This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Salvador A. Pacheco,



Filed October 31, 2000


Kalitowski, Judge


Washington County District Court

File No. K4993444


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


Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)


John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Salvador A. Pacheco challenges his conviction of felon in possession of a firearm and reckless discharge of a firearm, arguing the evidence was insufficient to support the convictions.  We affirm.


            When 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 the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  A reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            A conviction based on circumstantial evidence will be sustained on appeal when the reasonable inferences from such evidence are consistent only with a defendant’s guilt and inconsistent with any rational hypothesis except that of guilt.  Id.  Circumstantial evidence is entitled to the same weight as any other kind of evidence as long as the reasonable inferences from such evidence are consistent only with defendant’s guilt and inconsistent with any rational hypothesis except that of guilt.  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.  The evidence as a whole need not exclude all possibility that the defendant is innocent; it need only make such other theories seem unreasonable.  State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985).

            Because appellant was not in actual possession of the firearm when he was arrested, the state must prove he constructively possessed the firearm.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  In order to prove constructive possession, the state must show that (a) the police found the item in a place under defendant’s exclusive control to which other people did not normally have access, or, (b) if police found the item 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 or control over it.  Id. at 105, 226 N.W.2d at 611.

            Appellant argues the circumstantial evidence in the record is not sufficient to show he constructively possessed or recklessly discharged a firearm.  We disagree.  The evidence indicates:  (1) a witness observed a male passenger of a sport utility vehicle (SUV) holding a gun; (2) subsequently the witness observed a male fire two shots from the front right window of the SUV while the vehicle was traveling on Highway 61; (3) appellant was in the front right passenger seat when the police stopped the SUV shortly after the shots were fired; (4) appellant and the driver were the only males in the vehicle; (5) officers retrieved a .45 caliber handgun and a box of ammunition from the SUV; and (6) the Bureau of Criminal Apprehension determined the .45 caliber shell casing found by the police on Highway 61 had been fired from the gun found inside the SUV.

            Given all the evidence and the legitimate inferences that can be drawn from the evidence, the jury could reasonably conclude that appellant constructively possessed and recklessly discharged a firearm.  Appellant’s theory that the handgun was fired and possessed by a female passenger who was in the back seat when police stopped the vehicle is unreasonable based on the evidence.