This opinion is nonprecedential except as provided by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
                                    A23-0259

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                              Erick Martinez-Mondragon,
                                      Appellant.

                                 Filed January 2, 2024
                                       Affirmed
                                    Schmidt, Judge

                               Rice County District Court
                                File No. 66-CR-21-2846

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

Brian M. Mortenson, Rice County Attorney, Sean R. McCarthy, Assistant County
Attorney, Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and

Schmidt, Judge.
                           NONPRECEDENTIAL OPINION

SCHMIDT, Judge

       Appellant Erick Martinez-Mondragon argues his conviction for unlawful possession

of a firearm must be reversed because (1) there is insufficient evidence of his constructive

possession of the firearm, and (2) respondent State of Minnesota did not present evidence,

independent of Martinez-Mondragon’s confession, reasonably tending to prove that he

possessed the gun. Martinez-Mondragon also argues his gross-misdemeanor sentence for

driving while impaired must be amended to 364 days instead of 365 days. Because the

state presented sufficient evidence to prove that Martinez-Mondragon possessed the

firearm, the state presented evidence independent of Martinez-Mondragon’s confessions,

and the district court imposed an appropriate sentence, we affirm.

                                          FACTS

       In December 2021, officers stopped a vehicle driven by Martinez-Mondragon for

speeding and because the front passenger door was open while the vehicle was in motion.

M.G.B. sat in the front passenger seat and two children were in the backseat.

       When asked to identify himself, Martinez-Mondragon initially provided officers

with the name Leonardo, as well as documents misidentifying him as Leonardo Campo

Rodriguez. Because the responding officer smelled marijuana coming from the vehicle,

she requested Martinez-Mondragon and M.G.B. step out of the car.

       After further direction to exit the vehicle, M.G.B. got out, back-first, and proceeded

to walk with officers to the front of the squad car hunched over with her hands in the area

between her legs. The officer told M.G.B. to drop whatever she was concealing between


                                             2
her legs. M.G.B. removed a gun from under her dress. The firearm had a bullet in the

chamber and was not in a holster or otherwise secured.

       When police recovered the gun, Martinez-Mondragon tried to run from officers. An

officer quickly secured Martinez-Mondragon, who later provided his real name.

       An officer handcuffed M.G.B. and placed her in the squad car. In response to the

officer’s question of whether she had anything else on her, M.G.B. stated, “No I don’t. I’m

sorry. That’s not even mine.” M.G.B. later denied, again, that the firearm belonged to her.

       At the police station, Martinez-Mondragon requested that officers charge him and

not M.G.B. because “it wasn’t really her fault.” He also told officers he did not “mean to

just, ya know, carry a gun, ya know . . . conceal and carry.” He stated that if officers wanted

to press charges, they should only charge him and that he took “full accountability for it.”

       The state charged Martinez-Mondragon with one count of possession of a firearm

or ammunition by an ineligible person under Minnesota Statutes section 624.713,

subd. 1(2) (2020), and one count of third-degree driving while impaired (DWI) under

Minnesota Statutes section 169A.26, subd. 1(a) (2020).

       Before trial, Martinez-Mondragon pleaded guilty to a gross misdemeanor DWI. The

district court accepted the guilty plea at the start of trial.

       The jury found Martinez-Mondragon guilty of possession of a firearm by an

ineligible person.    The district court imposed sentences of 333 days in jail on the

gross-misdemeanor DWI conviction and 60 months in prison on the felony possession of

a firearm by an ineligible person.

       This appeal follows.


                                                 3
                                        DECISION

I.     The state presented sufficient evidence to prove beyond a reasonable doubt that
       Martinez-Mondragon possessed the firearm.

       Martinez-Mondragon argues that the state did not prove he possessed the gun that

M.G.B. hid under her dress. He argues the circumstances proved are consistent with

rational hypotheses other than guilt. We are not persuaded.

       “When evaluating the sufficiency of the evidence, appellate courts carefully

examine the record to determine whether the facts 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. Griffin,

 (Minn. 2016) (quotation omitted). We must view the evidence in

the light most favorable to the verdict, and we must assume that the fact-finder disbelieved

any evidence conflicting with the verdict. 

 The verdict will not be overturned if the

fact-finder could reasonably have found the defendant guilty of the charged offense. 

       “Possession may be proved through evidence of actual or constructive possession.”

State v. Harris, 

 (Minn. 2017). Constructive possession applies when

the state “cannot prove actual or physical possession . . . but where the inference is strong

that the defendant at one time physically possessed the [contraband]” and “continued to

exercise dominion and control over [the contraband].” State v. Florine, 

 (Minn. 1975). Constructive possession may be established by the state proving either

(1) the “police found the item in a place under the defendant’s exclusive control to which

other people normally did not have access,” or (2) if others had access, “there is a strong



                                             4
probability (inferable from other evidence) that at the time the defendant was consciously

or knowingly exercising dominion and control over [the item].” Harris, 

. Exercising such dominion and control requires more than “mere proximity” to the

contraband. 

