This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-586

 

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy Jerome Bailey,

Appellant.

 

 

Filed March 25, 2003

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 01046261

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Timothy Jerome Bailey challenges the sufficiency of the evidence supporting his conviction for prohibited person in possession of a firearm. We affirm.

FACTS

In the early morning of March 19, 2001, Bailey went to the home of Trishae Robinson, his girlfriend and the mother of his daughter. Robinson and the baby lived in the home along with Robinson's mother, her grandmother, her brother, and a younger sister. Shortly after Bailey arrived, Robinson awoke her grandmother to inform her that Bailey was in the home. Robinson called 911 to ask the police to remove Bailey from the home because she was afraid of him.

Minneapolis police officers Jeffrey Mecill and Patrick Myslajek responded. Mecill and Myslajek knocked on the door and were admitted into the home by Robinson. The officers went in, and Mecill encountered Robinson's grandmother in the living room. She told Mercill, "He's in the kitchen," and pointed.

Mercill walked toward the kitchen as Robinson's grandmother indicated. The kitchen was dark, but a light in the hallway leading into the kitchen allowed Mercill to see into the kitchen. At the back of the kitchen was a refrigerator on a landing, approximately eight inches below the rest of the kitchen floor. Mercill saw Bailey standing next to the refrigerator. Mercill observed Bailey reach up and place something on top of the refrigerator. Mercill and Myslajek then entered the kitchen and placed Bailey under arrest, searching and handcuffing him.

Mercill later discovered a Colt .45 semiautomatic handgun on top of the refrigerator. Myslajek also observed the handgun and the top of the refrigerator and testified that other items on top of the refrigerator were coated with dust, while the gun was not. The handgun was photographed on top of the refrigerator before it was removed.

A jury found Bailey guilty of a prohibited person in possession of a firearm, in violation of Minn. Stat. 624.713, subd. 1(b)(2000). While Bailey conceded that he was prohibited from possessing a handgun because of a juvenile conviction for auto theft, he testified and denied possessing the gun. Bailey was impeached with a June 2001 conviction for providing false information to the police.

The defense introduced evidence that two months after Bailey's arrest the family discovered Robinson's brother had been transporting a sawed-off shotgun in and out of the house in his backpack, but Robinson's brother denied any connection to the handgun. Robinson's grandmother testified that because the refrigerator is located on a slightly lower level than the kitchen, she would have noticed a gun on top of it had it been there when she was in the kitchen the evening of March 18. Bailey contends the evidence at trial was insufficient as a matter of law to support his conviction.

D E C I S I O N

When addressing a claim of insufficiency of the evidence, the appellate court reviews the record "to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient" to support the fact-finder's verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Credibility determinations rest with the jury. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). The reviewing court must assume that the jury "believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Proof of either actual or constructive possession is sufficient for a conviction under Minn. Stat. 609.713. State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).

Mecill saw Bailey place something on top of the refrigerator. The handgun was found on top of the refrigerator. Thus, there is very clear circumstantial evidence of Bailey's possession of the handgun. Although the defense offered another explanation for how the handgun arrived on top of the refrigerator, that Robinson's brother placed it there, the jury apparently did not find this persuasive. Moore, 438 N.W.2d at 108.

The state also presented other circumstantial evidence to make its case against Bailey. The dust on the other items and absence of dust on the gun allowed the jury to infer that the gun had been on top of the refrigerator only a short time. This evidence, coupled with Mecill's observations, created an inference that the item Bailey placed on top of the refrigerator was in fact the handgun. Also, Robinson's grandmother testified that the gun was not on top of the refrigerator only hours before the police discovered it. Furthermore, her grandmother's testimony that the gun was not on top of the refrigerator only hours before the police discovered it rebuts the defense theory that Robinson's brother may have put the gun on the refrigerator because he was not home that evening.

In State v. Gates, 615 N.W.2d 331, 337-38 (Minn. 2000), the supreme court analyzed a conviction based on circumstantial evidence. The court stated that the conviction must be upheld if the evidence, when viewed in a light most favorable to the conviction, is sufficient to support the verdict. Id. Although a defendant can offer an alternative explanation in attempting to negate the implication of guilt, circumstantial evidence that creates a mere possibility of innocence is not sufficient for reversal provided the evidence as a whole makes such theories appear unreasonable. Id. Under the analysis of circumstantial evidence in Gates, Bailey's alternative theory does not appear reasonable in light of the record as a whole.

Affirmed.