STATE OF MINNESOTA
William Arthur Anderson,
Filed September 12, 2006
Itasca County District Court
File No. CR-04-2482
John J. Muhar,
Mike Hatch, Attorney General,
Kelly O’Neill Moller, Assistant Attorney General, 1800
M. Stuart, State Public Defender, G. Tony Atwal, Assistant State Public
Considered and decided by Willis, Presiding Judge, Ross, Judge, and Forsberg, Judge.
A conviction of felony burglary, which is later deemed a misdemeanor under Minn. Stat. § 609.13, subd. 1(2), is a “crime of violence” mandating imposition of a firearms restriction under Minn. Stat. §§ 609.165, subd. 1b and 624.712, subd. 5 (2004).
Appellant challenges his conviction of possession of a firearm by an ineligible person, arguing that (1) he was not subject to the firearm restriction because his felony burglary conviction was deemed to be a misdemeanor after he completed probation; (2) the district court erred in concluding that the search of his home under a condition of his probation not imposed by the sentencing court itself, was lawful; and (3) the prosecutor committed prejudicial misconduct in closing argument by injecting his personal opinion and vouching for the credibility of witnesses. We affirm.
Appellant William Arthur Anderson was on probation while he lived with his girlfriend Tina Ruschmeyer; his son Tanner Anderson; and Tanner’s girlfriend, Amy Lane. Appellant’s criminal history leading up to his probation is as follows. In 1996, appellant pleaded guilty to second-degree burglary. The district court stayed imposition of the sentence and placed appellant on probation for the offense. In 2001, upon successful completion of his probation, the district court discharged appellant from probation and ordered that his felony conviction would be deemed a misdemeanor underMinn. Stat. § 609.13, subd. 1(2) (2000).
In 2003, appellant pleaded guilty to, inter alia, a fifth-degree controlled substance crime, for which he was again placed on probation. At the sentencing hearing, the district court ordered probation but did not discuss the terms of the probation agreement. The probation agreement signed by appellant, effective until 2008, required that he remain law abiding and obtain permission before leaving the state, and prohibited appellant from owning, using, or possessing a firearm or using or possessing controlled substances. The agreement also provided that “[appellant] shall, when ordered by [his probation] Agent, submit to search of [his] . . . residence or any other property under [his] control.”
In September 2004, Ruschmeyer phoned her mother, Irene Steel, to report that appellant had guns, that appellant had threatened her the previous day, and that appellant has been arrested in Superior, Wisconsin. Steel, in turn, called Itasca County Sheriff Investigator Greg Snyder and told him that appellant had been arrested in Superior and had posted bail. Snyder contacted the Superior Police Department and confirmed that appellant had been arrested and charged with domestic assault against Ruschmeyer the previous day. Snyder phoned appellant’s probation officer, Anthony Athmann, and left a message telling him what he had learned regarding appellant.
That same day, a woman claiming to be the mother of appellant’s girlfriend phoned Athmann, and told him that appellant had assaulted Ruschmeyer while in a Superior hotel room. The caller, later identified as Steel, reported that Ruschmeyer had told her that appellant kept guns and a large amount of drugs in his home, that the guns were located under his bed, and that there was methamphetamine in a secret compartment behind appellant’s dryer. Athmann called appellant to discuss the Superior incident but was unable to reach him.
Later that evening, Athmann, Snyder, and another deputy drove to appellant’s house; the officers did not have a warrant to search the house. Outside appellant’s house, they met appellant’s son, Tanner Anderson, who let them in.
Once inside, Athmann introduced himself to appellant, and told him that he was there to conduct a search for firearms “as explained . . . in his conditions for probation.” Appellant replied, “that’s fine. I’ve got nothing to hide.” Athmann asked appellant where his bedroom was, and appellant pointed him to his bedroom. Inside the bedroom, the officers lifted appellant’s mattress and found two firearms, a .22 semi-automatic rifle and a .20 gauge shotgun, in a compartment at the base of the bed. Appellant denied knowledge of the guns in the bedroom and said to Tanner, “I thought your mother got all your guns out of here.” No drugs were found in the home.
Appellant was charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 609.165, subd. 1b (2004). Appellant pleaded not guilty to the charge and filed a pre-trial motion to suppress the firearm evidence, arguing that it was obtained as the result of an illegal warrantless search. Following an omnibus hearing, the district court denied the motion, determining that the warrantless search was reasonable and did not violate the Fourth Amendment because appellant’s probation agreement provided that he submit to searches of his home and the police had reasonable suspicion to believe appellant had violated the agreement.
At trial, the parties disputed the
ownership and possession of the guns.
