This opinion will be unpublished and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,
Ariel Suzette Pedersen,
Ariel Suzette Pedersen, petitioner,
State of Minnesota,
Affirmed in part and reversed in part
Mille Lacs County District Court
File No. TK-2-03-603
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Jan Kolb, Mille Lacs County Attorney, Christopher J. Zipko, Assistant County Attorney, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)
Randall D.B. Tigue, Randall Tigue Law Office, P.A.,
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
In this consolidated appeal, appellant challenges the sufficiency of the evidence to support her convictions, the district court’s refusal to give certain jury instructions, and the district court’s denial of her postconviction petition without a hearing. Because there is sufficient evidence that appellant constructively possessed marijuana and because the district court did not abuse its discretion in refusing to give requested jury instructions or in denying appellant’s postconviction petition, we affirm appellant’s conviction for possession of marijuana and the denial of postconviction relief. But because there is not sufficient evidence that appellant constructively possessed a firearm, we reverse her conviction for being a prohibited person in possession of a firearm.
After receiving a tip from a confidential informant, police obtained a search warrant for appellant’s property and went to conduct a search. Appellant and her husband were present and consented to the search. Michael Schwerzler rented an outbuilding 40 to 60 feet from the home and resided there. When appellant and her husband were reluctant to permit police to search the Schwerzler outbuilding, an officer executed the search warrant.
Officers found a small amount of marijuana in appellant’s bedroom. Officers also found objects related to marijuana, mushrooms, and the growth of both plants throughout appellant’s home. In a downstairs closet, officers found two firearms. Finally, officers searched the outbuilding and found a “marijuana grow operation,” consisting of 37 to 39 starter marijuana plants and equipment to grow the plants.
Appellant was charged with prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (2002); fifth-degree possession of a controlled substance (marijuana), second offense, in violation of Minn. Stat. §§ 152.025, subds. 2(1), 3(b) (2002), 609.11, subd. 5 (2002); fifth-degree possession of a controlled substance (mescaline), second offense, in violation of Minn. Stat. §§ 152.025, subds. 2(1), 3(b) (2002), 609.11, subd. 5; and conspiracy to commit sale of a controlled substance in the fifth degree, in violation of Minn. Stat. §§ 152.025, subd. 1 (2002), 152.096, subd. 1 (2002), 609.11, subd. 5. A jury trial was held in July 2004.
At trial, appellant denied knowledge of the grow operation and the guns in the closet. Schwerzler testified that he grew the marijuana himself and that appellant was not involved. Schwerzler also testified that this was his first time growing marijuana, but refused to identify the source of the plants or his knowledge of how to grow them. The state argued that the relationship between appellant and Schwerzler and the contents and proximity of their respective residences proved appellant’s possession of the marijuana and the mescaline. The state also argued that the presence in the same closet in appellant’s home of both firearms and clothing and other objects that may have belonged to appellant established appellant’s possession of the firearms. The district court granted a directed verdict for appellant on the conspiracy-to-sell charge. The jury found appellant guilty of the firearm-possession and marijuana-possession charges, and not guilty of the mescaline-possession charge.
Appellant moved for judgment of acquittal or a new trial on the basis of insufficient evidence for both offenses and the district court’s failure to give certain jury instructions. The district court denied this motion and sentenced appellant to 60 months for the firearm-possession conviction and a concurrent term of one year and one day for the marijuana-possession conviction. Appellant filed a notice of direct appeal, and a motion to stay the direct appeal pending resolution of her petition for postconviction relief, which she filed with the district court. This court granted appellant’s motion to stay the direct appeal.
In her postconviction petition, appellant presented evidence identifying the source of the marijuana plants in the outbuilding and evidence that the confidential informant was a bitter, former employee of appellant’s. Appellant also argued that because appellant’s husband had a lawful right to possess the firearms, there was insufficient evidence that appellant possessed the guns. The district court denied appellant’s postconviction petition without a hearing. Appellant filed a notice of appeal from the denial of postconviction relief, and her two appeals were consolidated.
