                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-1308

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                              Ashimiyu Gbolahan Alowonle,
                                       Appellant.

                                  Filed August 24, 2015
                     Affirmed in part, reversed in part, and remanded
                                       Hooten, Judge

                              Hennepin County District Court
                                File No. 27-CR-13-40770

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and

Toussaint, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

HOOTEN, Judge

       Appellant was convicted of multiple counts of being a prohibited person in

possession of a firearm and unlawful possession of a firearm for the benefit of a gang.

On appeal, appellant argues that: (1) the evidence is insufficient to support the

convictions because the circumstances proved do not eliminate the rational hypothesis

that appellant did not constructively possess the firearms; (2) the prosecutor committed

misconduct by misstating the presumption of innocence during his closing argument; (3)

the district court erred in admitting a photograph of appellant’s tattoo as character and

propensity evidence; (4) the district court’s jury instructions materially misstated the

doctrine of constructive possession; (5) the district court erred by refusing to suppress

testimony as a sanction for the state’s intentional discovery violation; and (6) the district

court unlawfully convicted him of a lesser-included offense. We affirm in part, reverse in

part, and remand.

                                          FACTS

       In connection with the December 2013 execution of a search warrant and the

recovery by police of several firearms, a large amount of ammunition, and cocaine from a

Minneapolis residence, respondent State of Minnesota charged appellant Ashimiyu

Gbolahan Alowonle with one count of being a prohibited person in possession of a

firearm. The state amended its complaint on May 2, 2014, shortly before trial, and

charged appellant with a total of seven counts: three counts of being a prohibited person

in possession of a firearm for the benefit of a gang, each connected to one of the three


                                             2
locations in the residence where police found firearms (counts 1–3); three counts of being

a prohibited person in possession of a firearm, each similarly connected to a location in

the residence where firearms were discovered (counts 4–6); and one count of fifth-degree

possession of a controlled substance (count 7). A jury trial was held in May 2014, and

the following facts were adduced at trial.

       On November 3, 2013, Tyrone Washington was shot and killed at a nightclub in

downtown Minneapolis. Washington had been a leader of 1-9 Block Dipset, a gang

based in north Minneapolis. Appellant, a fellow member of 1-9 Block Dipset and a close

friend of Washington, witnessed the shooting and carried Washington’s body out of the

nightclub.   According to prison telephone calls between appellant and incarcerated

members of 1-9 Block Dipset shortly after Washington’s death, appellant sought to

violently retaliate against the rival gangs he believed to be responsible for the murder. As

of May 2014, no one had been charged in connection with Washington’s murder.

       The key witness for the prosecution was B.T., who agreed to testify against

appellant as part of a plea bargain with the state. B.T. was not a member of 1-9 Block

Dipset, but she had known appellant “forever” and began letting appellant and other gang

members visit her residence in north Minneapolis around the end of October 2013.

Appellant and other gang members would often come and go from the house as they

pleased, although B.T. mainly had contact with appellant. Appellant did not have a key

to B.T.’s residence, but another gang member did. Because B.T. had young children, she

sometimes became irritated with the amount of activity at her residence and at one point

offered to move out and let appellant have the house.


                                             3
       B.T. had previously seen appellant in possession of a gun and had overheard

appellant instruct someone to meet him to get a gun. But, she claimed ignorance as to

“who was putting what where” regarding firearms that were stored in her house, although

at one point she told appellant to have people who brought firearms into her house to

place them in a cabinet drawer. B.T. further testified that she had told the prosecutor that

appellant was responsible for putting guns in the basement. However, she clarified at

trial that she also saw other gang members going into the basement and could not verify

that appellant was the only individual responsible for those firearms. She volunteered

that appellant was “responsible for his friends,” that she had nothing to do with the

firearms in the basement, and that any firearms in a dining room cabinet were accessible

to any member of the gang.

       On December 2, 2013, Minneapolis police pursued an armed robbery suspect into

B.T.’s residence. The police searched the home, discovering one firearm in the basement

and a box of ammunition in a purse in B.T.’s bedroom. B.T., the armed robbery suspect,

and at least one other member of 1-9 Block Dipset were present during this search, but

appellant was not at the residence at that time.

       Also in early December, a confidential informant told police that 1-9 Block Dipset

was using B.T.’s residence to store weapons and ammunition in preparation for its

retaliation against a rival gang for the death of Washington. The informant identified

three gang members, including appellant, who were using the residence for this purpose,

and further provided that appellant was responsible for supplying the gang with firearms.

Minneapolis Police Officer George Peltz prepared a search warrant for the residence


                                              4
based on this information on December 5, but police did not immediately execute it.

Officer Peltz indicated that he instead periodically conducted surveillance of the house

before executing the warrant, during which he observed several individuals entering and

leaving the residence but did not see appellant.

