                        This opinion will be unpublished and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
                                   A14-0702

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                     Trevon Fuller,
                                       Appellant.

                                  Filed June 8, 2015
                                      Affirmed
                                     Reyes, Judge

                            Hennepin County District Court
                               File No. 27CR1210711

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

      Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and

Bjorkman, Judge.

                       UNPUBLISHED OPINION

REYES, Judge

      Appellant Trevon Fuller challenges his convictions of fifth-degree sale of

marijuana while in possession of a firearm and gross misdemeanor endangerment of a
child, arguing that (1) the district court erred by not entering a judgment of acquittal on

the sale offense; (2) appellant was prejudiced by the district court’s failure to instruct the

jury on an element of the sale offense; (3) the district court erred by refusing to instruct

the jury that it could not base a conviction on appellant’s confession alone; (4) the state

failed to prove beyond a reasonable doubt that appellant is guilty of child endangerment;

(5) the state improperly used a preemptory challenge to remove a member of the jury

panel based on race; (6) the district court committed prejudicial plain error by improperly

instructing the jury on the elements of possession of a firearm; and (7) the prosecutor

committed prejudicial misconduct by referring to appellant as a “dope dealer” in closing

arguments. We affirm.

                                           FACTS

       On November 21, 2011, Minneapolis police searched the residence of appellant’s

girlfriend T.B. pursuant to a search warrant. Upon gaining entry into the home, the

officers noticed appellant standing at the top of the stairs on the second floor. A member

of the SWAT team, Officer Andrew Stender, went into the upstairs bathroom and saw the

toilet backfilling with water. Officer Stender observed a “leafy substance” he “believed”

was marijuana in the water. Appellant and T.B. were handcuffed and placed faced down

on the living room floor. The officers placed the couple’s 10-month-old child on the

floor a few feet away from the couch in the living room. A search of appellant’s person

revealed a small container of 9.4 grams of suspected marijuana.

       The officers searched the rest of the residence and discovered (1) a 9 mm handgun

under the couch cushion; (2) 16.5 grams of suspected marijuana in T.B.’s purse in a


                                               2
bedroom upstairs; (3) 6.1 grams of suspected marijuana in appellant’s jacket in the

kitchen; (4) a baggie of 133 grams of suspected marijuana in a backpack located in the

kitchen pantry; and (5) a digital scale and some plastic sandwich bags in a kitchen

drawer. The suspected samples of marijuana were sent to the Bureau of Criminal

Apprehension (BCA) for testing. In accordance with its policy, the BCA only tested the

marijuana found in the backpack because its weight met the threshold requirement for a

felony charge. A BCA forensic scientist determined that the baggie containing 133

grams of suspected marijuana found in the backpack was indeed marijuana.

       Appellant was arrested and taken to the police station where he was questioned by

Officer Daniel Willis. This interview was recorded. During the interview, appellant

stated that he had been staying at T.B.’s residence for a couple of days. When Officer

Willis told appellant that they recovered marijuana from the upper level of the residence

and asked him to whom the marijuana in the house belonged, appellant responded that it

was his. Appellant estimated that he had “about an ounce or two” and explained that it

was for his personal use. Officer Willis asked appellant if he ever sold marijuana.

Appellant responded, “I mean, not really but I got friends and sometimes.” Appellant

stated that he sold “a five sack every now and again.” Appellant admitted that the

firearm found in the couch belonged to him.

       By a third amended complaint, appellant was charged with possession of a large

amount of marijuana while possessing a firearm (count I), child endangerment (count II),

and sale of marijuana while possessing a firearm (count III). The probable-cause portion




                                              3
of the final amended complaint referred only to the 133 grams of marijuana that was

found in the backpack.

       At trial, the jury was presented with evidence of the 133 grams of marijuana, the

BCA test results, and the remaining items that were obtained from the search. They also

heard testimony that the amount of marijuana recovered was consistent with an amount

intended for distribution. Appellant did not testify; however, the recording of his

interview with Officer Willis was played to the jury. After the state rested its case,

appellant moved the district court for a judgment of acquittal as to all three counts

pursuant to Minn. R. Crim. P. 26.03, subd. 18. This motion was denied. Appellant did

not present any additional evidence or witnesses.

