This opinion is nonprecedential except as provided by
                          Minn. R. Civ. App. P. 136.01, subd. 1(c).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A23-0102

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                    Antonio Dirrell Hugh,
                                         Appellant.

                                     Filed June 17, 2024
                                          Affirmed
                                        Gaïtas, Judge

                                Ramsey County District Court
                                  File No. 62-CR-22-2634

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Greg Scanlan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Connolly, Presiding Judge; Gaïtas, Judge; and Larson,

Judge.

                             NONPRECEDENTIAL OPINION

GAÏTAS, Judge

         Appellant Antonio Dirrell Hugh challenges his conviction, following a jury trial, for

unlawful possession of a firearm. He argues that respondent State of Minnesota failed to

satisfy its burden of proving his guilt at trial because the evidence that he possessed a gun
was entirely circumstantial and consistent with his innocence. We conclude that the trial

evidence was sufficient to establish Hugh’s guilt beyond a reasonable doubt, and we affirm.

                                           FACTS

       In April 2022, police responded to an apartment building in St. Paul after receiving

reports of gunfire. They found Hugh, who had been shot in the shoulder, sitting on the

front steps of the building.      Hugh was transported to the hospital, and the police

investigated the shooting. Based on their investigation, the police believed that Hugh—

who was prohibited from possessing firearms or ammunition—had fired a gun during the

incident, although the gun was never recovered. Hugh was charged with two crimes:

unlawful possession of a firearm and unlawful possession of ammunition. He pleaded not

guilty to the offenses and requested a jury trial.

       At trial, Hugh stipulated that he had a prior conviction for a crime of violence that

made him ineligible to possess a firearm or ammunition. The state’s evidence focused on

whether Hugh possessed a firearm and ammunition.

       The shooting was largely captured on video by cameras located outside of two

apartment buildings, including the building where police and emergency workers

discovered Hugh. While the videos were played for the jury, a police sergeant explained

his interpretation of the events depicted. According to the sergeant, two individuals

approached Hugh, and at least one of those people fired a gun at Hugh. The sergeant

testified that Hugh then returned fire, explaining to the jury that the video showed muzzle

flashes coming from a handgun that Hugh pointed toward the approaching people. Using

still images from the video, the sergeant identified a “glint” coming from Hugh’s gun and


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puffs of smoke emanating from the gun after shots were fired. Although the sergeant

acknowledged that no witnesses observed Hugh firing a gun, no gun was recovered, and

there was no DNA or fingerprint evidence connecting Hugh to a gun, he testified that the

surveillance videos and other physical evidence showed that Hugh possessed a gun and

ammunition.

      Three police officers who responded to the shooting testified about the physical

evidence. One officer testified that he found a total of 18 expended shell casings in the

street—ten .40-caliber casings and eight .45-caliber casings. Given the different calibers

of the casings, the officer opined that there were two guns—and probably two shooters—

involved in the incident. However, the officer acknowledged that he could not determine

from the casings alone how many guns had been fired. Additionally, he could not confirm

that all the casings were discharged during the incident involving Hugh.

       A second officer testified about his search of the area where Hugh was positioned

during the incident. He found five .40-caliber casings in the general vicinity. The officer

testified that this type of casing generally is ejected within a four-foot diameter of the

location where the shooter pulled the trigger. However, the officer explained that casings

can be “kicked around or moved around quite easily.”

       Finally, a third officer described his efforts to locate a gun at the scene of the

shooting. He testified that, based on the surveillance videos, police suspected that Hugh

discarded his gun in a parked white car. The surveillance videos show Hugh approaching

a parked car, opening the car door, and then closing the car door. Although the officer




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arranged to have the white car towed, a tow truck removed a different white car from the

scene. Thus, the gun was never found.

       Following the state’s presentation of evidence, Hugh moved for a judgment of

acquittal, 1 arguing that the evidence did not foreclose the reasonable possibility that he

possessed a BB gun rather than a firearm. The district court denied the motion. After this

ruling, Hugh rested, and the two charges were submitted to the jury.

