                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A13-0597


Court of Appeals                                                                  Page, J.

State of Minnesota,

                      Respondent,

vs.                                                              Filed: January 14, 2015
                                                               Office of Appellate Courts
Tommy Salyers, III,

                      Appellant.

                              ________________________

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

Jeffrey S. Naglosky, Koochiching County Attorney, International Falls, Minnesota, for
respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Appellate Public Defender, Saint Paul, Minnesota, for appellant.
                             ________________________

                                      SYLLABUS

      1.     A rule for constructive possession of the contents of a locked container that

focuses on the ready accessibility of the container’s contents to the exclusion of other

factors relevant to a defendant’s dominion and control over the container’s contents is

inconsistent with Minnesota’s constructive possession doctrine, as articulated in State v.

Florine, 303 Minn. 103, 226 N.W.2d 609 (1975).



                                            1
       2.     The direct evidence of appellant’s exclusive control over the safe in which

firearms were located was sufficient to support appellant’s conviction of being a felon in

possession of a firearm, in violation of Minn. Stat. § 609.165, subd. 1b(a) (2014); in

possession of a firearm with no serial number, in violation of Minn. Stat. § 609.667(3)

(2014); and in possession of a short-barreled shotgun, in violation of Minn. Stat.

§ 609.67, subd. 2 (2014).

       Affirmed.

                                      OPINION

PAGE, Justice.

       Appellant, Tommy Salyers, III, was convicted of being a felon in possession of a

firearm, in violation of Minn. Stat. § 609.165, subd. 1b(a) (2014); in possession of a

firearm with no serial number, in violation of Minn. Stat. § 609.667(3) (2014); and in

possession of a short-barreled shotgun, in violation of Minn. Stat. § 609.67, subd. 2

(2014). The conviction stemmed from law enforcement’s discovery of a locked gun safe

in Salyers’ home containing three firearms. Salyers argued on appeal, among other

things, that the State presented insufficient evidence that he constructively possessed the

firearms in the locked safe.1 The court of appeals affirmed. For the reasons discussed

below, we affirm, although on different grounds.

       The facts are taken from the evidence admitted at trial. The State called three

witnesses, all officers with the Koochiching County Sheriff’s Office, who participated in

1
       Salyers also raised a number of other issues at the court of appeals. None of those
issues are before us in this appeal.


                                            2
the search of Salyers’ home. On September 7, 2012, the officers executed a warrant to

search Salyers’ International Falls home for numerous items of stolen property. The

home was a two-bedroom, single-family residence. A no-trespassing sign posted on the

home’s garage was signed by two different individuals: Salyers and S.B.

          At the time the deputies executed the warrant, neither Salyers nor anyone else was

present. During their search, the deputies found a locked gun safe in a bedroom. One

deputy described the safe as “basically a metal cabinet. It’s built like a file cabinet that

locks in two places. It’s one thickness of sheet metal.” A key found in the bedroom fit

the gun safe’s lock, but would not turn the lock. Using a crowbar, two deputies easily

pried open the gun safe.

          Inside the gun safe were three firearms: a sawed-off shotgun with the serial

number ground off; a full-length, 20-gauge shotgun; and a .22 caliber pistol. The safe

also contained ammunition, a wooden box with “Tom and Sam” written on it, and a life

insurance statement with “Kantor” on it. A coffee mug found in the bedroom near the

safe contained a shotgun choke and additional ammunition; neither the choke nor the

ammunition fit any gun found in the safe.

          Subsequent to the search of Salyers’ home, an officer interviewed S.B. According

to S.B., she had previously lived in Salyers’ home, but moved out a few days before the

search. S.B. claimed ownership of the full-length, 20-gauge shotgun, as well as the gun

safe itself. No evidence identified S.B. as the owner of the sawed-off shotgun or the

pistol.




                                              3
       After the State rested its case, Salyers moved for a directed verdict, arguing that

the State failed to prove beyond a reasonable doubt that he had constructively possessed

the guns in the safe. The trial court denied the motion. Salyers presented no evidence

and the jury found him guilty of all counts.

       Salyers appealed his conviction, challenging, among other things, the sufficiency

of the evidence supporting possession. State v. Salyers, 842 N.W.2d 28, 32-33 (Minn.

App. 2014). Noting that “this issue is one of first impression in Minnesota,” the court of

appeals “h[e]ld that a person possesses the readily accessible firearms inside a container

under that person’s control.” Id. at 35. Applying this rule to Salyers, the court of appeals

determined that there was sufficient evidence to support Salyers’ conviction. Id. In

reviewing Salyers’ conviction, the court of appeals declined to apply the heightened

circumstantial-evidence standard of review, holding that the conviction was supported by

direct evidence of Salyers’ exclusive control over the gun safe. Id. at 34.