       The jury returned guilty verdicts on all three counts. However, with respect to

count I, the jury answered “no” in response to the special interrogatory: “Was the amount

of marijuana possessed more than 42.5 grams?” Based on that answer, appellant again

brought a motion for acquittal on all counts. A judgment of acquittal was entered on

count I, and the district court denied appellant’s motion as to the remaining counts.

Appellant was also denied a downward departure and sentenced to the mandatory 36-

month prison term for the fifth-degree sale of marijuana offense. The district court

imposed a concurrent 365-day jail term for the child-endangerment offense. This appeal

followed.




                                              4
                                      DECISION

   I.      The district court did not err in denying appellant’s motion for judgment
           of acquittal as to his conviction for possession of marijuana with intent to
           sell.

        We review a district court’s denial of a judgment of acquittal de novo. See State v.

McCormick, 835 N.W.2d 498, 506 (Minn. App. 2013), review denied (Minn. Oct. 15,

2013). “A motion for judgment of acquittal is properly denied where the evidence,

viewed in the light most favorable to the [s]tate, is sufficient to sustain a conviction.”

State v. Simion, 745 N.W.2d 830, 841 (Minn. 2008). We apply this same standard when

reviewing a challenge to the sufficiency of the evidence. State v. Webb, 440 N.W.2d 426,

430 (Minn. 1989). Therefore, in reviewing a denial of a judgment of acquittal, “we

review the evidence 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.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation omitted).

“The jury’s verdict will be upheld if, giving due regard to the presumption of innocence

and to the state’s burden of proof beyond a reasonable doubt, the jury could reasonably

have found the defendant guilty.” Id. (quotation omitted).

        Appellant was convicted of violating section 152.025, subdivision 1(a)(1), which

provides that a person is guilty of a fifth-degree controlled substance crime if “the person

unlawfully sells one or more mixtures containing marijuana . . . , except a small amount

of marijuana for no remuneration.” Minn. Stat. § 152.025, subd. 1(a)(1) (2010). “Sell”

means “to sell, give away, barter, deliver, exchange, distribute or dispose of to another”


                                              5
or to possess with the intent to sell, give away, barter, deliver, exchange, distribute or

dispose of to another. Minn. Stat. § 152.01, subd. 15a(1), (3) (2010). “Small amount,” as

applied to marijuana, is defined in section 152.01, subdivision 16 as an amount equal to

42.5 grams or less. Minn. Stat. § 152.01, subd. 16 (2010).

       There is no direct evidence that appellant possessed marijuana with the intent to

sell. Appellant’s conviction rests upon circumstantial evidence. “A conviction based on

circumstantial evidence warrants stricter scrutiny.” State v. Smith, 619 N.W.2d 766, 769

(Minn. App. 2000), review denied (Minn. Jan. 16, 2001). “While the law does not prefer

direct evidence to circumstantial evidence, a conviction based on circumstantial evidence

requires that the circumstances proved be consistent with an appellant’s guilt and

inconsistent with any other rational or reasonable hypothesis.” State v. Sam, 859 N.W.2d

825, 833 (Minn. App. 2015) (citations omitted).

       When reviewing the sufficiency of circumstantial evidence, we apply a two-step

process. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). Our first task is to

identify the circumstances proved, giving deference to the fact-finder and construing the

evidence in the light most favorable to the verdict. State v. Andersen, 784 N.W.2d 320,

329 (Minn. 2009). Under this step, we assume that the fact-finder rejected the

defendant’s version of events. See Al-Naseeri, 788 N.W.2d at 473. Deference is given to

the fact-finder as it is not the reviewing court’s role to evaluate the credibility of

witnesses. State v. Hawes, 801 N.W.2d 659, 670 (Minn. 2011). This is especially true

when resolution of the matter depends mainly on conflicting testimony. State v.

Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).


                                               6
       Taken in the light most favorable to the verdict, the evidence established the

following circumstances: (1) appellant admitted to possessing the marijuana in the house;

(2) appellant stated that he “sometimes” sold weed and that he sold “a five sack every

now and again;” (3) in addition to the large amount of marijuana that was found in the

backpack, the search revealed three other bags of suspected marijuana totaling 32 grams;

(4) Officer Stender observed a leafy substance he believed was marijuana flushed down

the toilet; (5) there was a digital scale and plastic baggies in a kitchen drawer which also

contained marijuana residue; (6) appellant’s jacket, containing marijuana, was also found

in the kitchen; (7) appellant admitted to owning the firearm found in the couch; and

(8) firearms are commonly associated with the sale of narcotics.

