This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Randall Brian Tykwinski,



Filed August 1, 2000


Willis, Judge


Lincoln County District Court

File No. K898124


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Michael W. Cable, Lincoln County Attorney, 109 South Fourth Street, Marshall, MN  56258 (for respondent)


Steven P. Russett, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant Randall Brian Tykwinski challenges his conviction of fifth-degree controlled-substance offense, arguing that the evidence is insufficient to support his conviction, that the prosecutor committed misconduct, and that appellant was denied a fair trial when the sheriff testified in violation of the district court’s suppression order.  We affirm.


On May 6, 1998, there was a barn fire at the farmstead in Lincoln County where appellant was living.  Firefighter Dan Liepfried entered a granary to extinguish a small fire that had been ignited by sparks from the barn.  In the granary, Liepfried noticed several plants that looked like marijuana hanging from a reinforcement rod.  Liepfried told some other firefighters about what he saw but did not report it.

One week later, Lincoln County Sheriff Jack Vizecky learned that a firefighter saw marijuana in the granary.  Vizecky went to the farmstead and asked appellant’s girlfriend, Terry Lywak, who lived on the farm with appellant, for permission to search the premises.  Lywak would not consent to a search, and Vizecky returned to the property later in the afternoon with a search warrant.  

Upon entering the granary, Sheriff Vizecky removed a heavy metal gate that was not present a week earlier when Liepfried entered the granary.  In the granary, Vizecky found a stalk of what appeared to be a marijuana plant hanging from a reinforcement rod and some stalks and leaves on the floor.  He also found pruning shears, an empty pack of cigarettes, and an empty beer bottle on the floor.  Vizecky then searched the house where appellant lived.  In the master bedroom, he found a wooden box containing a small amount of marijuana.  He also found seven plastic bags containing small amounts of marijuana, a marijuana pipe, and a “penny-weight” scale.            

Appellant was charged with one count of possession of marijuana, in violation of Minn. Stat. § 152.025, subd. 2(1) (1998), and one count of possession of marijuana with intent to sell, in violation of Minn. Stat. § 152.025, subd. 1(1) (1998).  At trial, appellant testified that (1) he had smoked marijuana for the last ten years, sometimes two to three times a week; (2) the marijuana found in the bedroom belonged to him, but he had never grown or sold marijuana; (3) he “zeroed” the scale in the bedroom with a matchbook to provide accurate readings because he and his children liked to play with the scale; and (4) he had not been in the granary since he moved onto the farm in 1997, and the items found in the granary did not belong to him.                

Appellant’s uncle, Roger Tykwinski, testified that he owns the farm and rents the farmhouse and two garages to appellant.  Roger Tykwinski also testified that he occasionally rented the outbuildings, including the granary, to his brother, Mike Tykwinski, for storage.  

Bureau of Criminal Apprehension (BCA) forensic scientist Michael Berry confirmed that the substance found in the granary was marijuana, weighing 73.7 grams, and that the substance found in the bedroom was marijuana, weighing 3.8 grams.  BCA Agent Bruce Preece testified a scale like that confiscated from appellant’s bedroom is commonly used to weigh smaller bags of marijuana.  Berry testified that although no testing was done to determine whether the marijuana found in the bedroom was similar to the marijuana found in the granary, the characteristics of marijuana are largely the same.  Sheriff Vizecky testified that the cigarette pack, beer bottle, and pruning shears found in the granary were not tested for fingerprints.

A jury returned verdicts finding appellant guilty of possession and possession with intent to sell more than 42.5 grams of marijuana.  But in response to a special- verdict question, the jury concluded that appellant did not intend to receive any remuneration for selling marijuana, which is one of the elements of possession with intent to sell.  Therefore, the district court adjudicated appellant guilty of only possession of marijuana, stayed imposition of sentence, and placed him on probation for five years.   This appeal followed.


I.          Sufficiency of the Evidence

            Appellant argues that the state failed to prove beyond a reasonable doubt that he possessed the marijuana in the granary. Where there is a challenge to the sufficiency of the evidence, appellate review is

limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.


State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted); see also State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (stating test is whether jury “could reasonably conclude that a defendant was proven guilty”).  This court must view the evidence in the light most favorable to the state and assume that the jury believed the state’s witnesses and disbelieved contradictory evidence.  State v. Moore,438 N.W.2d 101, 108 (Minn. 1989).

            Although appellant admitted to possessing the marijuana discovered in his bedroom, to obtain a felony conviction the state also had to prove that he possessed the marijuana found in the granary.  Under Minn. Stat. § 152.025, subd. 2(1) (1998), a person is guilty of controlled substance crime in the fifth degree if

the person unlawfully possesses one or more mixtures containing a controlled substance classified in schedule I, II, III, IV, except a small amount of marijuana.


