This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Tramale D. Pitchford,


Filed December 31, 2007

Affirmed in part, reversed in part, and remanded

Hudson, Judge


Steele County District Court

File No. K1-05-1565


Lori Swanson, Minnesota Attorney General, Gunnar B. Johnson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, Minnesota 55060
 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, Minnesota 55104 (for appellant)


            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Hudson, Judge. 

U N P U B L I S H E D   O P I N I O N


In this appeal from his convictions of and sentences for felon in possession of a firearm, possession of a short-barreled shotgun, and possession of a firearm without a serial number, appellant argues that (1) the evidence was insufficient to prove that he was in constructive possession of the shotgun found under his seat when he was a passenger in the vehicle; and (2) because the three offenses were all part of the same behavioral incident, they should not have been separately sentenced.  Although the evidence was sufficient to support the jury’s verdict, the district court erred when it imposed sentences for three offenses that were part of the same behavioral incident.  Accordingly, we affirm in part, reverse in part, and remand for resentencing.


At around 2:00 a.m. on November 11, 2005, a Steele County sheriff’s deputy pulled over a vehicle he observed traveling 55 miles per hour in a 40-mile-per-hour zone in Owatonna, Minnesota.  The deputy and the sergeant who was patrolling with him approached the vehicle and obtained driver’s licenses from the occupants of the vehicle.  Appellant was the front-seat passenger.  The officers returned to the squad car, ran the identification information through the computer, and discovered that appellant had an active warrant for his arrest.  The officers then returned to the stopped vehicle and told appellant that there was a warrant for his arrest and that they were going to place him under arrest. 

            As appellant was getting out of the vehicle, the sergeant noticed a shotgun sitting on the floor of the vehicle under the front passenger seat.  The sergeant later described what happened as appellant was getting out of the front seat of the car:

            I opened the door all the way because I knew he was going to be coming out.  And the way he was sitting with his feet, he was slumped quite a ways forward in the seat, leaning way back, and his jacket was covering what was underneath his legs.  And just the way he was sitting up there, it looked like – I believed there was going to be something underneath his legs there.  And as I instructed him to get out, I placed my hand on his coat, and I helped him out of the car and pushed him towards the car.  And as I was leaning in, I could see the – a firearm sitting on the floorboard of the front of the passenger’s seat.


The sergeant stated that “[i]f you were sitting in the seat and you were to just lean forward and look straight down, you could have seen – you would see the edge of the stock and the receiver of the shotgun.” 

            The sergeant then pulled appellant from the vehicle, drew his weapon, and removed the shotgun from the floor of the vehicle.  After securing the scene, the sergeant placed the shotgun in the trunk of the squad car.  The officers then interviewed the occupants of the vehicle at the scene.  After completing the interviews, the sergeant put the shotgun back under the front seat of the vehicle so he could take pictures of where it was when he found it.  A photograph of the shotgun, taken by the sergeant after it was replaced under the vehicle’s seat, was admitted as evidence in appellant’s jury trial.  The officers later identified the firearm as a JC Higgins Model 60 shotgun.  The gun had no serial number and the stock had been sawed off. 

            On November 14, 2005, Steele County charged appellant with felon in possession of a firearm in violation of Minn. Stat. § 624.713, subds. 1(b), 2(b) (2004); possession of a short-barreled shotgun in violation of Minn. Stat. § 609.67, subd. 2 (2004); and possession of a firearm not identified by a serial number in violation of Minn. Stat. § 609.667(3) (2004).  

            Appellant pleaded not guilty and stipulated to the fact that he was legally ineligible to possess a firearm and that the firearm was a short-barreled shotgun without a serial number.  Thus, the sole issue at trial was whether appellant was in possession of the gun found on the floor of the vehicle when he was arrested.  The only person who testified at trial was the sergeant who arrested appellant.  Appellant waived his right to testify.  Four exhibits were entered into evidence: (1) the photograph taken by the sergeant showing the gun where he first discovered it (taken after the sergeant had replaced the gun); (2) the shotgun itself; (3) the shells from the shotgun; and (4) the audiotape of appellant’s interview. 

            The tape of the sergeant’s interview of appellant was played for the jury.  The court reporter’s transcript of the interview showed that appellant told the sergeant that he did not know the gun was in the car and described where he had been that night.  The sergeant also testified that appellant told him that his (appellant’s) fingerprints may be on the shotgun because “he may have brushed up against it as he moved his seat back.”   However, the shotgun was not tested for fingerprints. 

            At the close of the prosecution’s case, appellant moved for acquittal, arguing that the prosecution had not presented sufficient evidence to show that he had constructively possessed the shotgun.  The district court denied the motion.  The jury returned guilty verdicts on all three counts.  On May 15, 2006, the district court sentenced appellant to (1) 60 months for appellant’s conviction of felon in possession of a firearm and a $1,000 fine; (2) 23 months for possession of a short-barreled shotgun and a $1,000 fine; and (3) 19 months for possession of a firearm not identified by a serial number and a $1,000 fine.  This appeal follows.




            Appellant argues that his convictions must be reversed because the evidence was insufficient to show that he constructively possessed the shotgun.  We disagree. 

