This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Ramsey County District Court
File No. K9022379
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, Ramsey County Government Center, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.
In this appeal from a conviction of ineligible person in possession of a firearm, appellant, a passenger in a car stopped by police, argues that evidence that police found a pistol under the passenger seat and appellant admitted to police that the gun belonged to him was insufficient to support the conviction because his admission was motivated by fear of informing on the driver. We affirm.
At about 4:15 a.m. on July 4, 2002, St. Paul Police Officers Steven Jaworski and Soren Mahowald saw a white Chevrolet Corsica make a left turn at a high rate of speed and without signaling. The officers followed the car. By trying to keep a constant distance between the patrol car and the Corsica and using the patrol car’s speedometer, the officers estimated that the Corsica was traveling between 55 and 60 miles per hour. The officers activated the squad car’s lights, but the car did not stop until about two blocks later, when the officers also activated the sirens.
Before the car stopped, Mahowald saw the front passenger door open and the front passenger, later identified as appellant Nicolis Dangelio McDonough, “moving around excessively.” Jaworski and Mahowald approached the car with their weapons drawn. Mahowald testified that as the officers approached the car,
[appellant] was moving around a lot. We were giving loud verbal commands to show us their hands. The driver did, but the front passenger did not. He continued to have his hands down in his lap, reaching towards the floor, reaching toward his feet.
After the fourth command, appellant got out of the car with his hands up.
The officers placed appellant and the driver in separate squad cars. The officers learned that the driver did not have a valid driver’s license, so they took him into custody. During a search of the car incident to the driver’s arrest, Mahowald found a black, semiautomatic handgun under the front passenger seat where appellant had been sitting. After the gun was photographed pursuant to standard police procedure, Mahowald slid the gun into an envelope. Mahowald did not show the gun to appellant. No identifiable fingerprints were found on the gun. Appellant was charged with one count of being an ineligible person in possession of a firearm in violation of Minn. Stat. §§ 624.713, subds. 1(b), 2, 609.11, subd. 5(b) (2000).
St. Paul Police Sergeant Kathleen Ann Wuorinen testified at trial that she interviewed appellant on July 4, 2002, at 2:05 p.m. Wuorinen testified that when she was sitting across the table from appellant, she could smell a stale alcohol odor, but appellant did not display signs of intoxication, such as slurring or staggering. Wuorinen described appellant’s demeanor as somewhat emotional at the beginning of the interview. Wuorinen testified that when she told appellant that a gun was found in the car, he acknowledged that a gun was under the front seat but denied that it belonged to the driver. Wuorinen then asked whose gun it was, and appellant said that it was his. Appellant claimed that he had gotten the gun for protection because he had been shot in a mistaken-identity situation. Wuorinen testified that when she asked appellant if the gun was a revolver, he described it as a .22 “automatic, semiautomatic.”
William Leanyear testified as follows: the gun belonged to him; he bought it on July 3, 2002; he was very intoxicated that day and called appellant for a ride home; appellant picked him up in a white car; during the ride, they stopped at a store; while appellant was inside the store, Leanyear looked around, made sure nobody saw him, and put the gun underneath the car seat; Leanyear left the gun in the car because he “was passed out drunk” when he got out of the car; Leanyear recalled that the gun “was a small gun,” but did not “remember details about it because [he] picked it up while [he] was intoxicated.”
Appellant testified at trial as follows: he told Wuorinen that the gun was his “because [he] didn’t want to tell on nobody and [he] was scared to tell on another person that [he] knew;” a code of silence exists in the neighborhood where he grew up, and he could have been killed for revealing the gun’s true owner; he saw the gun when police removed it from the car, and he can tell by looking at a gun whether it is a revolver or automatic; on the day before the stop, Leanyear “mention[ed] something about a small handgun, the color and what caliber.”
Appellant also testified that he suffers from panic attacks and he takes daily medication to control them; he experienced a panic attack during the interview with Wuorinen; and he had consumed a lot of alcohol on July 4 before the stop.
A jury found appellant guilty as charged. The district court sentenced appellant to an executed term of 60 months in prison. This appeal challenging the conviction followed.
In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when 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 reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Circumstantial evidence is entitled to as much weight as direct evidence. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). For a defendant to be convicted based on circumstantial evidence alone, however, the circumstances proved must be “consistent with the hypothesis that the [defendant] is guilty and inconsistent with any rational hypothesis [other than] guilt.” State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Even with this strict standard, the fact-finder is in the best position to weigh the credibility of evidence and thus determines which witnesses to believe and how much weight to give to their testimony. State v. Daniels, 361 N.W.2d 819, 826-27 (Minn. 1985). “Inconsistencies in the state’s case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.” State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).
The elements of ineligible possession of a firearm are that the person is ineligible to possess a firearm and that the person possessed a firearm. Minn. Stat. § 624.713, subd. 1(b), 2 (2000). See 10A Minnesota Practice, CRIMJIG 32.17 (1999) (elements of felon in possession of a firearm). Appellant stipulated that he is ineligible to possess a firearm. He argues that the evidence was insufficient to prove that he possessed the gun found in the car.
