This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





James Russell Essig,




Filed August 1, 2000


Anderson, Judge


Hennepin County District Court

File No. 99027971



Mike Hatch, Minnesota Attorney General, Suite 500, 525 Park Street, St. Paul, MN  55103-2106; and


Amy J. Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, Minnesota State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2829 University Avenue SE, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction, arguing that the district court’s jury instruction materially misstated the law.  The district court’s definition of constructive possession did not make a specific reference to “knowing” possession.  Because error, if any, was harmless, we affirm.


Appellant James Essig lived in a small one-bedroom apartment with a number of other people.  On March 23, 1999, the police, pursuant to a search warrant, entered the apartment, handcuffed the occupants, and searched the apartment.  In the bedroom, the police found: (1) a .44-caliber rifle loaded with a round of ammunition in a pile of clothing; (2) a Browning 12-gauge semi-automatic, a .35-caliber rifle, and two gun cases in the closet; and (3) a box of ammunition in the dresser.

            After the search, police questioned appellant at the police department.  He was given a Miranda warning and waived his right to remain silent and to have counsel present during questioning.  Appellant told the police that he (1) accepted $100 from his friend Dan to store the guns in the apartment; (2) Dan brought the guns over to the apartment the day before the search and had apparently dropped some bullets in the front yard and in the house; (3) appellant found this ammunition and put it in his pocket; the bullets were still in appellant’s pocket when he was arrested; and (4) his fingerprints would be on the guns, because he had touched the guns while looking at them.

            The state charged appellant with violating Minn. Stat. § 624.713, subd.1 (b) (1998), which prohibits felons from possessing firearms.  Before closing arguments at trial, appellant’s attorney offered two proposed jury instructions.  Appellant’s attorney expressed concern as to how the court would explain the possession element of the crime to the jury.  The district court did not use either of the proposed jury instructions, but instead gave its own instruction on the element of possession.  The jury found appellant guilty, and the court sentenced him to 60 months imprisonment.  Appellant challenges his conviction.

D E C I S I  O N

Appellant asserts that his conviction must be reversed, arguing that the jury instruction materially misstated the law because it does not contain an explanation of “knowledge” as it relates to possession. 

 District courts have “considerable latitude” in the selection of language for jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quotation omitted).  Jury instructions must be viewed in their entirety to determine whether the instructions fairly and adequately explain the law in the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  The district court’s refusal to give a jury instruction will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).

Appellant was convicted of unlawful possession of a firearm under Minn. Stat. § 624.713, subd. 1(b) (1998).   The relevant portion of section 624.713 reads:

The following persons shall not be entitled to possess a pistol or semiautomatic military-style assault weapon, * * * a person who has been convicted of * * * a crime of violence * * *.


Minn. Stat. § 624.713, subd. 1(b).  Appellant asserts that the district court materially misstated the law of constructive possession.  The court instructed:

Now, possession is a common term and it’s a legal definition, and really not any different than the common sense interpretation of the very same word.  Whether you want to add extra words like constructive, it’s possession.  Possession is power and control over inanimate objects; that’s what possession is.  So, you possess something if that-if the object is within your -- the power and control -- your power and control so that this object’s movement or it’s wherewithal is within your control.  That’s the definition and the essence of possession; you possess something if you control it.

            Now possession, however not necessarily sole possession -- well, possession, just as in common everyday life -- in possession it’s not necessarily that one person be the sole possessor.  You can have joint possession, you can have more than one person having control and the power or wherewithal to control the existence, the movement of objects or personal possessions.  So, you can have joint control.  But the essence of possession is control.  And if you control of an item, either solely or jointly, then the possession -- and the object is within your power to control, then you have possession.


Appellant argues that the court’s failure to use the word “knowing” in its description of constructive possession materially misstated the law.  The firearm statute at issue here, Minn. Stat. § 624.713, subd. 1(b), does not define possession.  Instead, appellant relies on State v. Florine, 226 N.W.2d 609, 610 (Minn. 1975), for the proposition that an individual must knowingly control a firearm in order to possess the firearm under section 624.713.  Florine holds that:

[I]n order to prove constructive possession the state should have to show (a) that the police found the [item] 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 the time consciously exercising dominion and control over it.


Florine, 226 N.W.2d at 611 (discussing constructive possession of controlled substances) (emphasis added).  The Florine constructive-possession doctrine has been adopted in section 624.713 cases.  See State v. Olson, 326 N.W.2d 661, 663 (Minn. 1982); State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982).

            The word  “consciously,” in Florine and its progeny, suggests that “knowing” is a necessary element in determining constructive possession.  The district court did not specifically use the word  “knowing” or “conscious” but did state that one can have constructive possession of a firearm if one has “control and the power or wherewithal to control the existence [of the firearm].”  But, even if the district court erred in not including a specific instruction as to “knowledge,” an erroneous jury instruction does not require reversal if the mistake was harmless beyond a reasonable doubt.  State v. Pendleton, 567 N.W.2d 265, 270 (Minn. 1997).  Harmless error analysis requires us to determine:

[W]hether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.  If the answer to that question is “no,” holding the error harmless does not “reflec[t] a denigration of the constitutional rights involved.’


Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 1839 (1999) (quotation omitted). There is no evidence in the record that could lead to a contrary finding other than that  appellant “knew” he was possessing firearms.  Appellant told police that he was holding the guns in exchange for money and that his fingerprints would be on the guns.  There was also undisputed testimony that he accepted money in exchange for storing the firearms and that he knew that the guns were in his bedroom.  An offender who placed a firearm where it is discovered has constructive possession of the firearm, even if the offender does not own it.  Salcido-Perez v. State, ___ N.W.2d ___ (Minn. App. July 18, 2000).  Any error by the district court is harmless and does not require a reversal.