This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).



File No. CO-98-292

In the Matter of the Welfare of:

M.V.L., Child.

Filed October 6, 1998


Shumaker, Judge

Dissenting, Klaphake, Judge

Chippewa County District Court

File No. J09750160

John M. Stuart, Minnesota State Public Defender, Charlann Winking, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101,

David M. Gilbertson, Chippewa County Attorney, 221 North First, Montevideo, MN 56265, and

Thomas G. Kramer, Yellow Medicine County Attorney, Brian L. Alexander, Assistant Yellow Medicine County Attorney, 132 8th Avenue, P.O. Box 128, Granite Falls, MN 56241 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Norton, Judge.[*]



The district court adjudged appellant M.V.L. to be a juvenile delinquent for possessing a BB gun on school grounds. M.V.L. contends in this appeal that the evidence was insufficient to support the adjudication. We affirm.


Appellant M.V.L. attended Clarkfield Middle School. J.C., a classmate, brought a BB gun to school and concealed it in his jacket. J.C. showed it to other students and asked one of them not to tell anyone about it. J.C. and M.V.L. talked briefly at a study carrel, were apart for about 20 minutes, and later ate lunch together. A teacher in the lunchroom heard J.C. whisper to M.V.L. and others at the table, "Don't say anything," and observed that M.V.L. nodded in response.

After lunch, classmate J.R. watched M.V.L. unroll a sweatshirt on his desk in a classroom. The BB gun was inside the shirt and M.V.L. looked surprised when he saw it. M.V.L. quickly rolled the shirt back up and left it and the gun on his desk. He asked J.R. if he had seen what was in the shirt. When J.R. said that he had, M.V.L. told him not to say anything. J.R. reported the incident to a teacher.

Eventually, the county attorney filed a delinquency petition against M.V.L. alleging that he had possessed a BB gun on school property, in violation of Minn. Stat. § 609.66, subd. 1d (b) (1996). After a trial, the district court found M.V.L. guilty of that offense and adjudged him delinquent.


On appeal from an adjudication of delinquency, the appellant must show "that the trier of fact could not reasonably find he committed the charged acts." In re Welfare of T.M.V., 368 N.W.2d 421, 423 (Minn. App. 1985). The trial court's broad discretion in delinquency dispositions will be affirmed "so long as the trial court determination is not arbitrary." In re Welfare of L.K.W., 372 N.W.2d 392, 397 (Minn. App. 1985).

Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

M.V.L. contends that the state failed to prove that he possessed the BB gun, arguing that there is no evidence showing that he ever consciously exercised dominion and control over the gun, or ever intended to do so.

Conviction for a possession crime requires proof of conscious possession, either actual or constructive. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). Here, it is undisputed that M.V.L. did not actually have the BB gun on his person. However, the trial court found that M.V.L. constructively possessed it. The constructive possession doctrine has been applied in cases where the inference was strong that the defendant at one time was in physical possession of an item; did not abandon his possessory interest; and continued to exercise dominion and control. Id. 303 Minn. at 104-5, 226 N.W.2d at 610. Under the constructive possession doctrine, if the police find an item in a place to which others have access, the state must show a "strong probability," inferable from other evidence, that defendant consciously exercised dominion over the items. Id. at 105, 226 N.W.2d at 611. See also State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982) (applying Florine constructive possession requirements to possession of a firearm).

It is undisputed that M.V.L. did not have exclusive control over the classroom or his desk because other students had access to the area and were present throughout the day. In such cases, this court must look to the totality of the circumstances to determine whether the defendant exercised dominion and control. State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).

The record shows that (1) the BB gun was found wrapped up in M.V.L.'s sweatshirt; (2) M.V.L. was seen looking at the BB gun; (3) M.V.L. affirmatively acknowledged the presence of the BB gun by asking another student if he had seen it; (4) when the other student acknowledged seeing the BB gun, M.V.L. asked him not to tell anyone; and (5) M.V.L. did not surrender possession of the BB gun or report its location to school authorities when he discovered it.

Based on the totality of the circumstances it was proper for the trial court to conclude that M.V.L. was in constructive possession of the BB gun. See State v. LaBarre, 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972) (evidence justified finding that defendant exercised dominion and control over and, either singly or with others, had immediate and accessible possession).

M.V.L. argues that his adjudication was based solely on circumstantial evidence and that such evidence is consistent with the inference that he did not possess the BB gun. The argument is without merit for two reasons. The case consisted of both direct and circumstantial evidence. Direct evidence proves a fact through the first-hand sensory perceptions of a witness or through physical evidence of the fact. 10 Minnesota Practice, CRIMJIG 3.05 (1990); see also State v. Williams, 337 N.W.2d 387, 389 (Minn. 1983) (discussing CRIMJIG 3.05 in context of circumstantial evidence). J.R.'s firsthand observations of M.V.L. unrolling his sweatshirt at his desk, revealing the BB gun in the shirt, again concealing the gun and leaving it at his desk, and M.V.L.'s request that J.R. not tell anyone, together with the gun and the sweatshirt, are all items of direct evidence; they tend to directly prove the facts of possessing, storing or keeping a BB gun wrapped on school property. See Minn. Stat. § 609.66, subd. 1d (b) ("whoever possesses, stores, or keeps a replica firearm or a BB gun on school property is guilty of a gross misdemeanor."). If this direct evidence is not sufficient in itself to establish actual possession, it clearly supports an inference of constructive possession. From M.V.L.'s surreptitious conduct in storing and concealing the illicit gun in his own shirt at his own desk and then making a further effort to protect against its discovery by school authorities, the trial court could properly infer the existence of conscious possession.


KLAPHAKE, Judge (dissenting)

I respectfully dissent because the evidence is insufficient to prove that M.V.L. possessed the BB gun on school property. The evidence at trial demonstrated: (1) J.C. owned the gun and brought it to school; (2) J.C. had not been getting along with M.V.L.; (3) prior to discovery of the gun on M.V.L.'s desk, a teacher had questioned J.C. about whether he had stolen school property and was hiding it on his person; (4) soon after, a student, M., testified that she saw J.C. wrap the gun in a sweatshirt and place it on top of M.V.L.'s desk while he was at lunch; (5) according to J.R., another student, M.V.L. was visibly surprised when he returned from lunch, unrolled the sweatshirt, and viewed its contents; and (6) J.R. also testified that M.V.L. quickly rolled up the sweatshirt and left it on his desk when he left the classroom for his next class. Given these facts, I cannot infer possession of the BB gun from M.V.L.'s actions, including his directive to J.R. not to tell anyone. This directive, rather than showing intent to commit a crime, more likely demonstrated that M.V.L. wanted to distance himself from any crime. Even when viewed in a light most favorable to the conviction, the evidence strongly indicates that M.V.L. was "set up" and does not prove that M.V.L. consciously "exercise[d] dominion and control" over the gun. See State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975) (person charged with possession of contraband in place of public access must consciously "exercise dominion and control" over contraband). I would reverse his conviction. See State v. Elmourabit, 373 N.W.2d 290, 293-94 (Minn. 1985) (where evidentiary inferences of guilt are in "uneasy equilibrium" with and do not outweigh conflicting inferences of innocence, conviction must be reversed).

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