This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1856

 

State of Minnesota,

Respondent,

 

vs.

 

Trevor Alvin Crawford,

Appellant.

 

Filed November 22, 2005

Affirmed

Randall, Judge

 

 

Ramsey County District Court

File No. K7-03-4660

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

John Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant was convicted for being a felon in possession of a firearm.  He appeals arguing that the trial court abused its discretion in declining to instruct the jury on the defense of “fleeting control” of the gun.  Appellant also argues that the prosecutor committed prejudicial conduct in closing argument in arguing to the jury that she represented the people of the state, and the jury should speak for the people by finding appellant guilty.  We affirm.  

FACTS

            While on patrol, St. Paul Police officers Vetsch and Tanghe observed a vehicle with a cracked windshield make a left turn without signaling.  Due to the observed violation, the officers activated their spotlight and overhead emergency lights, initiating a stop.  The officers observed three people in the vehicle, one of whom, the appellant, Trevor Crawford, was sitting in the back right seat, directly behind the front passenger.  Once the vehicle was stopped, Officer Vetsch observed appellant bending forward.  The officers approached the vehicle.

            As Officer Tanghe talked to the driver, he noticed a strong smell of alcohol.  The driver was taken from the vehicle, frisked, and a field sobriety test followed that indicated he was under the influence.   

           

            After the driver was secured in a police vehicle, the officers concentrated on appellant.  Officer Vetsch approached the vehicle on appellant’s side, instructing him not to move and to keep his hands visible.  Vetsch noticed the appellant’s hands were fidgety.  Appellant would not make eye contact, and appeared to be nervous, fidgeting from side to side.  Appellant was removed from the car.  While being frisked, appellant whispered to Officer Vetsch that there was something under the seat he wished to talk about but would not do so unless he was allowed to walk away from the scene.  Appellant stated he would give further details if a deal could be worked out.   

            After all occupants were removed from the vehicle, Officer Vetsch searched the vehicle.  A loaded .22-caliber revolver was found underneath the front passenger’s seat, located all the way to the right of the seat to the rear.  Appellant was arrested.  As appellant was being escorted to the squad car, he made a second statement in regards to the revolver, stating that when the driver noticed the police, he reached behind or between the seats and set the gun in appellant’s lap.   

            The front seat passenger, Ashley Burks, testified there was no conversation between the driver and appellant when they were stopped by the police.  She also testified there was no contact between the two.  When the police stopped the vehicle, she remembered appellant hitting the back of her seat as if he was trying to open the door.  She denied ever seeing either the driver or appellant with a gun or passing a gun.  Fingerprint analysis of the gun showed only unidentifiable smudges.   

            Appellant chose not to testify at trial.  During discussions regarding proposed jury instructions, both appellant and the state agreed upon the proposed jury instruction as it pertained to CRIMJIG 32.16, Felon in Possession of a Firearm-Defined.  It was agreed that the words “ships or transports” would be deleted from the defined portion of the possession instruction.  However, the district court denied appellant’s request to strike the word “receive” from the possession instruction. 

            Next, the parties discussed jury instructions regarding CRIMJIG 32.17, Felon in Possession of a Firearm-Elements.  Again, appellant argued that the word “received” should not be included.  In addition, appellant objected to the state’s proposed instruction of “joint and sole possession” and “constructive possession,” arguing there was no concrete evidence showing actual possession, nor was there sufficient evidence warranting a “constructive possession” instruction.  The district court granted the state’s motion to leave the constructive possession language in the instruction; then the district court granted appellant’s motion to strike the “joint possession” language.   

            Finally, there was a detailed and involved discussion regarding appellant’s request for a jury instruction concerning “fleeting possession.”[1]  Appellant requested the jury be instructed on “fleeting possession” due to the evidence presented, specifically, statements he made to the police regarding “something under the seat.”  The state argued there was not enough evidence warranting a “fleeting possession” instruction.  The state said it was appellant’s duty to argue the facts to the jury and for the jury to decide the credibility of appellant. 

The district court denied appellant’s request for a “fleeting possession” instruction.  The district court found the testimony of Officer Vetsch, regarding appellant bending under the seat, as well as the testimony of the passenger in the front seat, inconclusive, but in favor of what appellant was arguing.  However, after a further review of case law and the record as a whole, the court determined there was insufficient evidence warranting an instruction for fleeting or passing control.  A jury found appellant guilty of possession with a firearm by an ineligible person.  Appellant requested and was granted a 12-month durational departure and was sentenced to 32 months minimum incarceration and 16 months maximum supervised release. 

