C9-99-1306

State of Minnesota,

Respondent,

vs.

Timothy Wayne Wilson,

Appellant.

Filed June 6, 2000

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 99005107

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Foley, Judge.^*

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Timothy Wayne Wilson challenges his conviction for unlawful possession of a pistol in violation of Minn. Stat. § 624.713, subd. 1(b) (1998). Appellant claims the state presented insufficient evidence to support the jury’s determination that he knowingly possessed the firearm and also raises a number of additional issues in his supplemental pro se brief. We affirm.

D E C I S I O N

Where there is a challenge to the sufficiency of the evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The court will not disturb the verdict if the jury,

acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Appellant argues that there was insufficient evidence to support the conviction because the evidence did not establish he knowingly possessed the firearm. We disagree.

The state may obtain a conviction for violation of Minn. Stat. § 624.713, subd. 1(b) (1998), by establishing either actual or constructive possession. State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982). In order to prove constructive possession, the state must show: (a) that the police found the item in a place under defendant’s exclusive control to which other people did not normally have access, or (b) that, 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 it at the time. State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).

The purpose of the constructive possession doctrine is to permit conviction under the possession statute when the state cannot prove actual possession, but where the inference is strong that the defendant physically possessed the item at one time and did not abandon his possessory interest in it. Id. at 104-05, 226 N.W.2d at 610. Proximity is an important factor in establishing constructive possession. See, e.g., State v. Cusick, 387 N.W.2d 179, 181 (Minn. 1986) (holding evidence of constructive possession by driver sufficient where cocaine was found next to driver’s wallet on ground near vehicle, even though vehicle’s owner testified that the cocaine was hers); State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999) (holding gun found under defendant’s mattress sufficient to constitute constructive possession).

Here, the police officer testified that he observed appellant sitting directly on the gun as appellant shifted in his seat to reach for his driver’s license. The supreme court has affirmed a conviction for constructive possession with similar facts. See State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982). In Willis, the court concluded that a handgun found directly under the car seat on which a defendant was sitting was sufficient to establish constructive possession beyond a reasonable doubt. Here, appellant was in closer proximity to the gun than the defendant in Willis, and the jury could reasonably infer that he was consciously exercising control over it.

II.

Appellant argues in his pro se supplemental brief that he was denied effective assistance of counsel. We disagree. All of the claimed deficiencies that appellant identifies in his counsel’s performance involve trial strategy. Matters of trial strategy are within a counsel’s discretion, and will not support a claim of ineffective assistance of counsel. State v. Shoen, 578 N.W.2d 708, 717 (Minn. 1998). Moreover, even if these decisions constituted errors in his counsel’s professional performance, appellant has not met his burden of showing that he was prejudiced as a result. See State v. Jones, 392 N.W.2d 224, 236-37 (Minn. 1986) (holding that Jones failed to demonstrate prejudice due to alleged ineffective assistance of counsel). Finally, we have considered the remaining arguments in appellant’s pro se brief and find them to be without merit.

Affirmed.

^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.