       Having established the circumstances proved, the second step requires this court to

determine whether the “circumstances proved are consistent with guilt and inconsistent

with any rational hypothesis except that of guilt.” Silvernail, 831 N.W.2d at 599

(quotation omitted). We conclude that the circumstances proved are consistent with guilt.

While the jury found that appellant was not in possession of more than 42.5 grams of

marijuana, one can reasonably infer that appellant possessed the remaining 32 grams of

marijuana with intent to sell for remuneration.

       Appellant’s argument that the miscellaneous 32 grams of marijuana is insufficient

to uphold his conviction because it was not tested by the BCA is unpersuasive.

“[C]ircumstantial evidence and officer testimony may be presented to the jury to attempt

to prove the identity of [a] substance.” State v. Olhausen, 681 N.W.2d 21, 28-29 (Minn.

2004). Here, there was significant circumstantial evidence to prove the identity of the 32


                                              7
grams of suspected marijuana. When told by Officer Willis that the officers discovered

marijuana at the residence, appellant admitted that the suspected marijuana was

marijuana for his personal use. During trial, there was testimony from four different

officers that all of the suspected marijuana smelled and looked like marijuana. These

officers testified that they have executed a number of search warrants, spent time in the

property inventory rooms, and have training and other experience that made them

familiar with the physical appearance and smell of marijuana. Therefore, we conclude

that the circumstantial evidence and officer testimony that was presented to the jury was

sufficient to prove the identity of the 32 grams of marijuana.

       Appellant also contends that his due-process rights were violated because the

factual basis in the complaint only mentioned the large amount—133 grams—of

marijuana. While this is true, appellant has not met his burden of showing that this

“variance deprived [appellant] of . . . the opportunity to prepare a defense to the charge

against him.” State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997) (quotation omitted).

Here, appellant was apprised of the charges against him. Appellant knew that evidence

of the 32 grams of marijuana would be presented to the jury. Indeed, throughout the

course of the trial, appellant heard testimony from the officers regarding those samples of

marijuana. There was testimony relating to the amount, smell, appearance, and location

in which the marijuana was found. Moreover, appellant’s closing argument directly

addressed all of the marijuana recovered and appellant maintained that none of it could be

used to convict him. Appellant fails to meet his burden of showing that he was deprived

of the opportunity to prepare a defense and that his right to due process was violated.


                                             8
   II.        Appellant was not prejudiced by the district court’s failure to instruct the
              jury on an element of the sale offense.

         Because appellant did not object to the jury instructions during trial, we review for

plain error. See State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (stating that when a

defendant fails to object to jury instructions during trial, this court reviews the issue on

appeal for plain error). Under the plain-error test, appellant must show (1) error, (2) that

was plain, and (3) that affected the “substantial rights” of appellant. Id. If all three

prongs are satisfied, then a reviewing court may decide whether to address the error to

ensure the “fairness and the integrity of the judicial proceedings.” Id. (quotation

omitted).

         A.      Error

         It is well settled that jury instructions must define the crime charged, and the

district court must explain the elements of the offense to the jury. State v. Ihle, 640

N.W.2d 910, 916 (Minn. 2002). A defendant is entitled to have all the elements of the

offense with which he is charged submitted to the jury, even if evidence relating to an

element is uncontroverted. State v. Carlson, 268 N.W.2d 553, 560 (Minn. 1978).

“[F]ailure to properly instruct the jury on all elements of the offense charged is plain

error.” State v. Vance, 734 N.W.2d 650, 658 (Minn. 2007), overruled on other grounds

by State v. Fleck, 810 N.W.2d 303 (Minn. 2012).

         Minn. Stat. § 152.025, subd. 1(a)(1) states:

                         A person is guilty of a controlled substance crime in
                 the fifth degree . . . if: (1) the person unlawfully sells one or
                 more        mixtures           containing     marijuana        or



                                                9
              tetrahydrocannabinols, except a small amount of marijuana
              for no remuneration.

(Emphasis added). The following instruction was given to the jury:

                     The statutes of Minnesota provide that whoever
              unlawfully sells one or more mixtures containing marijuana is
              guilty of a crime.