            On review of a claim of insufficient evidence to support a conviction, this court must determine whether “given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find that the defendant was guilty of the charged offense.”  State v. Laine, 715 N.W.2d 425, 430 (Minn. 2006) (quotation omitted).  This court defers to the jury on the weight and credibility of the evidence and “will continue to assume [that] the jury believed the state’s witnesses and disbelieved the defendant’s witnesses.”  Id. at 431 (quotation omitted).  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, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004).  When the conviction is based on circumstantial evidence, this court will affirm the jury’s verdict “only if the circumstantial evidence forms a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.”  Laine, 715 N.W.2d at 430–31 (quotation omitted). 

            Convictions of offenses with which appellant was charged requires a finding that appellant possessed the firearm in question.   See Minn. Stat. § 624.713, subds. 1(b), 2(b), (2004) (felon in possession of a firearm); Minn. Stat. § 609.67, subd. 2 (2004) (possession of a short-barreled shotgun); Minn. Stat. § 609.667(3) (2004) (possession of a firearm without a serial number).  Possession may be either “actual” or “constructive.”  State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982).  To establish constructive possession, it must be shown either that (1) “the police found the item in a place under defendant’s exclusive control to which other people did not normally have access,” or (2) “if police found the item in a place to which others had access, there is a strong probability, inferable from the evidence, that defendant was consciously exercising dominion and control over [the item] at the time.”  State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001); see also State v. Willis, 320 N.W.2d 726, 728–29 (Minn. 1982) (stating that to establish constructive possession the state must prove the defendant “consciously exercised dominion and control over [the firearm]”).  The constructive-possession doctrine “permits a conviction where the state cannot prove actual possession, but 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. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).  Constructive possession need not be exclusive and may be shared.  Id.  “Proximity is an important consideration in assessing constructive possession” and “a defendant may constructively possess a firearm if he placed the firearm where it was discovered.”  Id.

            Appellant maintains that he did not know that the shotgun was under the seat of the vehicle and that it is “equally plausible that the driver or right rear passenger could have possessed the firearm and concealed it under the seat.”  

            But the jury heard the sergeant’s testimony describing the way appellant was sitting and how it seemed that appellant was trying to hide something with his jacket.  The sergeant also testified that anyone sitting in the seat would have seen the shotgun jutting out from under the seat.  Additionally, the jury saw a photograph depicting the approximate position of the shotgun under the front passenger’s seat and heard that appellant had stated that his fingerprints might be on the shotgun.  Finally, it is clear from the record that appellant was closer to the shotgun than other passengers in the vehicle.

            This court defers to the jury’s credibility determinations, and here, it is clear that the jury credited the testimony of the sergeant.  We conclude that the evidence in the record is sufficient to support an inference that appellant constructively possessed the shotgun and, therefore, sufficient to support the jury’s verdict.  



            Appellant argues that because the offenses he was convicted of constituted a single behavioral incident, the district court improperly imposed three sentences.  Appellant argues that two of the sentences must be vacated and that this court must remand for resentencing.  Respondent agrees that the acts constituted a single behavioral incident and concedes that imposition of three sentences was improper.  But while respondent agrees that appellant’s sentences for possession of a firearm not identified by a serial number and possession of a short-barreled shotgun should be vacated, respondent argues that appellant’s sentence for felon in possession of a firearm need not be disturbed.  We agree with appellant.

            A district court generally may not impose more than one sentence on a defendant who commits multiple offenses as part of a single behavioral incident.  Minn. Stat. § 609.035, subd. 1 (2004).  This rule “protects defendants from both multiple sentences and multiple prosecutions and ensures that punishment [is] commensurate with the criminality of defendant[‘s] misconduct.”  State v. Hager, 727 N.W.2d 668, 678 (Minn. App. 2007) (alteration in original) (quotation omitted). 

            The factors to be considered in determining whether multiple offenses “constitute a single behavioral act are time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.”  State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).  “The determination of whether multiple offenses are part of a single behavioral act under section 609.035 is not a mechanical test, but involves an examination of all the facts and circumstances.”  Id. To obtain multiple sentences, the state must prove by a preponderance of the evidence that the defendant’s conduct was not part of a single behavioral incident.  State v. Williams, 608 N.W.2d 837, 841–42 (Minn. 2000).

While a district court has broad general discretion when sentencing, an appellate court may review whether the record supports a district court’s determination that conduct underlying two offenses did not consist of a single behavioral incident.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); State v. Nordby, 448 N.W.2d 878, 880 (Minn. App. 1989).  The district court’s determination, however, will not be reversed on appeal unless it is clearly erroneous.  Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).  Further, a court may, at any time, “correct a sentence not authorized by law.”  Minn. R. Crim. P. 27.03, subd. 9.

Although the district court did not consider this issue, both parties agree that appellant’s three convictions arose out of a single behavioral incident.  Moreover, it is clear from the record that the offenses of which appellant was convicted all arose out of a single behavioral incident.  Therefore, we conclude that the district court erred by imposing three separate, though concurrent, sentences.  Accordingly, we vacate the sentences imposed for possession of a short-barreled shotgun in violation of Minn. Stat. § 609.67, subd. 2, and possession of a firearm not identified by a serial number in violation of Minn. Stat. § 609.667(3).  We remand to the district court for resentencing—within the presumptive sentence as authorized in the Minnesota Sentencing Guidelines—on the conviction of felon in possession of a firearm in violation of Minn. Stat. § 624.713, subds. 1(b), 2(b).

Affirmed in part, reversed in part, and remanded.