                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-2404

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                 Larry Charles Norton,
                                       Appellant

                                Filed October 27, 2014
                                       Affirmed
                                    Worke, Judge

                             Stearns County District Court
                               File No. 73-CR-12-5266

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and

Smith, Judge.

                       UNPUBLISHED OPINION

WORKE, Judge

      Appellant challenges his conviction of fifth-degree controlled-substance crime,

arguing that the prosecutor plainly erred in closing argument by misrepresenting the

constructive-possession doctrine and misstating evidence. We affirm.
                                         FACTS

      Officers found methamphetamine while searching appellant Larry Charles

Norton’s residence, and he was charged with fifth-degree controlled-substance crime

(possession) and possession of drug paraphernalia.

      At Norton’s jury trial, Deputy Nathan Stewart testified that officers found a green

pipe with methamphetamine in it and baggies with methamphetamine residue in them on

a computer desk, and another baggie with methamphetamine in it in the laundry room.

Stewart testified that none of the evidence was analyzed for fingerprints or DNA because

testing is costly and time consuming and the chance of finding DNA is “slim to none.”

On cross-examination, Stewart agreed that when evidence is found on a person it is not

DNA tested because possession is established.

      Norton’s recorded statement from the date of the search was played for the jury.

Norton admitted to being a decades-long methamphetamine user and that he had used

approximately three hours before the officers arrived. Norton admitted to smoking the

methamphetamine that was in the baggies out of the green pipe, both of which were

found on the computer desk. Norton stated that the methamphetamine found in the

laundry room might have been in his pocket because officers searched him in that area of

his residence.     When asked if the other individuals in the residence had

methamphetamine, Norton replied: “They didn’t have sh-t.”

      In closing argument, the prosecutor stated:

                     This case is about constructive possession. The
             [district court] is going to read an instruction that articulates
             that. It is different than ownership. Possession can be shared.
             It can be joint. It does not have to be exclusive.

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                      So even if you believe that they were all together over
              there getting high and did smoke out of those two bags of
              methamphetamine, as long as you believe [Norton] was in on
              that, he still is guilty. It is still constructive possession.

       Defense counsel countered that the drugs were found in a common area accessible

by the other individuals in the house and that one of the individuals had motive to discard

the drugs because he was on probation. Defense counsel also argued that the police could

have done forensic testing, but had their sights set on Norton. In rebuttal, the prosecutor

implied that police had no reason to test the evidence because Deputy Stewart testified

that “‘When somebody admits to possessing it, we don’t test it for DNA.’” Because

Norton told the officers that “nobody else had anything,” the officers “knew whose it

was, because [Norton] admitted to it.”

       The jury found Norton guilty of the charged offenses. This appeal followed.

                                     DECISION

       Norton raises two challenges to the prosecutor’s closing argument. He failed to

object to either alleged error. “On appeal, an unobjected-to error can be reviewed only if

it constitutes plain error affecting substantial rights.” State v. Ramey, 721 N.W.2d 294,

297 (Minn. 2006). This standard requires (1) error, (2) that is plain, and (3) that affects

substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “An error is

plain if it was clear or obvious.” State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002)

(quotations omitted). A prosecutor commits misconduct when he or she “violates clear or

established standards of conduct, e.g., rules, laws, orders by a district court, or clear

commands in this state’s case law.” State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008)

(quotation omitted).    If an appellant demonstrates plain error in a prosecutorial-

                                            3
misconduct case, the burden shifts to the state to prove lack of prejudice. Ramey, 721

N.W.2d at 302. This requires the state to “show 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. (quotation omitted).

Constructive possession

       Norton first argues that the prosecutor misrepresented the constructive-possession

doctrine by suggesting that Norton’s prior use of the methamphetamine was sufficient to

prove him guilty of the possession offense. Misstatements of law constitute prosecutorial

error. See State v. Jolley, 508 N.W.2d 770, 773 (Minn. 1993) (stating that when a

prosecutor misstates the law, the defense may object and request a curative instruction).

                     The purpose of the constructive-possession doctrine is
              to include within the possession statute those cases [in which]
              the state cannot prove actual or physical possession at the
              time of arrest but where the inference is strong that the
              defendant at one time physically possessed the substance and
              did not abandon his possessory interest . . . up to the time of
              the arrest.