                      The elements of sale of a controlled substance crime in
              the fifth degree are:

                     First, the defendant sold one or more mixtures
              containing marijuana.

                     “To sell” means to sell, give away, barter, deliver,
              exchange, distribute, or dispose of to another; to offer or
              agree to do the same; to possess with the intent to do the
              same; or to manufacture. A “mixture” is a preparation,
              compound, mixture, or substance containing a controlled
              substance, regardless of its purity.

                     Second, the defendant knew or believed that the
              substance the defendant sold was marijuana.

                    Third, the defendant’s act took place on or about
              November 21, 2011 in the city of Minneapolis in Hennepin
              County.

                    If you find that each of these elements has been proven
              beyond a reasonable doubt, the defendant is guilty. If you
              find that any element has not been proven beyond a
              reasonable doubt, the defendant is not guilty.

Appellant argues that the district court’s jury instructions did not require the jury to find

that appellant possessed with intent to sell more than a small amount of marijuana for no

remuneration. We agree.

       “The test for determining what constitutes a basic element of rather than an

exception to a statute has been stated as whether the exception is so incorporated with the


                                              10
clause defining the offense that it becomes in fact a part of the description.” State v.

Brechon, 352 N.W.2d 745, 749 (Minn. 1984) (quotation omitted). In State v. Gallus, we

determined that “[a]lthough Minn. Stat. 152.025, subd 1(1), contains the word ‘except,’

the determination of whether the marijuana possessed by a defendant is more than a

‘small amount’ is part of the definition of the offense.” 481 N.W.2d 116, 119 (Minn.

App. 1992), review denied (Minn. Mar. 26, 1992). Therefore we held that “[p]roof of the

weight of the marijuana is a basic element of the crime, the burden of which is on the

state.” Id.

       It is clear from section 152.025, subdivision 1(a)(1) that the language “for no

remuneration” in the phrase “except a small amount for no remuneration” is also part of

the legislature’s description of the offense of fifth-degree sale of marijuana. Indeed, the

sale of a “small amount” of marijuana for no “remuneration” is a separate offense—a

petty misdemeanor under Minn. Stat. § 152.027, subd. 4(a) (2010). Thus, reading the

two statutes together makes it evident that a fifth-degree sale cannot be based on the sale

of a small amount of marijuana for no remuneration. See State v. Hart, 393 N.W.2d 707,

709 (Minn. App. 1986) (“The common sense reading . . . indicates that the legislature

intended, by the phrase ‘distribution of a small amount of marijuana for no

remuneration,’ to take the person who shares a small amount of marijuana with an

acquaintance out of the felony category, and confines that offense to the category of a

petty misdemeanor.”).

       Including the language “for no remuneration” as an element of the offense allows

a defendant to be convicted of the felony offense of fifth-degree sale of marijuana in


                                             11
circumstances where, such as here, appellant only possessed a small amount of

marijuana. We have previously made clear that “we do not read Gallus to require a

person to possess more than a small amount of marijuana in order to be guilty of

possession with intent to sell if the intended sale is for remuneration.” State v.

Blahowski, 499 N.W.2d 521, 526 (Minn. App. 1993) (emphasis added), review denied

(Minn. June 22, 1993); see also State v. Tykwinski, No. C3-99-1608, 2000 WL 1051919

at *2 (Minn. App. Aug. 1, 2000) (explaining that the intent to receive remuneration for

selling marijuana is “one of the elements of possession with intent to sell”); State v.

Weigand, No. C5-91-2208, 1992 WL 189343 at *2 (Minn. App. Aug. 11, 1992) (holding

that the “no remuneration” language is part of the same clause as the “except a small

amount” language and therefore “must be considered part of the same element of the

offense”). Furthermore, although in a different context, the Minnesota Supreme Court

has explained that “[w]hen the legislature . . . includes the absence of a fact in the

definition of an offense, the absence of that fact is generally treated as an element of the

offense.” State v. Burg, 648 N.W.2d 673, 678 (Minn. 2002).

       For these reasons, we hold that the “no remuneration” language in section

152.025, subdivision 1(a)(1) is an element of the offense that must be proved by the state

beyond a reasonable doubt. See Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn.

1997) (“If the statute is free from all ambiguity, we look only to its plain language.

