This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Timothy Garth Hansen, Sr.,
Filed August 30, 2005
Gordon W. Shumaker, Judge
Blue Earth County District Court
File No. K3-03-2013
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Ross E. Arneson, Blue Earth County Attorney, Christopher J. Rovney, Assistant County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin, Assistant State
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant challenges his convictions of felon in possession of a firearm and various traffic offenses, arguing that the police unlawfully seized a rifle from the car he was driving. He also argues that the prosecutor committed misconduct during the trial and that the evidence was insufficient to prove the possession and careless-driving convictions. We affirm.
On October 7, 2003,
The next day, Cusey returned to Volk’s apartment to attempt to execute the warrant. Cusey heard voices from inside the apartment and knocked on the door. No one answered. Cusey decided to wait in a parking lot across the street in hopes of apprehending Volk when she left her residence. Cusey had to abandon his plan when he received a call to handle a separate incident.
After Cusey left the parking lot, he saw Hansen driving a car with Volk in the passenger seat. Cusey made a U-turn and activated his emergency lights, intending to stop Hansen for the offense of driving after revocation of his license. Hansen put his car into reverse and drove at a speed between 25 and 30 miles an hour backward for about half a block and then into a parking stall at Volk’s apartment complex. While Hansen’s car was moving, Cusey saw the passenger door open and Volk attempt to get out of the car. Hansen parked the car and began to walk away.
Cusey arrested Hansen and placed him in the squad car and then arrested Volk, who was hiding behind a dumpster.
After the arrests, Cusey looked into Hansen’s car and saw shotgun shells, a shotgun case, and some camouflage clothing on the back seat. Cusey then entered the car and seized the case, which contained a rifle. Ultimately, the state charged Hansen with the offenses of felon in possession of a firearm, careless driving, driving after cancellation of his driver’s license, and having no insurance.
The district court denied Hansen’s omnibus motion to suppress the rifle, and the matter went to trial. The jury found Hansen guilty of all charged offenses. This appeal followed.
D E C I S I O N
1. Motion to Suppress the Rifle
Hansen argues that the district
court erred when it denied his motion to suppress the rifle because the search
revealing the rifle was unconstitutional.
“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 (
Generally, a search conducted
without a search warrant is unreasonable under the Fourth Amendment. Coolidge
Hansen argues that the offenses for
which Cusey arrested him were minor and that they warranted only citations
rather than arrest. The general rule is
that a peace officer acting without a warrant “shall issue citations to persons
subject to lawful arrest for misdemeanors” unless the officer reasonably
concludes that arrest is necessary to prevent bodily harm or further criminal
conduct, or unless the officer concludes that the accused will likely fail to
respond to a citation.
According to the criminal complaint, Cusey believed that Hansen’s arrest was necessary to prevent further criminal activity. Before the arrest, Cusey knew of Hansen’s complicity in preventing the execution of the arrest warrant for Volk. He observed Hansen’s bizarre driving conduct, from which Cusey could reasonably conclude that Hansen was attempting to evade the officer. He saw Volk leave the car and flee. The officer could reasonably conclude that misdemeanants do not ordinarily flee from the police; and when he saw shotgun shells and a shotgun case on the back seat of Hansen’s car, he reasonably concluded that a custodial arrest was necessary to ensure that there would be no further criminal activity. Had there been a mere traffic offense, without the surrounding suspicious circumstances, the general rule regarding a citation rather than an arrest would control. But it would have been irresponsible for Cusey merely to give citations in this case. Thus, we hold that the seizure was incident to a lawful arrest and that the district court did not err in denying the motion to suppress the firearm.
2. Prosecutorial Misconduct
Hansen claims that he was prejudiced when the prosecutor committed misconduct, and, thus, his conviction on the firearm charge should be reversed. Specifically, he claims that the prosecutor committed prejudicial misconduct when he (a) elicited evidence of appellant’s post-arrest silence and request for counsel and (b) implied through questioning that appellant was prohibited from owning a muzzleloader.