 

This appeal followed.  The issues before this court are whether the district court abused its discretion in refusing to instruct the jury on the issue of “fleeting control” possession and whether the prosecutor’s statements during closing argument constituted prejudicial misconduct. 

D E C I S I O N

I.  Jury instructions

 

An appellate court will not generally reverse for an instruction to the jury absent an abuse of discretion.  State v. Oates, 611 N.W.2d 580, 584 (Minn. App. 2000), review denied (Minn. Aug. 22, 2000).  The district court’s refusal to give a requested jury instruction lies within its broad discretion.  State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995).  District courts are allowed “considerable latitude” in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). 

Appellant argues a fleeting control jury instruction should have been given, especially when he argued a fleeting control defense.  Appellant argues the district court improperly made a credibility determination by finding insufficient evidence to support the fleeting control defense.  Appellant points out that it is the district court’s function not
to second-guess appellant’s credibility but only to determine whether any evidence if believed by the jury could establish the claim.  

Specifically, appellant argues the district court erred when it refused to instruct the jury on his “fleeting control” theory, but then told his attorney he was free to argue it.  He argues the denial of his proposed jury instruction undermined his attorney’s ability to communicate his defense to the jury, especially since the court had to have tacitly concurred that the theory was viable because the court allowed his attorney to argue it.  Appellant relies on this court’s decision in State v. Houston, 654 N.W.2d 727 (Minn. App. 2003), for the proposition that he was entitled to an instruction on fleeting control.   

In Houston, this court held that the district court’s refusal to give a jury instruction that fleeting control was not possession was not an abuse of the court’s discretion.  654 N.W.2d at 735.  This court reasoned that the instruction was not necessary because the defendant had the opportunity at trial to argue that he did not knowingly possess the firearm, and the jury was instructed that the state had to show that the defendant knowingly possessed the firearm.  Id.  With the given instructions, absent the fleeting control instruction, the jury was able to consider whether the defendant had the required possession.  Id.  “The lack of a specific instruction regarding ‘fleeting control’ did not preclude appellant from arguing this to the jury, nor did it preclude the jury from considering the matter.”  Id.

Here, during discussions regarding whether the requested instruction was going to be given, appellant was asked by the district court what facts supported his request.  On the assumption that the state was arguing that he had constructive possession of the firearm and relying on the facts and evidence presented, appellant argued his control and dominion over the firearm was suspect, and minimal.  Appellant argued that the state’s evidence, particularly testimony from police that he bent forward and testimony from the front seat passenger that he was exiting the vehicle, put in doubt the state’s theory that he exercised control and dominion over the firearm.  Appellant argued vigorously that the facts warranted his proposed fleeting control instruction. 

The district court denied the fleeting control instruction.  Appellant’s own statement regarding the firearm indicated that he did have a weapon and that he put it under the seat when police arrived.  The district court stated that a different and equally plausible explanation of the facts indicated appellant only made statements to “get out from under” possession of the firearm.  The district court further explained that it is likely if an individual is carrying a firearm and the police pull up behind him, that he would put the gun under the seat.  This interpretation is consistent with the testimony of the police and front seat passenger.  Based on the facts and this analysis, the district court found no basis for the fleeting control instruction.    

 

First, it would not have been improper for the district court to give appellant’s requested instruction based on the facts.  However, we conclude it was not reversible error to deny the instruction, as the facts fell squarely in the middle of that proverbial “misty discretionary call.”  The district court gave instructions defining both actual and constructive possession.  The instructions given enabled the jury to consider whether appellant had the required possession.  A party may be entitled to an instruction regarding his theory of defense if the evidence supports the theory, but, the instruction may not be required if the substance of the requested instruction is contained in the court’s charge.  State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977).  When determining whether jury instructions are adequate, the court is to assume the jurors are intelligent and practical people.  State v. Edwards, 269 Minn. 343, 350, 130 N.W.2d 623, 627 (1964).  The appellant was able to, and in fact did, argue during the trial that he did not knowingly or intentionally possess the firearm.  After an extensive discussion regarding jury instructions with the state and appellant, the district court determined a fleeting control instruction was not warranted.  This was a judicial call based upon the record.  Although it would have been proper to give the requested instruction, we find the instructions given were adequate. 

