                         This opinion will be unpublished and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
                                    A14-1544

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                 Corey Vern Schmidt,
                                     Appellant.

                                Filed August 17, 2015
                                      Affirmed
                                    Reyes, Judge

                             Stearns County District Court
                                 File No. 73CR143021

Lori Swanson, Attorney General, Angela Behrens, Assistant Attorney General, St. Paul,
Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant State
Public Defender, St. Paul, Minnesota (for appellant)

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

Reyes, Judge.
                         UNPUBLISHED OPINION

REYES, Judge

       On appeal following his conviction for second-degree possession of a controlled

substance and obstruction of the legal process, appellant Corey Vern Schmidt argues that

(1) the evidence was insufficient to prove that he possessed methamphetamine and (2) he

was deprived of a fair trial by the prosecutor’s closing argument. We affirm.

                                         FACTS

       In April 2014, three St. Joseph police officers entered the convenience store of a

local gas station. While the officers were inside, appellant Corey Vern Schmidt also

entered the store. Officer Manderscheid recognized Schmidt and radioed dispatch to run

a warrant check on him. Upon learning that Schmidt had an active warrant, Officer

Manderscheid placed a hand on Schmidt’s left arm and informed him that he was under

arrest. Schmidt pulled away from Officer Manderscheid and ran out the front door.

Officers Manderscheid and Haugen pursued Schmidt northwest across the gas-station

parking lot, while Sergeant Pfannenstein left through a separate exit door.

       While running from the officers, Schmidt lost his sandals, tripped, and fell to the

ground near the northernmost gas pumps. Officers Manderscheid and Haugen quickly

got on top of Schmidt and arrested him. Sergeant Pfannenstein, who exited the store last,

arrived at the group after the other two officers were on top of Schmidt. As he

approached, Sergeant Pfannenstein discovered a child-sized sock on the ground next to

the area where Schmidt had been subdued. Sergeant Pfannenstein later testified that

because of the number of people on the ground, he could not see the sock until the people


                                             2
stood up. Officer Manderschied testified that the sock was found on the ground

approximately five feet from where Schmidt was arrested.

       Inside the sock, Sergeant Pfannenstein found two baggies containing a total of 16

grams of methamphetamine and a third baggie containing smaller plastic baggies. As

Sergeant Pfannenstein examined the contents of the sock, the other officers began

escorting Schmidt to their squad car. From about ten feet away, Schmidt watched

Sergeant Pfannenstein remove the items, remarked that “it was not his meth,” and

asserted that the officers could not charge him because it was not in his possession.

Officer Manderschied searched Schmidt after the arrest and found a lighter, two cell

phones, a small amount of marijuana and a marijuana pipe. Schmidt was transported to

the Sterns County Jail.

       At the jail, Schmidt waived his right to counsel and provided a statement to the

officers. In the statement, Schmidt asserted that the methamphetamine could not be his

because the officers tackled him in the middle of the parking lot, “[f]ar away from the

pumps.” When it was suggested that Schmidt threw the sock while he was running,

Schmidt responded, “I was not able to do anything of the such. You [would have] clearly

seen me doing anything of that type.” Schmidt was charged with second-degree

possession of a controlled substance, fleeing a police officer, and obstructing legal

process. Schmidt pleaded guilty to fleeing a police officer but had a jury trial on the

remaining counts. At trial, the jury heard testimony from Officer Manderscheid,

Sergeant Pfannenstein, and a forensic scientist. The forensic scientist testified that she




                                              3
unsuccessfully tested the bag containing the smaller plastic baggies for latent

fingerprints.1 No DNA testing occurred.

         The jury also heard Schmidt’s statement to the police and viewed surveillance

footage and still photographs taken from the gas station. Both officers testified that they

did not see Schmidt throw anything during the foot chase. Officer Manderscheid

explained that he did not noticed Schmidt’s arms during the chase because he had “tunnel

vision” and was focused on placing Schmidt in custody. After reviewing the surveillance

video and photos, the officers admitted that the video and photos were grainy.

         The jury found Schmidt guilty of second-degree possession of a controlled

substance and obstructing legal process. The court sentenced him to 88 months, and this

appeal followed.

                                       DECISION

         Schmidt argues that (1) the evidence was insufficient to prove that he possessed

methamphetamine and (2) he was deprived of a fair trial due to the prosecutor’s closing

argument.

I.       Sufficiency of the evidence

         When reviewing the sufficiency of the evidence, an appellate court considers

whether the legitimate inferences drawn from the evidence in the record would permit a

reasonable jury to conclude that the defendant was guilty beyond a reasonable doubt.