Ruschmeyer testified that, before his arrest, appellant had handed the
shotgun found under appellant’s bed to her and told her to place it in the
compartment under his bed. Ruschmeyer testified that she saw a second gun in
Following a jury trial, appellant was found guilty of possession of a firearm by an ineligible person. This appeal follows.
I. Was appellant properly convicted of possession of a firearm by an ineligible person even though his prior felony burglary conviction was later deemed a misdemeanor?
II. Did the district court err in refusing to suppress the evidence of guns found in appellant’s residence during the course of a warrantless search?
III. Did the prosecutor commit misconduct that denied appellant the right to a fair trial?
Appellant contends that he was
improperly convicted of possession of a firearm by an ineligible person because
his prior burglary conviction was deemed a misdemeanor after he completed
probation, and a misdemeanor is not a “crime of violence” mandating imposition
of a firearms restriction. As a threshold matter, the
state argues that appellant’s argument is waived because it was not raised
before the district court. This court
will generally not consider matters not argued and considered in the court
below. State v. Mills, 562 N.W.2d 276, 284 (
Appellant concedes that the issue was not raised below, but argues that the interests of justice require this court to address the merits of his argument. We agree. Appellant was convicted of a statutory offense, i.e., possession of a firearm by an ineligible person under Minn. Stat. §§ 609.165, subd. 1b (firearm prohibition statute), 624.712, subd. 5 (2004). Appellant challenges the applicability of the firearm prohibition statute to him on the grounds that he was not a felon for purposes of the statute. We conclude that the interests of justice require an examination of the applicability of the firearm prohibition statute to appellant.
Appellant was convicted under Minn. Stat. § 609.165, subd. 1b, which provides that “[a]ny person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, and who ships, transports, possesses, or receives a firearm, commits a felony.” A “crime of violence” includes second-degree burglary. Minn. Stat. § 624.712, subd. 5.
That state argues that the
Minnesota Supreme Court addressed the precise issue before us in State v. Moon, 463 N.W.2d 517 (
Here, as in Moon, appellant was convicted of a felony that was later deemed to be a misdemeanor. The district court correctly applied the firearm prohibition statute against appellant because appellant was originally convicted of second-degree burglary, a “crime of violence” under section Minn. Stat. § 624.712, subd. 5. The subsequent stay of imposition of appellant’s sentence and the later treatment of his conviction as a misdemeanor do not alter the fact that he has been convicted of a crime of violence under the statute. Moon, 463 N.W.2d at 520.
Appellant acknowledges that his
argument was rejected by the Moon
court, but argues that legislative amendments to the definition of “crime of
violence” give cause for this court to reexamine the holding in Moon.
In 2003, the Minnesota Legislature amended Minn. Stat.
§ 624.712, subd. 5. 2003
Appellant argues that he did not commit a “crime of violence” under the revised statute because the addition of the language “felony convictions” limits the application of the firearm prohibition statute to felonies that are not later deemed misdemeanors by the district court. In support of his position, appellant quotes portions of the following language in Moon:
A person who commits an offense which is not described with the words felony or felonious in section 624.712, subdivision 5, clearly is subject to the firearms restriction even if the conviction is deemed to be a misdemeanor pursuant to section 609.13. For instance, if a person commits fourth degree burglary, he or she is subject to the firearms restriction even if the conviction is deemed to be a misdemeanor because the definition of the offense does not include the words felony or felonious, which arguably would invoke the operation of section 609.13.
Appellant’s reading of Moon is strained. Moon, in essence, held that as long as a “crime of violence” has been committed under Minn. Stat. § 624.712, subd. 5, the firearm prohibition statute applies, regardless of whether the conviction is later deemed to be a misdemeanor. See Moon, 463 N.W.2d at 521 (holding that “the offenses listed as crimes of violence in section 624.712, subdivision 5, relate to the elements of the offense for which the defendant was originally convicted rather than the disposition subsequently imposed by the trial judge”). Therefore, we conclude that the 2003 amendments to Minn. Stat. § 624.712, subd. 5, do not alter the supreme court’s holding in Moon or warrant reversal of appellant’s conviction.
But appellant argues that amended Minn.
Stat. § 624.712, subd. 5, specifically excludes misdemeanor-level convictions, and
thus, it would be inconsistent with the result in Moon for this court to hold that the firearm prohibition statute applies
to him. Appellant’s argument requires us
to construe the statute. Statutory
construction is a question of law, which this court reviews de novo. State v.
