This opinion will be unpublished and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
State of Minnesota,
Glen Dale Acon,
Ramsey County District Court
File No. K1-04-3224
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Rosita Severin, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas,
Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
Glen Acon appeals from his conviction of the crime of felon in possession of a firearm, arguing that the evidence is insufficient to support the conviction and that the jury instructions were misleading. We affirm.
At approximately 7:30 p.m. on August 17, 2004, Officers Darryl Boerger and Timothy Bohn observed a vehicle speeding toward them. They recalled that a similar car had been reported stolen earlier that day, and that the owner described the thief as an African-American male with a mustache and other facial hair.
Boerger thought the car he saw was the one reported stolen. He recognized the driver as appellant Glen Acon and pursued the car. Eventually, it slowed, the doors flew open, and three men jumped out, running in different directions. The officers gave chase and arrested Acon. They found a gun at the scene. The two officers next began an investigation of a shooting incident. They interviewed people in the area of the shooting and surveyed the scene. The state charged Acon with felon in possession of a firearm, theft of a motor vehicle, and aiding and abetting a drive-by shooting. The jury found Acon not guilty of aiding and abetting a drive-by shooting but guilty of auto theft and felon in possession of a firearm. This appeal from the firearm conviction follows.
The issue before this court is whether the evidence is legally sufficient to support Acon’s conviction of felon in possession of a firearm. Acon argues that the state failed to prove beyond a reasonable doubt that he was in possession of the gun.
When considering a
sufficiency-of-the-evidence challenge, this court’s review is limited to a
painstaking review of the record to determine if the evidence, viewed in the
light most favorable to the verdict, would have allowed a rational trier of
fact to find the defendant guilty beyond a reasonable doubt. State
v. Webb, 440 N.W.2d 426, 430 (
prove Acon guilty of felon in possession of a firearm, the state had the burden
of proving beyond a reasonable doubt that Acon had actual or constructive
possession of the gun and that he was ineligible to possess a firearm. See Minn.
Stat. § 624.713, subd. 1(b) (2004); State
v. Florine, 226 N.W.2d 609, 610 (
record contains no direct evidence that Acon possessed a firearm. The state’s case against Acon is entirely
circumstantial. A conviction based entirely on circumstantial evidence
is subject to a stricter standard of review.
Several considerations support the conclusion that the circumstantial evidence in this case leads directly to Acon’s guilt and makes the theory that Acon did not possess the gun seem unreasonable. First, the evidence reasonably supports an inference that Acon, not another occupant, dropped the gun that was found along the path Acon took after jumping out of the moving car. This evidence consists of the position and movement of the cars and the respective directions that Acon and his passengers ran. The jury could reasonably have concluded beyond a reasonable doubt that the gun was recovered along the route that was taken by Acon and that neither of the other occupants took that path. Second, testing established that two 40-caliber casings recovered close to the scene of the drive-by shooting were fired from the gun found where Acon had run. Third, Acon appears to have had a motive to shoot at the apparent target. That person testified that Acon was angry with him because he had run over Acon’s basketball jersey. Fourth, the evidence also shows that after Acon was arrested, he spontaneously told one of the officers that the apparent target and his companion, “don’t think we were shooting. They were shooting at us.” Although not an admission of shooting, this comment indicated that Acon was involved with the others in a shooting incident.
Fifth, a witness heard shots coming from where Acon had been standing. Last, a person in the vicinity of the shooting testified that he saw Acon put on gloves just before shots were fired. The jury could have concluded that Acon put on gloves on a warm August day in anticipation of firing a gun to prevent gun residue from attaching to his hands. This would explain why the DNA and fingerprint analysis of the gun were inconclusive.
Acon argues that, because the squad car may have moved the gun as it ran over the gun, the jury could not reasonably have concluded that Acon dropped the gun. But Boerger testified that although “it appeared that our left front tire [ran] over the firearm,  I don’t know that it would have moved it any further than that.” Accordingly, the jury could reasonably have concluded that it was unlikely that the squad car moved the gun far enough to support a finding that another occupant dropped the gun.
Next, Acon argues that the testimony that Acon put on gloves before shots were fired is not believable because it is uncorroborated and because the police found no gloves inside the car he was driving or at the scene of the arrest. But the testimony needed no corroboration, and the jury could reasonably have concluded that Acon got rid of the gloves before speeding away. The lack of corroboration and the fact that the gloves were not found do not preclude a finding of possession.
Acon also argues that the circumstantial evidence supports a finding that he did not possess the gun. Acon claims that two other people jumped out of the car, that one of those two people tested positive for gunshot residue while Acon tested negative, and that there was no evidence otherwise connecting him to the gun. But a reasonable jury could have concluded that the path the other two people ran was not consistent with their possession of the gun at that time. Moreover, the possibility that another occupant may have shot a firearm does not negate the fact that Acon also shot a firearm or was in possession of one.
Additionally, Acon argues that because of the sequence in which the judge read the instructions, the jury could have concluded that Acon was guilty of possessing a firearm if he aided and abetted another in possessing a firearm. Having reviewed the instructions, we conclude that it is more likely that the jury reasonably understood that the instruction on aiding and abetting was given in connection with the drive-by shooting, not in connection with the felon-in-possession charge. In any event, appellant did not object to this part of the instructions at trial.
further argues that the jury instruction on the element of possession was
confusing and permitted an inference that Acon could have been found to be in
constructive possession of the gun even if another person had exclusive control
of the gun. Constructive possession need not be exclusive, but may
be shared. State v. LaBarre, 292
Finally, Acon argues that the jury was obviously confused about the definition of possession because it asked for clarification. But both counsel agreed that the jury would receive no further instructions on the possession element.
In sum, we conclude that the circumstantial evidence was sufficient to enable a jury to find appellant guilty beyond a reasonable doubt and that the jury instructions were not misleading.