This opinion will be unpublished and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
Ramsey County District Court
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender,
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.
U N P U B L I S H E D O P I N I O N
Appellant was convicted for being a felon in possession of a firearm. He appeals arguing that the trial court abused its discretion in declining to instruct the jury on the defense of “fleeting control” of the gun. Appellant also argues that the prosecutor committed prejudicial conduct in closing argument in arguing to the jury that she represented the people of the state, and the jury should speak for the people by finding appellant guilty. We affirm.
While on patrol,
As Officer Tanghe talked to the driver, he noticed a strong smell of alcohol. The driver was taken from the vehicle, frisked, and a field sobriety test followed that indicated he was under the influence.
After the driver was secured in a police vehicle, the officers concentrated on appellant. Officer Vetsch approached the vehicle on appellant’s side, instructing him not to move and to keep his hands visible. Vetsch noticed the appellant’s hands were fidgety. Appellant would not make eye contact, and appeared to be nervous, fidgeting from side to side. Appellant was removed from the car. While being frisked, appellant whispered to Officer Vetsch that there was something under the seat he wished to talk about but would not do so unless he was allowed to walk away from the scene. Appellant stated he would give further details if a deal could be worked out.
After all occupants were removed from the vehicle, Officer Vetsch searched the vehicle. A loaded .22-caliber revolver was found underneath the front passenger’s seat, located all the way to the right of the seat to the rear. Appellant was arrested. As appellant was being escorted to the squad car, he made a second statement in regards to the revolver, stating that when the driver noticed the police, he reached behind or between the seats and set the gun in appellant’s lap.
The front seat passenger, Ashley Burks, testified there was no conversation between the driver and appellant when they were stopped by the police. She also testified there was no contact between the two. When the police stopped the vehicle, she remembered appellant hitting the back of her seat as if he was trying to open the door. She denied ever seeing either the driver or appellant with a gun or passing a gun. Fingerprint analysis of the gun showed only unidentifiable smudges.
Appellant chose not to testify at trial. During discussions regarding proposed jury instructions, both appellant and the state agreed upon the proposed jury instruction as it pertained to CRIMJIG 32.16, Felon in Possession of a Firearm-Defined. It was agreed that the words “ships or transports” would be deleted from the defined portion of the possession instruction. However, the district court denied appellant’s request to strike the word “receive” from the possession instruction.
Next, the parties discussed jury instructions regarding CRIMJIG 32.17, Felon in Possession of a Firearm-Elements. Again, appellant argued that the word “received” should not be included. In addition, appellant objected to the state’s proposed instruction of “joint and sole possession” and “constructive possession,” arguing there was no concrete evidence showing actual possession, nor was there sufficient evidence warranting a “constructive possession” instruction. The district court granted the state’s motion to leave the constructive possession language in the instruction; then the district court granted appellant’s motion to strike the “joint possession” language.
Finally, there was a detailed and involved discussion regarding appellant’s request for a jury instruction concerning “fleeting possession.” Appellant requested the jury be instructed on “fleeting possession” due to the evidence presented, specifically, statements he made to the police regarding “something under the seat.” The state argued there was not enough evidence warranting a “fleeting possession” instruction. The state said it was appellant’s duty to argue the facts to the jury and for the jury to decide the credibility of appellant.
The district court denied appellant’s request for a “fleeting possession” instruction. The district court found the testimony of Officer Vetsch, regarding appellant bending under the seat, as well as the testimony of the passenger in the front seat, inconclusive, but in favor of what appellant was arguing. However, after a further review of case law and the record as a whole, the court determined there was insufficient evidence warranting an instruction for fleeting or passing control. A jury found appellant guilty of possession with a firearm by an ineligible person. Appellant requested and was granted a 12-month durational departure and was sentenced to 32 months minimum incarceration and 16 months maximum supervised release.
This appeal followed. The issues before this court are whether the district court abused its discretion in refusing to instruct the jury on the issue of “fleeting control” possession and whether the prosecutor’s statements during closing argument constituted prejudicial misconduct.
D E C I S I O N
I. Jury instructions
An appellate court will not generally
reverse for an instruction to the jury absent an abuse of discretion. State v. Oates, 611 N.W.2d 580, 584
(Minn. App. 2000), review denied (
Appellant argues a fleeting control jury instruction should have
been given, especially when he argued a fleeting control defense. Appellant argues the district court
improperly made a credibility determination by finding insufficient evidence to
support the fleeting control defense.
