                          This opinion will be unpublished and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
                                     A14-0423

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Ty-Yn Shakhaun Holley,
                                      Appellant.

                                Filed August 31, 2015
                   Affirmed in part, reversed in part, and remanded
                                     Willis, Judge

                             Hennepin County District Court
                               File No. 27-CR-12-38603


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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Stan Keillor, Special Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Willis,

Judge.




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                        UNPUBLISHED OPINION

WILLIS, Judge

       Because the district court did not prejudicially err by admitting recordings of

statements by a witness who did not testify, and did not plainly err by allowing expert

testimony about fingerprint analysis or by instructing the jury on constructive possession

of a firearm, we affirm in part. But because the district court erroneously entered a

conviction and sentenced appellant for a lesser-included offense, we reverse in part and

remand.

                                         FACTS

       On November 20, 2012, the Hennepin County Sheriff’s Office executed a search

warrant at a home owned by appellant Ty-Yn Shakhaun Holley’s grandmother and found

marijuana, several loaded guns, more than $5,000 in cash, and a document showing that

Holley used the home as his address. At the time, Holley was in the home, along with his

girlfriend, B.P., and their two children. The state charged Holley with two counts of

fifth-degree controlled-substance crime—for possession and for sale. See Minn. Stat.

§ 152.025, subds. 1(a)(1), 2(a)(1) (2012). The state sought to increase Holley’s sentence

under the firearm-enhancement statute. See Minn. Stat. § 609.11, subd. 5 (2012).

       At trial, a police sergeant testified regarding execution of the search warrant and

his interview of B.P. after her arrest. Before the sergeant’s testimony, the district court

instructed the jury that the state would introduce a firearm as evidence and that it was

“offered for the purpose of assisting you in determining whether the defendant had actual




                                            2
possession or constructive possession” of the firearm to determine applicability of the

sentencing enhancement.

       Later in the sergeant’s testimony, the district court admitted into the record,

without objection, two audio recordings of the sergeant’s interview of B.P. The sergeant

testified that B.P. stated that Holley lived with her in his grandmother’s home. At the

time the recordings were admitted, both the state and the defense planned to call B.P. as a

witness. Ultimately, B.P. exercised her privilege against self-incrimination and did not

testify. The district court thereafter permitted the state to recall the sergeant and play the

recordings for the jury.

       In addition, a forensic scientist testified as an expert in the identification of latent

fingerprints. She gave a detailed explanation of the procedure used and the many factors

that could affect the identification of a particular print. When defense counsel asked

during cross-examination if the process was subjective or exact, the expert testified that

she “wouldn’t say that it was a subjective process” and that “[i]t is a scientific method

that we use for the examination of fingerprints.” When asked about the methodology’s

error rate, she testified that she did not know the rate but that she has “never made a

misidentification or exclusion.”      Defense counsel did not object to either of her

statements.

       At the end of the trial, the district court instructed the jury that it would be asked

whether Holley possessed a firearm. The district court explained that the jury could find

that Holley constructively possessed the firearm if the firearm was “in reasonable

proximity to the defendant or to the drugs” and instructed the jury to consider a number


                                              3
of factors in deciding whether to infer constructive possession. Defense counsel did not

object to the instructions.

       The jury returned guilty verdicts on both counts and found that Holley possessed a

firearm during commission of the offenses. Before sentencing, Holley moved the district

court for a downward departure from the mandatory minimum sentence. The district

court found that there were no substantial and compelling reasons for a downward

departure and denied the motion.       It then entered convictions on both counts and

sentenced Holley to 36 months on the possession count and 39 months on the sale count.

                                     DECISION

I.     The district court did not plainly err by admitting recordings of B.P.’s police
       interviews because the statements did not affect Holley’s substantial rights.

       Holley argues that the district court committed plain error by admitting recordings

of B.P.’s police interviews, in violation of the Confrontation Clause. At the time that the

recordings were admitted into the record, both the state and Holley had B.P. on their

witness lists, but B.P. ultimately did not testify because she invoked her Fifth

Amendment privilege against self-incrimination. Later, the district court allowed the

state to play the recordings for the jury. Holley did not object to the admission or the

playing of the recordings.