A “small amount” of marijuana is defined as 42.5 grams or less.  Minn. Stat. § 152.01, subd. 16 (1998).  The police found only 3.8 grams of marijuana in appellant’s bedroom, but they found 73.7 grams of marijuana in the granary. Thus, in finding appellant guilty of possessing more than 42.5 grams of marijuana, the jury had to conclude that appellant possessed the marijuana in the granary.

            Possession of a controlled substance may be physical or constructive.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  Because there is no evidence that appellant physically possessed the marijuana in the granary, the state had to prove that he constructively possessed it.  To prove constructive possession, the state must show:

(a) that the police found the substance in a place under defendant’s exclusive control to which other people did not normally have access, or

(b) that, if police found it in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at that time consciously exercising dominion and control over it.


 Id. at 105, 226 N.W.2d at 611 (citations omitted).   

          The evidence shows that Roger Tykwinski occasionally rented some of the outbuildings, including the granary, to his brother, Mike Tykwinski.  Because appellant’s uncles also had access to the granary, the state had to show a strong probability that appellant exercised dominion and control over the marijuana found there.  See id.; see also State v. Wiley, 366 N.W.2d 265, 270 (Minn. 1985).  There was no testimony regarding whether Mike Tykwinski was paying rent for the granary when the marijuana was found.  But the sheriff’s testimony indicated that the granary was not being used for storage at the time because the only items he found inside were marijuana, a cigarette pack, a beer bottle, and pruning shears.  Additionally, both Roger Tykwinski and appellant testified that they did not know Mike Tykwinski to be a marijuana smoker.  Therefore, the jury could have concluded that Mike Tykwinski was not using the granary for storage and that he would not have used the granary to store marijuana. 

Appellant also testified that Myron Johnson, a person who helped the previous tenant move out of the farmhouse, could have had access to the granary.  But appellant did not testify that he had seen Johnson on the farm since appellant moved in.  The record does not support the theory that Johnson constructively possessed the marijuana in the granary, and conjectures do not justify reversal.  See State v. Wallace, 558 N.W.2d 469, 473 (Minn. 1997).        

            Appellant argues that the state did not prove constructive possession because it presented no evidence suggesting that items belonging to appellant were found near or commingled with the marijuana in the granary.  Constructive possession of drugs found in a location to which others have access can be proven by evidence establishing that items belonging to the defendant were found near or commingled with the drugs.  See   Wiley, 366 N.W.2d at 270.  But such a finding is not necessary where other circumstantial evidence supports an inference that the defendant was exercising dominion and control over the drugs.  See State v. Lorenz, 368 N.W.2d 284, 288 (Minn. 1985); State v. Carr, 311 Minn. 161, 163, 249 N.W.2d 443, 444-45 (1976).

            Here, appellant is an admittedly frequent marijuana user who lives on the farm where the marijuana was found.  Marijuana and a scale of the type commonly used for weighing marijuana were found in his bedroom.  Appellant admitted that the items belonged to him.  Additionally, it is likely that someone who knew about the fire exercised dominion and control over the marijuana in the granary because after the fire, but before the sheriff executed the search warrant, most of the marijuana was removed and a large metal gate was put up to block the entrance to the granary.  The record contains sufficient evidence to allow the jury to reasonably conclude that appellant exercised dominion and control over the marijuana in the granary.

II.        Prosecutorial Misconduct

            Appellant claims that remarks in the prosecutor’s closing argument denied him a fair trial because the prosecutor misinformed the jury of the state’s burden of proof.  Appellant contends that the prosecutor committed misconduct when he told the jury that they should accept the “simplest, most logical” explanation of the evidence and by implying that appellant had a duty to create reasonable doubt as to his guilt.

            Misstatements of the burden of proof are highly improper and constitute prosecutorial misconduct.  State v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985).  It is misconduct for a prosecutor to divert the jury’s attention from its fundamental role of deciding whether the state has met its burden of proving a defendant guilty beyond a reasonable doubt.  See State v. Ashby,567 N.W.2d 21, 27 (Minn. 1997).  But not every instance of misconduct warrants a new trial.  Id. at 27-28; State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).  Generally, a defendant will not be granted a new trial if the misconduct was harmless.  State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996).  In cases involving less serious prosecutorial misconduct, we determine “whether the misconduct likely played a substantial part in influencing the jury to convict.”  State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974).  In cases involving unusually serious misconduct, we must be certain beyond a reasonable doubt that the misconduct was harmless before affirming.  Id. at 127, 218 N.W.2d at 200.  Misconduct is harmless beyond a reasonable doubt if the verdict rendered was “surely unattributable to the error.”  Ashby,567 N.W.2d at 28 (quotation omitted).  We must evaluate the closing argument as a whole to determine if it provides a basis for reversal.  State v. Washington,521 N.W.2d 35, 40 (Minn. 1994). 

