This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Dionta Quantrell Gant,



Filed October 31, 2006


Ross, Judge


Blue Earth County District Court

File No. CR 04-2332


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134


Ross E. Arneson, Blue Earth County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097 (for appellant)



Considered and decided by Dietzen, Presiding Judge; Willis, Judge; and Ross, Judge.


U N P U B L I S H E D   O P I N I O N


ROSS, Judge


In this appeal from a conviction of aiding and abetting first-degree possession of a controlled substance, Dionta Gant challenges the sufficiency of the evidence and argues that the district court abused its discretion by not granting his motion for mistrial based on alleged prosecutorial misconduct.  Because record evidence supports his conviction and because we find no abuse of discretion, we affirm.


Law enforcement officers with the Minnesota River Valley Drug Task Force sought a warrant to search Dionta Gant’s apartment in Mankato.  While they awaited the search warrant, police conducting surveillance observed Gant arrive at his apartment and leave after a short time.  Police stopped Gant’s car and discovered that no one in the car had a valid driver’s license.  They detained Gant and his girlfriend while officers executed the search warrant.

Officers who executed the warrant found a woman and a small child in the apartment.  Although Gant’s girlfriend is the only person on the apartment lease, officers found documents and clothing that indicated that Gant also lived at the apartment.  The officers found 60.1 grams of a white rock and powder substance on a plate in a linen closet next to the bedroom and more than $2,000 cash in a pair of men’s shoes in the bedroom closet.  A field test and a Bureau of Criminal Apprehension laboratory test confirmed that the substances on the plate were cocaine.  The state charged Gant with aiding and abetting controlled-substance crime in the first degree, in violation of Minn. Stat. § 152.021, subd. 2(1) (2002).

At a jury trial, Commander Benjamin Rittmiller and other officers involved in the search and the evidence processing testified.  Gant’s counsel objected when the prosecutor asked Commander Rittmiller about the nature of the investigation.  The district court conducted a short bench conference and cautioned that the prosecutor should not elicit testimony regarding sale or distribution of controlled substances.  The prosecutor assured the court that he did not intend to elicit that type of testimony.  But when the conference ended and he repeated the question about the nature of the investigation, Commander Rittmiller did not limit his answer to “narcotics.”  Rather, he testified, “It involved [Gant’s] involvement in the sale and distribution of narcotics.”  Gant’s trial counsel moved for a mistrial.

The district court reprimanded the prosecutor but decided to give the following curative instruction rather than to declare a mistrial:

Now, as you know, the defendant is charged with the crime of possession of illegal drugs.  He’s not charged with the sale or distribution of illegal drugs.  Prior to starting the trial, the attorneys and I met and discussed issues concerning just, you know, management of the trial, witnesses, etc.  I instructed the prosecutor, Mr. Rovney, to review the charge with the witnesses and to insure they focus solely upon the evidence regarding the charge of possession.  To be blunt, I was motivated by a desire to, you know, avoid having witnesses give you their opinions, conclusions, suspicions, or anything else that was not factually supported by admissible evidence that might improperly prejudice the jury.  So that takes me to Mr. Rittmiller’s last comment just prior to our luncheon break.  He claimed he was involved in the investigation of Mr. Gant for the sale and distribution of cocaine, or something to that effect.  Mr. Gant is not charged with the sale or distribution of cocaine, only that of possession.  In other words, Mr. Rittmiller was giving you his mere opinion, conclusion, suspicion, something not supported by admissible evidence, and the answer violated my earlier restrictions.  So I’m instructing you to totally disregard Mr. Rittmiller’s statement as to the sale or distribution of drugs.  You may not allow that statement to impact upon your duty to judge the facts of this case premised solely upon admissible evidence in this trial.  Now, is there anyone sitting here now on this jury who cannot or will not follow my instruction to disregard what Mr. Rittmiller said concerning the sale or distribution of drugs?  And if you have a problem with that, raise your hand right now.


The record indicates that no juror raised a hand.

The prosecutor later asked Commander Rittmiller whether he was aware of any reports or complaints filed by Gant “regarding illegal drug activity” at his apartment.  Gant’s trial counsel objected, but the district court allowed Commander Rittmiller to answer.  Commander Rittmiller answered that he was “not aware of any complaint by [Gant].” 