       When an appellant did not object to the admission of evidence at trial, we review

for plain error. State v. Tscheu, 758 N.W.2d 849, 863 (Minn. 2008). To warrant reversal

under plain-error review, the appellant must show that: (1) an error occurred, (2) the error

was plain, and (3) the error affected his substantial rights. Id. An error is plain if it



                                             4
“contravenes case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d

294, 302 (Minn. 2006). An error affects substantial rights if the error was prejudicial and

there “is a reasonable likelihood that the error had a significant effect on the jury’s

verdict.” State v. Sontoya, 788 N.W.2d 868, 873 (Minn. 2010) (citing State v. Griller,

583 N.W.2d 736, 741 (Minn. 1998)).          If these three prongs are satisfied, we then

determine “whether the error seriously affects the fairness, integrity, or public reputation

of the judicial proceeding before granting relief.” State v. Hull, 788 N.W.2d 91, 100

(Minn. 2010) (quotation omitted).

        The right to confront witnesses is violated if testimonial hearsay is admitted,

unless the declarant is unavailable and the defendant had a prior opportunity for cross-

examination. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006) (citing Crawford v.

Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004)). The state does not dispute

that B.P.’s statements were testimonial hearsay, that B.P. was unavailable at trial, or that

Holley did not have an opportunity for cross-examination before the trial. When B.P.

invoked her Fifth Amendment right against self-incrimination, the district court could

have stricken the recordings as evidence because they had not yet been played for the

jury.   Instead, the district court permitted the state to recall a witness to play the

recordings for the jury and specifically requested that the state re-offer one of the

recordings to ensure that it was on the record. Therefore, we conclude that there was an

error and it was plain.

        The content of the recordings, however, did not affect Holley’s substantial rights.

The recordings included only a few inculpatory remarks, including (1) that Holley lived


                                             5
at his grandmother’s house; (2) that the key to the safe, in which guns and cash were

found, belonged to Holley; (3) that B.P. had seen Holley bring a gun into the house; and

(4) that Holley gave her the $4,000 that was found in her purse.

       The record here includes other testimony that the police had confirmed that Holley

was living at his grandmother’s home, through “computer intelligence records” and a

cell-phone agreement in Holley’s name found at the home. But we note that it was

unnecessary for the state to prove that Holley lived at the home because Holley admitted

that his grandmother owned the home, that he was inside the home at the time of the

search, and that he had keys to and regular access to the home. A police officer testified

that Holley admitted at the scene that the safe key was his. An expert witness testified

that Holley could not be excluded as a contributor of DNA found on several of the guns.

And finally, Holley testified that the $4,000 in B.P.’s purse came from his promotional

work and that he asked B.P. to deposit it for him. Given that each of B.P.’s statements

was corroborated by other significant, admissible evidence or was unnecessary to the

outcome of the case, the recordings did not affect Holley’s substantial rights because they

were unlikely to have had a significant effect on the jury’s verdict.

II.    The district court did not plainly err by allowing the fingerprint expert’s
       testimony because any error was not plain.

       Holley argues that the district court erred by allowing the fingerprint-analysis

expert to testify that there was no subjective component to latent-print analysis and to

state that she had never made a misidentification, which he contends “exaggerated the




                                              6
reliability of her own conclusions.” Because Holley did not object at trial, we again

review for plain error.

       To allow an expert to testify in a “sweeping and unqualified manner” about the

certainty of the results established through testing without a cautionary instruction is

“technical error.” State v. Spencer, 298 Minn. 456, 461, 216 N.W.2d 131, 134 (1974)

(discussing testimony that test results indicated that the defendant had definitely fired a

gun, when the results were merely consistent with the defendant firing a gun). But the

error is not prejudicial if the expert is subjected to thorough cross-examination, id., or the

outcome was supported by extensive and strong evidence, Hull, 788 N.W.2d at 104.