When, however, the literal meaning of the words of a statute would produce an absurd

result, we have recognized our obligation to look beyond statutory language to other

indicia of legislative intent.”).


                                              12
       Here, the jury was not instructed that in order to find appellant guilty, it must find

that appellant either possessed a large amount of marijuana with the intent to sell or that

he possessed a small amount of marijuana with intent to sell for remuneration.1 Because

that element of the offense is necessary to uphold appellant’s conviction of sale of

marijuana in the fifth degree, its omission was erroneous.

       B.     Plain

       “An error is plain if it is clear and obvious at the time of appeal. An error is clear

or obvious if it contravenes case law, a rule, or a standard of conduct.” State v. Little,

851 N.W.2d 878, 884 (Minn. 2014) (quotations and citation omitted). As discussed

above, in Gallus we held that “except a small amount” was an element of the offense.

Gallus, 481 N.W.2d at 119. And a jury must be instructed on all elements of the offense

charged. See Vance, 734 N.W.2d at 658. Accordingly, the district court’s failure to

instruct the jury as to this element of the offense was error that was plain.

       With respect to the “no remuneration” language, we acknowledge that there are no

published decisions in Minnesota which explicitly conclude that the “no remuneration”

language is considered an element of the offense. However, because we determine that it

is an element of the offense, we conclude that the failure to instruct the jury on this

element of the offense is error that was also plain. See id.; see also Burg, 648 N.W.2d at

680 (concluding that an erroneous jury instruction omitting an element of the offense was


1
  It bears mentioning that at the time the jury instructions were given, the state’s case
rested on appellant’s possession of the 133 grams of marijuana—an amount that exceeds
the statutory definition of “small amount.” See Minn. Stat. § 152.01, subd. 16 (2010)
(“‘Small amount’ as applied to marijuana means 42.5 grams or less.”).

                                             13
plain error even though there were no published decisions explicitly concluding that the

omitted language was an element of the offense); Carlson, 268 N.W.2d at 560

(explaining that a defendant is entitled to have all the elements of the charged offense

submitted to the jury even if evidence relating to an element is uncontroverted).

       C.     Substantial rights

       An error is prejudicial where there is a reasonable likelihood that the error had a

significant effect on the verdict. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).

The omission of an element of a crime in a jury instruction does not automatically

necessitate a new trial. State v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013). Instead, a

reviewing court must conduct a thorough examination of the record to determine whether

the omitted element of a charged offense from the jury instruction was “sufficiently

prejudicial.” Id. at 28-29. “The defendant bears the heavy burden of proving that the

error was prejudicial.” Milton, 821 N.W.2d at 809 (quotation omitted).

       Appellant has not met his burden. There is overwhelming evidence to prove this

element of the offense. Appellant admitted that he “sometimes” sold weed and that he

sold a “five sack every now and again.” There was a digital scale and plastic baggies

found in a kitchen drawer which also contained marijuana residue. Appellant’s jacket

which contained marijuana was also in the kitchen. Appellant admitted that all of the

marijuana in the house belonged to him. Moreover, a firearm belonging to appellant was

found in the residence, and the state presented evidence that firearms are commonly

associated with the sale of narcotics. Appellant’s substantial rights were not prejudiced

by the district court’s failure to instruct the jury on that element of the offense.


                                              14
   III.   The district court did not err in refusing to grant appellant’s request to
          instruct the jury that it could not convict appellant based solely on his
          confession.

       The refusal to give a requested jury instruction lies within the discretion of the

district court and will not be reversed absent an abuse of discretion. State v. Cole, 542

N.W.2d 43, 50 (Minn. 1996).

       The district court denied appellant’s request to instruct the jury pursuant to Minn.

Stat. § 634.03 (2010). Section 634.03 provides:

                     A confession of the defendant shall not be sufficient to
              warrant conviction without evidence that the offense charged
              has been committed; nor can it be given in evidence against
              the defendant whether made in the course of judicial
              proceedings or to a private person, when made under the
              influence of fear produced by threats.

Minn. Stat. § 634.03. Appellant argues that he cannot be convicted of a crime unless the

fact that a crime has actually been committed is established through independent

evidence (i.e. corpus delicti). “The corpus delicti is the proof that a crime was

committed.” State v. Weber, 272 Minn. 243, 247, 137 N.W.2d 527, 530 (1965).