       Officers executed the search warrant on the evening of December 12, 2013, by

forcefully gaining entrance into the residence. They encountered eight or nine adults

inside, including appellant and B.T. Upon the officers’ entry, appellant fled from the

house’s dining room into the kitchen and was then detained. Once the residence was

secured, officers searched the house and found several firearms. In a bedroom on the

first floor, near the kitchen, one of the officers observed the butt of a handgun sticking

out of the pocket of a jacket on the bed. The firearm was recovered by police and

determined to be a 9mm handgun. Police also found a set of keys in the jacket, which

contained two electronic fobs that Officer Peltz later determined were linked to

appellant’s membership at the public library and a gym. B.T. testified that this jacket

belonged to appellant, although others sometimes wore it, and she previously told officers

that appellant had been wearing this jacket when he arrived at the residence that evening,

“shortly” before police executed the search warrant. The prosecution also introduced a

photograph from November 30, 2013, that showed appellant wearing the jacket. Police

later found cocaine in the jacket when it was being inventoried.

       Officers discovered more firearms elsewhere in the residence. Three handguns

were found in the basement of the house: one in the ceiling rafters and two in a box

underneath a set of stairs. Officers found three more handguns in two drawers of a


                                             5
built-in cabinet in the dining room. In a detached garage next to the residence, police

also found two backpacks containing a large amount of ammunition.

      Police conducted forensic testing on the various items seized. No fingerprint

evidence was obtained from the firearms, and the latent fingerprints obtained from the

ammunition and other items found in the garage did not match appellant but did match

several other individuals. DNA testing revealed a mixture of DNA on each of the

firearms, but appellant was only included as a possible source of DNA for the handgun

that was found in the jacket in the back bedroom. However, due to the mixture of DNA

on that handgun, the forensic scientist testified that more than 84% of the general

population could possibly have contributed DNA to the sample in question.

      The jury returned a verdict of guilty on the six firearm-related charges, but found

appellant not guilty of fifth-degree possession of a controlled substance. The district

court sentenced appellant to concurrent 72-month sentences for each of his convictions

under counts 1–3 and 60-month sentences for each of his convictions under counts 4–6,

and provided that counts 4–6 “merged” into counts 1–3. This appeal followed.

                                    DECISION

                                            I.

      Appellant argues that the evidence regarding his constructive possession of the

firearms seized by police is insufficient to support his convictions. Appellant challenges

only the possession elements of his three convictions under Minn. Stat. § 624.713, subd.

1(2) (2012) (prohibiting possession of firearms by a person convicted of a crime of

violence) and his three convictions under Minn. Stat. § 609.229, subd. 2 (2012)


                                            6
(prohibiting the commission of a crime for the benefit of a criminal gang). “To obtain a

conviction under [section 624.713], the state must establish either actual or constructive

possession of a firearm.” State v. Porter, 674 N.W.2d 424, 427 (Minn. App. 2004).

      It is uncontroverted that appellant was not in actual possession of the firearms

police discovered at B.T.’s residence.       The state thus had to prove appellant’s

constructive possession of the firearms by showing that either (1) “the prohibited item

was found ‘in a place under defendant’s exclusive control to which other people did not

normally have access,’ or (2) if the prohibited item was found ‘in a place to which others

had access, there is a strong probability (inferable from other evidence) that defendant

was at the time consciously exercising dominion and control over it.’” State v. Salyers,

858 N.W.2d 156, 159 (Minn. 2015) (quoting State v. Florine, 303 Minn. 103, 105, 226

N.W.2d 609, 611 (1975)). Because the state does not argue, and the record does not

show, that the firearms were in a place under appellant’s exclusive control, we need only

consider whether the state proved beyond a reasonable doubt that there was a “strong

probability” that appellant exercised “dominion and control” over the firearms found at

B.T.’s house. See State v. Sam, 859 N.W.2d 825, 833 (Minn. App. 2015). “We look to

the totality of the circumstances in assessing whether or not constructive possession has

been proved.” State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000), review denied

(Minn. June 13, 2000).

      In support of its possession charges against appellant, the state presented

circumstantial evidence of appellant’s constructive possession of the firearms. We apply

a two-step analysis when reviewing the sufficiency of circumstantial evidence: (1) we


                                            7
identify the circumstances proved; and (2) we then “determine whether the circumstances

proved are consistent with guilt and inconsistent with any rational hypothesis except that

of guilt.”   State v. Silvernail, 831 N.W.2d 594, 598–99 (Minn. 2013) (quotations

omitted). We first examine what circumstances were proved at trial. “In identifying the

circumstances proved, we defer, consistent with our standard of review, to the jury’s

acceptance of the proof of these circumstances and rejection of evidence in the record

that conflicted with the circumstances proved by the [s]tate.” State v. Al-Naseer, 788

N.W.2d 469, 473 (Minn. 2010) (quotations omitted). In short, “we consider only those

circumstances that are consistent with the verdict.” Silvernail, 831 N.W.2d at 599.

