This opinion will be unpublished and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
Douglas B. Melby,
Filed January 2, 2007
Crow Wing County District Court
File No. K7-05-133
Lori Swanson, Attorney General, James B. Early,
Assistant Attorney General, 1800
Donald F. Ryan, Crow Wing County Attorney,
John Stuart, State Public Defender, Lydia Villalva
Lijó, Assistant Public Defender,
Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Douglas Melby guilty of illegal possession of a firearm. The district court denied Melby’s motion for a downward departure from the presumptive sixty-month sentence. On appeal, Melby challenges the sufficiency of the evidence to prove that he was in possession of the rifle and argues that the district court failed to exercise its discretion when it denied his motion for a downward dispositional departure. Because the evidence is sufficient to prove actual possession, and the district court did not abuse its sentencing discretion, we affirm.
F A C T S
Douglas Melby was riding as the only passenger in his brother’s truck on January 20, 2005. A police officer pulled the truck over and approached the vehicle on the passenger side. The officer observed the barrel of a rifle next to Melby’s leg. The officer asked Melby if the object was a rifle and Melby said that it was. The rifle was on the passenger side of the vehicle and was partly covered by a jacket. The officer stated in his report and testified at trial that he saw Melby’s hand resting on the rifle. Melby told the officer that the rifle was unloaded. The driver, Melby’s brother, indicated that he was unaware that there was a weapon in the vehicle.
Melby was charged with being a felon in possession of a firearm. At trial, he stipulated that he was ineligible to possess a firearm because of previous convictions. The jury found Melby guilty.
At the sentencing hearing, Melby made a motion for downward departure from the presumptive sentence. His attorney described a traumatic brain injury that Melby sustained in 2002. As a result of the injury, Melby suffers from memory loss and related problems. In addition, Melby had recently been diagnosed with mental-health problems, including bipolar disorder. Because Melby could receive treatment or assistance with these issues, Melby’s attorney argued that he was particularly amenable to probation. The district court denied Melby’s motion and imposed the presumptive sentence of sixty months with a minimum imprisonment of forty months.
D E C I S I O N
is sufficient to support a conviction if, given the facts in the record and the
legitimate inferences drawn from those facts, a jury could reasonably conclude
the defendant committed the crime charged.
State v. Laine, 715 N.W.2d
425, 430 (
was convicted for violating Minn. Stat. § 624.713, subd. 1(b) (2004), which
prohibits persons convicted of crimes of violence from possessing firearms. To obtain a conviction under the statute, the
state must establish either actual or constructive possession. State
v. Smith, 619 N.W.2d 766, 770 (
The record establishes that the evidence was sufficient to permit the jury to find Melby actually possessed the rifle. Melby’s proximity to the rifle, his physical contact with the rifle, and his knowledge that the rifle was unloaded all support the conclusion that he actually possessed the rifle.
a civil context, the Minnesota Supreme Court has observed that “[t]he word [p]ossession
has many shades of meaning and, as applied to a variety of facts, is not
capable of one exact definition.” Jacobson v.
almost any definition of possession, a jury could reasonably find that Melby
actually possessed the rifle. Melby was
sitting next to the rifle and, according to the testimony accepted by the jury,
he had his hand on the rifle. Hence,
Melby was in a position to directly and physically control the rifle. A person can possess a firearm without using
or brandishing it. State v. Royster, 590 N.W.2d 82, 84-85 (
district court may depart from the presumptive sentence only if “identifiable,
substantial, and compelling circumstances” support the departure.
exercising its discretion, the district court typically weighs reasons for and
against departure. State v.
support of his departure motion, Melby argued he was amenable to treatment
because his recently diagnosed mental-health problems could be treated, and he
could be assisted with his memory problems.
A defendant’s amenability to treatment in a probationary setting can be
a reason for departure. State v. Trog, 323 N.W.2d 28, 31 (
After hearing Melby’s arguments, the district court imposed the presumptive sentence of sixty months and denied Melby’s motion for a downward departure. The district court did not explain why it was denying the motion. Instead, it simply stated, “By virtue of this sentence the motion for a dispositional departure made by the defense is denied.”
The district court is not required to give written reasons for denying a downward departure. Curtiss, 353 N.W.2d at 263. Unlike in Mendoza and Curtiss, there is no evidence that the district court considered improper factors or failed to exercise its discretion. The district court heard Melby’s arguments and concluded that the evidence did not warrant a downward departure. The record provides no basis for holding that the district court abused its discretion.