This opinion will be unpublished and may
not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
De-Anthony David Demmings,
Filed March 20, 2001
Ramsey County District Court
File No. K2-99-400
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.
A jury convicted De–Anthony Demmings of unlawful possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (1998). Demmings challenges the conviction, alleging ineffective assistance of counsel and reversible error in jury instruction. We conclude that Demmings was effectively assisted by counsel and that the district court did not abuse its discretion in its instructions to the jury. But because the sentencing transcript indicates that the court may have denied a downward departure based on an incorrect assumption that a departure would be prohibited by law, we remand for resentencing.
South St. Paul police removed a semi-automatic handgun from a car driven by De-Anthony Demmings. A police officer stopped the car because a “smashed-out” rearview window and pieces of glass on the trunk aroused suspicion that the car was stolen or had been involved in a shooting. When the officer approached the car, she saw an open case of beer with several bottles missing and an open bottle of cognac in the back seat. The officer’s suspicion of theft was dispelled by her inquiries, but the open containers of alcohol prompted her request to search the car. Demmings consented to the search.
The officer discovered the semi-automatic handgun under the driver’s seat. The gun was loaded and the safety was not engaged. The officer also found an eight-ball of cocaine in the car’s glove compartment. Neither Demmings nor either of his passengers was charged with a drug offense.
Demmings stipulated that he is legally ineligible to possess a firearm, but disputed that he had possessed the handgun. In his first trial, the jury was unable to reach a unanimous verdict and the district court declared a mistrial. After the jury reached a guilty verdict in the second trial, the district court sentenced Demmings to five years in prison.
Demmings appeals, raising three issues: (1) ineffective assistance of counsel at trial, (2) reversible error in a jury instruction that listed factors to be considered in determining “knowing possession,” and (3) ineffective assistance of counsel at the sentencing hearing resulting in the district court’s misapprehension that a downward departure was legally impermissible.
D E C I S I O N
To prevail on a claim that his counsel was ineffective, Demmings must affirmatively show both that his counsel’s performance (1) fell below an objective standard of reasonableness, and (2) so prejudiced him that a different outcome would have resulted but for counsel’s error. See Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984). Counsel’s performance is presumed to be reasonably effective. State v. Powell, 578 N.W.2d 727, 731-32 (Minn. 1998). An attorney’s performance is deemed effective if it justifies reliance on the outcome of the proceedings. Id. Reliance is justified if counsel exercises the customary skills and diligence that a reasonably competent attorney would exercise under the circumstances. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).
Demmings contends that he was denied his constitutional right to effective assistance of counsel when his attorney failed to object to several questions during trial that elicited information about the crack cocaine and disclosed that the handgun had been stolen in a burglary. The officer who had searched the car mentioned the cocaine six times during her testimony and also said the handgun’s serial number matched the serial number of a handgun stolen in a California burglary. Two other officers testified about the cocaine, and the state introduced a photograph that showed the cocaine. In addition, the prosecutor, in both the opening and closing statement, referred to the cocaine and the burglary.
The state argues that the gun’s history and the discovery of the cocaine were admissible facts and thus the attorney’s failure to object was reasonable. We recognize that testimony on the drugs in the glove compartment may have been relevant to explain that the passengers’ movements likely involved hiding drugs rather than placing the handgun under the driver’s seat. The fact that the handgun was stolen may have been relevant to excluding as possible owners the other passengers and previous drivers of the car. See State v. Nunn, 561 N.W.2d 902, 907-08 (Minn. 1997) (allowing testimony on relevant facts and circumstances of the offense even though testimony incidentally showed other offenses). But the number of references and the specificity of the testimony is excessive. It is plausible that in light of the likely but limited admissibility, Demmings’s counsel may have made a tactical decision not to object to the repeated references. It is also possible that Demmings’s counsel attempted to use the disproportionate focus on the uncharged offenses to suggest that one of the passengers possessed both the cocaine and the gun. See State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (cautioning appellate courts not to second-guess counsel’s tactical decisions). Appellate courts do not review for competency matters that could reasonably come within trial tactics and strategy. Doppler, 590 N.W.2d at 633.
On balance, the record demonstrates that Demmings’s counsel was effective and successful in his representation. Demmings’s first trial ended in a mistrial because the jury was unable to reach a unanimous verdict. During the second trial, the attorney successfully impeached witnesses and suppressed evidence of Demmings’s juvenile record. At the end of his second trial, the district court judge commended Demmings’s attorney for doing an excellent job and vigorously arguing on Demmings’s behalf. On this record, we cannot conclude that Demmings’s counsel’s failure to object to questions exaggerating the relevance of evidence constituted performance so unreasonable as to deny Demmings his constitutional right to counsel. Because Demmings has not satisfied the first prong necessary to demonstrate ineffective assistance, we do not address the second.