       The circumstances proved at trial are: (1) appellant was a high-ranking member of

the 1-9 Block Dipset gang; (2) a fellow gang leader had recently been murdered and

appellant had threatened retaliation against the gangs he believed were responsible; (3) at

the end of October 2013, B.T. began letting appellant and other gang members visit her

home and knew that they might keep firearms there; (4) B.T. had seen appellant with a

gun but had not seen him store firearms in the house; (5) B.T.’s home was searched by

police on December 2, 2013, who recovered one firearm and some ammunition but did

not encounter appellant; (6) police obtained a search warrant for B.T.’s residence after

learning that the gang was storing guns there and that appellant was responsible for

supplying the weapons; (7) police conducted surveillance at B.T.’s house prior to

executing the warrant and did not observe appellant entering or exiting the house;

(8) upon executing the warrant on December 12, 2013, police found appellant and several

other adults inside the home; (9) appellant tried to flee toward the back of the house when


                                            8
police first entered; (10) police recovered one handgun and a small bag of cocaine from a

jacket in a back bedroom; (11) B.T. had seen appellant in this jacket shortly before police

arrived, and the jacket contained key fobs that were linked to appellant; (12) police

recovered three handguns from the house’s basement and three handguns from a dining

room cabinet, along with ammunition; (13) DNA testing indicated that appellant was a

potential source of the DNA found on the handgun recovered from the jacket in the

bedroom; and (14) forensic testing did not link appellant to the other firearms or

ammunition.

      Next, we determine whether these circumstances proved are both consistent with

guilt and inconsistent with any rational hypothesis except that of guilt.               Id.

“Circumstantial evidence must form a complete chain that, as a whole, leads so directly

to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable

inference other than guilt.” State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011). We

give no deference to the jury’s choice between reasonable inferences. Al-Naseer, 788

N.W.2d at 474. However, a rational hypothesis must “point to evidence in the record that

is consistent” with the theory and be supported by more than “mere conjecture.” State v.

Tscheu, 758 N.W.2d 849, 858 (Minn. 2008) (quotation omitted).

      Counts 1 and 4: Firearm in the jacket in the back bedroom

      The circumstances proved are consistent with the inference that there is a “strong

probability” that appellant consciously had “dominion and control” over the handgun

found in the jacket in the back bedroom. See Salyers, 858 N.W.2d at 159 (quotation

omitted). Police found appellant inside the house, and he fled in the general direction of


                                            9
the back bedroom when they first entered. Cf. State v. Carr, 311 Minn. 161, 163, 249

N.W.2d 443, 444–45 (1976) (noting that the evidence supported possession when

defendant “rushed toward the area where” the contraband was located).                More

significantly, there was testimony that this jacket belonged to appellant and that he had

been wearing it just before the police arrived. This evidence was further corroborated by

the presence of keys inside the jacket with electronic fobs linked to appellant. Appellant

was also known to possess guns, and DNA testing linked him to this gun, albeit weakly.

Given this circumstantial evidence, there is a strong probability that appellant had

dominion and control over the handgun found in the jacket.

       Moreover, appellant’s alternative hypotheses regarding the circumstances of this

firearm are unreasonable. His first proposed hypothesis is that he had no knowledge that

this gun existed. But, given the presence of this gun in a jacket so strongly linked to him

and just a few rooms away, this hypothesis is unreasonable. He also argues that even if

he knew about the gun, another gang member, and not him, could have been exercising

conscious dominion and control over the firearm when the police arrived. While it is true

that there were several people in the house, appellant had just been seen wearing the

jacket and his keys were inside of it. The location of contraband near clothing or other

personal items belonging to a defendant is sufficient to establish constructive possession.

See State v. Dickey, 827 N.W.2d 792, 797 (Minn. App. 2013) (collecting cases). No

other evidence linked the jacket or the firearm to anyone else at that time, beyond its

general location.   Because appellant’s alternative hypotheses are unreasonable, we




                                            10
conclude that there is sufficient evidence to uphold his convictions of counts 1 and 4,

relating to appellant’s possession of the handgun found in the back bedroom.1

       Counts 2, 3, 5, and 6: Firearms in the basement and dining room

       Regardless of whether it would be reasonable to infer from the circumstances

proved that appellant constructively possessed the firearms found by police in the house’s

basement and dining room, there is at least one reasonable hypothesis inconsistent with

appellant’s guilt regarding these firearms: the firearms could have been placed there by

other gang members without appellant’s knowledge, direction, or acquiescence. The

state claims that the evidence does not support this hypothesis, and argues that the

circumstances proved show only that appellant’s exercise of control over B.T.’s residence

and his fellow gang members gave him the requisite possessory control over the firearms.

