This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Douglas B. Melby,




Filed January 2, 2007


Lansing, Judge



Crow Wing County District Court

File No. K7-05-133



Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101, and


Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)


John Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)



            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.


            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.



            Evidence 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 (Minn. 2006).  Our review consists of a very thorough analysis of the record to determine whether the evidence was sufficient to permit the jury to reach its verdict.  State v. Spann, 574 N.W.2d 47, 54 (Minn. 1998).  We view the evidence in the light most favorable to the verdict and assume the jury disbelieved any evidence in conflict with the verdict.  State v. Bolstad, 686 N.W.2d 531, 538-39 (Minn. 2004).

            Melby 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 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).  Melby argues that his conviction should be reversed because the evidence was insufficient for a jury to find that he possessed the rifle.

            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.

            In 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. Aetna Cas. & Sur. Co., 233 Minn. 383, 386, 46 N.W.2d 868, 870 (1951).  The court then went on to define actual possession as “direct physical control.” 388, 46 N.W.2d at 871.  Similar standards have been applied in criminal cases in other states.  See, e.g., State v. Black, 624 N.W.2d 363, 371 (Wis. 2001) (defining possession as knowingly having actual physical control).

            Under 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 (Minn. 1999).  Melby told the police officer that the item was a rifle and thus revealed that he was aware of its identity.  He also told the officer that the rifle was unloaded, which revealed that he had knowledge of the rifle’s condition.  Furthermore, at the time of the traffic stop, Melby’s brother appeared surprised that the rifle was in the truck.  Because Melby was the only other person in the truck, his brother’s response indicated that Melby must have brought the rifle into the truck.  This evidence is sufficient to permit the jury to find that Melby had direct physical control or was otherwise in actual possession of the rifle.  Because the evidence is sufficient to sustain a finding of actual possession, we need not decide whether there was sufficient evidence to prove constructive possession.


            A district court may depart from the presumptive sentence only if “identifiable, substantial, and compelling circumstances” support the departure.  Minn. Sent. Guidelines II.D.  We review departure decisions for an abuse of discretion.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  A written explanation is not required when the district court refuses to depart and instead imposes the presumptive sentence.  State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).  Only a rare case would warrant reversing a district court’s refusal to depart.  State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).

            In exercising its discretion, the district court typically weighs reasons for and against departure.  State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002); Curtiss, 353 N.W.2d at 264.  In Mendoza, the district court refused to consider a departure for probation because the defendants might be deported.  638 N.W.2d at 482.  We concluded that it was improper to consider the defendants’ immigration status and that there were reasons to support a departure. 484.  We therefore remanded to give the district court an opportunity to exercise its discretion. 486.  Similarly, in Curtiss, the district court concluded that “there is no justifiable reason to deviate” and refused to give further consideration to a downward departure.  353 N.W.2d at 263.  Because we found that the district court did not consider the reasons in favor of a departure, we remanded to permit the district court to exercise its discretion. 264.

            In 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 (Minn. 1982).

            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.