This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A13-2404
State of Minnesota, Respondent,
vs.
Larry Charles Norton, Appellant
Filed October 27, 2014 Affirmed Worke, Judge
Stearns County District Court File No. 73-CR-12-5266
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and
Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and
Smith, Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his conviction of fifth-degree controlled-substance crime,
arguing that the prosecutor plainly erred in closing argument by misrepresenting the
constructive-possession doctrine and misstating evidence. We affirm. FACTS
Officers found methamphetamine while searching appellant Larry Charles
Norton’s residence, and he was charged with fifth-degree controlled-substance crime
(possession) and possession of drug paraphernalia.
At Norton’s jury trial, Deputy Nathan Stewart testified that officers found a green
pipe with methamphetamine in it and baggies with methamphetamine residue in them on
a computer desk, and another baggie with methamphetamine in it in the laundry room.
Stewart testified that none of the evidence was analyzed for fingerprints or DNA because
testing is costly and time consuming and the chance of finding DNA is “slim to none.”
On cross-examination, Stewart agreed that when evidence is found on a person it is not
DNA tested because possession is established.
Norton’s recorded statement from the date of the search was played for the jury.
Norton admitted to being a decades-long methamphetamine user and that he had used
approximately three hours before the officers arrived. Norton admitted to smoking the
methamphetamine that was in the baggies out of the green pipe, both of which were
found on the computer desk. Norton stated that the methamphetamine found in the
laundry room might have been in his pocket because officers searched him in that area of
his residence. When asked if the other individuals in the residence had
methamphetamine, Norton replied: “They didn’t have sh-t.”
In closing argument, the prosecutor stated:
This case is about constructive possession. The [district court] is going to read an instruction that articulates that. It is different than ownership. Possession can be shared. It can be joint. It does not have to be exclusive.
2 So even if you believe that they were all together over there getting high and did smoke out of those two bags of methamphetamine, as long as you believe [Norton] was in on that, he still is guilty. It is still constructive possession.
Defense counsel countered that the drugs were found in a common area accessible
by the other individuals in the house and that one of the individuals had motive to discard
the drugs because he was on probation. Defense counsel also argued that the police could
have done forensic testing, but had their sights set on Norton. In rebuttal, the prosecutor
implied that police had no reason to test the evidence because Deputy Stewart testified
that “‘When somebody admits to possessing it, we don’t test it for DNA.’” Because
Norton told the officers that “nobody else had anything,” the officers “knew whose it
was, because [Norton] admitted to it.”
The jury found Norton guilty of the charged offenses. This appeal followed.
DECISION
Norton raises two challenges to the prosecutor’s closing argument. He failed to
object to either alleged error. “On appeal, an unobjected-to error can be reviewed only if
it constitutes plain error affecting substantial rights.” State v. Ramey, 721 N.W.2d 294,
297 (Minn. 2006). This standard requires (1) error, (2) that is plain, and (3) that affects
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “An error is
plain if it was clear or obvious.” State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002)
(quotations omitted). A prosecutor commits misconduct when he or she “violates clear or
established standards of conduct, e.g., rules, laws, orders by a district court, or clear
commands in this state’s case law.” State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008)
(quotation omitted). If an appellant demonstrates plain error in a prosecutorial-
3 misconduct case, the burden shifts to the state to prove lack of prejudice. Ramey, 721
N.W.2d at 302. This requires the state to “show that there is no reasonable likelihood
that the absence of the misconduct in question would have had a significant effect on the
verdict of the jury.” Id. (quotation omitted).
Constructive possession
Norton first argues that the prosecutor misrepresented the constructive-possession
doctrine by suggesting that Norton’s prior use of the methamphetamine was sufficient to
prove him guilty of the possession offense. Misstatements of law constitute prosecutorial
error. See State v. Jolley, 508 N.W.2d 770, 773 (Minn. 1993) (stating that when a
prosecutor misstates the law, the defense may object and request a curative instruction).
The purpose of the constructive-possession doctrine is to include within the possession statute those cases [in which] the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest . . . up to the time of the arrest.
State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975). Constructive
possession requires (1) that the contraband be found in a place under the defendant’s
exclusive control or (2) “a strong probability, inferable from the evidence, that the
defendant was, at the time, consciously exercising dominion and control over [the
contraband].” State v. Lee, 683 N.W.2d 309, 316-17 n.7 (Minn. 2004). The latter
requires that the defendant “had knowledge of, and exercised dominion and control over,
the [contraband].” See Maryland v. Pringle, 540 U.S. 366, 372, 124 S. Ct. 795, 800
4 (2003). “A person may constructively possess contraband jointly with another person.”