       Constructive possession can “exist[] where an owner intentionally gives actual

possession—direct physical control—of the property to another in order for that person to

do some act for the owner to or with the property.” State v. Simion, 745 N.W.2d 830, 842

(Minn. 2008). “[W]here the master surrenders physical control of the property to the

servant for a use or purpose for the direct benefit of the master, the master has

constructive possession while the servant has mere custody of the property.”             Id.

1
  Appellant also argues that the jury’s decision to acquit him of the controlled substance
possession charge associated with the cocaine found in the same jacket as this firearm
“confirms that the inference of innocence of the gun-possession charge is at least
reasonable.” This argument is unpersuasive because “[t]he alleged inconsistency of the
verdicts does not affect the sufficiency of the evidence to convict appellant.” State v.
Thomas, 467 N.W.2d 324, 327 (Minn. App. 1991). Juries are allowed to exercise lenity
in a criminal case, and our “focus is not upon the inconsistency of the acquittals, but upon
whether there is sufficient evidence to sustain the guilty verdict.” Nelson v. State, 407
N.W.2d 729, 731 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987).

                                            11
(quotation omitted). This type of constructive possession is consistent with the doctrine

of “joint” possession, which provides that “[a] person may constructively possess

[contraband] alone or with others.” Denison, 607 N.W.2d at 799; see also State v. Lee,

683 N.W.2d 309, 316 n.7 (Minn. 2004).

       We agree with appellant’s argument that the circumstances proved in this case

reasonably support his hypothesis that there was no such principal-agent relationship

between appellant and his fellow gang members regarding the firearms in question. The

record lacks any indication that appellant gave any direction regarding, or had any

interaction with, these specific firearms prior to the execution of the search warrant. The

record, therefore, lacks the key link between principal and agent described in Simion—

the principal’s relinquishment of physical possession of the property to an agent for the

agent to use at the principal’s direction. See 745 N.W.2d at 842. While it may be

reasonable to infer that the gang members procured these weapons at appellant’s behest

in order to further the upcoming retaliatory violence against their rival gang, the evidence

is simply insufficient to obviate the reasonableness of the opposite inference: the gang

members hid these guns in the house without appellant’s knowledge or approval.

Although appellant had been seen with a firearm and supplied guns for the gang, there

was no evidence that appellant or other gang members had obtained, distributed, or

hidden these specific firearms at the direction of appellant.

       Apart from the lack of circumstances proved showing appellant’s control of the

gang members in relation to the firearms, the other circumstances are similarly

insufficient to eliminate this hypothesis that is inconsistent with guilt. The contraband


                                             12
was not found in an area over which appellant exercised exclusive dominion and control;

rather, it was found in a house where appellant spent time but did not live, and in areas to

which several other gang members had access at times when appellant was not present.

Our caselaw on constructive possession makes clear that the defendant must exercise

dominion and control over the item itself, not merely the area. State v. Hunter, 857

N.W.2d 537, 542 (Minn. App. 2014) (“[A] defendant must exercise dominion and control

over the [contraband] itself in order to constructively possess it.”); see also State v.

Ortega, 770 N.W.2d 145, 150 (Minn. 2009) (noting that “mere proximity to criminal

activity” is insufficient to establish probable cause for arrest for possession of

contraband).    Moreover, forensic testing was unable to link appellant’s DNA or

fingerprints to these firearms. Beyond the fact that B.T.’s house was collectively used by

the gang to store firearms and appellant was found by police in the house, “no direct

evidence tied appellant to possession of the contraband here.” Sam, 859 N.W.2d at 835.

       Appellant’s proximity to the recovered firearms, his role in the gang, and his

frequent presence at B.T.’s residence are insufficient to eliminate all reasonable

hypotheses inconsistent with appellant’s guilt. Therefore, we conclude that the evidence

is insufficient to show a “strong probability” that appellant had “dominion and control”

over the firearms associated with his convictions of counts 2, 3, 5, and 6. We reverse

these convictions.

                                            II.

       For the first time on appeal, appellant argues that the prosecutor in this case

committed prosecutorial misconduct in his closing argument.                  Unobjected-to


                                            13
prosecutorial misconduct is reviewed under a modified plain-error standard. State v.

Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The defendant must demonstrate error that

is plain because it “contravenes case law, a rule, or a standard of conduct.” Id. If the

defendant is able to make this showing, the burden shifts to the state to demonstrate a

lack of prejudice by showing “that there is no reasonable likelihood that the absence of

the misconduct in question would have had a significant effect on the verdict of the jury.”

Id. (quotations omitted). “If the [s]tate is unable to meet its burden, we must decide

whether the error seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” State v. Vue, 797 N.W.2d 5, 13 (Minn. 2011).