       The testimony here was not sweeping and unqualified. Holley contends that the

expert’s testimony was misleading because she testified that she “wouldn’t say that

[latent-print analysis] was a subjective process.” In support, Holley cites State v. Dixon,

in which the court stated that “there is a subjective component to print analysis.” 822

N.W.2d 664, 674 (Minn. 2012) (noting that the “subjective component” does not prevent

the analysis from being “reliable or accurate”). But the expert’s testimony was given in

response to defense counsel’s question about her opinion of whether the process was

subjective, not whether the Minnesota Supreme Court had ever characterized the process

as subjective. Indeed, she later testified that the identification process involved “side by

side comparison” to spot similarities and dissimilarities between the latent prints and the

exemplars. She also discussed many factors that might affect or impede identification

and did not testify that it was “an exact process” when asked by defense counsel.




                                              7
Therefore, there was no plain error because the expert did not make a broad, unqualified

statement about the accuracy of latent-print analysis.

       Holley also argues that the latent-print expert exaggerated the reliability of her

identifications by testifying that she had never misidentified a print. While the statement

arguably may have encouraged jurors to give undue weight to her testimony, the potential

error was not so obvious that it constitutes plain error. Moreover, Holley does not argue

on appeal that the statement was inaccurate. At trial, defense counsel made no attempt to

impeach the expert on this ground and presented no evidence about the error rate in

latent-print analysis. Furthermore, the testimony aided the defense as well because the

expert also testified that the prints that were identified as Holley’s could have been on the

baggies before drugs were placed in them, supporting Holley’s argument that he had

touched the bags before they were reused to store marijuana without his knowledge and

that several of the prints were identified to another person, who Holley argued was the

actual culprit.

III.   The district court did not plainly err in its jury instructions regarding
       possession of a firearm because any error was cured by the district court’s
       final instructions and because the remaining jury instructions accurately
       summarized the law and a separate Blakely hearing was not required.

       Holley argues that the district court made three errors in its jury instructions:

(1) when it instructed the jury during testimony that evidence was “being offered for the

purpose of assisting you in determining whether the defendant had actual possession or

constructive possession” of a firearm for the sentencing enhancement, it implied that

possession had been established and the jury was merely to determine the type of



                                             8
possession; (2) when it instructed the jury to consider the Royster factors in determining

whether Holley possessed a firearm, it asked the jury to reach a legal conclusion instead

of a factual finding; and (3) when it instructed the jury on the firearm issue, it “denied

[Holley] a separate Blakely proceeding on the section 609.11 sentencing enhancement.”

See State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999) (outlining factors courts should

consider in determining whether presence of a firearm increased the risk of violence and

to what degree).

       Because Holley did not object to the jury instructions, we again review for plain

error. District courts are allowed “considerable latitude” in the selection of language for

jury instructions.    State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).           But the

instructions must “fairly and adequately explain the law of the case.” State v. Koppi, 798

N.W.2d 358, 362 (Minn. 2011). “An instruction is in error if it materially misstates the

law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

       First, Holley argues that the jury instruction given during testimony implied that

the jury was only to decide between actual or constructive firearm possession for the

sentencing enhancement. That argument fails. We must consider the jury instructions as

a whole. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). The district court clarified

its earlier instruction, given during testimony, by providing a more detailed final

instruction. The final instruction asked the jury to answer the question: “[W]as the

defendant in possession of a firearm?” The instruction then explained “that possession

may be actual or constructive.” Reviewing the instructions together, any potential error

in the earlier instruction was cured by the later clarification.


                                               9
       Second, Holley argues that the instruction, based on CRIMJIG 20.57, asked the

jury to reach a legal conclusion by telling jurors to consider the Royster factors to

determine whether constructive firearm possession existed. See 10A Minnesota Practice,

CRIMJIG 20.57 (2014). In State v. Royster, the supreme court held that the sentencing

court should consider circumstances surrounding constructive possession to determine

whether the predicate offense should trigger a sentencing enhancement. 590 N.W.2d at

85. Although Royster did not hold that the factors must be considered in making a

factual finding on whether constructive possession existed, Minnesota courts have since

used the factors for that purpose. See State v. Barker, 705 N.W.2d 768, 771 (Minn.

2005). The instruction, therefore, accurately summarized the law.