 An individual may possess an item jointly with another person. 

       There is no evidence that Martinez-Mondragon actually possessed the gun. The

state argues the circumstantial evidence proved Martinez-Mondragon actually possessed

the gun at an earlier time, but the evidence does not support that argument because no one

offered testimony to establish he physically possessed the firearm. 1 Accordingly, our

analysis focuses on whether the evidence sufficiently established constructive possession.

       Circumstantial or direct evidence

       The level of scrutiny that we apply to a sufficiency-of-the-evidence review turns on

whether the elements of an offense are supported by direct or circumstantial evidence.

State v. Silvernail, 

 (Minn. 2013). Because the elements of the offense

here are only supported by circumstantial evidence, we must closely scrutinize the

sufficiency of that evidence. State v. Al-Naseer, 

 (Minn. 2010).



1
 These circumstances are distinguishable from cases cited by the state to argue for actual
possession. For example, in State v. Barker this court held that circumstantial evidence
provided probable cause that the defendant had actually possessed controlled substances
despite the defendant not physically possessing the contraband at the time of apprehension.

 (Minn. App. 2016). However, Barker involved substantial evidence
of the defendant’s prior possession. See 

 (evidence in the record indicated that defendant
had purchased controlled substances, the drugs were stored in the trunk of defendant’s
vehicle, some substances were recovered from the vehicle, and the evidence indicated the
drugs may have been thrown out of the passenger-side window when defendant fled from
police). Here, there is no evidence establishing Martinez-Mondragon’s actual possession
of the firearm prior to his contact with officers.

                                             5
       Our circumstantial evidence review requires a two-step analysis.          Silvernail,

. First, we identify the circumstances proved. 

 In doing so, we

“consider only those circumstances that are consistent with the verdict,” meaning we

assume the jury believed the state’s witnesses and disbelieved the defense’s witness. 

.

       Second, we review the circumstantial evidence as a whole and “determine whether

the circumstances proved are consistent with guilt and inconsistent with any rational

hypothesis except that of guilt.”    

   In doing so, we independently examine “the

reasonableness of all inferences that might be drawn from the circumstances proved.” 

“Circumstantial evidence must form a complete chain that, in view of the evidence as a

whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable

doubt any reasonable inference other than guilt.” Al-Naseer, 

.

       The circumstances proved

       The circumstances proved that are consistent with the verdict are as follows.

Martinez-Mondragon initially, and during much of the interaction, provided officers with

a false name and documents purporting to support that identification. After stepping out

of the car, M.G.B. produced a gun that she concealed under her dress. M.G.B. carried the

gun in a manner that required her to awkwardly get out of the car. The loaded firearm had

a bullet in the chamber and was not in a holster or otherwise secured. After being asked if

she had anything else on her, M.G.B. responded: “No I don’t. I’m sorry. That’s not even

mine.” When asked about the gun, M.G.B. stated “that is not mine, I don’t give a f---.”




                                             6
       Martinez-Mondragon was compliant with officers prior to the discovery of the

firearm, but he attempted to flee moments after M.G.B. revealed the gun. While discussing

the gun with police, Martinez-Mondragon asserted that “it is bad” in Minneapolis.

Martinez-Mondragon continued to provide a false name until officers informed him that

providing a false name would incur additional charges.

       At the police station, Martinez-Mondragon asked officers if they could charge him

with the gun and not M.G.B., noting “it wasn’t really her fault.” Martinez-Mondragon told

officers he did not mean to “carry a gun . . . conceal and carry.” When officers responded

that he should get his permit to carry, Martinez-Mondragon responded it was “illegal” for

him to carry a gun. Martinez-Mondragon took “full accountability for it” and expressed a

willingness to stand in front of a judge and admit to the charges.

       The circumstances proved are consistent with guilt and inconsistent with any
       rational hypothesis except that of guilt

       Having determined the circumstances proved, we next consider whether those

circumstances are consistent with guilt and inconsistent with any rational hypothesis other

than guilt. Silvernail, 

. When viewed as a whole, we conclude the

circumstances proved are inconsistent with any rational hypothesis other than guilt.

       The circumstances proved demonstrate that Martinez-Mondragon knowingly

exercised dominion and control over the firearm. Martinez-Mondragon tried to flee the

moment the police discovered the gun, M.G.B. denied that the gun belonged to her,

Martinez-Mondragon told the police he did not mean to conceal and carry a gun and

repeatedly requested officers charge him with the gun offense and not M.G.B., and he



                                             7
admitted he could not legally carry a firearm. We conclude these circumstances are

consistent with guilt and inconsistent with any rational hypothesis other than guilt.

       Martinez-Mondragon argues that the circumstances proved do not eliminate the

rational hypothesis that he did not possess the firearm. However, in making this argument,

Martinez-Mondragon relies on evidence that is inconsistent with the verdict, contrary to

the applicable standard. Silvernail, 

.