A person possesses [a firearm], if it is on (his) . . . person. A person also possesses [a firearm] if it was in a place under (his) . . . exclusive control to which other people did not normally have access, or if the person knowingly exercised dominion and control over it.
10A Minnesota Practice, CRIMJIG 32.42 (1999). See State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975) (holding evidence sufficient to prove constructive possession of a controlled substance found in automobile).
Appellant argues that his statement to Wuorinen that the gun belonged to him lacked credibility and reliability because (1) he suffers from anxiety disorder; (2) he was intoxicated when he was arrested and was then held for about ten hours before being interrogated; (3) his statement that he bought the gun for protection was inconsistent with his statement that he was shot as a result of misidentification; and (4) he feared for his life if he identified the gun’s true owner.
The jury had the opportunity to consider appellant’s testimony on these issues and determine the credibility of his statement to Wuorinen. It is the jury’s role to assess and determine the “credibility and weight given to the testimony of individual witnesses.” Bias, 419 N.W.2d at 484. Viewing the evidence in the light most favorable to the conviction and assuming that the jury believed the state’s witnesses and disbelieved any contrary evidence, as we must, we conclude that the evidence was sufficient to allow the jurors to reach the verdict that they did, and the jury could reasonably conclude that the defendant was guilty of the charged offense.
A reasonable inference from Mahowald’s testimony about appellant’s conduct as the stop occurred is that appellant was hiding something under the front passenger seat. Although appellant and Leanyear testified that the gun belonged to Leanyear, Leanyear could only give a vague, general description of the gun. Appellant told Wuorinen that the gun belonged to appellant, and he accurately described the gun to her. Appellant testified that he saw the gun as Mahowald removed it from the car. But a reasonable inference from Mahowald’s testimony is that the gun was slipped into the envelope before being removed from the car, and appellant did not see the gun as it was removed.
Appellant addressed several issues in a supplemental pro se brief.
a. Appellant argues that there was an unlawful stop because the evidence was insufficient to prove that the driver of the Corsica committed a traffic violation. But Jaworski testified that the Corsica was traveling at an unsafe speed for a residential area. The officers estimated the car’s speed at 55 to 60 miles per hour by using the patrol car’s speedometer and attempting to maintain a constant distance between the Corsica and the patrol car. Appellant also argues that the search of the car was improper because the driver was not given a breath test or arrested for DWI. But appellant cites no facts or legal authority indicating that the officers acted improperly by arresting the driver for driving without a valid license or by searching the car incident to this arrest. Assignments of error based on mere assertion and not supported by argument or legal authority will not be considered on appeal unless prejudicial error appears obvious. State v. Lipscomb, 289 Minn. 511, 513, 183 N.W.2d 790, 792 (1971). We see no obvious error.
b. Appellant argues that he received ineffective assistance of counsel. To prevail on an ineffective-assistance claim, appellant must show that his counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced as a result of the deficient performance. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). An attorney’s decisions with regard to trial tactics “lie within the proper discretion of trial counsel and will not be reviewed later for competence.” State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). The facts cited by appellant relate to trial tactics and do not demonstrate that his attorney’s performance fell below an objective standard of reasonableness.
c. Appellant claims that a juror was biased against him. During trial, a juror revealed that she recognized one of the police officers. The officer was a friend of the juror’s younger sister, and the juror had not seen the officer for about 19 years. The court examined the juror, who testified that she could fairly evaluate the officer’s testimony.
The district court concluded:
I was struck also by the sincerity of the juror in answering that it wouldn’t impact her, but because of the importance we placed on telling us if they knew anybody, she felt compelled to disclose that. Frankly, I think she did the right thing. But her answers were also such that she told us she could be fair and impartial. And it’s been, at a minimum, 19 years, she said.
On a claim of juror bias, this court will not lightly substitute its own judgment for that of the district court, which is in the best position to evaluate the testimony and demeanor of potential jurors. State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990). To prevail on a claim of bias, an appellant must show that (1) the juror alleged to be biased was subject to challenge for cause; (2) actual prejudice resulted from the district court’s failure to dismiss; and (3) an appropriate objection was subsequently made. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). Appellant has not shown that any of these conditions were met.
d. Appellant claims that the prosecutor committed misconduct, but he has not provided specific citations to the record supporting his misconduct claims. See Minn. R. Civ. App. P. 128.03 (requiring citations to the record in party’s brief). A mere assertion of error without underlying factual support will generally not be considered on appeal. State v. Plant, 280 Minn. 397, 399, 159 N.W.2d 404, 405 (1968).
e. Appellant raises issues regarding the credibility of the officers’ testimony. But, as we have already stated, witness credibility is an issue for the jury to determine. Bias, 419 N.W.2d at 484.