State v. Ortega, 770 N.W.2d 145, 150 (Minn. 2009).
Here, the state sought to establish that there was “a strong probability, inferable
from the evidence, that [Norton] was, at the time, consciously exercising dominion and
control over [the contraband].” Lee, 683 N.W.2d at 317 n.7. The prosecutor stated that
the case was about constructive possession, which can be shared. The prosecutor argued
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A13-2404
State of Minnesota, Respondent,
vs.
Larry Charles Norton, Appellant
Filed October 27, 2014 Affirmed Worke, Judge
Stearns County District Court File No. 73-CR-12-5266
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and
Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and
Smith, Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his conviction of fifth-degree controlled-substance crime,
arguing that the prosecutor plainly erred in closing argument by misrepresenting the
constructive-possession doctrine and misstating evidence. We affirm. FACTS
Officers found methamphetamine while searching appellant Larry Charles
Norton’s residence, and he was charged with fifth-degree controlled-substance crime
(possession) and possession of drug paraphernalia.
At Norton’s jury trial, Deputy Nathan Stewart testified that officers found a green
pipe with methamphetamine in it and baggies with methamphetamine residue in them on
a computer desk, and another baggie with methamphetamine in it in the laundry room.
Stewart testified that none of the evidence was analyzed for fingerprints or DNA because
testing is costly and time consuming and the chance of finding DNA is “slim to none.”
On cross-examination, Stewart agreed that when evidence is found on a person it is not
DNA tested because possession is established.
Norton’s recorded statement from the date of the search was played for the jury.
Norton admitted to being a decades-long methamphetamine user and that he had used
approximately three hours before the officers arrived. Norton admitted to smoking the
methamphetamine that was in the baggies out of the green pipe, both of which were
found on the computer desk. Norton stated that the methamphetamine found in the
laundry room might have been in his pocket because officers searched him in that area of
his residence. When asked if the other individuals in the residence had
methamphetamine, Norton replied: “They didn’t have sh-t.”
In closing argument, the prosecutor stated:
This case is about constructive possession. The [district court] is going to read an instruction that articulates that. It is different than ownership. Possession can be shared. It can be joint. It does not have to be exclusive.
2 So even if you believe that they were all together over there getting high and did smoke out of those two bags of methamphetamine, as long as you believe [Norton] was in on that, he still is guilty. It is still constructive possession.
Defense counsel countered that the drugs were found in a common area accessible
by the other individuals in the house and that one of the individuals had motive to discard
the drugs because he was on probation. Defense counsel also argued that the police could
have done forensic testing, but had their sights set on Norton. In rebuttal, the prosecutor
implied that police had no reason to test the evidence because Deputy Stewart testified
that “‘When somebody admits to possessing it, we don’t test it for DNA.’” Because
Norton told the officers that “nobody else had anything,” the officers “knew whose it
was, because [Norton] admitted to it.”
The jury found Norton guilty of the charged offenses. This appeal followed.
DECISION
Norton raises two challenges to the prosecutor’s closing argument. He failed to
object to either alleged error. “On appeal, an unobjected-to error can be reviewed only if
it constitutes plain error affecting substantial rights.” State v. Ramey, 721 N.W.2d 294,
297 (Minn. 2006). This standard requires (1) error, (2) that is plain, and (3) that affects
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “An error is
plain if it was clear or obvious.” State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002)
(quotations omitted). A prosecutor commits misconduct when he or she “violates clear or
established standards of conduct, e.g., rules, laws, orders by a district court, or clear
commands in this state’s case law.” State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008)
(quotation omitted). If an appellant demonstrates plain error in a prosecutorial-
3 misconduct case, the burden shifts to the state to prove lack of prejudice. Ramey, 721
N.W.2d at 302. This requires the state to “show that there is no reasonable likelihood
that the absence of the misconduct in question would have had a significant effect on the
verdict of the jury.” Id. (quotation omitted).
Constructive possession
Norton first argues that the prosecutor misrepresented the constructive-possession
doctrine by suggesting that Norton’s prior use of the methamphetamine was sufficient to
prove him guilty of the possession offense. Misstatements of law constitute prosecutorial
error. See State v. Jolley, 508 N.W.2d 770, 773 (Minn. 1993) (stating that when a
prosecutor misstates the law, the defense may object and request a curative instruction).