Demmings’s second argument is that the district court, over objection, erroneously used a permissive-inference instruction to instruct the jury on knowing possession of a firearm:
In determining whether or not the State has proven beyond a reasonable doubt that the defendant was in knowing possession of a firearm, you may consider such factors as whether the defendant was the driver or person in control of the automobile in which the firearm was found, whether the defendant had exclusive control over the area within the vehicle where the firearm was found, the defendant’s proximity to the firearm at the time of the arrest, the number of other people present at the time the firearm was found, the defendant’s relationship or association with any other people present at the time the firearm was found, and the defendant’s conduct at the time the firearm was found.
The district court has considerable latitude in selecting the language for jury instructions. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). The jury charge must be read as a whole, and if the charge correctly states the law in language that can be understood by the jury, there is no reversible error. Id.
The Minnesota Supreme Court has expressed disapproval of permissive-inference instructions that tell jurors they may infer one fact from proof of another. State v. Olson, 482 N.W.2d 212, 215 (Minn. 1992) (discouraging permissive-inference instructions). But listing factors does not necessarily create a permissive-inference instruction. And unlike the instruction in Olson, the instruction in Demmings’s trial did not single out and unfairly emphasize one factor, but also included factors for the jury to consider that were potentially favorable to Demmings. Those factors include nonexclusive control, the number of people present, and the relationship and association with the others present. Although the instruction crafted by Demmings’s counsel on appeal may be more thorough and thus more balanced, the instruction given is not reversible error. In Olson, the supreme court provided a hypothetical instruction that it considered a “balanced instruction dealing with possession” and the instruction given in this case is substantially similar. See id. at 216 n.3 (providing instruction). The district court thus did not err in instructing the jury.
Finally, Demmings alleges that his counsel provided constitutionally deficient representation by incorrectly advising the district court at Demmings’s sentencing hearing. The district court sentenced Demmings to five years in prison, relying on State v. Sheppard, 587 N.W.2d 53 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999), to conclude that Demmings was ineligible for a downward departure in sentencing. Sentencing decisions rest within the broad discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
A conviction for violating Minn. Stat. § 624.713, subd. 1(b) (1998), a felon in possession of a firearm, carries a presumptive sentence of “not less than five years.” Minn. Stat. § 609.11, subd. 5(b) (1988). Under subdivision 8(a) of section 609.11, the district court may, after a motion by the prosecutor or on its own motion, “sentence the defendant without regard to the mandatory minimum sentences * * * if the court finds substantial and compelling reasons to do so.” Minn. Stat. § 609.11, subd. 8(a) (1998). But the court has no discretion to depart downward when sentencing a defendant convicted of being a felon in possession of a firearm if the defendant’s conviction is listed in Minn. Stat. § 609.11, subd. 9 (1998), and the defendant used or possessed a firearm or other dangerous weapon in committing the prior offense. Id., subd. 8(b) (1998). Demmings was adjudicated a juvenile delinquent for committing second-degree criminal-sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(c) (1994), one of the listed offenses, but not an offense that involved the use of a weapon. Although the record shows that Demmings’s accomplice in that crime used a gun, the record does not show that Demmings “used” or “possessed” the gun.
Before Demmings’s sentencing hearing, his attorney filed a motion for a downward departure and argued extensively for the departure. In his argument, however, he said, “the Sheppard case does restrict the court from departing.” But Sheppard is distinguishable because Sheppard’s previous felony conviction, unlike Demmings’s, involved his use of a firearm or other dangerous weapon. Sheppard, 587 N.W.2d at 55. Therefore, the district court retained discretion to depart downward from Demmings’s presumptive sentence, and Sheppard does not prevent such a departure.
The district court indicated that it may have wished to impose a lesser sentence than the presumptive five-year sentence. The court stated that it was “somewhat hamstrung by the law.” It also stated it was “impressed” by Demmings, called him a “high-potential person,” and told him it hoped he would look at his conviction as a setback. The state acknowledges that Demmings is technically eligible for a downward departure. Because the district court retains jurisdiction to depart downward on sentencing if there are substantial and compelling reasons that justify a departure, we remand for resentencing so that the district court can decide if departure is appropriate.
Affirmed in part, reversed in part, and remanded.