This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed December 12, 2006
Ramsey County District Court
File No. K7-05-614
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Renee Bergeron, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Worke, Presiding Judge, Ross, Judge, and Crippen, Judge.
Appellant Hans Kohene was convicted of felon in possession of a firearm. He disputes the sufficiency of the evidence and claims that the state denied him due process and violated the doctrine of judicial estoppel by trying the case after alleging in his cousin’s trial that his cousin possessed the gun. We affirm.
In August 2004, appellant and his cousin were arrested in connection with an incident involving a firearm. Appellant’s cousin was charged with felon in possession of a firearm, theft of a motor vehicle, and drive-by shooting. Appellant was released without being charged.
On the morning of his cousin’s trial, appellant told defense counsel and Officer Mark Kempe that he was the one in possession of the gun and that he fired it, but appellant denied possessing the gun when the defense offered his testimony. Shortly thereafter, appellant was charged with ineligible person in possession of a firearm in violation of Minn. Stat. §§ 624.713, subd. 1(b), 609.11, subd. 5(b) (2004), and reckless discharge of a firearm in violation of Minn. Stat. § 609.66, subd. 1a(a)(3) (2004).
In a subsequent jury trial, appellant stipulated that he was not eligible to possess a firearm, but he testified that on the night before his cousin’s jury trial, his cousin convinced him to take responsibility for the gun so that his cousin would not be convicted at trial. Appellant said that his cousin told him “exactly what to say,” and that he relayed this information to Officer Kempe “to try to help out [his] cousin,” explaining that “he didn’t want [his] cousin to get convicted.” He testified that he “backed down” when he was called as a witness for his cousin. Appellant further testified that he did not even know that his cousin had a firearm. Appellant was acquitted on the charge of reckless discharge.
On appellant’s dispute on the
evidence, we are to carefully examine the record to determine whether the
evidence, “when viewed in a light most favorable to the conviction,” supports
the verdict. State v. Webb, 440 N.W.2d 426, 430 (
To obtain a conviction under
Minn. Stat. § 624.713, subd. 1(b) (2004), the state must establish either
actual or constructive possession of a firearm. State v. Loyd, 321 N.W.2d 901, 902 (
The record reflects that after briefly following a Buick driven by appellant’s cousin, police observed appellant, his cousin, and a third individual jump out of the moving car. After appellant and his cousin were apprehended a few blocks away, police discovered a gun under their squad car, just behind the front tire. Both appellant and his cousin exited the car on the side nearest to where the gun was found.
The record also reflects appellant’s later statement, at the time his cousin was tried, that he and not his cousin was the one in possession of the gun. Although appellant testified at his trial that he concocted the story because “he didn’t want [his] cousin to get convicted,” it is evident that the jury did not believe this testimony. See Moore, 438 N.W.2d at 108 (stating that this court defers to jury credibility determinations). We conclude that the location of the firearm when it was discovered, appellant’s flight from police, and appellant’s prior admission to possessing the gun, constitutes sufficient evidence from which a reasonable jury could conclude that appellant was guilty of the charged offense.
Appellant claims that he was denied
due process because the district court did not apply the doctrine of judicial estoppel to prevent the
prosecuting attorney from asserting theories of guilt that conflicted with
theories asserted by the prosecuting attorney when his cousin was tried. “Whether to apply the doctrine of judicial estoppel is a question of
law, reviewed de novo.” State v. Pendleton, 706 N.W.2d 500, 507
The state argues that the judicial
estoppel issue was raised for the first time on appeal and should not be
considered. But we may consider an
unobjected-to-error if it is a plain error or defect affecting substantial
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.