Gant’s counsel also objected during the state’s closing argument.  The prosecutor argued, “There’s no way that [Gant] could have not known that [the cocaine] wasn’t there.  It defies logic . . . –”  Gant’s trial counsel objected on the ground that the prosecutor was mischaracterizing the state’s burden.  The district court overruled the objection.  The prosecutor also argued, “What you can glean from that is that [Gant] is being charged with aiding and abetting.  If he allows that cocaine to stay–.”  Gant’s counsel interjected, “Your Honor, I understand the [c]ourt’s hesitance–,” at which point the district court excused the jury, and Gant’s counsel asked the district court to admonish the prosecutor.  The district court commented that the prosecutor “has been skating too close to the edge or even crossed it a couple of times” and that “[i]t’s one thing to say the officers received no report about criminal activity, but then when you go the next step, you have to be extremely cautious.”  The district court instructed the jury, “If an attorney misstates the evidence, then disregard that.  If an attorney misstates the law, disregard that and follow what I’ve given you.” 

The jury found Gant guilty of aiding and abetting first-degree possession of a controlled substance.  The district court noted Gant’s two criminal-history points and imposed the presumptive guidelines sentence of 110 months’ incarceration.  Gant’s appeal follows.


Gant argues that the record evidence is circumstantial and insufficient to support his conviction.  When an appellant challenges the sufficiency of the evidence following a criminal conviction, our review is limited to a thorough analysis of the record to determine “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt.”  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted).  We assume that the convicting jury, which has the exclusive function of judging credibility, believed the state’s witnesses and disbelieved contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).

Circumstantial evidence is entitled to the same weight as direct evidence, but we review it with stricter scrutiny.  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  Circumstantial evidence must “form a complete chain which, in 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 guilt.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  “The evidence as [a] whole need not exclude all possibility that the defendant is innocent; it must only make such a theory seem unreasonable.”  State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).  The jury is in the best position to evaluate circumstantial evidence, and we defer to its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

Gant was convicted of aiding and abetting first-degree possession of a controlled substance.  A person is guilty of first-degree possession of a controlled substance if the person unlawfully possesses 25 grams or more of cocaine.  Minn. Stat. § 152.021, subd. 2(1) (2002).  A person who “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures” another person to commit a crime is guilty of aiding or abetting.  Minn. Stat. § 609.05, subd. 1 (2002).  A person violates the statute if he plays a knowing role in a crime and takes no steps to “thwart its completion.”  State v. Ostrem, 535 N.W.2d 916, 925 (Minn. 1995).

Possession of a controlled substance may be either actual or constructive.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  When a controlledsubstance is found somewhere other than a place under defendant’s exclusive control or a place normally inaccessible to others, constructivepossession requires a showing that “there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.” 105, 226 N.W.2d at 611.  We consider the totality of the circumstances when determining whether the state has proven constructive possession.  State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000), review denied (Minn. June 13, 2000).

Gant concedes that record evidence shows beyond a reasonable doubt that police found more than 60 grams of unpackaged cocaine on a plate in a linen closet in his apartment.  But he argues that this does not prove that he possessed the cocaine, either actually or constructively.  He argues that there is no evidence (1) that he knew about or had dominion over the cocaine, (2) that the cocaine did not belong to his girlfriend or to the woman who was in his apartment during the search, or (3) that he intentionally aided them in their possession.  We are not persuaded.

A person may constructively possess a controlled substance alone or with others.  Id. at 799-800.  And a person’s presence, companionship, and conduct are circumstances from which a fact-finder may infer his criminal intent.  Ostrem, 535 N.W.2d at 924.  Although “active participation” must be shown for aiding and abetting an “active crime” such as sale or manufacture, “knowledge and acquiescence are pertinent” to show one aided and abetted possession.  See State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991).

Evidence in the record shows that Gant had at least joint dominion and control over the linen closet where police found the unpackaged cocaine.  That Gant’s girlfriend also had access to the linen closet does not prohibit a finding of constructive possession.  See Denison, 607 N.W.2d at 799–800 (concluding that appellantconstructivelypossessed a controlled substance that was found in close proximity to appellant’s personal effects and in areas of residence over which she likely exercised at least joint dominion and control).  And an officer testified that “it was clear” that the woman in the apartment during the search “had no involvement whatsoever.”  Also supporting the verdict, record evidence shows that police found a pair of Gant’s shoes containing more than $2,000 near the back of a closet in his bedroom.  The record supports the conclusion that both Gant and his girlfriend constructively possessed the cocaine, and the only reasonable inference supported by the record is that Gant at least aided and abetted her possession of the cocaine.  We therefore conclude that a jury could reasonably find that Gant was guilty of aiding and abetting first-degree possession of a controlled substance.