The purpose of the constructive-possession doctrine is to include within the possession statute those cases [in which] the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest . . . up to the time of the arrest.
State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975). Constructive
possession requires (1) that the contraband be found in a place under the defendant’s
exclusive control or (2) “a strong probability, inferable from the evidence, that the
defendant was, at the time, consciously exercising dominion and control over [the
contraband].” State v. Lee, 683 N.W.2d 309, 316-17 n.7 (Minn. 2004). The latter
requires that the defendant “had knowledge of, and exercised dominion and control over,
the [contraband].” See Maryland v. Pringle, 540 U.S. 366, 372, 124 S. Ct. 795, 800
4 (2003). “A person may constructively possess contraband jointly with another person.”
State v. Ortega, 770 N.W.2d 145, 150 (Minn. 2009).
Here, the state sought to establish that there was “a strong probability, inferable
from the evidence, that [Norton] was, at the time, consciously exercising dominion and
control over [the contraband].” Lee, 683 N.W.2d at 317 n.7. The prosecutor stated that
the case was about constructive possession, which can be shared. The prosecutor argued
to the jury: “[I]f you believe that they were all together over there getting high and did
smoke out of those two bags of methamphetamine, as long as you believe [Norton] was
in on that, he still is guilty [of constructive possession].”
Norton argues that his earlier use of methamphetamine fails to demonstrate his
dominion and control over methamphetamine at the time the police found it. See id.
(stating that constructive possession exists when the defendant was, “at the time,”
exercising dominion and control). But Norton’s argument is not an accurate
interpretation of the prosecutor’s statement.
The prosecutor’s explanation of constructive possession had nothing to do with the
timing of Norton’s methamphetamine use and everything to do with emphasizing the
shared or joint nature of constructive possession. Further, the prosecutor’s explanation of
constructive possession was similar to the district court’s jury instruction: “Possession
may be . . . exclusive or joint. Possession may be shared. [Norton] possessed
methamphetamine if it was in a place under [his] exclusive or shared control to which
other people did not normally have access or if [he] knowingly exercised dominion and
control over it.” Norton fails to establish plain error.
5 Misstatement of evidence
Norton also argues that the prosecutor plainly erred by attributing a statement to a
witness that the witness never made. It is misconduct when a prosecutor intentionally
misstates evidence. State v. Mayhorn, 720 N.W.2d 776, 788 (Minn. 2006). A prosecutor
is not entitled to make arguments that have no factual basis in the record evidence. See
State v. Thompson, 578 N.W.2d 734, 742 (Minn. 1998) (concluding that remarks that
contained pure speculation without factual basis were improper).
In closing argument, defense counsel stated that officers should have done forensic
testing on the evidence. In rebuttal, the prosecutor argued that testing was unnecessary
because “[Deputy] Stewart said . . . . ‘When somebody admits to possessing it, we don’t
test it for DNA.’” The prosecutor then stated that the officers “knew whose it was,
because [Norton] admitted to it.” Norton argues that Stewart “made no such statement”
and that there was no testimony to suggest that testing was not done because Norton
admitted to possessing the evidence. We agree.
Stewart testified that the evidence was not tested because testing is costly and
time consuming and the chance of finding DNA is “slim to none.” On cross-
examination, Stewart agreed that when evidence is found on a person it is not DNA tested
because possession is established, but that was a general, conjectural statement. Stewart
did not state that in this case the items were not tested because of Norton’s admission.
But while Norton has established plain error, the state has met its burden of
showing lack of prejudice, because there is no reasonable likelihood that the jury’s
verdict would have been different had the prosecutor not made this statement. See
6 Ramey, 721 N.W.2d at 302 (stating that the state must “show that there is no reasonable
likelihood that the absence of the misconduct in question would have had a significant
effect on the verdict of the jury” (quotations omitted)).
The evidence supports the jury’s verdict that Norton possessed methamphetamine.
Norton admitted that he smoked methamphetamine out of the green pipe from the
baggies the officers found by the computer. Norton stated that the methamphetamine
found in the laundry room might have been in his pocket because the officers searched
him in that area of his residence. Norton stated that the methamphetamine found did not
belong to the other individuals present in his home. Thus, there is not a reasonable
likelihood that the prosecutor’s misstatement regarding the reason for lack of forensic
testing had a significant effect on the verdict.
Affirmed.