       Finally, Holley argues that the instructions denied him a bifurcated trial, which is

mandated for sentencing-enhancement issues when the evidence may unduly prejudice

the jury in its determination of guilt. This argument fails because Holley did not request

a bifurcated trial, and a bifurcated trial is mandated only when the evidence in support of

the sentencing enhancement is “otherwise inadmissible at a trial on the elements of the

offense” and “would result in unfair prejudice to the defendant.” Minn. Stat. § 244.10,

subd. 5(c) (2012). The gun-possession evidence here was admissible and would not

result in unfair prejudice because the presence of guns is relevant to the issue of whether

Holley possessed controlled substances for a purpose other than personal use, such as for

sale. See State v. Love, 301 Minn. 484, 484-85, 221 N.W.2d 131, 132 (1974) (stating that

the fact that the defendant was armed was relevant in determining if the defendant




                                            10
possessed methamphetamine with an intent to distribute). The district court therefore did

not plainly err in its jury instructions.

IV.    The district court did not abuse its discretion by denying Holley’s motion to
       sentence without regard to the mandatory minimum when it found that there
       were no substantial and compelling reasons for a downward departure.

       Holley argues that the district court abused its discretion by denying his motion to

sentence without regard to the mandatory minimum under the firearm-enhancement

provision of Minn. Stat. § 609.11, subd. 5(a) (2012). “Sentencing rests within the broad

discretion of the [district] court and will not be disturbed on appeal absent an abuse of

that discretion.” State v. Larson, 473 N.W.2d 907, 908 (Minn. App. 1991).

       Holley cites State v. Svec to argue that there is “tension between Barker’s

treatment of section 609.11 . . . as an upward departure and that statute’s treatment of the

failure to impose the mandatory minimum as a downward departure.” No. A10-602,

2011 WL 691644, at *6 (Minn. App. Mar. 1, 2011) (noting that Barker requires a jury to

find that a sentencing factor exists before a district court may make a discretionary

departure based on the factor). Svec is, however, unpublished and thus lacks precedential

value. See Minn. Stat. § 480A.08, subd. 3(b) (2014). In any event, Svec makes clear that

“[a] sentence under section 609.11, subd. 5(a), is treated as a departure for Blakely

purposes” only, so that the defendant has a right to require that a jury find that he

possessed or used a firearm at the time of the underlying offense. Id. (emphasis added).

But because the enhancement “is automatic” upon such a finding, there must be

“substantial and compelling reasons” to sentence without regard to the mandatory

minimum. Id. There appears to be no conflict between the application of Blakely and the


                                            11
need for substantial and compelling reasons to deviate from the automatic enhancement

upon the jury’s factual finding on the firearm-possession issue.

       Holley also argues that evidence was inconclusive that the presence of a firearm

increased the risk of violence associated with the offenses and that there was a general

lack of evidence that the guns were actually his. This argument fails because it asks us to

disregard the jury’s explicit factual finding, which is supported by the record, that Holley

possessed a firearm at the time of the offenses. Because the district court determined that

no substantial and compelling reasons exist here to depart from the mandatory minimum

sentence, it did not abuse its discretion by denying Holley’s motion to sentence without

regard to the mandatory minimum.

V.     The district court erroneously convicted and sentenced Holley on the
       controlled-substance possession charge, which was an included offense of the
       controlled-substance sale charge.

       Holley next argues that the district court erred by convicting him of both counts of

fifth-degree controlled-substance crime, for sale and for possession, when possession is

included in the sale offense. At oral argument, the state conceded that the possession

offense was a lesser-included offense of the sale under Minn. Stat. § 609.04, subd. 1

(2014), and that the district court erred in convicting and sentencing Holley on the

possession charge.    See, e.g., State v. Traxler, 583 N.W.2d 556, 562 (Minn. 1998)

(referring to a possession charge as a lesser-included offense of a sale charge). We agree

and thus reverse Holley’s possession conviction and remand for resentencing. If the sale

conviction were to be vacated or reversed on independent grounds, the district court

would be permitted to formally adjudicate and sentence Holley on the possession count.


                                            12
See State v. Grampre, 766 N.W.2d 347, 354 (Minn. App. 2009), review denied (Minn.

Aug. 26, 2009).

      Affirmed in part, reversed in part, and remanded.




                                       13
