This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Brandon Cain Simonson,
Filed March 27, 2007
Clay County District Court
File No. K7-05-1084
Lori Swanson, Attorney General, 1800
Heidi M. F. Davies, Assistant Clay County Attorney, Clay County Courthouse, 807 11th Street North, P.O. Box 280, Moorhead, MN 56560 (for respondent)
John M. Stewart, State Public Defender, Melissa Sheridan, Assistant
Public Defender, 1380 Corporate Center Curve,
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
After a jury found appellant guilty of methamphetamine possession and possession of a firearm by a felon, the district court imposed concurrent executed sentences. Appellant contends that the evidence was insufficient to support his convictions, the court erred in allowing into evidence a recorded statement of a jailhouse informant, and the imposition of sentences on both offenses violated the single-behavioral-incident rule. Because the evidence was sufficient to support the convictions; the court did not err in its evidentiary rulings; and separate sentences were proper, we affirm.
Shortly after midnight on May 31, 2005, police officers saw a car without its headlights on leave a parking lot and turn onto a street. The officers stopped the car and learned that neither the driver nor any of the three passengers had a valid driver’s license. The officers then decided to impound the car and searched it as a preliminary procedure.
The search yielded a 9-mm Luger handgun, a container with a pencil torch, glass pipes, marijuana, and three bags of a substance that later tested positive for methamphetamine. All items were found under the front passenger seat where appellant Brandon Simonson had been sitting. The drugs were packaged as if for sale, and the police also found a scale in a compartment on the passenger-side door.
The police arrested all four occupants of the car and found that Simonson had $2,488 in cash. No fingerprint analysis was made of the gun or any of the other items found under Simonson’s seat.
The state charged Simonson with possession of methamphetamine with intent to sell and ineligible person in possession of a firearm. Simonson pleaded not guilty and demanded a jury trial.
One day before the trial was to start, the prosecutor disclosed to defense counsel a tape-recorded telephone conversation between a detective and an inmate who had been in jail with Simonson. According to the tape, the inmate heard Simonson say that he had gotten caught with a gun and with drugs that he intended to sell, and that he was going to try to get someone else to take the blame for the gun.
Defense counsel objected to the use of this evidence because it had been disclosed at the last minute. To alleviate possible unfair prejudice and to allow defense counsel an opportunity to investigate further, the court offered a continuance of the trial. Simonson declined the offer; the jury found him guilty of both charges; and the court imposed separate concurrent sentences for both convictions. Simonson appealed.
D E C I S I O N
Testimony - Jailhouse Informant
Simonson first argues that the
district court erred in admitting unfairly prejudicial testimony of a jailhouse
informant, a witness who was not disclosed to defense counsel until a day
before the trial. In general,
“[e]videntiary rulings rest within the sound discretion of the [district] court
and will not be reversed absent a clear abuse of discretion.” State
v. Amos, 658 N.W.2d 201, 203 (
Upon request by defense counsel, the state must disclose the names and addresses of witnesses whom it intends to call at trial. Minn. R. Crim. P. 9.01, subd. 1(1)(a). The disclosure must be made before the omnibus hearing, and the state has a continuing duty to promptly disclose the identity of any trial witness it discovers after the initial disclosure. Minn. R. Crim. P. 9.01, subd. 1, 9.03, subd. 2.