       We review closing arguments in their entirety to determine whether prosecutorial

misconduct occurred.     Id.   “The prosecutor 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. Williams, 586 N.W.2d 123, 127

(Minn. 1998) (quotation omitted). However, “[m]isstatements of the burden of proof are

highly improper and would, if demonstrated, constitute prosecutorial misconduct.” State

v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).

       Appellant specifically challenges these remarks by the prosecutor:

                     Now, surely when this case began [the district court]
              told you that the defendant was presumed innocent. This
              presumption need not remain forever. [The district court]
              read to you the instruction as it relates to the presumption of
              innocence and it states that it remains with the defendant
              unless and until the defendant has been proven guilty beyond
              a reasonable doubt.
                     In this case[,] once [defense counsel] stood up, you
              were able to find that the presumption of innocence no longer


                                             14
                 existed. You were able to find that the defendant lost the
                 presumption. This is because the State has produced
                 evidence that allows you to find the truth to overcome that
                 presumption and to find guilt on all the counts.

Appellant argues that this is a material misstatement of the presumption of innocence

because the presumption is extended until the jury renders a guilty verdict and cannot be

removed before jury deliberations. We agree.

       The prosecutor in this case committed plain error by arguing to the jury that it was

“able to find that the defendant lost” his presumed innocence once defense counsel

“stood up.” We construe this statement to be a reference to defense counsel standing up

to begin the defendant’s case-in-chief after the state finished its presentation of evidence.

However, the presumption of innocence remains until the defendant is proven guilty

beyond a reasonable doubt. See 10 Minnesota Practice CRIMJIG 3.02 (2006) (providing

that the presumption of innocence “remains with the defendant unless and until the

defendant has been proven guilty beyond a reasonable doubt”). Here, the prosecutor told

the jury that it could disregard the presumption of innocence during the course of the

trial, before the defense presented its evidence and well before the jury began

deliberations.     This is incorrect.   “The presumption of innocence is a fundamental

component of a fair trial,” and the defendant “has the right to have the jury take it to the

jury room with them as the voice of the law.” State v. Peterson, 673 N.W.2d 482, 486

(Minn. 2004) (quotation omitted); see also United States v. Crumley, 528 F.3d 1053,

1065 (8th Cir. 2008) (noting that the presumption of innocence “is extinguished only

upon the jury’s determination of guilt beyond a reasonable doubt” and that “[i]t is



                                             15
improper [for prosecutors] to refer to the evidence as having removed the presumption”

(quotation omitted)).    The prosecutor’s misstatement of the burden of proof also

contravened the jury’s duty to “[k]eep an open mind about all the evidence until the end

of the trial.”   10 Minnesota Practice CRIMJIG 1.02A (Supp. 2014); see also 10

Minnesota Practice CRIMJIG 1.02B (Supp. 2014). By misstating the presumption of

innocence and directing the jury to view appellant’s presentation of evidence without the

required presumption in place, the prosecutor plainly erred.2

       Because we conclude that the prosecutor’s closing argument was plainly

erroneous, the state bears the burden of showing a lack of prejudice. Ramey, 721 N.W.2d

at 302. The state argues that any prejudice here was overcome by the instructions of the

district court throughout trial. “[A] prosecutor’s attempts to shift the burden of proof are

often nonprejudicial and harmless where . . . the district court clearly and thoroughly

instructed the jury regarding the burden of proof.” State v. McDonough, 631 N.W.2d

373, 389 n.2 (Minn. 2001); see also State v. Budreau, 641 N.W.2d 919, 926 (Minn. 2002)

(“[W]e presume that jurors follow the court’s instructions.”). In its opening and closing

instructions, the district court stressed to the jury that the presumption of innocence

remained with appellant “unless and until he has been proven guilty beyond a reasonable

doubt.” The prosecutor also used the correct presumption language elsewhere in his

closing argument.    Although we are troubled by the plain error committed by the

2
  Our conclusion is further supported by the fact that, two months prior to trial in this
case, we issued an unpublished opinion holding that the same prosecutor erred by making
a similar misstatement of the presumption of innocence during closing arguments in
another trial. State v. Ford, No. A13-0577, 2014 WL 1272107, at *3–4 (Minn. App. Mar.
31, 2014).

                                            16
prosecutor in this case, it is not reasonably likely that any misconduct “would have had a

significant effect on the verdict of the jury” that would warrant a reversal and new trial on

this ground. Ramey, 721 N.W.2d at 302 (quotation omitted).

                                            III.