Stewart, 624 N.W.2d 585, 588 (
We first examine the plain language of Minn. Stat. § 624.712, subd. 5. Appellant is correct in stating that the statute excludes those who have been solely convicted of misdemeanor-level crimes. See id. (“‘Crime of violence’ means felony convictions . . . ”). But the statute proscribes possession of firearms by “[a]ny person who has been convicted of a crime of violence,” including a felony conviction of second-degree burglary. Minn. Stat. § 609.165, subd. 1b. Here, appellant “has been convicted” of felony second-degree burglary. Id. His conviction was later deemed a misdemeanor, but that does not change his underlying conviction for the purposes of the statute. Moon, 463 N.W.2d at 520. Thus, the plain language of the firearm prohibition statute supports its application to appellant.
The state argues that appellant’s conviction is also consistent with the legislative intent underlying the firearm prohibition statute. We agree. As the supreme courtobserved, the statute is “designed to protect the public safety by keeping firearms out of the hands of convicted criminals who have committed crimes which, in the legislature’s judgment, are indications of future dangerousness.” Moon, 463 N.W.2d at 520. Nothing in the revised definition of “crime of violence” suggests a change in this policy. If the legislature intended to override Moon, it could have included a provision in its 2003 amendments to expressly indicate that it did not intend for those convicted of felonies which are later deemed to be misdemeanors to be prohibited from possessing firearms. In light of the supreme court’s holding in Moon, and the plain language and purpose of the firearm prohibition statute, we conclude that appellant was subject to prosecution under the statute.
Appellant contends that the
district court erred in refusing to suppress the evidence of firearms found in
his residence during the course of a warrantless search because the search was
conducted pursuant to an invalid probationary agreement and the officers lacked
reasonable suspicion to believe he was engaged in criminal activity. “When reviewing pretrial orders on motions to
suppress evidence, we may independently review the facts and determine, as a
matter of law, whether the district court erred in suppressing—or not
suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (
The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution proscribe unreasonable searches by the government of “persons, houses, papers, and effects[.]”
U.S. Const. amend. IV; Minn. Const. art. I, § 10. An individual has a reasonable expectation of
privacy in his or her own home, and a warrantless search of a person’s home is
Under facts similar to this case, the United States
Supreme Court held that the balancing of governmental and private interests of
probationer “require[d] no more than reasonable suspicion to conduct a search
of [a] probationer’s house.”
Here, as in Knights, the officers’ search of appellant’s home was supported by the terms of appellant’s probation, which provided that “[appellant] shall when ordered by [his probation] Agent, submit to search of [his] . . . residence or any other property under [his] control.” And the search was ordered and conducted by appellant’s probation officer. Appellant submitted to the search when informed by the officer, stating that he had “nothing to hide.” Therefore, the search was conducted pursuant to the probation agreement.
For the first time on appeal, however, appellant
argues that his probation agreement is invalid because it was not imposed
pursuant to the sentencing order for his second-degree burglary offense, and
thus, the district court erred in refusing to suppress the evidence seized
pursuant to the agreement. Generally, this
court will not consider matters not argued and considered in the court
below. State v. Mills, 562 N.W.2d 276, 284 (
But even considering appellant’s argument, it cannot
be said that the probation agreement was invalid. Appellant relies on State v. Henderson, 527 N.W.2d 827 (
This case is distinguishable from Henderson. Here, appellant agreed to and signed the terms of his probation. Appellant makes no showing that his probation agreement imposed any kind of “intermediate sanction” that would have to come directly from the sentencing court. See Minn. Stat. § 609.135, subd. 1(b) (2004) (defining “intermediate sanction” to include, inter alia, incarceration, home detention, or electronic monitoring). The probation agreement here required only that he remain law abiding, avoid possessing firearms or illegal narcotics, inform his probation officer before leaving the state, and submit to searches of his residence. Although the district court did not specifically order the precise terms of appellant’s probation at the sentencing hearing, appellant has not shown his probation agreement is invalid. Therefore, the district court did not err by refusing to suppress the evidence seized as the result of a search authorized by the probation agreement.
Appellant argues that the
search of his home was unreasonable because it was not supported by reasonable
suspicion of criminal activity there.
The quantum of
evidence needed to demonstrate reasonable suspicion is not high, but police are
required to make that showing when reasonableness is challenged. Richards v. Wisconsin, 520 U.S. 385, 394-95,
117 S. Ct. 1416, 1421-22 (1997). The
Minnesota Supreme Court has defined reasonable suspicion as something more than
an unarticulated hunch; rather, “the officer must be able to point to something
that objectively supports the suspicion at issue.” State v. Wasson, 615 N.W.2d 316, 320 (
Here, the officers acted on more than a mere “hunch” that appellant had violated his probation agreement and was engaged in illegal activity. The district court determined that the probation officer had multiple reasonable bases for searching appellant’s home based on information received by Steel and confirmed by appellant’s probation officer with the Superior police indicating that appellant had violated his probation agreement by leaving the state without informing his officer, by committing the crime of disorderly conduct in that state, and by possessing guns and illegal contraband in his home. Appellant’s probation officer tried unsuccessfully to reach appellant by phone before proceeding to the residence. Under these facts, the officers had “reasonable suspicion” that appellant had engaged in criminal activity.