State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012). In doing so, the court views the

evidence in the light most favorable to the verdict. Id. at 874. We must assume “the jury

1
    The other two baggies containing the methamphetamine were not tested for fingerprints.

                                              4
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

could reasonably conclude the defendant was guilty of the charged offense. Bernhardt v.

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

       To obtain a conviction for possession of a controlled substance, the state must

prove that the defendant possessed the substance and knew the nature of the substance.

State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). Schmidt challenges

only the possession element, and the parties agree that this is a constructive-possession

case because the drugs were found on the ground. Constructive possession occurs when

a strong inference exists “that the defendant at one time physically possessed the

substance and did not abandon his possessory interest in the substance but rather

continued to exercise dominion and control over it up to the time of the arrest.” Id. at

105, 226 N.W.2d at 610. In order to prove constructive possession, the state must show

              (a) that the police found the substance in a place under
              defendant's exclusive control to which other people did not
              normally have access, or (b) that, if police found it 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. Here, the parties agree that the methamphetamine was

found in a place to which others had access.

       The parties also agree that the conviction is based upon circumstantial evidence

because it is based on an inference. An appellate court applies heightened scrutiny when

reviewing a verdict based on circumstantial evidence. Pratt, 813 N.W.2d at 874.



                                               5
Minnesota courts employ a two-step process when reviewing convictions based on

circumstantial evidence. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010). First,

the reviewing court identifies the circumstances proved. Id. This court defers to the fact-

finder’s acceptance and rejection of proof and to its credibility determinations. Id.

Second, we examine the reasonableness of the inferences that can be drawn from the

circumstances proved, including inferences of innocence as well as guilt. Id. All of the

circumstances proved must be consistent with guilt and inconsistent with any other

rational hypothesis negating guilt. Id. at 330. We do not, however, defer to the fact-

finder’s choice between rational hypotheses. Id. at 329-30. Appellate courts “view the

circumstantial evidence as a whole, not as isolated facts.” State v. Hurd, 819 N.W.2d

591, 599 (Minn. 2012). And the “[s]tate does not have the burden of removing all doubt,

but of removing all reasonable doubt.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn.

2010).

         Here, the circumstances proved are: (1) Schmidt had an active arrest warrant;

(2) Schmidt fled when officers tried to arrest him; (3) Schmidt tripped and fell near a gas

pump; (4) there was nothing on the ground before Schmidt fell;2 (5) after Schmidt was



2
  Schmidt argues that this circumstance was not proved. But the footage from the gas
station’s two surveillance cameras provided the jury with a before-and-after view of
where Schmidt landed and where Officer Pfannenstein found the sock. One camera
provides a wide-shot of all the pumps and captures the entire chase and retrieval of the
sock. The other camera alternatively pans and zooms on each individual gas pump,
including those at the northernmost end where the arrest and retrieval occurred. The
footage does not reveal any items on the ground when the camera zooms in on the
northernmost pumps. While Schmidt argues that this footage is “grainy” and “far from
conclusive,” it is an inference that supports the verdict, which the jury found convincing

                                              6
arrested and placed on his feet, a sock filled with 16 grams of methamphetamine was

found near the area where Schmidt fell; (6) Schmidt had numerous items in his pockets at

the time of the arrest; (7) as the officers inspected the sock, Schmidt claimed “it was not

his meth” and asserted that he could not be charged with its possession because it was not

in his possession; (8) the officers did not see Schmidt throw the sock; and (9) the security

footage does not show Schmidt throwing any items.

       Schmidt argues that a rational hypothesis other than guilt exists—someone else

dropped the sock containing methamphetamine at some point prior to Schmidt’s arrest.

But this hypothesis is inconsistent with the circumstances proved. The security footage

revealed that there was nothing on the ground prior to Schmidt falling and no one was in

that vicinity. Moreover, the sock was found approximately five feet from where Schmidt

was tackled and “[p]roximity is an important factor in establishing constructive

possession.” State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001). While Schmidt

attempts to disregard this fact by arguing that the “proximity” language in Breaux has

only been applied to drugs found in vehicles or homes, nothing in Breaux or the cases

Schmidt cites limits the consideration of proximity to only those scenarios. Additionally,

Schmidt’s own comment that “it was not his meth” further support the inference that

Schmidt constructively possessed the methamphetamine. See State v. Munoz, 385

N.W.2d 373, 377-78 (Minn. App. 1986) (affirming conviction based on the sufficiency of

evidence that included, among other factors, defendant’s on-the-scene identification of a


and “we defer . . . to the jury’s acceptance of the proof of these circumstances.” Stein,
776 N.W.2d at 718.