       Before opening statements, appellant’s counsel raised an objection to the

admission of a photograph of appellant’s chest tattoo. The tattoo features two smoking

revolvers across appellant’s chest, with the words “Born Alone, Die Alone” above the

revolvers and “1-9” between the revolvers. Over appellant’s claim that the photograph

had minimal probative value of his gang membership and “terribly high” potential for

unfair prejudice, the district court allowed the photograph to be admitted, reasoning that:

                      The reason is that i[t] does relate to the gang issue
              although [its] relevance isn’t that high here because there is
              no disagreement about the membership in the gang. To me
              what was probably more relevant and more probative is that
              as people tattoo themselves, they’re expressing themselves
              and someone tattoos themselves with guns, that certainly can
              be something . . . seen as indicative, the culture or attitude
              toward guns, doesn’t mean as possess them, but certainly
              reflects an attitude toward them and I think that is [an]
              attitude that the jury is entitled to share.

The photograph of the tattoo was then admitted and published to the jury during the

testimony of a police gang investigator, who testified that the “1-9,” smoking revolvers,

and the phrase “Born Alone, Die Alone” all signified gang membership.

       Appellant argues that the district court erred by admitting this evidence because it

was impermissible character evidence under Minn. R. Evid. 404(a) and unfairly

prejudicial under Minn. R. Evid. 403. We review the district court’s evidentiary rulings



                                             17
for an abuse of discretion. State v. Diggins, 836 N.W.2d 349, 357 (Minn. 2013). “We

defer to the court’s evidentiary rulings because the court stands in the best position to

evaluate the prejudicial nature of evidence.” Id. (quotation omitted). If the district court

has erred in admitting evidence, we then examine whether the error is prejudicial by

determining whether there is a reasonable possibility that the evidence significantly

affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

       Appellant does not contest that the photograph of his tattoo was relevant to

ascertaining his gang membership. However, relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice.” Minn. R.

Evid. 403. “[U]nfair prejudice is not merely damaging evidence, even severely damaging

evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving

one party an unfair advantage.” State v. Swinger, 800 N.W.2d 833, 839 (Minn. App.

2011) (quotation omitted), review denied (Minn. Sept. 28, 2011).             One of those

illegitimate means is “[e]vidence of a person’s character or a trait of character”

introduced “for the purpose of proving action in conformity therewith on a particular

occasion.” Minn. R. Evid. 404(a).

       Thus, we must determine whether the district court abused its discretion in

determining that the probative value of this evidence outweighed its potential for unfair

prejudice.   When weighing the probative value of character evidence against its

prejudicial effect, “the court must consider how crucial the [character] evidence is to the

state’s case.”   See Pierson v. State, 637 N.W.2d 571, 581 (Minn. 2002) (quotation

omitted); see also Old Chief v. United States, 519 U.S. 172, 184, 117 S. Ct. 644, 652


                                            18
(1997) (noting that probative value of evidence under the federal analogue to rule 403

“may be calculated by comparing evidentiary alternatives”). The district court noted that

the relevance of the photograph “isn’t that high here” because there was no disagreement

about appellant’s membership in the gang.        The record supports this determination.

Appellant’s counsel began the trial by admitting that his client was a member of 1-9

Block Dipset and had “been [in] a gang for a long . . . time. And guess[] what, he’s got

gang tattoos.” Many of the trial witnesses stated that appellant was a member of 1-9

Block Dipset, and recordings of conversations between appellant and incarcerated

members of the gang further corroborated this fact.

       In contrast, there was a significant danger of unfair prejudice here.            The

photograph showed appellant, a man charged with several counts of unlawful firearm

possession, as having a large chest tattoo prominently featuring two smoking revolvers.

Part of the district court’s rationale for admitting this photograph was the “more

probative” fact that a tattoo with guns indicates a person’s “culture or attitude toward

guns,” which was an attitude “that the jury is entitled to share.” However, to the extent

that the evidence showed that appellant “is a person who possesses firearms,” the jury

was not entitled to share this attitude. Such evidence “invite[d] the inference” by the jury

that appellant had the propensity to own guns and therefore possessed the firearms in this

case. State v. Smith, 749 N.W.2d 88, 93 (Minn. App. 2008) (holding inadmissible a

photograph of a defendant near a table with guns which “associate[d] [the defendant]

with firearms and [did] so with a nefarious connotation”). This is exactly the kind of




                                            19
prejudicial character evidence the rules of evidence are meant to exclude. We conclude

that the district court abused its discretion in admitting the photograph.

       But, appellant has not met his burden of showing that this evidence “substantially

influence[d] the jury’s decision.” State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997). If

there is a reasonable probability that the verdict might have been more favorable to the

defendant without the admission of the evidence, then the error is prejudicial. Post, 512

N.W.2d at 102 n.2. In evaluating prejudice, we are to consider “the manner in which the

evidence was presented, whether it was highly persuasive, whether it was used in closing

argument, and whether the defense effectively countered it.” Townsend v. State, 646

N.W.2d 218, 223 (Minn. 2002). Although there was substantial evidence supporting the

firearm possession charges against appellant relative to the firearm found in his jacket,

the tattoo photograph was by no means the linchpin of the state’s case. It did not come

into evidence until the state’s final witness was testifying, was briefly referred to by that

witness, and only defense counsel, not the state, referenced the tattoo during closing

arguments. Given the lack of prejudice, we conclude that the district court’s error in

admitting the tattoo photograph does not require reversal of appellant’s convictions.