       We disagree with appellant and conclude that the district court did not abuse its

discretion by denying appellant’s request. In State v. Heiges, the Minnesota Supreme

Court explained that Minn. Stat. § 634.03 “does not require that each element of the

offense charged be individually corroborated. Instead, Minn. Stat. § 634.03 only requires

independent evidence of attending facts or circumstances from which the jury may infer

the trustworthiness of the confession.” 806 N.W.2d 1, 13 (Minn. 2011) (quotations and

citations omitted).



                                             15
         Here, appellant’s confession that all the marijuana belonged to him and that he

occasionally sold marijuana was corroborated by independent evidence. The officers

recovered marijuana, a scale and baggies, appellant’s jacket, and a firearm that belonged

to appellant. “[O]nce a corpus delicti is established, [a] defendant can be convicted on

his own admission.” Weber, 272 Minn. at 247, 137 N.W.2d at 531. Moreover, proof of

the corpus delicti may be based upon circumstantial evidence. State v. Burnstein, 158

Minn. 122, 125, 196 N.W. 936, 937 (1924). And, as discussed above, there was

sufficient circumstantial evidence of appellant’s guilt with respect to the sale offense.

The district court did not abuse its discretion.

   IV.      The evidence is sufficient to support appellant’s conviction of child
            endangerment.

         In considering a claim of insufficient evidence, we conduct a careful and thorough

analysis of the record to determine whether the evidence, when viewed in the light most

favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they

did. Webb, 440 N.W.2d at 430. In doing so, we assume “the jury believed the state’s

witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d

101, 108 (Minn. 1989). We will not disturb the verdict if the jury, acting with due regard

for the presumption of innocence and the requirement of proof beyond a reasonable

doubt, could reasonably conclude the defendant was guilty of the charged offense.

Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

         Appellant was convicted of child endangerment in violation of Minn. Stat.

§ 609.378, subd. 1(c) (2010), which provides that “[a] person who intentionally or



                                              16
recklessly causes a child under 14 years of age to be placed in a situation likely to

substantially harm the child’s physical health or cause the child’s death as a result of the

child’s access to a loaded firearm is guilty of child endangerment.” Appellant argues that

the evidence was insufficient to prove that appellant’s infant child was endangered as a

result of the child’s access to a loaded firearm because there was no evidence that the

child was “physically capable of getting to the couch, lifting the cushion, and obtaining or

using the firearm.” We are not persuaded.

       The firearm was discovered in a place to which the child had easy access. It was a

loaded weapon that did not have a “trigger lock” or safety on. The child was present

when the firearm was discovered. The child is an infant under the age of 14. Viewing

the evidence in the light most favorable to the verdict, the evidence here was sufficient

for the jury to find appellant guilty of child endangerment.

V.     The district court did not err in determining that the prosecutor’s reason for
       the preemptory strike was not a pretext for purposeful discrimination.

       Appellant argues that the district court committed prejudicial error by denying his

Batson-racial-bias challenge to the state’s preemptory strike to remove S.O., one of the

two remaining prospective black jurors. “Generally, each party has a limited number of

peremptory challenges in a jury trial.” State v. Diggins, 836 N.W.2d 349, 354 (Minn.

2013). “Unlike a challenge for cause, a peremptory challenge allows a party to strike a

prospective juror without having to explain the reason for the strike.” Id. But “[t]he use

of peremptory challenges to exclude potential jurors is subject to the Equal Protection

Clause of the Fourteenth Amendment to the United States Constitution.” State v.



                                             17
Pendleton, 725 N.W.2d 717, 723 (Minn. 2007) (citing Batson v. Kentucky, 476 U.S. 79,

89, 106 S. Ct. 1712 (1986)).

       The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution prohibits excluding a potential juror based solely on race. Id. In Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), the Supreme Court established a three-

part test “to determine whether a peremptory challenge is motivated by a prohibited

discriminatory intent.” State v. Greenleaf, 591 N.W.2d 488, 500 (Minn. 1999). The

defendant must first make a prima facie showing that the state exercised the challenge on

the basis of race. Id. Once the prima facie showing has been made, the burden shifts to

the state to articulate a race-neutral reason for the challenge. Id. Finally, if the state is

successful in articulating a race-neutral reason, “the trial court must then determine

whether there has been purposeful discrimination.” Id. The Batson test is also set forth

in Minn. R. Crim. P. 26.02, subd. 7.

