This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Demetrius Spencer,



Filed January 22, 2002

Foley, Judge


Ramsey County District Court

File No. K6001850


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


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)


John M. Stuart, State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN  55414; and


Mark D. Nyvold, Assistant State Public Defender, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for appellant)


            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges his conviction for unlawful possession of a firearm in violation of Minn. Stat § 624.713, subd. 1(b) (1998).  He argues that the district court erred in allowing evidence of his prior convictions even though he stipulated that he was ineligible to possess a firearm, and in allowing the state to call appellant’s accomplice, whose testimony exculpated appellant, for the purpose of impeaching the accomplice with the accomplice’s prior statement that inculpated appellant.  Appellant also argues that there was insufficient evidence to prove that he constructively possessed the gun.  We affirm. 


            On March 25, 2000, appellant Demetrius Spencer and Bryon Brantley entered a home, and Brantley demanded that the occupants pay them money owed for marijuana.  The occupants believed they saw a gun under Brantley’s clothing and Brantley told the occupants that he had a pistol.  Spencer and Brantley eventually left the home and the police were notified of the incident.

            Later that same day, after hearing the report of threats, Officer Tom Arnold, who had prior dealings with Spencer and Brantley, began looking for them.  The officer found them sitting in a taxicab in front of the address where he believed Spencer lived.  Spencer was seated in the rear passenger seat and Brantley was seated behind the driver’s seat.  After their arrest, Officer Arnold searched the taxi and found a nine-millimeter pistol with a round in the chamber, but no magazine, under the driver’s seat.  Another officer found a magazine containing several nine-millimeter rounds on Spencer’s person.  Later tests revealed Brantley’s fingerprint on the gun, but no identifiable fingerprints on the magazine.  The officers also found marijuana on both Spencer and Brantley. 

            As a result of this incident, Spencer was charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (1998), and aiding and abetting such possession under Minn. Stat. § 609.05 (1998).  Brantley was charged with various counts, including possession of a firearm by an ineligible person.  After a bench trial, Spencer was found guilty of possession of a firearm by an ineligible person.[1]

            Evidence at Spencer’s bench trial consisted primarily of stipulated evidence.  The parties agreed to admit the weapon, the weapon’s magazine, the controlled substances, the transcript from Brantley’s trial, which included testimony of key witnesses in the case, and Officer Arnold’s police report dated March 25, 2001.  The police report showed that an officer recovered the magazine containing seven rounds of nine-millimeter ammunition from Spencer’s right-front pant’s pocket.  The state also offered, and the court received, certified copies of Spencer’s records of felony adjudications even though he stipulated that he was ineligible to possess a pistol. 

            In addition to the stipulated evidence, the state called Brantley to testify at Spencer’s trial.  Brantley testified that Spencer did not know that he possessed a gun until Spencer saw Brantley throw it under the front seat of the taxi.  Brantley also testified that he had put the magazine clip in his jacket and then later gave the jacket to Spencer to wear.  The state impeached Brantley’s testimony with his prior statements to the police.  Specifically, Brantley told the police that Spencer originally obtained the gun and that he was with Spencer at that time. 

            The district court concluded that Spencer and Brantley were partners in selling marijuana when arrested.  It found that neither Spencer nor Brantley was in actual possession of the pistol when stopped, but that both were in constructive possession because they were both in a position to exercise dominion and control over the weapon.  This appeal follows. 


            The district court has broad discretion in evidentiary matters and its rulings will not be disturbed absent a clear abuse of discretion.  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).  If an evidentiary ruling is in error, a reversal is warranted only when the error substantially influences the jury to convict.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  Moreover, even if the district court erred in admitting evidence, an appellate court must determine whether the error was harmless beyond a reasonable doubt.  State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988).  In determining whether the error was harmless beyond a reasonable doubt, an appellate court must examine the error and its impact within the context of the record as a whole.  State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993). 

            Spencer claims the district court abused its discretion when it admitted evidence of his prior conviction, despite his stipulation that he was ineligible to possess a pistol.  We disagree. 