                                             7
substance that he denied possessing). Simply put, Schmidt’s hypothesis that it could be

someone else’s methamphetamine appears to be based on speculation and is not a rational

hypothesis and therefore does not negate his guilt. See Andersen, 784 N.W.2d at 330

(explaining that a rational hypothesis negating guilt must be based on more than mere

conjecture or speculation). Because sufficient evidence supports the jury’s verdict that

Schmidt constructively possessed the methamphetamine, we do not disturb the verdict.

See Bernhardt, 684 N.W.2d at 476-77.

II.    Prosecutorial misconduct

       Schmidt alleges that the prosecutor’s closing argument deprived him of a fair trial

by (1) improperly shifting the burden of proof; (2) belittling the defense; and (3) relying

on facts that are not in the record. Schmidt did not object to any part of the closing

argument. Allegations of unobjected-to prosecutorial misconduct are reviewed under a

modified plain-error test. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under

this test, an appellant must first establish that the prosecutor committed error that is plain.

Id. Upon making this showing, the burden then shifts to the state to show that the error

did not affect the defendant’s substantial rights. Id. This requires a showing that “there

is no reasonable likelihood that the absence of the misconduct in question would have

had a significant effect on the verdict.” State v. Hohenwald, 815 N.W.2d 823, 834

(Minn. 2012) (quotation omitted). Even if the error affected an appellant’s substantial

rights, a new trial is only warranted if necessary to ensure the fairness and integrity of

judicial proceedings. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).




                                               8
       A.     Burden of proof

       Schmidt argues that during closing arguments, the prosecutor improperly shifted

the state’s burden of proof by repeatedly asking the jury to choose between two

competing versions of what happened and decide which is more reasonable. Schmidt

argues that these remarks constitute error because they improperly encouraged the jury to

choose the most reasonable explanation rather than ask whether the state had shown

beyond a reasonable doubt that Schmidt constructively possessed the methamphetamine.

We agree.

       The supreme court has held that prosecutors misstate the burden of proof when

they ask the jury to “weigh the story in each hand and decide which one is most

reasonable, which one makes the most sense.” State v. Strommen, 648 N.W.2d 681, 690

(Minn. 2002). During closing arguments, the prosecutor referred to Schmidt’s version of

the events as an “alternative reality” and urged the jury to ask “how reasonable is the

alternative reality that they want to present to you which is pure coincidence.” The

prosecutor then asked the jury, “Does it really make sense that it was not his

methamphetamine? Really? That’s what your common sense and rational thought

process will lead you to that’s reasonable, that despite all the evidence to the contrary

that’s not his methamphetamine?” Because the prosecutor asked the jury to weigh the

state’s version of events against Schmidt’s “alternative reality” and decide which one is

reasonable, the prosecutor misstated the state’s burden of proof and thus committed error

that was plain. See id.




                                              9
       Although the prosecutor’s comments constituted plain error, the state has shown

that the error did not affect Schmidt’s substantial rights. To determine whether Schmidt’s

substantial rights were affected, we consider (1) the strength of the evidence against the

defendant; (2) the pervasiveness of the improper suggestions; and (3) whether the

defendant had an opportunity to rebut the improper suggestions. State v. Davis, 735

N.W.2d 674, 682 (Minn. 2007).

       The evidence that Schmidt constructively possessed the methamphetamine is

strong. Although no DNA or latent fingerprints were retrieved from the bag, the

testimony from the officers, Schmidt’s own statements, combined with the footage from

the surveillance video, all present a strong case. And while it is true that the evidence is

circumstantial rather than direct, “[w]hen a defendant is convicted based on

circumstantial evidence, the evidence is entitled to the same weight as any evidence so

long as the circumstances proved are consistent with the hypothesis that the accused is

guilty and inconsistent with any rational hypothesis except that of guilt.” State v.

Olhausen, 681 N.W.2d 21, 26 (2004) (quotation omitted). Thus, there is strong evidence

supporting Schmidt’s conviction.

       Next, the error does not appear to be so pervasive as to warrant a new trial.

Misconduct is examined both individually and cumulatively to determine if it denied a

defendant a fair trial. State v. Dobbins, 725 N.W.2d 492, 506 (Minn. 2006). As Schmidt

has pointed out, the prosecutor made reference to an improper burden of proof on a

number of occasions. However, the prosecutor correctly refers to the beyond-a-

reasonable-doubt standard no less than nine times over the course of closing arguments.