Gant also argues that the district court abused its discretion by denying his motions for a mistrial.  We review the denial of a motion for a mistrial for an abuse of discretion.  State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003).  The district court should deny a mistrial motion unless there is a reasonable probability that the outcome of the trial would be different had the event prompting the motion not occurred. State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006).

Gant based his mistrial motions on alleged misconduct by the prosecutor during the presentation of the state’s case and during closing argument.  He argues that the prosecutor committed serious misconduct by purposefully eliciting inadmissible evidence and by shifting the burden of proof.  When reviewing a claim of prosecutorial misconduct, we first examine the challenged conduct to determine whether any misconduct occurred.  State v. Ford, 539 N.W.2d 214, 228 (Minn. 1995).

The first alleged misconduct occurred when the prosecutor asked Commander Rittmiller about the purpose of the investigation and he responded, “It involved [Gant’s] involvement in the sale and distribution of narcotics.”  Gant argues that this testimony is similar to the testimony erroneously elicited in State v. Hogetvedt, 623 N.W.2d 909 (Minn. App. 2001), review denied (Minn. May 29, 2001).

Although the circumstance here is similar to the situation addressed in Hogetvedt, Hogetvedt is materially distinguished.  In Hogetvedt, this court reversed and remanded a conviction when a police officer testified that it was his personal opinion that the defendant was guilty. 915­–16.  Here, Commander Rittmiller did not express his opinion about Gant’s guilt; he merely testified, albeit in violation of the district court’s instruction not to, so as to give too specific a representation about the nature of the investigation.  Unlike the officer in Hogetvedt, Commander Rittmiller provided the jury with an ancillary fact rather than a prejudicial personal opinion that directly related to the jury’s ultimate decision.  Additionally, the prosecutor explained that he was attempting to elicit foundation testimony and that he anticipated Commander Rittmiller was “probably just going to say ‘drugs’.”  The district court’s thorough and clear curative instruction admonished the prosecutor in front of the jury and addressed any potential prejudice caused by the testimony.  Because the record shows that Commander Rittmiller did not express a critical personal opinion concerning guilt and that the prosecutor did not anticipate the inadmissible testimony, we find no prosecutorial misconduct.

Gant also argues that the prosecutor committed misconduct by eliciting testimony that implies that Gant was aware of the cocaine found in his apartment and that he had an obligation to report suspected drug activity.  Specifically, the prosecutor asked Commander Rittmiller if he was aware “of any report from [Gant] regarding illegal drug activity” at his apartment.  Commander Rittmiller responded that he was not aware of any complaints by Gant.  Gant argues the prosecutor’s question improperly shifts the burden of proof to Gant.

The prosecutor’s question does not shift the burden of proof.  Rather, it elicits testimony from which a jury might conclude that Gant did not inform authorities about any drug activity in the apartment.  If the jury concluded that Gant was aware of the cocaine, this evidence would support a further conclusion that he either acquiesced in the possession or was in possession of the cocaine.  See Kessler, 470 N.W.2d at 542 (observing that “knowledge and acquiescence are pertinent” to show one aided and abetted possession).  The testimony also counters the defense theory that some drug dealer may have placed the drugs there without Gant’s participation.  We find nothing improper about the prosecutor’s question or Commander Rittmiller’s response.

Finally, Gant challenges the prosecutor’s comments during closing argument.  Gant argues that the prosecutor attempted to shift the burden of proof by arguing that it “defies logic” to consider that Gant was unaware of the cocaine and that by allowing the cocaine to remain in the apartment, Gant was aiding and abetting its possession.  When reviewing a claim of prosecutorial misconduct occurring during closing argument, we consider the argument “as a whole rather than focus[ing] on particular phrases or remarks.”  State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (quotation omitted).  We will reverse only if the misconduct was so serious and prejudicial that it impaired the defendant’s right to a fair trial. 727–28.

A prosecutor has considerable latitude during closing argument and has “the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.”  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  A prosecutor may not comment on a defendant’s failure to present evidence or call a witness, but it is not misconduct to attack the merit of a particular defense theory or argument.  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993). 

Gant’s trial defense had challenged the sufficiency of the state’s evidence.  The prosecutor countered by arguing that the only reasonable inference the jury can make from the evidence is that Gant was aware of the cocaine.  The prosecutor explained possible inferences the jury could make from the record.  His argument is a valid challenge to the merit of Gant’s defense, and his comments do not shift the burden of proof.  We conclude that the prosecutor did not commit any misconduct or affect Gant’s right to a fair trial.  We therefore hold that the district court did not abuse its discretion by denying Gant’s motions for a mistrial.