “direct physical control.” State v. Barker, 888 N.W.2d 348, 353 (Minn.
App. 2016) (quoting Jacobson v. Aetna Cas. & Sur. Co., 46 N.W.2d 868, 871 (Minn.
1951)). Constructive possession, in contrast, is established when there is a strong inference
that the defendant “at one time physically possessed” the firearm and “did not abandon
[their] possessory interest in the [item] but rather continued to exercise dominion and
control over it up to the time of the arrest.” State v. Florine, 226 N.W.2d 609, 610 (Minn.
1975). Kingbird argues that the district court erred by failing to define constructive
possession and that the jury’s verdict would have been different if it had been properly
instructed.
6
We first address our standard of review. Kingbird maintains that a proper objection
was made to the possession instruction at trial, and so we should review for an abuse of
discretion. The state, in contrast, contends that Kingbird failed to object, and we should
instead apply plain-error review. Based on our review of the record, Kingbird’s trial
attorney objected to the joint-possession instruction, but the objection was not related to
the omission of the definition of constructive possession. Rather, counsel objected to the
joint-possession instruction because it was inconsistent with the state’s theory of the case.
Because there was no objection to the lack of constructive-possession instruction at
trial, we apply plain-error review. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002); see
also State v. Kelley, 832 N.W.2d 447, 450- 51 (Minn. App. 2013) (applying plain-error
review when a party objected to a jury instruction at trial but challenged the instruction for
a different reason on appeal), aff’d on other grounds, 855 N.W.2d 269 (Minn. 2014). To
establish plain error, “an appellant must show (1) an error (2) that is plain (3) that affects a
defendant’s substantial rights.” State v. Beganovic, 991 N.W.2d 638, 655 (Minn. 2023). If
all three prongs are met, an appellate court must then “assess whether reversal is required
to ensure the fairness, integrity, or public reputation of judicial proceedings.” State v.
Peltier, 874 N.W.2d 792, 799 (Minn. 2016) (quotation omitted).
Because the state does not address the first two prongs of the plain -error test, we
assume without deciding that the district court’s omission of the instruction was an error
that was plain, and we proceed directly to the question of whether the error affected
Kingbird’s substantial rights. “An error affects a party’s substantial rights when there is a
reasonable likelihood that the error influenced the verdict.” State v. Bey, 975 N.W.2d 511,
7
521 (Minn. 2022). When reviewing the potential omission of an element of a crime in a
jury instruction, we may consider, “among other factors, whether: (1) the defendant
contested the omitted element and submitted evidence to support a contrary finding, (2) the
State submitted overwhelming evidence to prove that element, and (3) the jury’ s verdict
nonetheless encompassed a finding on that element.” State v. Watkins, 840 N.W.2d 21, 28-
29 (Minn. 2013).
We are not persuaded that Kingbird’s substantial rights were affected by the
omission of the definition of constructive possession because the state presented
overwhelming evidence proving actual possession. As explained by the state several times
at trial, the state’s sole theory of the case was that Kingbird had actual possession of the
firearm, not constructive. Kingbird argues that, because he was not found holding the
firearm, the state did not prove that he actually possessed it. But actual possession may be
proven by circumstantial evidence even if the item was “not in a defendant’s physical
possession at the time of apprehension.” Barker, 888 N.W.2d at 354.
The facts of Barker are instructive in our consideration of the state’s actual-
possession theory. In Barker, the defendant purchased controlled substances during a trip
to Chicago, and on the drive home, police attempted to stop his car. Id. at 355. Barker
crashed the car and fled on foot before he was arrested. Id. Upon searching his car, officers
found the passenger-side window rolled down and large quantities of controlled substances
inside. Id. at 351, 355. Officers then found several additional bags of controlled substances
near the crash site. Id.at 351-52, 355. We concluded that these circumstances were
8
“consistent with the theory that Barker actually possessed the drugs, before they were
discarded out of his passenger-side window while Barker was fleeing police.” Id. at 355.