State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975). Constructive

possession requires (1) that the contraband be found in a place under the defendant’s

exclusive control or (2) “a strong probability, inferable from the evidence, that the

defendant was, at the time, consciously exercising dominion and control over [the

contraband].” State v. Lee, 683 N.W.2d 309, 316-17 n.7 (Minn. 2004).            The latter

requires that the defendant “had knowledge of, and exercised dominion and control over,

the [contraband].” See Maryland v. Pringle, 540 U.S. 366, 372, 124 S. Ct. 795, 800




                                                 4
(2003). “A person may constructively possess contraband jointly with another person.”

State v. Ortega, 770 N.W.2d 145, 150 (Minn. 2009).

       Here, the state sought to establish that there was “a strong probability, inferable

from the evidence, that [Norton] was, at the time, consciously exercising dominion and

control over [the contraband].” Lee, 683 N.W.2d at 317 n.7. The prosecutor stated that

the case was about constructive possession, which can be shared. The prosecutor argued

to the jury: “[I]f you believe that they were all together over there getting high and did

smoke out of those two bags of methamphetamine, as long as you believe [Norton] was

in on that, he still is guilty [of constructive possession].”

       Norton argues that his earlier use of methamphetamine fails to demonstrate his

dominion and control over methamphetamine at the time the police found it. See id.

(stating that constructive possession exists when the defendant was, “at the time,”

exercising dominion and control).           But Norton’s argument is not an accurate

interpretation of the prosecutor’s statement.

       The prosecutor’s explanation of constructive possession had nothing to do with the

timing of Norton’s methamphetamine use and everything to do with emphasizing the

shared or joint nature of constructive possession. Further, the prosecutor’s explanation of

constructive possession was similar to the district court’s jury instruction: “Possession

may be . . . exclusive or joint.         Possession may be shared.    [Norton] possessed

methamphetamine if it was in a place under [his] exclusive or shared control to which

other people did not normally have access or if [he] knowingly exercised dominion and

control over it.” Norton fails to establish plain error.


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Misstatement of evidence

       Norton also argues that the prosecutor plainly erred by attributing a statement to a

witness that the witness never made. It is misconduct when a prosecutor intentionally

misstates evidence. State v. Mayhorn, 720 N.W.2d 776, 788 (Minn. 2006). A prosecutor

is not entitled to make arguments that have no factual basis in the record evidence. See

State v. Thompson, 578 N.W.2d 734, 742 (Minn. 1998) (concluding that remarks that

contained pure speculation without factual basis were improper).

       In closing argument, defense counsel stated that officers should have done forensic

testing on the evidence. In rebuttal, the prosecutor argued that testing was unnecessary

because “[Deputy] Stewart said . . . . ‘When somebody admits to possessing it, we don’t

test it for DNA.’” The prosecutor then stated that the officers “knew whose it was,

because [Norton] admitted to it.” Norton argues that Stewart “made no such statement”

and that there was no testimony to suggest that testing was not done because Norton

admitted to possessing the evidence. We agree.

       Stewart testified that the evidence was not tested because testing is costly and

time consuming and the chance of finding DNA is “slim to none.”                  On cross-

examination, Stewart agreed that when evidence is found on a person it is not DNA tested

because possession is established, but that was a general, conjectural statement. Stewart

did not state that in this case the items were not tested because of Norton’s admission.

       But while Norton has established plain error, the state has met its burden of

showing lack of prejudice, because there is no reasonable likelihood that the jury’s

verdict would have been different had the prosecutor not made this statement. See


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Ramey, 721 N.W.2d at 302 (stating that the state must “show 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” (quotations omitted)).

       The evidence supports the jury’s verdict that Norton possessed methamphetamine.

Norton admitted that he smoked methamphetamine out of the green pipe from the

baggies the officers found by the computer. Norton stated that the methamphetamine

found in the laundry room might have been in his pocket because the officers searched

him in that area of his residence. Norton stated that the methamphetamine found did not

belong to the other individuals present in his home. Thus, there is not a reasonable

likelihood that the prosecutor’s misstatement regarding the reason for lack of forensic

testing had a significant effect on the verdict.

       Affirmed.




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