            First, under Minn. Stat. § 624.713, subd. 1(b) (1998), the state must prove that the defendant charged with unlawful possession of a pistol has a qualifying conviction or adjudication.  The district court’s findings indicate that Spencer had a criminal record from Illinois that made it illegal for him to possess a firearm.  The court’s findings, conclusion of law, and verdict demonstrate that it used the prior convictions only for establishing that Spencer was ineligible to possess a pistol.  Spencer has not shown that the trial court abused its discretion in admitting the prior conviction evidence. 

            Second, Spencer argues that the court committed reversible error by not requiring the state to accept his stipulation.  Spencer also argues that the state must accept his stipulation that he was ineligible to possess a firearm under Old Chief v. United States, 519 U.S. 172, 190-92, 117 S. Ct. 644, 654-656 (1997) and State v. Davidson, 351 N.W.2d 8, 11 (Minn. 1984).  But Old Chief and Davidson involved jury trials; here, the case was tried to the court. 

            Evidentiary errors may be found to be less prejudicial in bench trials.  See, e.g., Sandberg v. Comm’r of Revenue, 383 N.W.2d 277, 282 (Minn. 1986) (admission of improper evidence less likely to require new trial where case was tried to court); State v. Hines, 270 Minn. 30, 37, 133 N.W.2d 371, 376 (1964) (improper answer of witness unlikely to have been “deemed of value by an experienced trial judge” in bench trial); Irwin v. State, 400 N.W.2d 783, 786 (Minn. App. 1987) (affirming postconviction court’s analysis that effect of Spreigl evidence was less prejudicial because it was admitted at bench trial), review denied (Minn. Mar. 25, 1987).  Because this was a bench trial, the error was far less likely to influence the ultimate finding of guilt.  We conclude that any alleged error was harmless beyond a reasonable doubt because judges are presumed capable of considering the proper evidence when acting in the role of factfinder.

            Finally, under Minn. R. Evid. 104(a), the judge must make preliminary determinations on the admissibility of evidence.  If a district court judge, acting in the role of factfinder, could be improperly influenced by potentially prejudicial evidence, two judges would be necessary for bench trials:  one to hear and determine evidentiary issues, and the other to determine the facts.  We flatly reject the idea that district court judges, acting as factfinders, are unable to evaluate evidence properly and refrain from using it for an improper purpose.

            Spencer has failed to produce any evidence that his prior convictions had an improper effect on the district court’s findings of fact or finding of guilt.  Accordingly, the district court did not err by admitting the evidence of Spencer’s prior convictions.


            Spencer argues that the state improperly called a witness, whose testimony exculpated him, to impeach him with his prior out-of-court statement.         

            As a general rule, if defense counsel fails to object to an error at trial, the defendant is deemed to have forfeited his right to have an appellate court consider that error on appeal.  State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983).  Here, Spencer did not object at trial to the state’s impeachment of Brantley.  Spencer asserts that his failure to object does not preclude appellate review under Minn. R. Crim. P. 31.02, arguing that this was a plain error affecting his substantial rights.  We disagree.

            Minn. R. Crim. P. 31.02 provides that “[p]lain errors or defects affecting substantial rights may be considered * * * on appeal although they were not brought to the attention of the trial court.”  Before an appellate court reviews an unobjected-to error, the appellant must meet a three-prong test for plain error: “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted). 

            Spencer has not shown that the state’s use of Brantley’s prior statement for impeachment constituted plain error.  The state may not “expose the jury to hearsay under the guise of impeachment when the sole purpose in calling the witness is to introduce the witness’ prior statement.”  State v. Thames, 599 N.W.2d 122, 125 (Minn. 1999) (citation omitted).  In Thames, the court upheld the district court’s decision to allow the prosecutor to impeach a witness because there was

no suggestion that the prosecutor knew that [the witness] was not going to testify consistent with [the prior] statement or that the prosecutor was attempting to expose the juryto hearsay under the guise of impeachment.


