This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Kenneth T. Wells,




Filed February 24, 2004

Hudson, Judge



Ramsey County District Court

File No. K4-02-3438


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, Minnesota 55102 (for respondent)


John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)


            Considered and decided by Anderson, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal from his conviction of and sentence for possession of a firearm by an ineligible person, appellant argues that:  (1) his conviction should be reversed because the evidence presented at trial was insufficient to support the conviction; and (2) the district court erred by denying his request for a dispositional or downward durational departure.  We affirm.


On September 17, 2002, St. Paul police officers executed a search warrant at a residence in St. Paul.  Upon entering the residence, the officers announced themselves and asked that everyone show their hands.  Appellant Kenneth Wells had his back to the officers and refused to show his hands.  Officer Urbanski, the first officer through the door, testified that Wells appeared to keep his hands near his waist.  After repeatedly asking Wells to show his hands, Urbanski had to force Wells to the ground.  Urbanski testified that Wells’s hands were still in his waist area when Wells hit the ground.  Urbanski pulled Wells’s arms out from under him and handcuffed Wells.  When Urbanski turned Wells over on his side, a loaded, semi-automatic handgun was found on the floor under Wells.  The officers arrested Wells, and he was charged with possession of a firearm by an ineligible person, in violation of Minn. Stat. §§ 624.713, subds. 1(b), 2, 609.11, subd. 5(b) (2002).  Wells stipulated that he was ineligible to possess a firearm. 

            A jury found Wells guilty, following which he moved for a downward or dispositional departure from the 60-month statutory mandatory-minimum sentence.  The court sentenced Wells to the 60-month presumptive sentence finding that, because Wells did not comply with the police request when they entered the house and the weapon found under Wells was fully loaded, there were not compelling reasons to depart from the sentence.  This appeal follows.


I.          Sufficiency of the Evidence

            Wells argues that the evidence presented at trial was insufficient to support his conviction of possession of a firearm by an ineligible person, in violation of Minn. Stat. §§ 624.713, subds. 1(b), 2, 609.11, subd. 5(b) (2002).  When considering a claim of insufficient evidence, our review is limited to an 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).  We must assume 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).  We 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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  A conviction based on circumstantial evidence merits stricter scrutiny than a conviction based on direct evidence.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  But “circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999). 

Here, Wells stipulated that he was ineligible to possess a firearm because of a prior drug conviction.  Thus, to prove that Wells was guilty, the state was required to prove that Wells was in either actual or constructive possession of the weapon.  State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982).  To show constructive possession, the state must show either that:  (1) the police found the gun under the defendant’s exclusive control in a place others normally do not have access to; or (2) that the defendant was consciously exercising dominion and control over the weapon.  State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001).

Here, the evidence against Wells is circumstantial because there is no testimony that anyone witnessed him holding the gun.  But a review of the record shows that the jury could reasonably conclude that Wells was in possession of the gun.  The jury heard testimony from Officer Urbanski that: Wells had his back turned toward the officers; Wells was repeatedly asked to show his hands; Wells’s hands appeared to remain at his waistband; and Urbanski had to ultimately push Wells to the ground.  Urbanski testified that when Wells fell, his hands were still under him at his waist, and Urbanski had to pull Wells’s hands out from underneath him to handcuff him.  Urbanski further testified that after he handcuffed Wells, he rolled Wells onto his left side, and Urbanski immediately saw a black, semi-automatic handgun on the floor under Wells.  Moreover, two other officers testified that they also saw the semi-automatic handgun under Wells after Urbanski turned him over.  Based on this evidence, the jury could reasonably conclude that Wells was in possession of the firearm when the police entered the duplex. 

II.         Sentencing

            Wells argues that the district court erred by sentencing him to the guidelines sentence and not granting him a dispositional or downward durational departure.  Wells argues that because he was only 19 years old, did not have a significant record, and was respectful during the trial, the court should have departed from the statutory presumptive 60-month sentence.

            The district court found that because Wells did not comply with the police officers’ commands when they entered the house, and the gun was fully loaded when the police found it under Wells, this was not an exceptional case warranting a departure from the statutory mandatory-minimum sentence.  

The presumptive sentence for felony conviction is either the duration established by the sentencing guidelines or the mandatory minimum established by statute, whichever is longer.  Minn. Sent. Guidelines II.E.  A district court is required to follow the procedures of the sentencing guidelines when it pronounces a sentence.  Minn. Stat. § 244.09, subd. 5 (2002).  “[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  Generally, when determining whether to depart in sentencing, a district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  An appellate court will rarely reverse a sentencing court’s refusal to depart.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

This case is not the “rare” case where this court will reverse a refusal to depart.  Indeed, the mere fact that a mitigating factor is present does not obligate the sentencing court to grant a downward departure.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  The sentencing court lawfully imposed the statutory mandatory-minimum guidelines sentence.