This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Ernest Nicudemus McCurty, petitioner,





State of Minnesota,



Filed May 9, 2006


Kalitowski, Judge


Hennepin County District Court

File No. 02075547


John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


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


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order denying his postconviction petition, appellant Ernest Nicudemus McCurty argues that there was insufficient evidence to support his conviction for unlawful possession of a firearm.  We affirm.


Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. 

In assessing a claim attacking the sufficiency of evidence, the evidence is viewed in the light most favorable to the verdict to determine whether the facts in the record and any other legitimate inferences would permit a jury to conclude that a defendant was guilty beyond a reasonable doubt.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).  Appellate courts “review criminal bench trials the same as jury trials when determining whether the evidence is sufficient to sustain convictions.”  Id. (quotation omitted).  We review the record in the light most favorable to the conviction, whether the case is tried to a jury or a judge.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989); State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979).  The reviewing court assumes the court believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  That is particularly true when the case turns mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

Appellant argues that there was insufficient evidence to support his conviction because (1) the district court relied on documentary evidence; (2) appellant’s fingerprints were not found on the weapon; and (3) there are other explanations as to why the police found the gun near appellant on the night of his offense.  We disagree.

The evidence indicates that early on the morning of September 18, 2002, two Minneapolis police officers were together on patrol and responded to a call stating that shots had been fired near a Minneapolis intersection.  Another squad informed the officers that individuals were fleeing the area on foot.  As the officers neared the area with their lights out, they observed a man running and carrying something in his hand that appeared to be a handgun.  When they turned on the car’s headlights, both officers saw him throw the object into the bushes in front of a residence.  The officers then apprehended and arrested the man, who was later identified as appellant.  As one officer secured appellant, the other returned to the bushes and retrieved a .45-caliber handgun. 

Later that morning at the Hennepin County jail, appellant consented to a police interview.  Appellant claimed that he had not possessed any weapon.  He denied carrying or throwing the handgun and stated that his fingerprints would not be on the gun, magazine, or ammunition found with it. 

Appellant was charged with being a prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).  Appellant was previously convicted of being a prohibited person in possession of a firearm on December 22, 1999.  The predicate offense for that conviction was an August 17, 1999 felony controlled-substance crime in the fifth degree. 

Appearing before the district court, appellant waived his right to a jury trial and agreed to a stipulated-fact trial pursuant to Minn. R. Crim. P. 26.01, subd. 3.  The evidence submitted to the court consisted of the officers’ police reports, an audiotape of appellant’s interview with the police, a transcript of appellant’s interview with the police, a map of the scene, and appellant’s 1999 felony conviction.  On April 24, 2003, the district court found appellant guilty as charged.  The court explained that “this was a credibility issue” and found that “the police officer’s testimony by way of their report was more credible than that of [appellant].” 

In January 2005, appellant filed a petition for postconviction relief, claiming that the evidence was insufficient to sustain his conviction. The postconviction court denied his petition.  The court reviewed the stipulated facts, noted the district court’s credibility determinations, and found that the evidence was sufficient to sustain appellant’s conviction.   

Appellant argues that because the district court based its credibility determinations on documentary evidence, this court should not defer to those determinations on review.  But appellant agreed to a trial based on stipulated facts and said he understood that his case would be submitted without testimony.  Additionally, this court has rejected the argument that reviewing courts should distinguish between oral and documentary evidence when determining the appropriate level of deference to apply to the district court’s findings.  See State v. Christiansen, 515 N.W.2d 110, 112 n.1 (Minn. App. 1994) (rejecting the argument that this court may ignore the district court’s findings because they relied on documentary evidence), review denied (Minn. June 15, 1994).

Appellant next argues that the evidence was insufficient to convict him because his fingerprints were not on the gun recovered from the bushes.  But a lack of fingerprints does not persuasively demonstrate that he never possessed the gun.

Appellant suggests that an officer could have planted the gun or a different person could have placed it in the bushes.  But these theories are speculative and find no support in the evidentiary record.  Moreover, the two police officers’ reports, which the district court found to be more credible, contradict this theory.  And the district court considered and rejected appellant’s argument that an officer planted the gun in the bushes, finding “no basis in which to take that belief.”

Viewing the evidence submitted to the district court in a light most favorable to the conviction, we conclude that the court could have reasonably found that appellant was guilty of unlawfully possessing a firearm.  Accordingly, the postconviction court did not abuse its discretion by denying appellant’s petition for postconviction relief.