This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).


State of Minnesota,


David LeRoy Morseth,

Filed November 2, 1999
Lansing, Judge

Dakota County District Court
File No. K4980675

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

James C. Backstrom, Dakota County Attorney, Mary J. Theisen, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


In an appeal from conviction, David Morseth challenges the sufficiency of the evidence showing possession of a short-barreled shotgun, claiming the state failed to prove either constructive possession or aiding and abetting. Because the evidence supports the constructive possession conviction, we affirm.


David Morseth was arrested by a Minnesota State Patrol officer for driving under the influence. The trooper stopped Morseth after radar detected his car traveling 85 miles per hour in a 55-mile-per-hour speed zone. As the trooper approached the car, he noticed Morseth make a movement with his hand toward the back seat. When the trooper opened the door of the car, he immediately detected a strong odor of alcohol. Both the driver and passenger admitted they had been drinking. After conducting preliminary field sobriety tests, the trooper placed Morseth under arrest for driving under the influence. Because Morseth's passenger also had been drinking, the trooper arranged to tow the car.

Before towing, the trooper made a cursory inventory inspection. He observed a baseball bat on the driver's side of the front floor, a lead pipe between the two front seats, and some jackets in the back seat of the car. The jackets covered a duffel bag of the size and weight to make the officer suspect it contained a gun. When the officer opened the bag, he discovered a sawed-off shotgun with one shell in the loaded position. A plastic bag containing another shell was found underneath the duffel bag. Both Morseth and his passenger denied any knowledge of the gun. The passenger was later convicted of possession of a shotgun. The car, which Morseth said belonged to his girlfriend, was towed to an impound lot.

At trial, Morseth's passenger testified that he had brought the duffel bag containing the short-barreled shotgun into the car without Morseth's knowledge. The passenger acknowledged he knew Morseth from prison, had had considerable contact with him outside prison, and that he and Morseth had spent the day together, beginning about 10:30 a.m. when Morseth picked him up in east St. Paul.

Following a bench trial, the district court found Morseth guilty of both possession (constructive) and aiding and abetting possession of a short-barreled shotgun. See Minn. Stat. §§ 609.67, subd. 2; 609.05 (1998). The court found Morseth not guilty of possession or aiding and abetting possession of a pistol.


When a conviction is challenged for sufficiency of evidence, this court may review whether, when viewed in a light most favorable to the conviction, the evidence was sufficient to permit the factfinder to reach a guilty verdict. State v. Spann, 574 N.W.2d 47, 54 (Minn. 1998). Circumstantial evidence is entitled to the same weight as other kinds of evidence. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). To sustain a conviction based entirely on circumstantial evidence, however, the evidence as a whole must exclude beyond a reasonable doubt any rational hypothesis other than guilt. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). The factfinder is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference. Webb, 440 N.W.2d at 430.

Because Morseth did not have actual possession of the shotgun, the state had to prove constructive possession. When the weapon is not under the exclusive control of the defendant, the state must show there is a strong probability, inferable from other evidence, that the defendant was at the time consciously exercising control over it. State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975). For Morseth's conviction to stand, the evidence supporting it must lead directly to the conclusion that Morseth was consciously exercising control over the weapon and exclude, beyond a reasonable doubt, any other explanation.

The state's evidence supports the district court's conclusion that Morseth had constructive possession of the short-barreled shotgun. The weapon was found inside a duffel bag located in the back seat of a car driven by Morseth. Morseth and his passenger had spent most of the day together, drinking and driving around the city. Morseth was inside the car when the passenger, who claimed he brought along the duffel bag containing the shotgun, first entered the car. Both a baseball bat and a lead pipe, potential weapons, were in plain view and in close proximity to both occupants. The duffel bag was hidden beneath jackets belonging to the occupants. It was reasonable for the court to infer that Morseth's hand movement toward the back seat was made to conceal a known, illegal weapon from view of the approaching state trooper.

Because the evidence is sufficient to support the conviction of constructive possession of a short-barreled shotgun, it is unnecessary to address the alternative theory of aiding and abetting possession.