Appellant argues that this court may hold that the search of his home was invalid because “Minnesota appellate courts have not directly addressed whether it is lawful for a condition of probation to subject a probationer to random and indiscriminate searches of his home.” But the search of his home in this case was not random or indiscriminate, and was based on specific and actionable information provided by Steel and confirmed with the Superior Police Department. Thus, appellant’s argument lacks merit. Therefore, the district court did not err by not suppressing the evidence seized as a result of the search of appellant’s residence.
Appellant next contends that he was denied the right
to a fair trial because the prosecutor expressed his personal opinion and vouched
for the truthfulness of witnesses during closing argument. This court will reverse a conviction due to
prosecutorial misconduct at trial only if the misconduct, “when considered in light of the whole trial, impaired the
defendant’s right to a fair trial.” State
v. Powers, 654 N.W.2d 667, 678 (
Vouching occurs “when the government implies a
guarantee of a witness’s truthfulness, refers to facts outside the record, or
expresses a personal opinion as to a witness’s credibility.” State v.
Gail, 713 N.W.2d 851, 866 (
Appellant argues that the prosecutor improperly
injected his own opinion by prefacing four of his statements with “I would
suggest to you that” or “I suggest to you that[.]” For example, the prosecutor stated, “Ladies
and gentlemen of the jury, I suggest to you that Ms. Ruschmeyer was a very credible
witness in this case.” Appellant did not
object to these statements during trial.
Generally, a party waives any challenge to the alleged misconduct on
appeal by failing to object or seek a cautionary instruction. State v. Ture, 353 N.W.2d 502, 516 (
Here, the prosecutor’s prefatory
phrase “I suggest” is the equivalent to “I submit” or “the state submits,”
which Minnesota courts have held are not impermissible expressions of
opinion. State v. Bradford, 618
N.W.2d 782, 799 (
Appellant argues that the prosecutor improperly stated, without objection, that witness Amy Lane “flat out lied” to the jury when she testified that she knew that her boyfriend Tanner Anderson had stored his guns in appellant’s residence. But the prosecutor did not insinuate that he knew anything the jury did not, and he did not misrepresent any testimony. Rather, the prosecutor was drawing a reasonable inference for the jury because Lane admitted on cross examination that she told the police on the day of the search that she did not know of any guns at appellant’s house. See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (noting that a “prosecutor may draw reasonable inferences from the evidence produced at trial”). Thus, the statement was not plain error.
Appellant next argues that the prosecutor improperly stated, without objection, that “the lies in this case began when [appellant] accused Tanner of leaving the guns under his bed . . . . They continued through yesterday’s testimony.” But the prosecutor was merely arguing that appellant’s version of the events, which were that the guns belonged to his son, Tanner, was not credible. Further, the prosecutor was anticipating appellant’s argument that the guns found at the residence belonged to his son. State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994) (noting that prosecutor may call into question an anticipated defense argument). Because appellant demonstrates no plain error affecting his substantial rights, the prosecutor committed no misconduct denying appellant his right to a fair trial.
Appellant’s conviction of felony burglary is a crime of violence mandating imposition of a firearms restriction under Minn. Stat. §§ 609.165, subd. 1b and 624.712, subd. 5 (2004). The district court did not err in refusing to suppress evidence seized as a result of the warrantless search of appellant’s home because the search was conducted pursuant to a valid probation agreement and the police had reasonable suspicion to believe that appellant was engaged in criminal activity. In addition, appellant demonstrates no plain error substantially affecting his rights made by the prosecutor during closing arguments at trial. Accordingly, we affirm appellant’s conviction of possession of a firearm by an ineligible person.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
In determining the validity of a search
of a probationer’s home,
Knights was very recently discussed
with approval in Samson, __
 The Supreme Court did not address whether the terms of probation alone satisfied the reasonableness requirement of the Fourth Amendment, stating that “we need not address the constitutionality or a suspicionless search because the search in this case was supported by reasonable suspicion.” Knights at 120 n.6, 122 S. Ct. at 587. We therefore address both whether the search satisfied the terms of appellant’s probation agreement and whether the search was supported by reasonable suspicion.