II.  Closing argument

 

            The record indicates the defendant failed to object to the claimed improper statements at trial.  Ordinarily, when a defendant fails to object to improper statements, the defendant is deemed to have forfeited the right to have the issue considered on appeal.  State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).  However, a failure to object does not  bar appellate review if the reviewing court finds the instructions contain errors that affect substantial rights or of fundamental law.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  Before an appellate court reviews an unobjected-to error, there must be “(1) error; (2) that is plain; and (3) the error must affect substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  This Court may reverse on the basis of plain error “if failure to reverse would perpetuate a substantial and essential injustice in the sense that as a result an innocent man may have been convicted.”  State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (quotation omitted); see also  Cross, 577 N.W.2d at 726.  In determining whether the state committed misconduct warranting a new trial, we look to the closing argument as a whole, rather than to selected phrases and remarks.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).  A defendant's failure to object implies that the comments were not prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

            Appellant argues that the state committed prosecutorial misconduct during closing arguments when the prosecutor stated the jury should find appellant guilty and it was important to do so to insure justice for the people of Minnesota and Ramsey County.  During closing arguments, the state told the jury:

     “Now, ladies and gentlemen, next to the defense lawyer is a person.  Next to me is a chair, and the chair looks empty but it represents a lot. Because I have a client, too, and my client is the people of Minnesota and the citizens of Ramsey County.  Most days you go about your business and you trust that the people sitting in these boxes in this building are doing what’s right, and all you can do is put your faith in those strangers.  Today you’ve been honored with that responsibility.  Today what you do speaks for all the people in Ramsey County, all the people in the state of Minnesota. 

 

     Ladies and gentlemen, consider the evidence, and when you’re done, do what’s right for these people, return the appropriate verdict and find the defendant guilty.” 

 

            Relying on State v. Atkins, 543 N.W.2d 642 (Minn. 1996), appellant argues these closing remarks inflamed the passions of the jury and confused the jury about its role and the burden of proof.  He argues the prosecutor was “seeking justice beyond the parameters of the case.”  Appellant argues the statements were not harmless as they exaggerated and mislead the jury by factoring in possible harmful effects to society if a not guilty verdict was reached.    

            In Atkins, the prosecutor told the jury that it would be “unspeakable injustice” to acquit on a charge of first-degree murder and consider a lesser-included offense.  543 N.W.2d at 647.  The Minnesota Supreme Court held that the prosecutors statements were not personal or used to inflame and persuade the jury to convict.  Id. at 648.  The court found that the statements did not urge the jury to convict in order to teach a lesson or to send a message to society.  Id.  A prosecutor is not barred from making colorful arguments.  State v. Jensen, 308 Minn. 377, 380, 242 N.W.2d 109, 111 (1976).

 

            Although the challenged statements were nowhere near so prejudicial that, unobjected to, they could be reversible error, they were not without some impropriety.  The prosecutor called its client “the citizens of Ramsey County.”  That is not correct and could be seen as an attempt by the state to “butter up” the jury as if the prosecutor (who is a Ramsey County employee) and the jury were on the same side.  Ramsey County was merely the venue of the trial.  In most of the state’s ten judicial districts, the judicial district contains several different counties within it.  In an outlying area, the prosecutor does not start its closing argument talking about who its clients are – “fill in the names of several counties.”  Essentially, juries do not represent the state or the defendant; they represent “justice” and the Bill of Rights, state and federal, that surrounds every citizen who goes on trial in a criminal case.  The jury has no obligation to “partner with the state” and any inference that they should is constitutionally flawed.  The jury’s only mandate is that they must return a verdict of not guilty unless the state proves to their satisfaction by proof beyond a reasonable doubt that every essential element of the crime charged is proven.  The district court tells them that in the standard criminal jury instruction, CRIMJIG 3.02.

            Next, the state improperly said, “Do what’s right for these people” (meaning the people of Ramsey County and all the people in Minnesota), “return the appropriate verdict and find the defendant guilty.”  We can only note that it is “right for these people” to find the defendant not guilty.  That depends on whether the aforementioned proof beyond a reasonable doubt attached to every essential element of the crime charged.  Then, and only then, does a guilty verdict become proper.  That phrase by the prosecutor improperly inferred to the jury that the “better” or “more appropriate” verdict would be guilty.  Having said that, these phrases, or variations of them, are not egregious on their face.  The statements were not objected to by trial counsel and we do not find “plain error” mandating a new trial in the interests of justice.

            Affirmed.