This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael Anthony Knudson,
Filed December 11, 2007
Stearns County District Court
File No. K2-05-1498
Lori Swanson, Attorney General, Robert B.
Roche, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St.
Paul, MN 55101; and
Janelle P. Kendall, Stearns County Attorney, 705 Courthouse Square, Room 448, St. Cloud, MN 56303 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Michael Anthony Knudson, Dunn County Jail, 615 Stokke Parkway, Menomonie, WI 54751 (pro se appellant)
Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.
On appeal from conviction for first-degree burglary, appellant argues (a) that evidence that appellant and his accomplices, in the course of burglarizing a business, moved the business owner’s gun from her desk to a couch before fleeing the building was not sufficient to prove that appellant or his accomplices “possessed” a dangerous weapon while in the course of the burglary; and (b) that the court erred in giving the no-adverse-inference instruction without obtaining appellant’s personal consent. We affirm.
At approximately 2:30 a.m. on March 30, 2005, Officer Charles Buggs was on routine patrol in Paynesville. As he drove through the parking lot of the Laubach Chevrolet-Buick automobile dealership, Officer Buggs noticed a brown bag and a wheel cover on the ground next to a sport utility vehicle. Because these items aroused his suspicion, Officer Buggs decided to investigate further.
Officer Buggs checked the main building of the car dealership and discovered that a light was on in one of the body shop garages. As he peered through one of the windows, Officer Buggs observed two men prying open tool boxes and putting the tools into trash cans. Officer Buggs called for backup, and within a few minutes, police were stationed at each corner of the building. After the backup arrived, one of the men apparently noticed activity outside. Officer Buggs saw one of the men inside the building crouch low and move from window to window to check the activity outside. Shortly thereafter, a garage door opened and a brown Chevrolet pickup truck sped out of the building. Officer Buggs and two other officers pursued the truck.
The pursuit of the brown truck ended at a recreational vehicle dealership, where the driver jumped out of the truck and ran into the woods. Officer Buggs left two sheriff’s deputies to search for the driver of the truck, while he returned to Laubach’s. While en route to the dealership, Officer Buggs noticed two men standing at the edge of the woods. When he shined his light on the men, they ran into the woods. Officer Buggs gave chase, eventually apprehending one of the individuals, who was later identified as David Eich.
After the dealership had been cleared, Paynesville Police Chief Kent Kortlever and Percy Laubach, the owner of the dealership, walked through the building to assess the damage. As Laubach and Chief Kortlever assessed the building, they discovered several garbage cans filled with tools and equipment, and a truck in one of the service bays that had been loaded with various parts and equipment. Laubach also noticed her .22-caliber pistol lying on a couch in the customer lounge area, along with some cash, some key tags, and a remote control starter. According to Laubach, the gun, money, and key tags had been taken from her office, which was located in a different room apart from the customer lounge. Laubach testified that she kept the gun in a desk drawer beneath some papers and envelopes, where it would not have been visible.
Laubach notified her service manager, Lisa Feldewerd, of the burglary. When Feldewerd arrived at the dealership, she noticed a white Chevrolet pickup truck parked on the lot that was not part of Laubach’s inventory. Feldewerd investigated further and discovered Eich’s wallet in the glove box. Feldewerd subsequently contacted Officer Buggs and informed him of the discovery. Upon Officer Buggs’s return to the dealership, he searched the truck and found a wallet and checkbook under the driver’s seat. The wallet contained a driver’s license belonging to appellant Michael Knudson. From the photo identification on the driver’s license, Officer Buggs recognized appellant as one of the suspects from the burglary.
Appellant was arrested and charged with first- and third-degree burglary, theft of a motor vehicle, and receiving stolen property. A jury found appellant guilty of all charges except the receiving stolen property charge. Appellant was subsequently sentenced to 68 months in prison and ordered to pay restitution in the amount of $29,820.07. This appeal followed.
D E C I S I O N
In considering a claim of insufficient evidence, this court’s review is limited to a “painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, [is] sufficient to allow the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court “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. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant was convicted of burglary in the first degree under Minn. Stat. § 609.582, subd. 1(b) (2004). This statute provides:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree . . . if:
. . . .
(b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive.
Minn. Stat. § 609.582, subd. 1(b).
Appellant argues that there is insufficient evidence to convict him of first-degree burglary because the state did not prove beyond a reasonable doubt that he or an accomplice possessed the gun during the burglary. Appellant argues that because the state, at most, was only able to show temporary or “fleeting” possession of the weapon, his conviction of first-degree burglary should be reversed.