       We granted review on Salyers’ claim that the court of appeals erred in holding that

“a person possesses the readily accessible firearms inside a container under that person’s

control.” In granting review, we directed the parties to address whether the heightened

circumstantial-evidence standard of review applies to a challenge to the sufficiency of the

evidence of constructive possession.

                                               I.

       Salyers argues that the court of appeals created a specialized rule under the

constructive-possession doctrine for the contents of a locked container that is inconsistent

with existing law.     Specifically, Salyers argues that the court of appeals’ rule is


                                               4
inconsistent with the constructive-possession analysis from State v. Florine, 303 Minn.

103, 226 N.W.2d 609 (1975), because it focuses on ease of access to the container and its

contents to the exclusion of other factors relevant to a defendant’s exercise of “dominion

and control” over the contents of a locked container. The issue of whether the court of

appeals properly applied Minnesota’s constructive-possession doctrine to possession of

firearms inside a locked safe is a question of law that we review de novo. See State v.

Ndikum, 815 N.W.2d 816, 818 (Minn. 2012).

       Possession of a firearm may be proved through actual or constructive possession.

See State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982). We have indicated that the

purpose of the constructive-possession doctrine

       is to include within the possession statute those cases where 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
       [item] and did not abandon his possessory interest in the [item] but rather
       continued to exercise dominion and control over it up to the time of the
       arrest.

Florine, 303 Minn. at 104-05, 226 N.W.2d at 610. In Florine, we held that to establish

constructive possession, the State must show either (1) that 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.” Id. at 105, 226 N.W.2d at

611.   We have consistently applied Florine’s analysis as the test for constructive

possession. See, e.g., State v. Lee, 683 N.W.2d 309, 316 n.7 (Minn. 2004); State v.



                                             5
Robinson, 517 N.W.2d 336, 340 (Minn. 1994); State v. Wiley, 366 N.W.2d 265, 270

(Minn. 1985); State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982).

       The analysis required under Florine is “necessarily fact driven.”       Comm’r of

Revenue v. Fort, 479 N.W.2d 43, 46 (Minn. 1992). Along the same lines, we have held

that jury instructions regarding constructive possession are improper when they

emphasize one factor to the exclusion of other relevant factors. For example, in State v.

Olson, we held that the trial court’s constructive-possession instruction was improper

when it stated that “[t]he presence of a controlled substance in open view in a room . . .

permits the factfinder to infer knowing possession of the controlled substance by each

person in close proximity to the controlled substance . . . .” 482 N.W.2d 212, 215 (Minn.

1992). We reasoned that such an instruction “was not a balanced instruction on the

various relevant factors bearing on the jury’s determination of the disputed possession

issue but rather was one which singled out and unfairly emphasized one factor, one piece

of the circumstantial evidence, bearing on that determination . . . .” Id. at 216; see also

State v. Flowers, 734 N.W.2d 239, 261-62 (Minn. 2007) (holding that a jury instruction

was erroneous because it stated that knowing possession “may be inferred if the firearm

was in a place under [the accused’s] exclusive control” but did not “instruct the jury that

it was not required to accept that the inference [of knowledge] necessarily followed from

the facts”).

       By placing conclusive significance on whether a “person possesses the readily

accessible firearms inside a container under that person’s control,” the court of appeals

unnecessarily narrowed the constructive-possession analysis we established in Florine.


                                            6
While ease of access is certainly one factor relevant to establishing constructive

possession, it is not the sole factor or necessarily even the most important factor. Thus,

we reject the court of appeals’ “readily accessible” test for constructive possession of

firearms inside a locked container. Instead, we reaffirm that all of the factors identified

in Florine are relevant to determining constructive possession of the items within a

container.

                                             II.

       Having determined that the court of appeals’ emphasis on ease of access to the

exclusion of other factors was inconsistent with our constructive-possession doctrine, we

next consider whether the evidence was sufficient to support Salyers’ conviction under

the constructive-possession test set out in Florine. As an initial matter, there is a question

as to the appropriate standard of review. In reviewing the sufficiency of the evidence we

generally “view the evidence in a light most favorable to the verdict to determine

‘whether the facts in the record and the legitimate inferences drawn from them would

permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable

doubt of the offense of which he was convicted.’ ” Davis v. State, 595 N.W.2d 520, 525

(Minn. 1999) (quoting State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992)). We have

determined, however, that a higher level of scrutiny is warranted if a conviction is based

on circumstantial evidence.2 See, e.g., State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn.


2
       The standard of review for convictions based on circumstantial evidence requires a
two-step analysis. First, this court “must identify the circumstances proved, giving
deference ‘to the jury’s acceptance of the proof of these circumstances and rejection of
                                                      (Footnote continued on next page.)