       The jury found Hugh guilty of both unlawful possession of a firearm and unlawful

possession of ammunition. At sentencing, the district court entered a conviction for

unlawful possession of a firearm and sentenced Hugh to the mandatory minimum prison-

term of 60 months. 2

       Hugh appeals.

                                          DECISION

       Hugh argues that the trial evidence was insufficient to prove his guilt beyond a

reasonable doubt. In a criminal case, due process requires the prosecution to prove every

element of the charged crime beyond a reasonable doubt. State v. Culver, 

,

142 (Minn. 2020). To convict Hugh of unlawful possession of a firearm, the state was

required to prove beyond a reasonable doubt that he was ineligible to possess a firearm




1
 Under the Minnesota Rules of Criminal Procedure, a defendant may move for a judgment
of acquittal at the close of evidence for either party “if the evidence is insufficient to sustain
a conviction.” Minn. R. Crim. P. 26.03, subd. 18(1)(a).
2
 The district court did not enter an adjudication for the offense of unlawful possession of
ammunition.

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because he had been convicted of a “crime of violence” and that he possessed a firearm.

See 

, subd. 1(2) (2020).

       At trial, Hugh stipulated that he had been convicted of a crime of violence. And

Hugh’s brief to this court states that he does not challenge the sufficiency of the evidence

underlying “the ‘possession’ element” of the offense. Hugh’s sole challenge on appeal is

whether the state proved beyond a reasonable doubt that the object he possessed—as seen

in the surveillance videos introduced at trial—was a firearm. He contends that, based on

the state’s evidence, it is equally possible that he possessed a BB gun, which is not a

firearm. See State v. Haywood, 

 (Minn. 2016) (stating “the plain and

ordinary meaning of the word ‘firearm’ includes only devices that require explosive force,”

such that an “air-powered BB gun is not a firearm”). Thus, according to Hugh, his

conviction for unlawful possession of a firearm must be reversed for insufficient evidence.

       Before considering Hugh’s argument, we identify our standard of review. “To

determine whether sufficient evidence exists to support a jury verdict, [appellate courts]

view the evidence in a light most favorable to the verdict and assume the fact-finder

disbelieved any testimony conflicting with that verdict.” State v. Balandin, 

, 213 (Minn. 2020) (quotation omitted). An appellate court will not disturb a verdict

“[i]f the jury, acting with due regard for the presumption of innocence and the requirement

of proof beyond a reasonable doubt, could reasonably have concluded that the defendant

was guilty of the charged offense.” State v. Thomas, 

 (Minn. App.

2017), rev. denied (Minn. Mar. 28, 2017).




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       We apply a heightened standard of review when the state’s evidence on one or more

elements of a charged offense consists solely of circumstantial evidence. State v. Porte,

 (Minn. App. 2013). Circumstantial evidence is “evidence from

which the factfinder can infer whether the facts in dispute existed or did not exist.” State

v. Harris, 

 (Minn. 2017) (quotation omitted). Here, the state

concedes, and we agree, that the evidence proving that Hugh possessed a firearm was

purely circumstantial.

       When reviewing the sufficiency of circumstantial evidence, an appellate court uses

a two-step analysis. State v. Moore, 

 (Minn. 2014). The first step in

evaluating the sufficiency of circumstantial evidence is to identify the “circumstances

proved” by the state at trial. State v. Andersen, 

 (Minn. 2010). A

reviewing court assumes the trier of fact believed the state’s witnesses and rejected all

evidence contrary to the verdict; all conflicting evidence is resolved in the state’s favor.

State v. Tscheu, 

 (Minn. 2008). After identifying the circumstances

proved, the reviewing court next determines whether those circumstances are “consistent

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

Silvernail, 

 (Minn. 2013) (quotations omitted). At this step of the

analysis, unlike the first step, appellate courts do not defer to the fact-finder’s choice among

reasonable inferences. State v. Al-Naseer, 

 (Minn. 2010). If the

circumstances proved are consistent with a reasonable inference other than guilt, the

evidence is insufficient, and the resulting conviction must be reversed. See Harris, 

.