       Martinez-Mondragon also relies heavily on State v. Bemboom, No. A17-0188,

 (Minn. App. Dec. 26, 2017), to argue that “[t]he circumstantial

evidence allows an inference that appellant did not have an ability to exercise dominion

and control over the gun.” As a nonprecedential opinion, Bemboom is not controlling.

       In addition, the circumstances proved in this case are distinguishable from those in

Bemboom. In Bemboom, this court held that the evidence allowed a reasonable inference

that the defendant did not know contraband was in his passenger’s underwear until she

informed him it was there. Bemboom, 

 at *7. This court also held that

because the defendant did not actually cause the passenger to dispose of the contraband,

the circumstantial evidence allowed for a reasonable inference other than guilt: that the

defendant did not have an ability to exercise dominion and control over the contraband. 

Ultimately, this court reversed because the circumstances proved presented a rational

hypothesis other than guilt. Id. at *8.

       The circumstances proved in this case go beyond the evidence present in Bemboom.

M.G.B. made multiple statements that the firearm was not hers and there is no indication

that similar statements were made by the passenger in Bemboom. Martinez-Mondragon


                                             8
also made multiple statements connecting him to possession of the firearm and there are

no comparable statements by the defendant in Bemboom. Additionally, holding a loaded

firearm between one’s legs is fundamentally different than holding a controlled substance

in small packages in one’s underwear considering the difficulty and danger involved with

concealing a firearm in such a manner. These differences distinguish this case from

Bemboom, making reliance on Bemboom unpersuasive.

       Martinez-Mondragon also makes arguments for alternative inferences regarding his

“evasive behavior” and attempted flight, contending none of his actions allow for “only an

inference that he was trying to avoid getting caught possessing a gun.”           But our

circumstantial evidence review does not require that the only inference drawn be that of

guilt. Instead, guilt must be the only reasonable inference drawn. Silvernail, 

; Al-Naseer, 

. Because we hold Martinez-Mondragon’s proposed

alternative inferences regarding the circumstances proved are unreasonable, they are

inconsistent with any rational hypothesis except that of guilt.

       The circumstances proved support the conclusion that Martinez-Mondragon

constructively possessed the gun that M.G.B. hid under her dress because “there is a strong

probability (inferable from other evidence) that at the time [Martinez-Mondragon] was

consciously or knowingly exercising dominion and control over [the gun].” Harris,

.      Because the circumstances are inconsistent with any rational

hypothesis other than guilt, the evidence sufficiently supports the conviction.




                                             9
II.    The state presented evidence, independent of Martinez-Mondragon’s
       confession, reasonably tending to prove that he possessed the firearm.

       Martinez-Mondragon argues the state did not present evidence, independent of his

confessions, that proved he possessed the gun. We disagree.

       “A confession of the defendant shall not be sufficient to warrant conviction without

evidence that the offense charged has been committed.” 

 (2020). The

state must present evidence independent of a confession that reasonably tends to prove that

the specific crime charged in the complaint actually occurred in order to sustain the

defendant’s conviction. State v. Holl, 

, 814 (Minn. 2021). The state need

not individually corroborate each element of the offense, and circumstantial evidence may

be used to establish sufficient independent corroboration. 

       Here, the state presented evidence of Martinez-Mondragon’s attempt to flee

moments after officers discovered the gun, M.G.B. holding a loaded gun between her legs,

and statements by M.G.B. that the gun was not hers. This evidence provides independent

support, separate from any confession offered by Martinez-Mondragon, that reasonably

tends to prove that Martinez-Mondragon constructively possessed the firearm.

III.   Martinez-Mondragon’s sentence for DWI does not require amendment.

       Martinez-Mondragon argues his gross-misdemeanor sentence for third-degree DWI

must be amended from 365 days to 364 days. The state agrees that the statutory amendment

applies and that the sentence should be amended.

       Previously, the maximum sentence of imprisonment for gross misdemeanors was

one year. 

 (2022). However, in 2023 the legislature enacted



                                            10
Minnesota Statutes section 609.0342 which provides that “[a]ny law of this state that

provides for a maximum sentence of imprisonment of one year or is defined as a gross

misdemeanor shall be deemed to provide for a maximum fine of $3,000 and a maximum

sentence of imprisonment of 364 days.” 2023 Minn. Laws ch. 52, art. 6, § 6 (to be codified

at 

 (Supp. 2023)).

      This statute applies to Martinez-Mondragon because he pleaded guilty to a gross

misdemeanor for the third-degree DWI.           But the district court did not sentence

Martinez-Mondragon to 365 days in jail, which would justify an amendment to 364 days.

The court sentenced Martinez-Mondragon to 333 days with credit for time served on the

third-degree DWI conviction. Accordingly, the district court’s sentence complied with the

new statute.

      Affirmed.




                                           11