This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Devon Dockery,



Filed September 6, 2005


Willis, Judge


Ramsey County District Court

File No. K7-03-1600


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


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)


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


            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from a conviction of possession of a firearm by an ineligible person, appellant challenges the sufficiency of the evidence and argues that the prosecutor committed misconduct during closing argument.  Because the record supports appellant’s conviction and because appellant has waived his right to challenge the prosecutor’s closing argument on appeal, we affirm.


Appellant Devon Dockery and his wife, Stacey Terry, got into an argument late in the evening on April 28, 2003.  During the argument, Dockery left their townhouse and returned with what he later told police was a pellet gun given to him by a man on the street.  The argument continued, and Terry saw that Dockery had a black gun in his hand.  The argument ended when Dockery left the townhouse, and Terry called 911 and told the dispatcher that Dockery had pointed a black handgun at her and threatened to kill her.  The police arrived and found Dockery outside the townhouse.  They arrested him and searched him for the gun.  They did not find a gun on Dockery, nor did they find a gun in their search of the townhouse that night. 

            The next day, Terry spoke with an advocate while filing a petition for a restraining order against Dockery, and the advocate advised Terry to have the police search the townhouse again.  Terry called the police, and the responding officers located a black gun on the top shelf of an upper kitchen cabinet.  Dockery was charged with second-degree assault, in violation of Minn. Stat. §§ 609.222, subd. 1, .11, subd. 4 (2002); and with terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2002).  The complaint was later amended to include an additional charge of possession of a firearm by an ineligible person, in violation of Minn. Stat. §§ 624.713, subds. 1(b), 2, 609.11, subd. 5(b) (2002). 

The state dismissed the terroristic-threats charge at trial before the case was submitted to the jury.  The jury found Dockery guilty of possession of a firearm by an ineligible person but not guilty on the second-degree assault charge.  The district court sentenced Dockery to 60 months in prison, and he appeals.


            Dockery first argues that the record does not contain sufficient evidence to sustain his conviction of possession of a firearm by an ineligible person.  When reviewing a challenge to the sufficiency of the evidence, our review is limited to a thorough analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, is sufficient to allow a jury to find the appellant guilty beyond a reasonable doubt.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that 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).  We 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

“[A] person who has been convicted of . . . a crime of violence” is ineligible to possess a firearm.  Minn. Stat. § 624.713, subd. 1(b) (2002).  Dockery stipulated that he was ineligible to possess a firearm under section 624.713 but argues that the state failed to prove that he was in possession of the handgun that was found in the kitchen cabinet. 

Because Dockery stipulated that he was ineligible, the state needed only to prove that Dockery actually or constructively possessed the handgun.  See State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982).  To prove actual possession, the state introduced into evidence (1) Terry’s statements made to the 911 dispatcher and to the responding police officers that Dockery had pointed a black handgun at her and threatened to kill her, (2) the gun that was found in the kitchen cabinet, and (3) expert testimony describing the results of the DNA analysis of the gun.

The gun that was found in the kitchen cabinet matched the description of the gun that Terry gave to the police the night of the incident.  And the police report indicates that when the police found the gun, Terry identified it as the one that Dockery used to threaten her the night before.  The state’s expert witness testified that there was a mixture of DNA from at least three different people on the gun, but based on his analysis of the DNA, he concluded that “99.995% of the general population would be excluded as being contributors to the DNA on the gun.”  He testified that Dockery’s DNA sample contained too many similarities to the mixture found on the gun to rule him out as a contributor.

The state also presented evidence establishing Dockery’s constructive possession of the gun.  To show constructive possession, the state must show either (1) that the police found the gun under the defendant’s exclusive control in a place that others normally do not have access to, or (2) that if the gun was found in a place to which others had access, “there is a strong probability, inferable from the evidence, that defendant was consciously exercising dominion and control over it.”  State v. Breaux,620 N.W.2d 326, 334 (Minn. App. 2001).

            The handgun in question was found in a kitchen cabinet to which Dockery did not have exclusive control or access.  Terry and two children, her 15-year-old son and her 9-year-old daughter, also lived in the townhouse and had access to the kitchen cabinets.  Terry testified that the gun is not hers and that she did not allow guns in the house.  There is nothing in the record suggesting that the gun belonged to or was in the possession of either of the children living in the house.

But the DNA evidence indicates that Dockery had exercised “dominion and control” over the gun.  Not only did the expert witness testify that Dockery was a likely contributor to the DNA mixture on the gun, but also he testified that, based on Terry’s DNA sample, Terry “couldn’t have contributed to the DNA on the gun.”  The DNA evidence indicates that 99.995% of the population, including Terry, could not have contributed to the DNA mixture on the gun.  But Dockery’s DNA sample shows that he is one of the .005% of the population who is a possible contributor to the DNA on the gun. 

When viewed in the light most favorable to the conviction, the events described by Terry when she called 911, her statements to the responding officers, the gun found by the police the next day, and the DNA evidence would allow a jury to find Dockery guilty of possession of a firearm by an ineligible person beyond a reasonable doubt.  We therefore conclude that the record contains sufficient evidence to support Dockery’s conviction.

Dockery next argues that the prosecutor committed misconduct during closing argument.  Rather than object to the comments that Dockery now argues were prosecutorial misconduct, Dockery’s counsel chose to respond in her closing argument.  A defendant who fails to object to the prosecutor’s closing argument or to seek a cautionary instruction ordinarily waives the right to have the issue considered on appeal, but we may grant relief absent objection if the misconduct is unduly prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  And when defense counsel chooses to respond to a prosecutor’s closing argument rather than to object, the defendant waives the claim of prosecutorial misconduct in closing argument on appeal. State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983).  Because Dockery’s attorney chose to respond, in closing argument, we conclude that Dockery has waived this issue.

But even if Dockery’s attorney had not responded in her closing argument, we find that the prosecutor’s comments were not unduly prejudicial and that Dockery’s failure to object, alone, would result in a waiver of the issue on appeal.  Dockery argues that the prosecutor “mischaracterized” the testimony of the state’s expert witness by arguing that the witness sampled the “thirteen most diverse sites there are on the human body, the sites where the DNA is so different that there can’t be a chance of mixing it up for somebody else.  Thirteen spots in [the] DNA that are so unique that they are almost absolutely attributable, that DNA, to you.”  The state’s expert witness in fact testified that “DNA constitutes of billions and billions of . . . sites, but we look at 13.”  He also testified that the 13 sites “have been shown to be very, very different between different individuals” and that “they differ widely between individuals.” 

Although the prosecutor’s description of the DNA testing procedure was inaccurate—the expert testified that he tested 13 sites in the DNA samples, not 13 sites on the human body—the summary of the expert witness’s technical explanation of the testing procedure does not appear, as Dockery argues, to be a “purposeful attempt to mislead the jury” but rather a misunderstanding of an element of the testimony on the part of the prosecutor.  And in light of the evidence supporting Dockery’s conviction, we do not find the prosecutor’s comment unduly prejudicial.