Opinion
No. C2-01-404.
Filed December 18, 2001.
Appeal from the District Court, Hennepin County, File No. 00008802.
Mike Hatch, Attorney General, and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, (for appellant)
Michael Kevin Lee, MCF — Willow River/Moose Lake, (pro se)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Hanson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
On appeal from a conviction of being a felon in possession of a firearm, appellant argues that evidence that the gun was found in the safe located in his bedroom was insufficient to support the conviction and that he was denied a fair trial because the prosecutor committed misconduct by eliciting prejudicial testimony from a state's witness. We affirm.
FACTS
Police officers went to appellant Michael Kevin Lee's apartment to execute a search warrant. The warrant authorized the officers to search for a gun and a videotape. The officers found two safes in Lee's bedroom. Inside one of the safes, the officers found various personal items belonging to Lee, including boxes of blank checks, a leather organizer containing checks, a check register, a calendar and a videotape Lee had made the previous day. The officers also found a loaded gun.
Lee was charged with possession of a firearm by a prohibited person under Minn. Stat. § 624.713, subds. 1(b), 2 (1998), and Minn. Stat. § 609.11, subd. 5(b) (1998). The jury found Lee guilty and the district court sentenced Lee to 60 months in prison. This appeal followed.
DECISION I
Lee argues that the evidence was insufficient to sustain his conviction of possession of a gun because the state did not prove that he knew the gun was in the safe. When considering a claim of insufficient evidence, an appellate court reviews the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The jury determines the credibility and the weight of circumstantial evidence and the reviewing court must assume that the jury believed the state's witnesses. State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).
To sustain a conviction of unlawful possession of a firearm under Minn. Stat. § 624.713, the state must prove the defendant either actually or constructively possessed the firearm. State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982); State v. Smith, 619 N.W.2d 768, 770 (Minn.App. 2000), review denied (Minn. Jan. 16, 2001); cf. State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (citation omitted) (stating that, in the context of controlled substances, to support a conviction of unlawful possession the state must prove that the "defendant consciously possessed, either physically or constructively, the substance"). Because the complaint is based on the firearm that the officers found in Lee's safe, the question is whether Lee constructively possessed it.
Minn. Stat. § 624.713, subd. 1(b) prohibits a person who has previously been convicted of a crime of violence from possessing a gun "unless ten years have elapsed since the person has been restored to civil rights or the sentence or disposition has expired, whichever occurs first * * * ."
To prove constructive possession, the state must show: (1) the police found the gun in a place under the defendant's exclusive control and to which other people did not normally have access; or (2) if the police found the gun in a place to which others had access, there is a strong probability, inferable from other evidence, that the defendant was consciously exercising dominion and control over it. Florine, 303 Minn. at 105, 226 N.W.2d at 611; see also Salcido-Perez v. State, 615 N.W.2d 846, 848 (Minn.App. 2000 ), review denied (Minn. Sept. 13, 2000) (stating that, in the context of the firearm-enhancement statute, an individual has constructive possession of a firearm if the individual consciously exercises dominion and control over it). This court considers the totality of the circumstances in determining whether the evidence was sufficient to prove possession. State v. Munoz, 385 N.W.2d 373, 377 (Minn.App. 1986).
Lee's brother Clyde testified that the gun belongs to him and that he normally carries it at all times, frequently under his car seat. He explained that he came to Minnesota approximately two weeks before the incident to visit Lee, discovered that the gun was still under his car seat, and, because his gun permit was not valid in Minnesota, removed the gun from his car and placed it on the top shelf of Lee's safe, for which he knew the combination. Clyde further testified that it was only after he returned home several days later that he realized that he had forgotten to remove the gun from Lee's safe.
But the jury also heard testimony from Pamela Patterson, Lee's former girlfriend, who testified for the prosecution. She stated that she had never met Clyde and that Lee never mentioned that Clyde was in town, despite the fact that she saw Lee every day. She also testified that on three occasions during their relationship, she had seen Lee holding a gun and that, within a week before the police executed the search warrant, she had seen a gun in Lee's safe when he opened it to remove other items. Patterson's testimony is consistent with the state's claim that Lee consciously exercised dominion and control over the gun and inconsistent with Lee's hypothesis that Clyde had placed the gun in the safe and that Lee neither knew it was there nor handled it.
Other evidence supported the state's claim. For example, police found the gun in Lee's locked safe, in close proximity to other personal items belonging to Lee. These items included a videotape made by him the day before the warrant was executed, and a check written the same day the warrant was executed.
Given the totality of the circumstances, the legitimate inferences that can be drawn from the evidence, and the deference this court gives to a jury's determinations regarding the credibility and weight of the evidence, a jury could reasonably conclude that Lee either consciously placed the gun in the safe or knew it was there. Accordingly, the evidence was sufficient to prove constructive possession.
II
Lee also argues that the prosecutor committed misconduct, which deprived him of a fair trial, by asking a witness a question designed to elicit prejudical testimony.
It is inappropriate for a prosecutor "to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury." State v. Richardson, 514 N.W.2d 573, 577 (Minn.App. 1994). Furthermore, the state has a duty to properly prepare its witnesses prior to trial to avoid the problem of witnesses blurting out inadmissible or prejudicial testimony. State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979). However, even if the prosecutor's act constituted misconduct, it would not warrant a new trial if it was harmless beyond a reasonable doubt. State v. Hunt, 615 N.W.2d 294, 301-02, (Minn. 2000)
Here, the prosecutor questioned one of the police officers who executed the search warrant as follows:
Q: Did you find other items in the safe?
A: Yes, there was a tape in the safe.
Q: As part of your investigation, what did you learn about the when you say a tape, a videotape?
A: A videotape.
Q: What did you learn about the videotape?
A: The videotape was a videotape containing the defendant and a young woman who was a victim of
Defense counsel objected, the court sustained the objection, and the prosecutor more specifically directed the officer's testimony to the point that Lee had made the videotape the day before the warrant was executed. Lee's pro se supplemental brief also complains that both police officers who testified for the state identified themselves as being part of the child-abuse unit, which, he argues, was intended to bias the jury against him.
The prosecutor's question does not rise to the level of misconduct. Although it was perhaps carelessly worded, the district court concluded that the question was asked to establish the date on which the tape was made, which would show that Lee knew the gun was in the safe because he had recently accessed the safe. Also, the record supports the district court's conclusion that the prosecutor properly prepared the witness by explaining to him, before trial, what she would ask and the proper limitations of his response.
Even if the question had risen to the level of misconduct, the witness's partial answer did not give the jury enough information to be prejudicial and, thus, any error would be harmless. The testimony of the police officers, identifying the unit to which they were assigned, was not prejudicial.