first issue is whether appellant’s convictions are supported by sufficient
evidence. This court reviews the
findings of the postconviction court “to determine whether there is sufficient
evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (
considering a claim of insufficient evidence, the reviewing court 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. Bernhardt
v. State, 684 N.W.2d 465, 476-77 (
evidence is entitled to the same weight as direct evidence, but warrants
stricter scrutiny. State v. Bauer, 598 N.W.2d 352, 370 (
A. Prohibited person in possession of a firearm
Minn. Stat. § 624.713, subd. 1(b) (2002), it is a felony for a person
convicted of a crime of violence to possess any type of firearm. A conviction under this section requires
either actual or constructive possession of a firearm. State
v. Loyd, 321 N.W.2d 901, 902 (
(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.
v. Porter, 674 N.W.2d 424, 427 (Minn. App. 2004) (citing State v. Florine, 303
constructive possession exists is a fact-specific inquiry. In Salcido-Perez v. State, we found
sufficient evidence of constructive possession where a firearm was found in a
closet in the home where the appellant lived, and the appellant admitted to
having put it there, although he did not own it. 615 N.W.2d 846, 848 (Minn. App. 2000), review
Here, appellant’s husband testified that the guns belonged to him. He testified that he usually kept the guns at his parents’ home, but that he brought them back to his home and placed them in a downstairs closet in preparation for a hunting trip. Prior to the trip, appellant was in a serious accident, so the trip was cancelled, and appellant’s husband forgot that the guns were in the house. Appellant testified that she did not know the guns were in the closet. She testified that her husband was the primary user of the closet where the guns were located and that she kept her clothes in her bedroom and in the closet in her daughter’s bedroom. Officers testified that the closet contained a number of objects that could have belonged to appellant or the couple’s children. But appellant provided explanations for how these objects could have been in the closet without her having put them there. The husband of appellant’s former domestic employee testified that articles of women’s clothing in the closet were his wife’s, not appellant’s. There was no evidence that appellant used the closet or was aware the guns were on the premises.
in the light most favorable to the conviction, the most the state proved here
was that the firearms were in the closet of appellant’s home and that it was
possible she knew of their presence.
Other cases finding sufficient evidence to establish “dominion and
control” over an object have not done so on the basis of possible knowledge
alone. See Willis, 320 N.W.2d at
727-28; Salcido-Perez, 615 N.W.2d at 848. The guns here belonged to appellant’s husband
and he provided a reasonable explanation for their presence in the home. This evidence does not create a strong probability
that appellant possessed the guns at any time.
See Florine, 303
Stat. § 152.028, subd. 1 (2002), supports the reversal of appellant’s
conviction. The statute permits an
inference of possession of a controlled substance based on a person’s presence
in a room with a controlled substance, but specifically prohibits drawing this
inference when another party in the room has a legal right to possess the
B. Fifth-degree possession of marijuana
Minn. Stat. § 152.025, subd. 2(1) (2002), defines controlled substance crime in the fifth degree as when “the person unlawfully possesses one or more mixtures containing a controlled substance.” The same definition of constructive possession applies to controlled substance crimes as applies to firearms possession. Porter, 674 N.W.2d at 429.
State v. Cusick, the supreme court
considered the sufficiency of the evidence supporting the appellant’s
conviction for possession of cocaine.
387 N.W.2d 179, 180 (
The state identifies a number of pieces of evidence that show appellant’s constructive possession of the marijuana found in the outbuilding occupied by Schwerzler. Appellant argues that this evidence is also consistent with the theory that Schwerzler grew the marijuana on his own or had help from a third party.
The objects in appellant’s home indicating her general familiarity and use of marijuana include: a small amount of marijuana, a marijuana pipe, and a magazine and videotapes on growing marijuana. The state also produced evidence of the close relationship between appellant and Schwerzler. Appellant testified that Schwerzler is like “my brother or my son,” and Schwerzler testified that he loves appellant “more than anybody.” Schwerzler testified that he and appellant used to smoke marijuana together and that they spent time in her bedroom together. Schwerzler also spent considerable time in appellant’s home caring for her children. This evidence suggests appellant was familiar with Schwerzler’s activities, including those involving marijuana.
There was also evidence that Schwerzler used supplies, equipment, and techniques for growing marijuana that were the same or similar to appellant’s gardening activity. Officers found such material in appellant’s home, and appellant testified that she used the reflective sheets, fish tanks, and lights to grow plants. Officers found fish tanks, a growing material, a grow lamp, and reflective sheets in the outbuilding, set up in a similar fashion to appellant’s description of her growing techniques. Schwerzler testified that he did not see the reflective sheets and grow lamps in appellant’s home and that “a friend of [his] down in the Cities,” who he would not identify, gave him the starter plants and showed him how to use the material and grow lamps. It appears that the jury did not find this innocent-coincidence testimony credible. Officers additionally found a box in the outbuilding from “Fungi Perfecti,” addressed to appellant at a previous address. Schwerzler testified that the starter plants were in the box at some point.
