may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Nathaniel William Hopkins,
Filed April 8, 1997
Ramsey County District Court
File No. KX-95-3455
Hubert H. Humphrey III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for Respondent)
Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Schumacher, Judge.
In seeking review of his conviction, appellant argues that the trial court committed reversible error by admitting hearsay statements in violation of the Confrontation Clause and abused its discretion by admitting a replica handgun into evidence for demonstrative purposes. Because we find sufficient evidence from appellant's own statements to establish possession of a handgun, we affirm.
Appellant, who had flagged down police officer Jerome Steffen, requested a ride to police headquarters. Appellant told Officer Steffen that a handgun "went off" when a juvenile attempted to take the gun out of his hand. Officer Steffen searched appellant and found him unarmed. Appellant described the weapon as a handgun, but could provide no further detail.
When interviewed at police headquarters, appellant stated he was sitting at home on the couch with a gun next to him, that he did not know whose gun it was, and that one of his son's friends, a juvenile, came into the room and asked for the gun, claiming it was his. Appellant first stated that he argued with the juvenile, then stated they did not argue, and that he told the juvenile he was going to sell the gun to buy some auto parts. The juvenile again said the gun was his. When appellant went to give the gun to the juvenile, it went off. The original charge against appellant (assault in the second degree) was amended to possession of a pistol by a prohibited person. At trial the juvenile did not testify. Appellant objected to the testimony of Officer Wild as hearsay that violated appellant's Sixth Amendment confrontation right. The trial court held that the juvenile's statements were admissible under the excited utterance exception to the hearsay rule and that the Confrontation Clause was not violated because appellant was charged with possession of a pistol, not assault.
Wild also testified as to the juvenile's description of the weapon; he said that it was a .25 caliber semi-automatic handgun, chrome colored with a blackish handle and had a clip that held six rounds. The juvenile said he thought the gun was a "Sterling."
Because the gun allegedly used in the shooting was never recovered, the state offered for illustrative purposes a .25 caliber semi-automatic "Ravin Arms" handgun that, except for the handgrip, was similar to the "Sterling." The trial court overruled appellant's objection that the gun was prejudicial and confusing to the jury and admitted the gun for illustrative purposes only.
Finally, appellant testified that the juvenile had brought the gun to appellant's house the day before the shooting; that appellant took the gun away, wrapped it up, and placed it behind the stereo; and that the juvenile came to retrieve the gun the next day. When the juvenile asked for the gun, appellant said it was not there because appellant intended to sell it to buy auto parts. Appellant further testified that he eventually retrieved the gun, and it accidentally discharged when he was handing it to the juvenile, after which appellant fled the house with the gun, threw it in some bushes, got a ride, and flagged down the police.
The jury found appellant guilty of possession of a pistol by a prohibited person. The court sentenced appellant to 15 months, with execution stayed, and placed him on probation for three years, with seven months service in the county workhouse as a condition of the probation.
Appellant argues that with regard to Officer Wild's conversation with the juvenile who was shot, the admission of her hearsay statements under the excited utterance exception was a violation of appellant's Sixth Amendment right to confrontation. We disagree. The parties stipulated that appellant is a person prohibited from possessing a pistol pursuant to Minn. Stat. § 624.712, subd. 5 (1994). Therefore, the state, in order to meet its burden on the offense for which appellant was charged, needed only to show that appellant actually or constructively possessed the pistol. State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982). Constructive possession is established by showing that defendant exercised dominion and control over the weapon. State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982).
It is unnecessary to reach appellant's Confrontation Clause argument in regard to Officer Wild's testimony because appellant himself provided sufficient evidence to establish possession. Appellant's initial statements to the police describe clearly his possession of the gun. Further, appellant's own testimony at trial described how he took the gun from the juvenile, wrapped it up, placed it behind the stereo and retrieved the gun and was handing it to the juvenile when it accidently discharged.
Appellant also argues that the trial court abused its discretion by admitting a weapon that was similar to, but not identical with, the one the juvenile described to Officer Wild. Appellant's argument on this issue fails. While he was charged with and convicted of possession of a pistol by a prohibited person, the statute prohibits the possession of any firearm. See Minn. Stat. § 624.713, subd. 1 (1994) (an ineligible person is not "entitled to possess a pistol or semiautomatic military-style assault weapon or * * * any other firearm."). Arguably, the demonstrative use of the weapon was not necessary for the state to establish appellant's guilt of possession beyond a reasonable doubt. However, the admission of demonstrative evidence is within the sound discretion of the trial court. State v. Ward, 361 N.W.2d 418, 421 (Minn. App. 1985).
To meet its burden in this case, the state was required to show that defendant possessed a firearm. Willis, 320 N.W.2d at 728-29. The gun admitted into evidence was used to illustrate that the weapon was a firearm. The jury was instructed that the weapon was for illustrative purposes and that it was not the weapon involved in the incident. The jury was not allowed to handle the weapon. The admission of the weapon was not an abuse of discretion.
[ ]1Appellant stated that he had discarded the gun in some bushes near the scene of the shooting. After searching the location, Officer Steffen was unable to locate the weapon.
[ ]2The parties stipulated that appellant was a prohibited person within the meaning of Minn. Stat. § 624.712, subd. 5 by virtue of a 1990 conviction for second-degree assault.
[ ]3Officer Wild testified that she spoke to the juvenile approximately 20-30 minutes after the shooting, that the juvenile was still bleeding, was being treated, and appeared to be in pain, excited, scared, shocked, and talkative, that upon questioning the juvenile told her that he went to appellant's house and demanded a gun that had been left there the previous day, that appellant would not give him the gun, that appellant said he would return the gun only if the juvenile stole auto parts for appellant, that the juvenile got angry and appellant pulled out the gun and shot him, and that the juvenile then ran home and his mother drove him to the hospital.
[ ]4Appellant argues that his trial testimony should not be considered because he testified only after the trial court denied his motion for acquittal. Appellant cites no authority for this proposition. However, even if appellant's trial testimony is excluded, his admissions to the police are sufficient to establish that he exercised dominion and control over the weapon.
[ ]5As part of his argument, appellant also asserts that Officer Wild's testimony regarding the juvenile's description of the handgun was a violation of appellant's confrontational right. Appellant admitted to the police that the weapon involved in the incident was a handgun.