This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Ernest Breland,




Filed January 13, 2004

Klaphake, Judge


Hennepin County District Court

File No. 02063929



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant Ernest Breland challenges his conviction for felon in possession of a firearm, arguing that the district court erred by giving the jury the no-adverse-inference instruction at defense counsel’s request, but without obtaining appellant’s personal consent.  Appellant also argues that there was insufficient evidence to prove that he was in constructive possession of the firearm. 

            Although the district court erred by failing to obtain appellant’s personal consent to the instruction, appellant has not shown that he was prejudiced by this error.  Further, the evidence here is sufficient to permit the jury to reach its verdict.  We therefore affirm the conviction.


I.  Sufficiency of the Evidence

            On review, this court must thoroughly examine the record to determine whether the evidence, viewed in a light most favorable to the conviction, is sufficient to permit a jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Deference is given to the jury’s credibility determinations and the weight given to the testimony of individual witnesses.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  It can be assumed that the jury believed the state’s witnesses and disbelieved any contrary evidence.  Id.

            The state’s case here is based on circumstantial evidence.  Circumstantial evidence is entitled to the same weight as other kinds of evidence, but merits stricter scrutiny.  Webb, 440 N.W.2d at 430; Bias, 419 N.W.2d at 484.  Circumstantial evidence must “form a complete chain which, in the light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.”  State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).  The evidence must be consistent with appellant’s guilt and inconsistent with any other rational hypothesis.  Webb, 440 N.W.2d at 430.  It is presumed that the jury is in the best position to evaluate circumstantial evidence.  Bias, 419 N.W.2d at 484. 

            The only element of the charge at issue here was whether appellant possessed a firearm.  Possession may be actual or, as alleged here, constructive.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  Constructive possession of a contraband item means that either the item was found

in a place under defendant’s exclusive control to which other people did not normally have access, or [if found] in a place to which others had access, there is a strong probability . . . that defendant was at the time consciously exercising dominion and control over it.


Id. at 105, 226 N.W.2d at 611. 

            We summarize the circumstantial evidence presented here as follows:

            1.         A handgun was found hidden in the back seat of a car driven by appellant.  It was loaded with hollow-nosed bullets, a distinctive type of bullet with more lethal characteristics.


            2.         Several witnesses testified that they had repaired or serviced the car for appellant; the repairs or services totaled several hundred dollars.  These witnesses stated that appellant was the only person who brought the car in for service and that they had never seen anyone else driving it or appellant driving any other car.


            3.         Police recovered a number of documents or receipts in the car in appellant’s name, including an expired driver’s license, a Minnesota EBT card, and receipts for a car stereo, jewelry, items from Funcoland and a game card.  The only item in the car not in appellant’s name was an insurance card in the name of the registered owner, Jeane Tinsley, who is appellant’s mother.


            4.         Tinsley testified that all of her children used the car and were expected to service it when they used it.  She testified that the handgun belonged to her and that she had put it in the car without appellant’s knowledge.  She testified that she had purchased the gun five to six years before or in 1992 from a friend of a friend, whose name she had forgotten.  On cross-examination, Tinsley was unable to describe exactly where the handgun was hidden or describe what type of bullets were in the gun.


            5.         On rebuttal, an agent of the Bureau of Alcohol, Tobacco and Firearms testified that the gun in question had first been sold in 1998, directly from the factory to a gun shop, where a man suspected of being an unlawful distributor of guns purchased it.


            This circumstantial evidence is sufficient to support a finding that appellant had constructive possession of the handgun.  Although Tinsley claimed that other people had access to the car, there was no evidence that any of them exercised that access.  The jury, based on the vagueness of Tinsley’s testimony and the state’s impeachment of that testimony by other evidence, obviously found Tinsley not credible. 

            Convictions have been upheld under similar facts.  In State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982), a female friend of the defendant testified that she had placed a handgun in the defendant’s car without his knowledge.  The jury, apparently disbelieving this testimony, found the defendant guilty of being a felon in possession of a handgun.  Id.  The supreme court concluded that the evidence was sufficient to sustain the verdict and upheld the conviction.  Id. 

            In State v. Cusick, 387 N.W.2d 179, 180 (Minn. 1986), the defendant’s girlfriend claimed that the cocaine found in her car when the defendant was stopped belonged to her.  In reversing this court and reinstating the conviction, the supreme court concluded that, despite the girlfriend’s claim of possession, the evidence was sufficient to establish constructive possession by the defendant.  Id. at 181.  The supreme court noted that circumstantial evidence was presented that placed the cocaine within the defendant’s proximity, rather than in the area where the girlfriend’s personal items were found in the car, and that the girlfriend’s last-minute decision to testify, much like Tinsley’s here, undercut her credibility.  Id.

            Because the jury here easily could reject Tinsley’s testimony as not credible and because we defer to the factfinder on issues of credibility, we conclude that the circumstantial evidence is sufficient to sustain appellant’s conviction.

II.  Jury Instruction

            A defendant’s right not to testify is guaranteed by both the United States and Minnesota Constitutions and by state statute.  U.S. Const. amend. V (stating that no person shall be compelled to be a witness against himself); Minn. Const. art. I, § 7 (same); Minn. Stat. § 611.11 (2002) (“The defendant . . . shall, at the defendant’s own request and not otherwise, be allowed to testify; but failure to testify shall not create any presumption against the defendant, nor shall it be alluded to by the prosecuting attorney or by the court.”  (Emphasis added.)). 

            A defendant may request an instruction reminding the jury of the right not to testify as follows:

            The State must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged.  The defendant has no obligation to prove innocence.  The defendant has the right not to testify.  This right is guaranteed by the federal and state constitutions.  You should not draw any inference from the fact that the defendant has not testified in this case.


10 Minnesota Practice, CRIMJIG 3.17 (1999).  

            The Minnesota Supreme Court has held that

a trial judge ordinarily should obtain a criminal defendant’s permission before giving CRIMJIG 3.17.  Further, a record should be made, either by defense counsel on his own or at the trial court’s insistence, regarding the defendant’s preference in the matter.


State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  Because a “no-adverse-inference” instruction calls attention to a defendant’s silence and decision not to testify, such an instruction should not be given without the defendant’s personal consent.  McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002).  Even if defense counsel requests the instruction, the court should make a record of the defendant’s “clear consent and insistence that the instruction be given.”  Id. (citing Thompson, 430 N.W.2d at 153).

            Most recently, the supreme court held that the district court erred by giving a no-adverse-inference instruction without first obtaining the defendant’s consent on the record.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  But because the defendant did not object when the instruction was given, the supreme court applied a plain error analysis to determine that the defendant has “not shown that the facts . . . make the error prejudicial, nor has [the defendant] met his heavy burden of showing that there is a reasonable likelihood that giving the instruction had a significant effect on the jury’s verdict.”  Id. 

            Similarly, although the district court here may have erred in giving a no-adverse-inference instruction without first obtaining appellant’s consent on the record, we believe that the error was harmless.  There is no reasonable likelihood that the erroneous instruction had a significant effect on the verdict.  See State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (stating that error is prejudicial if there is “reasonable likelihood that the giving of the instruction . . . would have had a significant effect on the verdict”).

            We therefore affirm appellant’s conviction.