Finally, the state presented evidence that a woman called appellant’s residence during the search, stating that she wanted to obtain some “stuff” to celebrate a friend’s birthday over the weekend. An officer answered the telephone, pretending to be Schwerzler. The officer indicated to the woman that police were at the home conducting a search, and the woman asked if the police had found any of Schwerzler’s “stuff.” The explanation that the caller was referring to a birthday cake is not credible. Schwerzler testified that he did not tell the woman about his marijuana operation; therefore, the only way she could have known of Schwerzler’s marijuana was if appellant told her. This indicates that appellant knew of Schwerzler’s marijuana-growing operation.
Based on the totality of the circumstances, we find sufficient evidence that appellant constructively possessed the marijuana found in the outbuilding.
second issue is whether the district court abused its discretion when it denied
appellant’s request to give certain jury instructions. The refusal to give a requested jury
instruction lies within the discretion of the district court and will not be
reversed absent an abuse of that discretion.
State v. Cole, 542 N.W.2d 43,
A. Tenant’s superior right to possess property
first argues that the district court abused its discretion in refusing to
instruct the jury that a tenant’s right to possess leased property is superior
to the landlord’s right to possess the property. See
Neilan v. Braun, 354 N.W.2d 856, 859 (
B. Circumstantial evidence requires exclusion of other theories
also argues that the district court abused its discretion in refusing to
instruct the jury that a guilty verdict based on circumstantial evidence alone
requires the exclusion of every reasonable hypothesis other than guilt. See
Jones, 516 N.W.2d at 549. In State v. Turnipseed, the supreme court
held that it was not improper for the district court to refuse to give an
instruction that “all circumstances proved must be . . . inconsistent with any
other rational conclusion.” 297 N.W.2d
308, 312 (
State v. Jones, this court
distinguished Turnipseed. 498 N.W.2d 44, 46 (
The third issue is whether the district court
abused its discretion in denying appellant’s postconviction petition without an
evidentiary hearing. A district court’s
denial of postconviction relief without a hearing is reviewed for abuse of
discretion. Powers v. State, 695 N.W.2d 371, 374 (
Appellant argues that she is entitled to a new trial based on newly discovered evidence. To obtain a new trial based on newly discovered evidence, a defendant must show
(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.
v. State, 566 N.W.2d 692, 695 (
Johnson v. State, the appellant
requested postconviction relief based on newly discovered evidence in the form
of a confession to the crime at issue from a witness who was then willing to
testify, despite his refusal to testify and his invocation of his Fifth
Amendment privilege at trial. 486 N.W.2d
825, 827 (
Here, appellant claims she is entitled to a new trial based on two items of new evidence. First, appellant submitted an affidavit from Schwerzler stating that he did not identify the source of the marijuana at the trial out of fear for his personal safety, but that he was now willing to identify the source as the husband of one of appellant’s previous personal care attendants. Second, appellant submitted her own affidavit, stating that she learned the identity of the confidential informant that started the investigation, that the informant’s husband was the source of the marijuana found in Schwerzler’s home, and that the informant had a motive to frame appellant rather than expose her husband.
Schwerzler’s new testimony is questionable. As in Johnson, Schwerzler has been convicted and sentenced for his role in the marijuana operation. He had a close relationship with the accused and his new testimony would not subject him to negative legal consequences. See 486 N.W.2d at 828. Also, other evidence shows appellant’s connection to the marijuana, including her relationship with Schwerzler, her familiarity with marijuana, her use of a similar growing method for plants as that found in the outbuilding, and the phone call from the woman during the search. Even if Schwerzler’s affidavit is believed, it only establishes that a different source provided the marijuana initially and possibly provided some guidance on how to grow it. The similarity in growing methods still indicates that appellant had a role in the operation. Because appellant did not show that the newly discovered evidence would be apt to produce an acquittal or that the evidence was reliable, we conclude the district court did not abuse its discretion in summarily denying appellant’s postconviction petition.
Affirmed in part and reversed in part.
Appellant argues that her position is supported by Bernhardt, 684 N.W.2d at 465.
In that case, the appellant was convicted of assault, kidnapping, and