Here, the state similarly presented evidence showing that Kingbird physically
possessed the gun at an earlier time and that he threw it into the woods while fleeing the
police. The DNA evidence obtained from the gun showed that Kingbird matched the major
male profile of the collected DNA, indicating that he had physically possessed the gun.
That DNA evidence of actual possession was further corroborated by the footprints
matching Kingbird’s shoes that police followed from the area of the shooting to Kingbird’s
home, as well as Kingbird’s statement to Deputy F. about having shot the dog. As in
Barker, although Kingbird was not found with the firearm in his possession, the direct and
circumstantial evidence presented at trial overwhelmingly shows that Kingbird had actual
possession of the firearm before abandoning it in the woods.
This strong evidence of actual possession persuades us that the omission of the
definition of constructive possession was unlikely to have affected the outcome of the case.
The jury here was instructed on actual possession, and the state presented evidence proving
actual possession. Even if the definition of constructive possession were included in the
instructions, we do not doubt that Kingbird would have been convicted under a theory of
actual possession. We therefore conclude that Kingbird’s substantial rights were not
affected by the district court’s omission in the jury instructions, and we need not reach the
remaining prongs of the plain-error test . See State v. Goelz, 743 N.W.2d 249, 258 (Minn.
2007) (“If a defendant fails to establish that the claimed error affected [their] substantial
rights, we need not consider the other factors.”).
9
II
We next turn to the issues Kingbird raises in his self-represented supplemental brief.
We understand Kingbird to make three arguments: (1) the district court erred by not
suppressing his self-incriminating statement at an omnibus hearing because the admission
of the statement violated his Miranda rights; (2) he received ineffective assistance of
counsel; and (3) the admission of the photo of the deceased dog at trial was unfairly
prejudicial.
Kingbird’s first argument is foreclosed because he did not move to suppress the
statement in the district court, and no omnibus hearing was held. Consequently, there is no
district court decision that this court may review on appeal. See Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988) (“A reviewing court must generally consider only those issues that
the record shows were presented [to] and considered by the trial court in deciding the matter
before it.” (quotation omitted)).
Turning to his ineffective-assistance-of-counsel claim, Kingbird argues that his
counsel was deficient because they did not move to suppress the self-incriminating
statement as a violation of Kingbird’s Miranda rights. Under the two-prong test from
Strickland v. Washington, 466 U.S. 668, 687 (1984), to prove that he received ineffective
assistance of counsel in violation of the Sixth Amendment, Kingbird must demonstrate
(1) “that counsel’s performance fell below an objective standard of reasonableness,” and
(2) that he was prejudiced by that performance, meaning that “a reasonable probability
exists that the outcome would have been different but for counsel’s errors.” State v. Rhodes,
657 N.W.2d 823, 842 (Minn. 2003) (quotations omitted). Kingbird’s argument fails under
10
the first prong. Had his trial counsel moved to suppress the statement, the motion would
likely have been unsuccessful because Kingbird was not being interrogated at the time that
he made the statement —per Deputy F.’s testimony, it was “spontaneous.” A Miranda
violation only occurs if the statement was made during a custodial interrogation. Charette
v. State, 980 N.W.2d 310, 315 (Minn. 2022). A defendant’s spontaneous and voluntary
statements that are not the product of police interrogation are not protected. State v. Edrozo,
578 N.W.2d 719, 726 (Minn. 1998). Because Kingbird’s statement was spontaneous and
not the result of custodial interrogation, a Miranda violation claim was unlikely to succeed,
and it follows that counsel’s failure to object did not fall below an objective standard of
reasonableness.
Finally, with respect to Kingbird’s argument that the photo of the deceased dog
admitted at trial was unfairly prejudicial to his case, he does not support his argument with
caselaw and makes only conclusory assertions in his brief. Because we discern no
prejudicial error on inspection, we conclude that he forfeited the argument. State v.
Andersen, 871 N.W.2d 910, 915 (Minn. 2015) (“An assignment of error based on mere
assertion and not supported by any argument or authorities in appellant’s brief is waived
and will not be considered on appeal unless prejudicial error is obvious on mere
inspection.” (quotation omitted)).
Affirmed.