This opinion will be unpublished and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

A05-213

 

State of Minnesota,

Respondent,

 

vs.

 

Dontrell Dyna Flowers,

Appellant.

 

Filed May 9, 2006

Affirmed

Worke, Judge

 

Hennepin County District Court

File No. 04038148

 

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

 

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

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Wright, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from conviction for felon in possession of a firearm, appellant argues that the district court erred by (a) refusing to suppress a gun found during a vehicle search, (b) denying appellant’s mistrial motion in response to the proscribed testimony of a police officer, (c) permitting the state to impeach appellant with a prior conviction, and (d) in its clarification of a jury instruction.  We affirm.

FACTS

            Officers decided to stop appellant Dontrell Dyna Flowers after noticing that his vehicle’s rear license plate was not illuminated.  The officers activated their emergency lights and siren, but appellant continued driving.  The officers observed appellant make “hurried and fast movements,” including “a real distinct lunging motion” toward the passenger-side door and subsequent motions in the area of the driver’s door, which one officer believed to be consistent with either reaching for a gun or hiding a gun or contraband.

            After appellant stopped the vehicle, the officers arrested him, and secured him in the squad car.  Upon approaching appellant’s vehicle, one of the officers noticed that the open driver’s door had a loose interior panel; when he pulled the panel back he saw the butt of what turned out to be a loaded handgun.  Because of a prior felony conviction, appellant was charged with being a prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(b) (2002). 

            During pretrial proceedings, the district court denied appellant’s motion to suppress the handgun, finding that the equipment violation justified the stop, and the search was appropriate based on Terry.  The district court also denied appellant’s motion to preclude impeachment by prior conviction, and appellant did not testify.  The district court granted appellant’s motion that precluded any mention at trial that the handgun was stolen, but one of the officers described the gun as “stolen” during his testimony.  Appellant moved for a mistrial based on that statement.  The district court denied the motion, determining that the statement had been inadvertent, and gave the jury a curative instruction.  During deliberations, the jury sought a clarifying instruction from the district court about possession, and the district court answered that “[k]nowledge is required for possession.  Knowledge may be inferred if the firearm was in a place under [appellant’s] exclusive control[.]”  The jury found appellant guilty, and the district court sentenced him to 60 months in prison.  This appeal follows.

D E C I S I O N

I

 

“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Any expansion of the scope or duration of an investigative stop is proper only when the officers have a reasonable, articulable suspicion of other criminal activity.  State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002).

Appellant argues that the district court erred by not suppressing the handgun because the officers’ search exceeded the scope authorized by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).  In Terry, the Supreme Court concluded that

[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. 

 

Id.at 27, 88 S. Ct. at 1883.  A Terry analysis is twofold, “[w]hether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”  Id. at 20, 88 S. Ct. at 1879.  Officers may evaluate the circumstances warranting a search in light of their experience.  Id. at 27, 88 S. Ct. at 1883. 

Appellant concedes that the initial stop was justified, but contends that the officers’ search for the handgun was impermissible under Terry because it proceeded through four distinct stages, and each incremental intrusion during a traffic stop must be separately justified by reasonableness or probable cause.  See State v. Askerooth, 681 N.W.2d 353, 365 (Minn. 2004); State v. Richmond, 602 N.W.2d 647, 652 (Minn. App. 1999) (stating that the fruits of a search will be suppressed “[i]f the protective search goes beyond what is necessary to determine whether the suspect is armed”), review denied (Minn. Jan. 18, 2000).  Appellant maintains that the officers first conducted a pat-down search, then searched the car with a flashlight, next conducted a K-9 search, and finally noticed the loose door panel and found the handgun inside the door.  Appellant contends that at some point the Terry standard was exceeded.  Accepting appellant’s characterization of these aspects of the search as “incremental intrusions,” we are convinced that they were reasonable given the officers’ difficulty in stopping appellant and their observation of his furtive movements as he continued driving.

While the district court justified the pat down search on Terry grounds, it did not find that the officers had probable cause to expand the scope of the stop from the original equipment violation.  A warrantless search of an automobile may be conducted when the police have probable cause.  Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 1981 (1970).  Probable cause exists when an officer—under the totality of the circumstances—“conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested.”  State v. Lohnes, 344 N.W.2d 605, 612  (Minn. 1984).