                                             10
And the district court itself reiterated the beyond-a-reasonable-doubt standard to the jury

six times before the parties began closing arguments. “[A] prosecutor's attempts to shift

the burden of proof are often nonprejudicial and harmless where . . . the district court

clearly and thoroughly instructed the jury regarding the burden of proof.” State v.

McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001). Accordingly, the error was not so

pervasive that it affected Schmidt’s substantial rights.

       Lastly, any error occurred prior to Schmidt having an opportunity to rebut the

error. The language Schmidt currently complains of all comes from the state’s initial

closing argument. Schmidt had an opportunity to use his own closing argument to rebut

the state’s references to the wrong burden-of-proof standard. Schmidt chose not to do so.

       In sum, even though the prosecutor committed plain error by misconstruing the

state’s burden of proof, any such error did not affect Schmidt’s substantial rights and a

new trial is not warranted.

       B.     Belittling the defense

       “[P]rosecutors must avoid inflaming the jury's passions and prejudices against the

defendant.” State v. Bailey, 677 N.W.2d 380, 404 (Minn. 2004). “The state has a right to

vigorously argue its case, and it may argue in individual cases that the evidence does not

support particular defenses. Further, the state’s argument is not required to be colorless.”

Davis, 735 N.W.2d at 682 (citation omitted). However, in doing so the state may not

belittle or denigrate the defense. State v. MacLennan, 702 N.W.2d 219, 236 (Minn.

2005). Whether a comment constitutes belittlement often depends on whether the

prosecutor roots the argument in the evidence, rather than his or her own personal


                                             11
opinion. Compare State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011) (concluding that the

suggestion that the jury would have to “believe the impossible” to accept the defendant’s

argument was not belittlement because the prosecutor highlighted evidence why the jury

should reject the defendant’s theory), with State v. Porter, 526 N.W.2d 359, 363 (Minn.

1995) (concluding that the prosecutor committed misconduct by arguing, “Do you

believe that? If you do and this is over, I got a time share in Santa Claus’s condo at the

[N]orth [P]ole, and I will sell you some. You are not that big of suckers, and you know

that”).

          Schmidt argues that the prosecutor disparaged the defense by referring to its

theory as an “alternative reality” and arguing that believing it would mean a “meth fairy”

must have produced the sock containing methamphetamine. We conclude that these

comments were not aimed at disparaging the defense, but rather amounted to a vigorous

argument from the facts in the record. Based on the circumstantial evidence that the sock

containing methamphetamine was seen on the ground only after Schmidt fell and got on

his feet, the prosecutor was trying to get the jury to infer that Schmidt constructively

possessed the methamphetamine, the only reasonable explanation for its sudden

appearance on the ground. The prosecutor made these comments in the context of

responding to Schmidt’s theory that he had nothing to do with the sock. See MacLennan,

702 N.W.2d at 236 (“As part of the state’s right to vigorously argue its case, it may

specifically argue that there is no merit to the particular defense.”). Because the

prosecutor’s comments are more akin to those seen in Vue, 797 N.W.2d at 15, rather than

those seen in Porter, 526 N.W.2d at 363, we conclude that no error occurred.


                                               12
       C.     Facts not in record

       A prosecutor commits misconduct by relying on facts not in evidence. State v.

Stofflet, 281 N.W.2d 494, 497 (Minn. 1979) (concluding that a prosecutor erred by

addressing a witness’s prior inconsistent statements when no one had testified to them).

Schmidt argues that the prosecutor committed plain error by encouraging jurors to

consider facts outside of the record and resolve unanswered questions in the state’s favor.

Specifically, Schmidt argues that the prosecutor committed misconduct by referencing

non-existent DNA evidence and then asking the jury to infer that Schmidt’s DNA would

have been found on the sock if any testing took place.

       This misconstrues the prosecutor’s statements. The prosecutor does not rely on

non-existent DNA evidence to argue that the sock would contain Schmidt’s DNA if

tested. Rather, the prosecutor simply discusses what the lack of DNA means—arguing

that the failure to test the sock does not necessarily mean that Schmidt’s DNA is not on it.

It is clear that the prosecutor made this argument in anticipation of Schmidt’s closing,

which inevitably did highlight the lack of DNA evidence. This is a legitimate form of

argument. See State v. Smith, 619 N.W.2d 766, 772 (Minn. App. 2000) (“A prosecutor

may . . . make arguments in anticipation of the defense's closing arguments.”), review

denied (Minn. Jan. 16, 2001). Thus, the prosecutor did not commit error when it made

reference to the lack of DNA evidence.

       Affirmed.




                                            13