Appellant’s argument is premised on the assertion that any possession of the firearm was brief, or “temporary,” or “fleeting.” Minnesota has not adopted the exception that “fleeting control” of a weapon does not qualify as possession of a weapon for purposes of criminal statutes. See State v. Houston, 654 N.W.2d 727, 734 (Minn. App. 2003) (acknowledging that the “fleeting control” exception has not been recognized in Minnesota), review denied (Minn. Mar. 26, 2003). Moreover, there is nothing in the statutory language of Minn. Stat. § 609.582, subd. 1(b), indicating the possession of the weapon must be more than “brief” or “temporary.” The statute unambiguously states that a person is guilty of first-degree burglary if “the burglar possesses, when entering or at any time while in the building . . . a dangerous weapon . . . .” Minn. Stat. § 609.582, subd. 1(b) (emphasis added). When a statute’s language is unambiguous, the court must apply the statute’s plain meaning. State v. Smoot, 737 N.W.2d 849, 853 (Minn. App. 2007).
Here, Laubach testified that she kept the pistol in her desk drawer. The gun was found on a couch in the customer lounge, a room separate and apart from Laubach’s office. The logical inference from this testimony is that appellant, or an accomplice, removed the weapon from the desk, carried it into the customer lounge, and left the gun on the couch. During this time, appellant or an accomplice “possessed” the gun. Appellant concedes this as an accurate statement of the facts. Accordingly, the evidence was sufficient to sustain appellant’s conviction for first-degree burglary.
Both the United States and Minnesota Constitutions guarantee a criminal defendant’s right not to testify. U.S. Const. amend. V; Minn. Const. art. 1, § 7. “[F]ailure to testify shall not create any presumption against the defendant.” Minn. Stat. § 611.11 (2004). Thus, a district court should ordinarily obtain permission from a criminal defendant before instructing the jury not to draw any inference from the defendant’s decision not to testify. State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000). And if defense counsel requests a no-adverse-inference instruction, the court or the defendant’s counsel “should make a record of the defendant’s clear consent and insistence that the instruction be given.” McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002). Failure to obtain the defendant’s consent on the record is error. State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).
Appellant argues that the district court committed prejudicial error by giving the no-adverse-inference jury instruction without first obtaining his personal consent. But because appellant did not object to the instruction, this court reviews the error only if it is plain error that affected the defendant’s substantial rights. Id. (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)). “[P]lain error is prejudicial when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict.” Id. The defendant bears the heavy burden of showing such a significant effect. Griller, 583 N.W.2d at 741.
In State v. Clifton, the defendant argued that the district court committed prejudicial error by providing the no-adverse-inference jury instruction without his personal consent. 701 N.W.2d 793, 798 (Minn. 2005). The supreme court noted thatthe record showed that a conference between the defendant and his attorney resulted in including a proposed no-adverse-inference instruction in the final instructions, and the oral assent of both counsel to the final instructions was placed on the record before the instructions were given. Id. Thus, the supreme court held that the defendant was not entitled to a new trial. Id. (stating that a review of the record demonstrated that the defendant and his attorney agreed to the instruction).
Here, the following exchange took place on the record:
Defense counsel: We have discussed and I noted in the instructions you did include the paragraph about the Defendant’s right not to testify. I don’t know that [appellant] has yet decided whether or not he’s going to testify. I had advised him that I don’t think it would be in his best interest to do so; however, I’d ask the court to inquire at this point whether he’s made that decision. If he does decide not to testify, of course, we’d want that instruction included. If he chooses to testify, of course then it would be kind of silly to have it in there.
District Court: We can go off the record.
(A discussion is held off the record.)
District court: Then, [appellant], you understand and your attorney has indicated that he’s talked to you about your right to testify and it is your decision whether or not you want to testify. Have you made a decision as to whether or not you are going to testify?
[Appellant]: Yes, I have. I decided not to.
District court: So you are not going to testify?
[Appellant]: (Shakes head.)
District Court: Then, [defense counsel] I understand then you want that language kept in. Defendant’s right not to testify?
Defense counsel: Absolutely, Your Honor. And just to reference it, in the instructions on page 4, second paragraph to the bottom from the JIGs. We ask that you read that as written.
Similar to Clifton, the record here shows that a discussion between appellant and his attorney resulted in appellant’s decision not to testify. The record reflects that appellant’s decision not to testify led to the decision to include the no-adverse-inference jury instruction. The record reflects that appellant’s counsel assented to the final instructions on the record and in appellant’s presence, before the instructions were given. Under Clifton, we conclude the district court did not commit plain error by giving the no-adverse-inference jury instruction.
Appellant further contends, in his pro se supplemental brief, that he is entitled to a new trial because (a) he was denied the effective assistance of counsel; and (b) the state did not adequately investigate his case. We have considered these arguments and conclude that they are without merit.