Prosecutorial misconduct warrants
reversal “only when the misconduct, considered in the context of the trial as a
whole, was so serious and prejudicial that the defendant’s constitutional right
to a fair trial was impaired.” State
v. Johnson, 616 N.W.2d 720, 727-28 (
a. Testimony as to post-arrest silence
The prosecutor asked Cusey whether Hansen
made any statements to him. Cusey
testified: “No, he asked for his attorney.
Or, I asked him if he would speak to me with reference to the firearm
and he said ‘no.’’’ It is improper for a
prosecutor to disclose that an accused requested counsel during an
b. Questions about possession of a “muzzleloader.”
The prosecutor asked Volk about Hansen’s
possession of a firearm known as a muzzleloader. She testified that he recently had hunted
with such a firearm. Hansen contends
that it is not illegal for a felon to possess an antique firearm, including a
muzzleloader, and that the prosecutor’s questioning caused the jury to be
confused and to inaccurately apply the law.
3. Sufficient Evidence to Support Appellant’s Convictions
Hansen claims that the state did not
provide sufficient evidence to convict appellant of possessing a firearm or
careless driving. 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 (
a. Possession of a firearm
Hansen claims that the conviction for
being a felon in possession of a firearm was based entirely on circumstantial
evidence. “[A] conviction based entirely
on circumstantial evidence merits stricter scrutiny than convictions based in
part on direct evidence.” State v.
Jones, 516 N.W.2d 545, 549 (
To obtain a conviction under Minn. Stat.
§ 624.713, the state must establish either
actual or constructive possession of a firearm. State v. Loyd, 321 N.W.2d 901, 902 (Minn.1982). Actual possession requires proof that the
defendant had the firearm on his physical person. State
v. Smith, 619 N.W.2d 766, 770 (
To prove constructive possession, the state must prove that: (1) the police found the item in a place under the defendant's exclusive control to which other people did not normally have access, or (2) if the police found it in a place to which others had access, that there is a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over it.
State v. Porter, 674 N.W.2d
424, 427 (
Hansen was not in actual personal
possession of the rifle at the time of his arrest. But the rifle was in a car titled in Hansen’s
name, and Hansen was controlling the movement of the car. These are circumstances that link Hansen to
the rifle. Furthermore, Volk stated,
without objection, that she believed the rifle belonged to either Hansen or to
his son and that Hansen had used it a couple of days earlier for hunting. These are further circumstances that link
Hansen to the rifle. Volk stated further
that she and Hansen were going to a pawn shop to pawn the rifle. She made no claim that the rifle belonged to
her. Thus, the jury could have
reasonably inferred that the rifle, lying as it was on the back seat of a car
titled in Hansen’s name and was being taken to a pawn shop to pawn, was in the
conscious control and dominion of Hansen as the rifle’s apparent owner. The jury is the judge of the credibility of
the evidence. State v. Johnson, 568 N.W.2d 426, 435 (
b. Careless Driving
Hansen argues that the state failed to prove that he committed the offense of careless driving.
Any person who operates or halts any vehicle upon any street or highway carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person, including the driver or passengers of the vehicle, is guilty of a misdemeanor.
Minn. Stat. § 169.13, subd. 2 (2002).
Hansen was driving in reverse on a city street for approximately 50-75 yards. Cusey testified that he estimated appellant to be traveling at 25-30 miles per hour. Cusey also testified that, while the vehicle was still in motion, the passenger door opened and it appeared that the passenger was attempting to exit the vehicle. On the other hand, Volk testified that Hansen “couldn’t have been going very fast.”
“When reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the State and assume that the jury believed the State’s witnesses and disbelieved contrary evidence.” State v.
Moore, 481 N.W.2d 355, 360 ( 1992). Cusey also testified that he knew that children lived in the area, although he saw none in the roadway at the time of the incident. However, Cusey did see individuals in the parking lot into which Hansen backed the car. Hansen was driving in reverse at almost 30 miles per hour as the door opened and his girlfriend prepared to jump out. The driving conduct satisfied the prohibition against careless driving. Because we assume that the jury believed the state’s witnesses and disbelieved contrary evidence, sufficient evidence was presented to support the jury’s determination that Hansen was driving carelessly. Minn.