The day before Simonson’s trial was
to begin, the state disclosed to defense counsel that it had a tape-recording
of an interview between Detective Charles Anderson and Dwaine Freiberg, an
inmate in federal custody who had shared a jail cell with Simonson. In that interview,
In a hearing on the admissibility of
this evidence, two detectives described how and when they obtained
The court ruled that the state had
promptly disclosed this evidence to Simonson and that the state neither
withheld the evidence nor obstructed or delayed its discovery. Simonson argued that the last-minute
disclosure of the interview unfairly prejudiced his ability to prepare an effective
defense. To alleviate any possible
unfair prejudice from the disclosure, the court offered to continue the trial
to allow Simonson time to interview
When there has been a discovery
violation, the court is to consider, among other factors, the reason for the
violation, the extent of the prejudice resulting from the violation, and the
feasibility of rectifying the prejudice by granting a continuance. State
v. Lindsey, 284 N.W.2d 368, 373 (
Sufficiency of the Evidence
next argues that the evidence was insufficient for the jury to find beyond a
reasonable doubt that he possessed a firearm or methamphetamine. In considering a claim challenging the sufficiency of the
evidence, this court’s “review on appeal is limited to a painstaking analysis of the
record to determine whether the evidence, when viewed in a light most favorable
to the conviction, was sufficient to permit the jurors to reach the verdict
which they did.” State v. Webb, 440 N.W.2d 426, 430 (
review includes an analysis of both the facts presented and the inferences that
the jury could reasonably draw from those facts. State
v. Robinson, 604 N.W.2d 355, 366 (
showed that Simonson was seated in the passenger’s seat of the car that the
police stopped, and he was surrounded by drugs, drug paraphernalia, and a
loaded handgun. In order to obtain a
conviction for violation of 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 (
possession may be proved by showing that (a) the police found the item in a
place under the defendant’s exclusive control to which other people did not
have access, or (b) that, if the police found the item in a place to which
others had access, there is a strong probability, inferable from the evidence,
that the defendant was consciously exercising dominion and control over the
item at the time.
Simonson argues that the state failed to prove that he had exclusive control over the car because it belonged to his father, who had given it to his girlfriend to drive out of state. He also argues that the gun and drugs were concealed, and that there was no evidence that he could see these items or had placed them there. Additionally, he points out that his father had just bought the car from a known drug dealer, implying that the previous owner may have left the items in the vehicle. At trial, Simonson’s girlfriend testified that the car she was driving on the date of Simonson’s arrest belonged to his father, who had purchased the car from an individual known to use drugs.
Freiberg, a drug dealer in federal custody, testified that he spoke with
Simonson while they were incarcerated and that Simonson acknowledged ownership
of the methamphetamine and that he intended to sell it. He also told
review, we must assume that the fact-finder credited the testimony of the state’s
witnesses but discredited any conflicting testimony. Pieschke,
295 N.W.2d at 584. The jury’s decision indicates that it weighed the testimony and
Simonson argues that his possession
of methamphetamine and a firearm at the same time was part of the same
behavioral incident and no separate sentence could be imposed for the
controlled-substance conviction. “[I]f a person’s conduct constitutes more
than one offense under the laws of this state, the person may be punished for
only one of the offenses . . . .” Minn. Stat. § 609.035, subd. 1
(2004). The defendant may not be
sentenced for two or more offenses that were committed as part of the same behavioral incident.
State v. Norregaard, 384
N.W.2d 449, 449 (
In determining if two offenses are
part of a single behavioral incident, we consider time, place, and whether the
offenses were motivated by a single criminal objective. State
v. Soto, 562 N.W.2d 299, 304 (
In State v. Marchbanks, 632 N.W.2d 725, 732 (Minn. App. 2001), a case similar to Simonson’s, the appellant argued that, under the state’s theory of the case, he possessed the gun only to further the sale of the cocaine found in his possession, and therefore his crimes were part of a single behavioral incident. The court disagreed and held that the appellant’s conduct was divisible because the appellant could unlawfully possess a firearm without possessing any crack cocaine, and conversely, he could possess crack cocaine without possessing a firearm. Id.; see also State v. Butcher, 563 N.W.2d 776, 784 (Minn. 1997) (holding offense of possessing uncased firearm separate from illegal taking of deer because, although committed in same time frame, the offenses were independent of each other), review denied (Minn. Aug. 5, 1997); State v. Thomas, 352 N.W.2d 526, 529 (Minn. App. 1984) (holding assault, although occurring within the same time frame as a cocaine sale, did not further the sale and was therefore a separate crime), review denied (Minn. Oct. 11, 1984). Cf. State v. Reese, 446 N.W.2d 173, 180 (Minn. App. 1989) (possession of two controlled substances at the same time and place, for personal use, constitutes a single behavioral incident), review denied (Minn. Nov. 15, 1989).
Here, police officers discovered Simonson in
possession of both a firearm and methamphetamine. Although the facts may permit speculation that
Simonson might have used the gun to protect his drugs, there is nothing in the
record to show that his two offenses “arose out of a continuing and
uninterrupted course of conduct, manifesting an indivisible state of mind or
coincident errors of judgment.” State v. Gibson, 478 N.W.2d 496, 497 (