                                             IV.

       Appellant further argues that the district court erroneously instructed the jury as to

the proper definition of constructive possession. A district court has broad discretion in

giving jury instructions. State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). “But a

district court abuses that discretion if its jury instructions confuse, mislead, or materially

misstate the law. We review the jury instructions as a whole to determine whether the


                                             20
instructions accurately state the law in a manner that can be understood by the jury.” Id.

(citation omitted). Because appellant did not object at trial to the jury instruction, we

review this claim for plain error affecting substantial rights. State v. Manley, 664 N.W.2d

275, 283 (Minn. 2003). The three-pronged test for plain error requires appellant to show

that: (1) the district court committed error; (2) the error committed was plain; and (3) the

plain error affected his substantial rights. Id.

       The district court instructed the jury regarding constructive possession as follows:

                       Possession, it is not necessary that possession occur for
              any particular amount of time. A person possessing a firearm
              is if it [is] on his person. A person also possesses a firearm if
              [it] was in a place under his exclusive control to which other
              people [did] not normally have access or found in a place to
              which others had access [and] he knowingly exercised
              dominion and control over it.
                       The law recognizes two kinds of possession, actual
              possession and constructive possession. A person who
              knowingly has directive of a control [sic] over a thing is then
              [in] actual possession of it. A person who is not in actual
              possession of a thing that has knowingly . . . got the power
              and the intention to exercise authority and control over it,
              either directly or through another person, is then in
              constructive possession of it.

(Emphasis added.) Appellant acknowledges that the first paragraph of this instruction

accurately quotes the definition of constructive possession provided by the supreme court

and used in current pattern jury instructions. See Florine, 303 Minn. at 105, 226 N.W.2d

at 611 (holding that constructive possession is shown “if police found [contraband] in a

place to which others had access [and] there is a strong probability . . . that defendant was

at the time consciously exercising dominion and control over it”); see also 10 Minnesota




                                              21
Practice CRIMJIG 32.42 (Supp. 2014). He instead takes issue with the second paragraph

of the instruction, arguing that it materially misstates the Florine standard.

       These arguments are unavailing. Appellant asserts that this instruction allowed the

jury to find constructive possession based on appellant’s “future” intention to exercise

control. He stresses the word “intention” in the instruction, but the instruction required

the jury to find that appellant had “the power and the intention to exercise authority and

control” over the guns. (Emphasis added.) This language is substantially similar to the

“conscious[] exercise[] [of] dominion and control” found in Florine. See 303 Minn. at

105, 226 N.W.2d at 611. Any concern that the jury could find appellant guilty for

“future” intent was allayed by the district court’s instruction to the jury that the criminal

acts must have taken place between December 1 and December 12, 2013.

       He next argues that the district court incorrectly expanded the doctrine to cover

constructive possession “through another person.”         But, appellant’s own citation to

caselaw indicates that constructive possession “exists where an owner intentionally gives

actual possession . . . of the property to another.” Simion, 745 N.W.2d at 842. As

discussed supra,3 a defendant may constructively possess contraband “through another

person” if the facts sufficiently establish the defendant’s continued dominion and control

over an item after relinquishing it to another. See id.

       Finally, appellant argues that the instruction failed to require proof that appellant

“once actually possessed the contraband.”         Although Florine does indicate that the

3
  We further note that, even if we held that the district court’s jury instruction here was
plainly erroneous, any resulting prejudice is obviated by our reversal of appellant’s
convictions relating to the firearms found in the house’s basement and dining room.

                                             22
“purpose” of this doctrine was to allow the definition of “possession” in the statute to

include “those cases . . . where the inference is strong that the defendant at one time

physically possessed the [contraband]” and then maintained that possessory interest

through dominion and control, its holding does not require proof that the defendant had

physically possessed the item in the past. See 303 Minn. at 104–05, 226 N.W.2d at 610–

11. Accordingly, we conclude that the district court did not materially misstate the law in

its jury instruction regarding constructive possession.

                                             V.

