This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Brandon Cain Simonson,



Filed March 27, 2007


Shumaker, Judge


Clay County District Court

File No. K7-05-1084



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


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, Suite 320, Eagan, MN 55121 (for appellant)


            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.


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 (Minn. 2003).  On appeal, the appellant bears the burden of establishing that the district court abused its discretion and its decision resulted in prejudice.  Id. 

            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, Freiberg related a conversation he had with Simonson in which Simonson allegedly admitted possession of a gun and his intent to sell methamphetamine.

            In a hearing on the admissibility of this evidence, two detectives described how and when they obtained Freiberg’s statement.  Detective Stuvland was investigating the ownership of the car in which Simonson was riding at the time of his arrest and learned from Detective Anderson that Freiberg and Simonson had shared a jail cell.  Anderson decided to interview Freiberg and made several attempts to contact Freiberg’s attorney to get permission for the interview.  Anderson conducted the interview the day before Simonson’s trial was to start and immediately afterward brought the tape-recording to the prosecutor.  The prosecutor then immediately disclosed the interview to defense counsel.

            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 Freiberg, to further investigate, and to prepare his defense.  Simonson declined the offer, and the trial was held as scheduled.

            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 (Minn. 1979).  Although the court here found no discovery violation—a finding fully supported by the record—it nevertheless considered the Lindsey factors and offered Simonson an opportunity to meet the evidence.  Simonson argues, without factual basis, that the evidence could have been ascertained weeks before the trial date, and he fails to explain why the offered continuance would not have been adequate to eliminate unfair prejudice.  Had the evidence actually been discovered and disclosed weeks before the trial date, Simonson would have had a chance to investigate further, to interview the informant, and to prepare to meet the evidence.  This is the very opportunity the court offered through a continuance of the trial.  Simonson declined the offer.  The court did not err in admitting the evidence of Freiberg’s allegations.

Sufficiency of the Evidence

Simonson 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 (Minn. 1989). 

This court’s 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 (Minn. 2000).  Because “weighing the credibility of witnesses is the exclusive function of the jury,” State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980), this court assumes that the jury believed the state’s witnesses and disbelieved contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We 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, reasonably could conclude that the defendant was guilty of the charged offense.  State v. Olhausen, 681 N.W.2d 21, 25-26 (Minn. 2004).  “The dispositive consideration . . . is not whether reasonable doubt existed, but whether there was sufficient evidence for a jury to reasonably conclude that no reasonable doubt existed.”  State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).

The evidence 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 (Minn. 1982).  The constructive-possession doctrine permits a conviction when the state cannot prove actual possession, but when the inference is strong that the defendant physically possessed the item at one time and did not abandon his possessory interest in it.  State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975).

Constructive 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. 105, 226 N.W.2d at 611.  Proximity is an important consideration in assessing constructive possession.  State v. Cusick, 387 N.W.2d 179, 181 (Minn. 1986).  Constructive possession need not be exclusive, but may be shared.  State v. LaBarre, 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972).

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. 

However, Dwaine 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 Freiberg that he had a gun and that he hoped someone else would claim the gun so that he would be exonerated. 

On 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 gave Freiberg’s statements greater weight than the defense evidence to the contrary.  Even without this testimony, however, there was sufficient evidence to convict Simonson on the theory of constructive possession.  Simonson was surrounded by incriminating materials, and the gun was within his reach.  Therefore, there was a strong probability, inferable from the evidence, that Simonson exercised dominion and control over the drugs, drug paraphernalia, and gun, thereby constructively possessing the items, and we will not overturn the jury’s verdict. 


            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 (Minn. 1986).   

            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 (Minn. 1997).  The Minnesota Supreme Court has held that, where nothing in the record shows that the unlawful possession of a firearm furthers the crime of controlled-substance possession, the crimes are separate behavioral incidents, even though police may discover the offenses at the same time.  Mercer v. State, 290 N.W.2d 623, 626 (Minn. 1980). The district court’s decision will not be reversed unless clearly erroneous.  Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986). 

            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 (Minn. 1991).  Simonson argues that his case is distinguishable from Marchbanks because, unlike Marchbanks, he was convicted of the drug-sale charge, and the state’s theory of the case relied on an inference that he possessed the firearm to facilitate the drug sale.  However, the court in Marchbanks affirmed the appellant’s conviction of possession of cocaine, and we agree that regardless of the state’s theory, “appellant’s conduct is divisible.  Appellant could unlawfully possess a firearm without possessing any [drugs], and conversely, he could possess [drugs] without possessing a firearm.”  632 N.W.2d at 732.  Additionally, this record does not support a contention that the firearm possession furthered Simonson’s sale of methamphetamine.  Therefore, we hold the district court acted within its discretion by sentencing Simonson separately for both convictions.