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       Viewing the evidence in the light most favorable to the verdict, the circumstances

proved here are as follows. Two people walked toward Hugh, and at least one of those

people fired a gun at Hugh. Initially, Hugh ducked behind a parked car. But then he stood

next to the car, pointed a gun in the direction of the two people, and fired it. Surveillance

video shows muzzle flashes around the gun and puffs of smoke emitting from the gun.

While aiming the gun, Hugh was standing in a grassy area between the sidewalk and the

street. Then, he approached a parked car, opened the car door, and closed the door. Police

later towed a different car, which did not contain the gun. Officers collected 18 discharged

bullet casings after the shooting, and they found five .40-caliber casings in the general

vicinity of where Hugh shot his gun. No guns were recovered, but Hugh was shot in the

shoulder during the incident.

       Turning to the second step of our standard of view, we next “determine whether the

circumstances proved are consistent with guilt and inconsistent with any rational

hypothesis except that of guilt, not simply whether the inferences that point to guilt are

reasonable.” Silvernail, 

 (quotations omitted).

       Hugh acknowledges that the circumstances proved support a reasonable hypothesis

that he possessed a firearm. But he argues that the circumstances proved at trial do not

foreclose a reasonable hypothesis that the weapon was a BB gun.

       We disagree. Although this is an unusual case in that no firearm was recovered, the

circumstances proved are only consistent with one reasonable hypothesis—that the weapon

in Hugh’s hand was a firearm.




                                             7
       The circumstances proved do not support Hugh’s hypothesis that the item he

possessed was a BB gun. Most significantly, there were discharged casings in the area

where Hugh was positioned when he pointed and fired the gun.              This evidence is

inconsistent with Hugh’s alternative hypothesis. Hugh suggests that the casings were not

in the exact spot where he stood when firing the gun. He also highlights testimony that

“shots fired” calls are common in the neighborhood and the casings “could have come from

an earlier shooting.” But evidence that is inconsistent with the jury’s guilty verdict is not

included in the circumstances proved. See Tscheu, 

 (stating that the

appellate court must assume that the factfinder rejected all evidence contrary to the verdict

and that all conflicting evidence was resolved in the state’s favor).

       Hugh notes that the police sergeant testified that he did not know whether muzzle

flashes occur when an “airgun” is fired. He argues that this evidence supports his

alternative hypothesis that the gun was a BB gun. But again, this evidence, which is

inconsistent with the guilty verdict, is not a circumstance proved for the purpose of our

standard of review.

       Finally, Hugh argues that it is reasonable to conclude that he had a BB gun based

on the police sergeant’s testimony that people sometimes carry replica guns—which may

resemble firearms—for “[i]ntimidation” or “threats.”         However, Hugh points to no

evidence in the record to support his theory that the gun he possessed was a BB gun. To

support a reasonable hypothesis of innocence, an appellant may not rely on mere conjecture

or speculation but must point to specific evidence in the record that is consistent with

innocence. Al-Naseer, 

; see also Tscheu, 

; State v.


                                              8
Ostrem, 

 (Minn. 1995) (noting that, for an inference to be rational,

the appellant must point to evidence in the record that is consistent with a theory other than

guilt).

          The circumstances proved are only consistent with Hugh’s guilt. They establish

that Hugh possessed a firearm and not some other implement, such as a BB gun.

Accordingly, we conclude that the trial evidence was sufficient to support Hugh’s

conviction for unlawful possession of a firearm. 3

          Affirmed.




3
 Because the district court did not enter a conviction for the offense of unlawful possession
of ammunition, the only judgment appealed to this court is Hugh’s conviction for unlawful
possession of a firearm. But in his brief to this court, Hugh also challenges the evidence
underlying the jury’s guilty verdict for unlawful possession of ammunition. Although the
verdict for that offense did not result in a judgment, we note that our analysis as to that
offense would be the same as our analysis of the sufficiency of the evidence underlying
Hugh’s firearm conviction.

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