       Appellant argues that the prosecution violated criminal discovery rules and that we

should therefore reverse and remand for a new trial. Prior to trial, appellant moved the

district court for dismissal of the charges or suppression of evidence in relation to the

prosecution’s delay in providing the defense with a transcribed statement B.T. gave to the

state. B.T.’s statement appears to have been made on April 11, 2014, but was not

disclosed by prosecutors to appellant until May 2, four days before trial began and three

weeks after the statement was taken. The prosecutor had informed appellant’s counsel on

April 28 that a witness from the residence would be testifying, but did not indicate what

the substance of the testimony would be. Appellant’s counsel indicated that he sought

dismissal of the case or suppression of this testimony because the delayed disclosure was

a “significant disadvantage to prepar[ing] [an] adequate defense” for appellant.

Appellant did not seek a continuance because he had demanded a speedy trial.

       In response, the prosecutor and district court indicated that the state had withheld

the statement from disclosure because: (1) B.T.’s testimony at appellant’s trial hinged on


                                             23
the resolution of child endangerment charges which had been brought against her, and a

plea agreement involving her trial testimony was not reached until April 28; and

(2) “[t]here were some issues relating to . . . witness safety.” The district court was also

handling B.T.’s criminal case, and the prosecutor indicated that he had proceeded at the

direction of the district court in delaying disclosure of the witness statement until May 2.

The district court confirmed this, indicating that it had told the prosecutor on April 28 to

inform appellant’s counsel “of the substance of the revelation that [B.T.] was going to be

testifying [to]” and then provide appellant with a copy of the transcript by May 2. The

district court ultimately denied appellant’s motion for dismissal or preclusion of B.T.’s

testimony, but indicated that it would grant a continuance if needed.

       Appellant argues that the district court failed to properly remedy the violation by

precluding B.T.’s testimony, and he asserts that a new trial is therefore required. “The

imposition of sanctions for violations of discovery rules and orders is a matter

particularly suited to the judgment and discretion of the [district] court. . . . Accordingly,

we will not overturn its ruling absent a clear abuse of discretion.” State v. Patterson, 587

N.W.2d 45, 50 (Minn. 1998) (quotation omitted). Even assuming that the prosecutor’s

conduct here was a violation of the discovery rules, we conclude that the district court did

not abuse its discretion in deciding that a continuance was the appropriate remedy. There

is no indication that the prosecutor withheld the statement in bad faith, and appellant was

informed that the state would be calling a witness who was at B.T.’s residence. The

district court gave appellant the option of a continuance if he needed more time to

prepare for trial, and, before B.T. testified at trial, the district court indicated that it would


                                               24
allow the defense to recall B.T. if there were additional areas of inquiry that arose after

other state witnesses concluded their testimony. Given the willingness of the district

court to accommodate any prejudice that resulted from the prosecutor’s late disclosure,

we conclude that the district court did not abuse its discretion in declining to preclude

B.T. from testifying in connection with the state’s delayed witness-statement disclosure.

                                           VI.

       Appellant argues that his conviction of being a prohibited person in possession of

a firearm (count 4) is a lesser-included offense of his conviction of being a prohibited

person in possession of a firearm for the benefit of a gang (count 1), and thus should not

have been adjudicated. A defendant cannot be convicted of both a charged crime and an

included offense if the included offense is “[a] crime necessarily proved if the crime

charged were proved.” Minn. Stat. § 609.04, subd. 1(4) (2012). As conceded by the

state, it is clear that appellant’s firearm-possession conviction was a lesser-included

offense. “In a crime committed for the benefit of a gang, the underlying crime is an

included crime.” State v. Lopez-Rios, 669 N.W.2d 603, 615 (Minn. 2003). The district

court correctly recognized this fact, at both the sentencing hearing and in a written

sentencing order, by indicating that counts 4–6 “merged” into counts 1–3. However, the

warrant of commitment formally adjudicated appellant guilty of all six counts, including

counts 4–6. A written judgment of conviction provides “conclusive evidence of whether

an offense has been formally adjudicated.” Spann v. State, 740 N.W.2d 570, 573 (Minn.

2007) (quotation omitted). Because appellant’s lesser-included offense “should not be

formally adjudicated at this time,” id. (quotation omitted), we remand for the district


                                            25
court to vacate appellant’s conviction on count 4, being a prohibited person in possession

of a firearm, regarding the firearm found in the jacket in the back bedroom.4

      Because the evidence is insufficient to support appellant’s convictions on counts 2,

3, 5, and 6, we reverse those convictions. We also remand for the district court to vacate

appellant’s conviction on count 4 because it is a lesser-included offense. Although we

conclude that the admission into evidence of the photograph of appellant’s tattoo and the

prosecutor’s misstatement of the presumption of innocence were erroneous, appellant

was not prejudiced by these errors. Accordingly, we affirm appellant’s conviction of

count 1, being a prohibited person in possession of a firearm for the benefit of a gang,

and remand for resentencing on this remaining conviction.

      Affirmed in part, reversed in part, and remanded.




4
 Our reversal of counts 2, 3, 5, and 6 render appellant’s remaining sentencing arguments
moot.

                                            26