            In his closing argument, the prosecutor referred to a philosophical rule known as Ockham’s Razor to illustrate to the jury that, when presented with competing theories, the simplest, most logical explanation is the best choice.  But the jury’s job is not to accept the most logical explanation of the evidence; rather, the jury is to determine whether the defendant is guilty beyond a reasonable doubt.  And prosecutors who tell a jury that their role is to determine guilt based on a lesser standard will risk reversal.  State v. Thaggard, 527 N.W.2d 804, 812 (Minn. 1995).

Even applying the standard for more serious misconduct, we conclude that any misstatement of the burden of proof by the prosecutor was harmless beyond a reasonable doubt.  Because the prosecutor also correctly stated the burden of proof in his closing argument, defense counsel addressed the prosecutor’s use of Ockham’s Razor and reminded the jury of the proper burden of proof, and the district court correctly instructed the jury on the burden of proof, the jury’s verdict was surely unattributable to the prosecutor’s improper argument.

Appellant also argues that the prosecutor improperly implied that appellant had a duty to create reasonable doubt as to his guilt.  The prosecutor stated

[n]ow does he create reasonable doubt because he can get up there and spout off a name.  He can say Myron Johnson—that is the individual who has been on the farm site maybe once.  Does that create reasonable doubt?


            A prosecutor may not shift the burden of proof to a defendant to prove his innocence.  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993).  But a statement by the prosecutor on the lack of evidence regarding the defense’s theory does not shift the burden of proof.  State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).  Here, as in Gassler, part of the defense strategy was to suggest that someone other than the defendant was responsible for the crime.  In Gassler, the supreme court held that an argument that is a permissible challenge to the defendant’s theory does not constitute error.  505 N.W.2d at 69.

There is a difference between shifting the burden of proof, which would require a defendant to prove his innocence beyond a reasonable doubt, and suggesting that the defendant has not presented evidence sufficient to create a reasonable doubt as to his guilt.  Precedent makes clear that it is not improper to raise questions about whether a defendant has created a reasonable doubt as to his guilt.  The Minnesota Supreme Court has stated that “[i]t is for the jury to determine whether the defendant has submitted sufficient evidence to create a reasonable doubt of defendant’s guilt.”  State v. Dodis, 314 N.W.2d 233, 237 (Minn. 1982); see also State v. Hentschel, 173 Minn. 368, 369, 217 N.W. 378, 379 (1928) (upholding jury instruction that “[a]ll the defendant has to do is to bring your minds into such a condition that when you consider all the evidence you are not able to say that he is guilty beyond a reasonable doubt”).  Thus, the prosecutor’s argument about whether appellant created a reasonable doubt as to his guilt was not improper.  

III.       New Trial

            Appellant argues that Sheriff Vizecky’s testimony that Lywak refused to allow a warrantless search of the farm was so prejudicial that it denied him a fair trial.  There is no question that Sheriff Vizecky’s testimony was improper.  The district court granted appellant’s pretrial motion and ordered that no witness make any reference to Lywak’s assertion of her constitutional right not to allow the search.

Even where, as here, the prosecutor unintentionally elicits improper testimony, this court will reverse if the testimony is prejudicial. State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978); see also State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979) (concluding that state has duty to ensure that its witnesses know limits of permissible testimony); State v. Huffstutler, 269 Minn. 153, 156, 130 N.W.2d 347, 348 (1964) (holding prosecution responsible for prejudicial information volunteered by deputy sheriff during direct examination). Testimony is prejudicial if there is a reasonable possibility it was a significant factor in persuading the jury to convict.  Haglund, 267 N.W.2d at 506. 

Appellant argues that because the state’s case was “extremely weak” and because Vizecky’s improper testimony suggested that Lywak was hiding something from the police, it could have been a significant factor in persuading the jury to convict.  But the inference that Lywak might have been hiding something from the police does not help the state’s case.  Appellant admitted to possessing the marijuana found in the house.  Therefore, the fact that the couple had something to hide was not in controversy.  Additionally, Lywak’s refusal could have been viewed as nothing more than an assertion of her Fourth Amendment right.  The sheriff’s testimony was not so prejudicial as to require a new trial. 

Appellant also argues that by not instructing the jury to disregard Vizecky’s improper testimony, the district court increased the risk that the jury would consider it when determining appellant’s guilt.  But the district court sustained appellant’s objection to the improper testimony, and nothing in the record shows that appellant asked for a curative instruction.