                                              7
2010); State v. Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010). While Salyers does not

assert that the circumstantial-evidence standard of review is per se warranted in the

context of constructive possession, he contends that the court of appeals erred in

declining to apply the circumstantial-evidence standard of review to his sufficiency-of-

the-evidence challenge because the evidence of constructive possession of the firearms

introduced at trial was “purely circumstantial.” He points specifically to the box found in

the safe and the key found in his bedroom. The State contends that it proved Salyers’

constructive possession of the firearms by direct evidence of his exclusive control over

the gun safe.

       Under the first prong of Florine, constructive possession of an item is established

by the item’s location in a place under the defendant’s exclusive control, defined as a

“place . . . to which other people d[o] not normally have access.” 303 Minn. at 105, 226

N.W.2d at 611. Here, the State presented direct evidence of Salyers’ exclusive control

over the place where the guns were located—the gun safe. Sheriff’s deputies testified

that they observed the safe in Salyers’ house, in a bedroom, and that no one else lived in




(Footnote continued from previous page.)
evidence in the record that conflicted with the circumstances proved by the state.’ ” State
v. Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010) (quoting State v. Andersen, 784
N.W.2d 320, 329 (Minn. 2010)). Second, this court “independently examine[s] ‘the
reasonableness of all inferences that might be drawn from the circumstances proved’ ” to
determine “whether the circumstances proved are ‘consistent with guilt and inconsistent
with any rational hypothesis except that of guilt’ ” Id. at 242 (quoting Andersen, 784
N.W.2d at 329-30).




                                            8
the house at the time of the search.3 See, e.g., Keys v. State, 478 So. 2d 266, 268 (Miss.

1985) (characterizing testimony that defendant lived in his apartment alone and that law

enforcement observed marijuana in the bathroom of defendant’s apartment as direct

evidence of constructive possession). No other evidence was required to establish the

actus reus of possession of the guns. Thus, the State established Salyers’ constructive

possession of the guns by direct evidence. Accordingly, we conclude that the court of

appeals did not err in declining to apply the circumstantial-evidence standard of review.4

       It should be noted that to convict Salyers under Minn. Stat. § 609.165, subd. 1b(a),

Minn. Stat. § 609.667(3), or Minn. Stat. § 609.67, subd. 2, the State also had to prove that

Salyers’ possession of the guns was knowing. While none of these statutes expressly

state that knowledge of possession is a requirement, statutory silence is typically

insufficient to dispense with the mens rea requirement. See State v. Ndikum, 815 N.W.2d

816, 822 (Minn. 2012). In fact, we have made it clear, at least with respect to the

felon-in-possession statute, that knowledge of the prohibited item is required.         See

3
        Salyers contends that his exclusive control over the location of the safe does not
establish constructive possession of the contents of the safe, given that S.B. claimed
ownership of the safe and that S.B. recently resided in his home. Neither contention has
merit. First, a person may possess property even if another person owns that property.
See State v. Spence, 768 N.W.2d 104, 108-09 (Minn. 2009) (distinguishing between
ownership and possessory interests). Second, there is no evidence in the record that the
fact that S.B previously lived in Salyers’ home had any bearing on Salyers’ exclusive
control over the safe and its contents at the time of the search—particularly because S.B.
left the guns and the safe behind when she moved out of Salyers’ home.
4
       Because we conclude that the court of appeals did not err in declining to apply the
heightened circumstantial-evidence standard of review, we need not address the broader
question, briefed by the parties, of when the heightened circumstantial-evidence standard
of review should be applied to sufficiency challenges involving constructive possession.


                                             9
Flowers, 734 N.W.2d at 261-62 (holding that the trial court gave an improper instruction

by stating that knowing possession, for purposes of being a prohibited person in

possession of a firearm, may be inferred from the accused’s exclusive control over the

firearm’s location). The question of whether the State provided sufficient evidence that

Salyers knew the safe contained guns is not before us, however. Salyers did not address

the knowledge requirement in his principal brief to the court of appeals or in his petition

for review to our court. See State v. Finnegan, 784 N.W.2d 243, 248 n.3 (Minn. 2010)

(explaining that failure to raise an issue in the petition for review “waives the issue on

appeal”); see also In re GlaxoSmithKline PLC, 699 N.W.2d 749, 757 (Minn. 2005).

       In sum, we reject the court of appeals’ “readily accessible” test for determining

constructive possession of objects inside a locked container but hold that, under the first

prong of Florine, the direct evidence of Salyers’ exclusive control over the gun safe was

sufficient to establish Salyers’ constructive possession of the guns inside the safe.

       Affirmed.




                                             10
