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Court of Appeals: Handgun swab does not prove ‘constructive possession’
A District Court lacked sufficient evidence to convict a man charged with illegally possessing a gun following the no-knock-warrant search of a Minneapolis apartment, the Court of Appeals ruled Monday.
In reversing his felony conviction, James Edward Smith, 31, overcame near-irrefutable evidence that his DNA was found on a gun at the residence.
That’s because the genetic material’s presence alone was insufficient to prove Smith “constructively possessed” the gun at the time of his alleged offense, the court ruled.
Monday’s non-precedential ruling, written by Court of Appeals Judge Theodora Gaïtas, was joined by judges Renee L. Worke and Matthew E. Johnson.
In it, Gaïtas concludes:
“The circumstances proved cannot exclude the reasonable possibility that Smith did not possess the firearm on or about the date of the alleged offense. Thus, we must reverse Smith’s conviction for insufficient evidence.”
Court of Appeals Judge Theodora Gaïtas
Case facts
Gaïtas’ ruling summarizes the facts derived from Smith’s jury trial this way:
Minneapolis police executed an early-morning, no-knock warrant on the apartment where Smith was staying on Feb. 20, 2019. The warrant identified Smith and both of his parents as suspects in drug activity. Much of the search was documented with body cameras.
Police encountered Smith, apparently freshly awakened, as he exited a rear bedroom and entered the apartment’s kitchen. After seating Smith, his mother and two children in the living room, police conducted their search.
In the bedroom from which Smith had emerged—apparently, it was a converted porch—police found brass knuckles, suspected marijuana seeds and drug paraphernalia, plus a 9mm handgun’s magazine and ammunition, wrapped in a red shirt.
In the front bedroom where Smith’s mother and the children had been, police found a 9mm handgun inside a closet, hidden in a sock inside a woman’s purse. They also found another ammunition magazine.
DNA swabs were taken from the firearm, ammunition and magazines and sent to the Bureau of Criminal Apprehension for analysis.
Some items produced insufficient evidence for testing. But swabs from the pistol contained mixtures of DNA from three or more people. Most was unidentifiable. But the lab determined there was just a one in 7.8 billion chance that testable DNA found on the gun came from anyone but Smith.
The pistol bore no identifiable fingerprints or ridge markings, the ruling says.
The BCA’s lab scientist was unable to determine when or how Smith’s DNA had been deposited on the gun. The scientist also observed that DNA can remain on an object for years if left undisturbed, Monday’s Court of Appeals opinion says.
Smith was charged with two counts for being an ineligible person in possession of a firearm [Minn. Stat. § 624.713, subd. 1(2)]. One count covered the ammunition and magazines found in the back bedroom; the second related to the pistol from the front bedroom.
At District Court, Smith argued the search warrant was invalid because it lacked probable cause. The court denied that motion and his case went to trial.
The jury found Smith not guilty on count one. But it convicted him on count two and he was sentenced to 60 months in prison.
Circumstantial evidence
On appeal, Smith asked the court to use a heightened standard of review, arguing that the state produced only circumstantial evidence that he possessed the gun on the date of his arrest.
The state asked for a traditional standard of review from sufficiency-of-the-evidence cases. It contended that the DNA swabs provided direct evidence that Smith had possessed the gun.
To support its contention that the DNA provided direct evidence of possession, Hennepin County prosecutors cited two non-precedential Court of Appeals opinions, 2017’s State v. Nickson and 2014’s State v. Jiggetts.
But those cases are not binding law and Gaïtas’ court found the state cited no controlling authority to suggest that “DNA on an item is direct evidence that the individual currently possesses the item.”
In this case, DNA on the gun was not direct evidence of constructive possession, the court found. To conclude otherwise would require an inferential step, the judge writes. Therefore, the court found, the DNA was circumstantial evidence of possession, as Smith had claimed.
A gun-possession conviction based on circumstantial evidence could still stand. To evaluate circumstantial evidence, the opinion says, the court first must identify what circumstances were proved at trial. Writes Gaïtas:
“If the circumstances proved are consistent with a reasonable inference other than guilt, the evidence is insufficient and the resulting conviction must be reversed.”
The next step is to examine what reasonable inferences can be drawn from the proven circumstances.
Here, the court ruled that the facts proven are consistent with a reasonable inference that Smith jointly possessed the firearm with his mother, which would support conviction. But that’s not the only possible inference to be drawn. From the ruling:
“But Smith argues that the circumstances do not exclude a reasonable alternative hypothesis that he was not exercising dominion and control over the firearm on February 20, 2019. We agree.”
DNA evidence might show that Smith touched the gun at some point, the Court of Appeals found, but it does not establish when that happened. And though the gun was in the same apartment where he kept some of his belongings, it was not found in the bedroom where he had been sleeping. Nor was it found in plain sight.
“Given these circumstances, there is a reasonable hypothesis that Smith was not consciously exercising dominion and control over the gun on or about February 20, 2019,” the ruling says.
Even the state’s joint-possession theory is insufficient to preserve Smith’s conviction, the ruling says, because another reasonable hypothesis—that Smith never possessed the pistol at all on the day of his arrest—is equally well supported.
The court reversed the conviction. Having reached that result, the panel declined to address Smith’s constitutional challenge to the no-knock search.