Id. at 125-26 (footnote omitted).  Similarly, Spencer failed to present any evidence that the prosecution knew that Brantley would not testify consistent with his earlier statements.  Moreover, a judge is presumed capable of properly evaluating the evidence. 


            An appellate court’s review of the sufficiency of the evidence is limited to a painstaking analysis of the record to determine if the evidence, when viewed in the light most favorable to the conviction was sufficient to support the conviction.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  An appellate court, in reviewing the sufficiency of the evidence in criminal cases, will apply the same standard of review to bench trials as is applied to jury trials.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979).  Accordingly, the district court’s finding will be upheld if, “based on the evidence contained in the record, the district court could reasonably have found defendant guilty of the crimes charged.”  Id.  A reviewing court views the evidence in the light most favorable to the state and assumes the factfinder believed the state’s witnesses and disbelieved any contrary evidence.  State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994). 

            The state must establish either actual or constructive possession of a firearm by an ineligible person in order to obtain a conviction for unlawful possession of a pistol.  State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982); see also Minn. Stat. § 624.713 , subd. 1(b) (1998) (stating elements for unlawful possession of pistol).  To prove constructive possession, the state must prove:  (1) that the police found the item in a place under the defendant’s exclusive control to which other people did not normally have access, or (2) that, if police found it in a place to which others had access, there is a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over it.  State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975); see also State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982) (applying Florine constructive possession requirements to firearm charges). 

            Spencer argues that his conviction for unlawful possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (1998) was not supported by the evidence because the state failed to prove he consciously exercised dominion and control over the gun.  We disagree. 

            A conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  But circumstantial evidence is entitled to as much weight as other evidence.  Webb, 440 N.W.2d at 430.  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Id.  Spencer argues that the evidence supports an inference other than his guilt; namely, that the police found the magazine in the jacket he was wearing, that the jacket belonged to Brantley, and that Spencer did not know its contents.

            The record supports the district court’s conclusion that Spencer constructively possessed the firearm and, thus, the court’s finding of guilt.  Spencer accompanied Brantley on his mission to collect money for a drug sale.  An occupant of the house testified that both men arrived at his door and Brantley demanded money.  The occupant testified that when the two entered his home, he feared for his life.  Spencer was in the taxi where the gun was located, and the record shows that an officer found a magazine that fit the gun in Spencer’s pant pocket.  The district court specifically found that Brantley’s testimony that the magazine was located in the jacket was not credible.  Giving due deference to the district court’s function of weighing the credibility of the witnesses, it was reasonable for the court to conclude that Spencer was in constructive possession of the gun. 

            Moreover, proximity is an important consideration in assessing constructive possession.  See State v. Cusick, 387 N.W.2d 179, 181 (Minn. 1986) (finding constructive possession of drug paraphernalia where officers found drug paraphernalia outside defendant’s girlfriend’s car near defendant’s wallet, and defendant’s girlfriend was self-confessed addict who testified at trial that drug paraphernalia belonged to her); Loyd, 321 N.W.2d at 902 (finding constructive possession when police found revolver in trunk of defendant’s vehicle, despite girlfriend’s testimony that she put gun in trunk, and defendant did not know of its presence).  Here, Spencer and Brantley were together most of the day in question.  They arrived at a house where Brantley attempted to collect money owed for drugs, and later shared a taxi on their way to a hotel.  The record shows that Spencer was in close proximity to the gun.

            In addition, constructive possession need not be exclusive, but may be shared.  See State v. LaBarre, 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972) (concluding that defendant’s immediate access to controlled substance, available to others, supported finding of possession).  Thus, even presuming the gun belonged to Brantley, and Brantley exercised a significant amount of control over the gun, both Spencer and Brantley could have constructively possessed the gun.  Mere presence is not enough to establish constructive possession.  State v. Matelski, 622 N.W.2d 826, 831 (Minn. App. 2001), review denied (Minn. May 15, 2001).  This case involves more than mere presence. 

            Because we conclude that the evidence is sufficient to sustain Spencer’s conviction under a constructive possession theory, we need not address the alternative theory of aiding and abetting.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The district court did not address the aiding and abetting charge.