              1.      Appellant’s prima facie showing

       Under the first step of the Batson test, the defendant may establish a prima facie

case of racial discrimination “by showing that one or more members of a racial group

have been peremptorily excluded from the jury and that circumstances of the case raise

an inference that the exclusion was based on race.” State v. Stewart, 514 N.W.2d 559,

563 (Minn. 1994). Here, the district court found, and the parties agree, that appellant

made a prima facie showing.




                                               18
              2.      Race-neutral reasons

       The second step of the Batson test requires the state to articulate race-neutral

reasons for exercising the challenged peremptory strikes. “At this second step, the focus

of the inquiry is on the facial validity of the explanation; therefore the prosecutor’s reason

will be deemed race-neutral unless discriminatory intent is inherent.” State v. Gatson,

801 N.W.2d 134, 141 (Minn. 2011). A prosecutor may exercise a peremptory challenge

“for any reason at all, as long as that reason is related to [the potential juror’s] view

concerning the outcome of the case to be tried.” Batson, 476 U.S. at 89, 106 S. Ct. at

1719 (quotation omitted).

       The prosecutor informed the court that it struck S.O. because

              He said that he has been the victim of a domestic assault that
              has gone to prosecution three times. He was in a bar fight
              where he admitted that he was drunk and the police arrested
              him and, he says, even legitimately. He also said that he is in
              training to be a law enforcement officer.

                     His interactions with the criminal justice system
              abound, Your Honor, and I am worried that he won’t be able
              to separate those experiences from the testimony here today.

Appellant does not challenge the district court’s finding that the state presented a race-

neutral reason for striking S.O. and this finding is not clearly erroneous.

              3.      Purposeful discrimination

       Finally, the third Batson step requires the district court to determine “whether the

reason given was a pretext for purposeful discrimination.” State v. Carridine, 812

N.W.2d 130, 136 (Minn. 2012). The district court may consider whether the challenged

peremptory strike “will result in the disproportionate exclusion of members of a certain


                                              19
race.” Id. The party challenging the strike must demonstrate that (1) “the proffered race-

neutral reason is not the real reason for the strike” and (2) “the real reason was the race of

the veniremember.” Angus v. State, 695 N.W.2d 109, 117 (Minn. 2005). We give the

district court’s findings on the third step considerable deference, “because the court’s

finding typically turns largely on credibility.” State v. Taylor, 650 N.W.2d 190, 202

(Minn. 2002). The totality of the circumstances here supports the district court’s finding

that the state’s reasons for striking S.O. were not pretextual.

       Appellant argues that “the reasons articulated by the prosecutor were nonsensical

and an obvious pretext for a racially-motivated strike.” Generally, a juror or juror’s

family member’s involvement with the legal system can be a legitimate race-neutral

reason for the state to exercise a preemptory challenge. State v. Reiners, 664 N.W.2d

826, 832 (Minn. 2003). Here, S.O. indicated he had been arrested before and that he was

currently in law enforcement training. S.O. also indicated that his former partner had

served two years in prison for committing domestic abuse, to which S.O. was the victim.

“Peremptory challenges are designed to be used to excuse prospective jurors who can be

fair but are otherwise unsatisfactory to the challenging party.” Id. at 833. While S.O.

indicated that he is indifferent towards law enforcement and could remain fair, that does

not render the state’s reason pretextual. Thus, the district court did not err in its

determination that the state’s proffered explanation was not merely a pretext for a

discriminatory motive. See id. at 832.




                                              20
VI.    Appellant’s substantial rights were not affected by the district court’s plain
       error in its jury instruction on the elements of the offense of possession of a
       firearm.

       Appellant argues that the possession-of-a-firearm jury instruction failed to include

the necessary element that it substantially increased the risk of violence. Appellant did

not object to the district court’s instruction, so we review for plain error. Griller, 583

N.W.2d at 740.