Appellant points out that it is the district court’s function not
to second-guess appellant’s credibility but only to determine whether any evidence if believed by the jury could establish the claim.
Specifically, appellant argues the district court erred when it refused to instruct the jury on his “fleeting control” theory, but then told his attorney he was free to argue it. He argues the denial of his proposed jury instruction undermined his attorney’s ability to communicate his defense to the jury, especially since the court had to have tacitly concurred that the theory was viable because the court allowed his attorney to argue it. Appellant relies on this court’s decision in State v. Houston, 654 N.W.2d 727 (Minn. App. 2003), for the proposition that he was entitled to an instruction on fleeting control.
Here, during discussions regarding whether the requested instruction was going to be given, appellant was asked by the district court what facts supported his request. On the assumption that the state was arguing that he had constructive possession of the firearm and relying on the facts and evidence presented, appellant argued his control and dominion over the firearm was suspect, and minimal. Appellant argued that the state’s evidence, particularly testimony from police that he bent forward and testimony from the front seat passenger that he was exiting the vehicle, put in doubt the state’s theory that he exercised control and dominion over the firearm. Appellant argued vigorously that the facts warranted his proposed fleeting control instruction.
The district court denied the fleeting control instruction. Appellant’s own statement regarding the firearm indicated that he did have a weapon and that he put it under the seat when police arrived. The district court stated that a different and equally plausible explanation of the facts indicated appellant only made statements to “get out from under” possession of the firearm. The district court further explained that it is likely if an individual is carrying a firearm and the police pull up behind him, that he would put the gun under the seat. This interpretation is consistent with the testimony of the police and front seat passenger. Based on the facts and this analysis, the district court found no basis for the fleeting control instruction.
First, it would not have been improper for the district court to
give appellant’s requested instruction based on the facts. However, we conclude it was not reversible
error to deny the instruction, as the facts fell squarely in the middle of that
proverbial “misty discretionary call.”
The district court gave instructions defining both actual and
constructive possession. The
instructions given enabled the jury to consider whether appellant had the
required possession. A party may be
entitled to an instruction regarding his theory of defense if the evidence
supports the theory, but, the instruction may not be required if the substance
of the requested instruction is contained in the court’s charge. State
v. Ruud, 259 N.W.2d 567, 578 (
II. Closing argument
The record indicates the defendant failed to object to
the claimed improper statements at trial.
Ordinarily, when a defendant fails to object to improper statements, the
defendant is deemed to have forfeited the right to have the issue considered on
appeal. State v. Gunn, 299 N.W.2d 137, 138 (
Appellant argues that the state committed prosecutorial
misconduct during closing arguments when the prosecutor stated the jury should
find appellant guilty and it was important to do so to insure justice for the
“Now, ladies and gentlemen, next to the defense lawyer is a person. Next to me is a chair, and the chair looks
empty but it represents a lot. Because I have a client, too, and my client is
the people of
Ladies and gentlemen, consider the evidence, and when you’re done, do what’s right for these people, return the appropriate verdict and find the defendant guilty.”
Relying on State v.
Atkins, 543 N.W.2d 642 (
In Atkins, the
prosecutor told the jury that it would be “unspeakable injustice” to acquit on
a charge of first-degree murder and consider a lesser-included offense. 543 N.W.2d at 647. The Minnesota Supreme Court held that the
prosecutors statements were not personal or used to inflame and persuade the
jury to convict.
Although the challenged statements were nowhere near so
prejudicial that, unobjected to, they could be reversible error, they were not
without some impropriety. The prosecutor
called its client “the citizens of
Next, the state improperly said, “Do what’s right for
these people” (meaning the people of
 Appellant requested the following jury instruction regarding fleeting control:
Possession is actual control, care, and management of, and not a passing control, fleeting and shadowy in its nature.
Fleeting control or passing occurs when:
1. possession of a firearm was temporary;
2. not within his control; and
3. defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible.
If you find that [defendant] did not exercise actual control, care, or management over the gun, but rather that his possession was passing or fleeting, the defendant is not guilty of possession of a firearm.