       A.     Error

       Appellant was charged with one count of fifth-degree sale of a controlled

substance committed while possessing a firearm. Minn. Stat. § 152.025, subd. 1(a)(1);

Minn. Stat. § 609.11, subds. 5(a), (9) (2010). Minn. Stat. § 609.11, subdivision 5(a),

requires that a person convicted of a felony drug offense be sentenced to not less than

three years at the time of the offense, he was in possession of a firearm. For purposes of

that subdivision, the term “had in possession” includes both actual and constructive

possession. State v. Royster, 590 N.W.2d 82, 83-84 (Minn. 1999). In Royster, the

Minnesota Supreme Court determined that where there is constructive possession of a

firearm, the state had to also prove that the defendant’s “possession of [the] firearm while

committing a predicate felony offense substantially increases the risk of violence,

[regardless of] whether or not the [defendant] actually uses the firearm.” Id. at 85; See

also Salcido-Perez v. State, 615 N.W.2d 846, 848 (Minn. App. 2000) (upholding a

conviction based on the determination that there was “sufficient evidence to support the

finding that appellant had constructive possession of the loaded pistol and that the pistol

increased the risk of violence in connection with the drug offense”), review denied


                                              21
(Minn. Sept. 13, 2000). The jury instructions given here did not include such a

requirement, and the district court gave the following instruction which was taken

directly from the Criminal Jury Instruction Guide as provided in 10A Minnesota Practice

CRIMJIG 20.57 (2006):

              Constructive possession may be inferred when the firearm is
              in reasonable proximity to the defendant or to the drugs. In
              deciding whether to draw this inference, you should consider,
              among other factors, whether the presence of the firearm
              increased the risk of violence and the degree this risk was
              increased, the nature, type, and condition of the firearm, its
              ownership, whether it was loaded, its ease of accessibility, its
              proximity to the drugs and to the defendant, why the firearm
              was present, and whether the nature of the offense of
              controlled substance crime in the [fifth] degree is frequently
              or typically accompanied by the use of a firearm.

Thus, the failure to instruct the jury that they are required to find that appellant’s

possession of the firearm substantially increased the risk of violence was error.

       B.     Plain

       This error was plain because it contravenes existing law as set forth in Royster.

See Little, 851 N.W.2d at 884. And“[a]n instruction is not necessarily insulated from

being plain error because it follows the applicable CRIMJIG.” State v. Gunderson, 812

N.W.2d 156, 162 (Minn. App. 2012).

       C.     Substantial rights

       Although this was error that was plain, it did not affect appellant’s substantial

rights. There is sufficient evidence in the record that appellant possessed the firearm and

that appellant’s possession of the firearm substantially increased the risk of violence.

Appellant admitted that the firearm was his; the firearm was loaded and it was not


                                              22
secured by a trigger lock; the firearm was in an easily accessible location; and Officer

Kipke testified that firearms are commonly found in connection with controlled

substances for protection.

VII.   Appellant’s pro se argument

       Appellant raises one additional argument in his brief. Appellant appears to argue

that the prosecutor committed prejudicial misconduct during closing argument by

referring to appellant as a “dope dealer” and a “guy who is selling marijuana” during

opening and closing arguments.

       We review closing arguments in their entirety to determine whether prosecutorial

misconduct occurred. State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011). “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). The prosecutor has

“considerable latitude” in making a closing argument, and the argument is not required to

be “colorless.” Id. However, a prosecutor may not argue facts unsupported by the

record. See State v. Ferguson, 729 N.W.2d 604, 616 (Minn. App. 2007), review denied

(Minn. June 19, 2007) (holding that it is improper for a prosecutor to make arguments

unsupported by the record).

       Appellant did not make any objections to this portion of the closing argument at

trial. When an appellant does not object to an alleged prosecutorial error at trial, we

apply the modified plain-error standard of review. State v. Ramey, 721 N.W.2d 294, 302




                                             23
(Minn. 2006) (stating that the burden shifts to the state to demonstrate that the

misconduct did not affect substantial rights).

       The prosecutor’s passing characterization of appellant as a “dope dealer” was not

error. Indeed, this was part of the state’s theory of the case, and this inference can be

drawn based on the evidence that was presented to the jury. Moreover, it does not rise to

the same level of prosecutorial misconduct that we have admonished in other cases. See,

e.g., State v. Duncan, 608 N.W.2d 551, 556 (Minn. App. 2000) (finding that the

prosecutor’s references to defendant as a “predator,” as well as various other forms of the

word, made several times during its closing argument, was intended to improperly

inflame the passions or prejudices of the jury). Because we conclude that this was not

error, we do not need to analyze the remaining prongs of the modified plain-error test.

       Affirmed.




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