Here, probable cause is substantiated both by appellant’s furtive movements following the officers’ indication that he stop and his failure to stop until he had driven suspiciously for an entire block.  Coupled with the officers’ claim that they were patrolling a high-crime area and that appellant’s movements were consistent, in their experience, with someone trying to reach for or hide a weapon or contraband, there appears to be an independent basis for the stop. See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (stating that deliberate evasive conduct of a motorist provided a reasonable basis for suspecting the motorist of criminal activity); State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (stating that furtive movements can provide a basis for probable cause).  Therefore, the district court did not err by declining to suppress the gun.

II

A district court’s ruling on the impeachment of a witness by prior conviction is reviewed, as are other evidentiary rulings, under a clear-abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). 

Minn. R. Evid. 609(a)(1) provides for the admission of a prior conviction for impeachment purposes if the probative value of the evidence outweighs its prejudicial effect.  In determining whether to restrict the use of more recent prior crimes, the district court considers: 

(1)     the impeachment value of the prior crime,

(2)     the date of the conviction and the defendant’s subsequent history,

(3)     the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach),

(4)     the importance of [the] defendant’s testimony, and

(5)     the centrality of the credibility issue. 

 

State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).

The state sought to use appellant’s 1997 conviction of aiding and abetting second-degree murder for impeachment purposes in the event appellant testified.  The parties discussed the Jones factors, and the district court granted the motion to impeach by prior conviction without addressing the Jones factors on the record.  See State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001) (applying harmless-error analysis when the district court failed to enter the Jones-factor analysis on the record after the issue was briefed and argued before the district court), review denied (Minn. Dec. 11, 2001).  Appellant did not testify at trial.

Appellant argues that the conviction does not speak to his capacity for truthfulness and thus does not have impeachment value.  But Minnesota courts have repeatedly held that prior-crimes evidence has value in making credibility assessments, reasoning that “impeachment by prior crime aids the jury by allowing it to see the ‘whole person’ and thus to judge better the truth of [witness] testimony.”  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (quotations omitted). 

Appellant also argues that his seven-year-old conviction of an offense committed as a juvenile is stale and has diminished impeachment value.  But because the release date is indisputably within 10 years as required by rule 609, this factor tends to suggest that impeachment is appropriate; however, his clean record since that offense suggests diminished impeachment value.  Without further detail, an aiding-and-abetting felony is not similar to the handgun-possession charge, which is a crime primarily because the person has been convicted of a prior felony, regardless of the substance of the earlier offense; this factor weighs in favor of admission. 

With respect to the fourth Jones factor, appellant’s testimony could have presented an alternative explanation for the gun’s presence in the vehicle.  But, credibility would have been central to the case because his account of the traffic stop would contradict that of the police in some respects. “If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions.”  State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006).

 In sum, the Jones factors weigh sufficiently in favor of admission of the prior conviction for impeachment purposes, and we conclude that the district court’s failure to address the factors on the record amounted to harmless error.

III

 

“The decision to grant a new trial based upon juror misconduct rests within the discretion of the [district] court and will not be reversed unless there is an abuse of discretion.”  State v. Landro, 504 N.W.2d 741, 745 (Minn. 1993).  A district court confronted with a prejudicial statement should exercise its discretion “promptly to right the wrong at the time it occurs.”  State v. White, 295 Minn. 217, 224, 203 N.W.2d 852, 858 (1973). 

During the pretrial hearing, the district court granted appellant’s motion to prohibit testimony about the origin of the gun, specifically whether the gun was stolen.  But one of the officers testified that “a stolen gun” was found in appellant’s vehicle.  Defense counsel did not object, but after the jury was excused, moved for a mistrial, stating that any corrective instruction would “highlight” or “underscore” the prejudicial nature of the testimony.  The prosecutor told the district court that he had advised the officers not to mention that the gun was stolen and argued that the comment was in passing and its prejudicial effect was minimal.  The district court denied the motion, ruling that the comment was in passing, not repeated nor revisited by the prosecution, inadvertent, and explained that it must reach a resolution that “strives toward fairness” to appellant, the government, and the public interest.  The district court later instructed the jury that the mention of a “stolen” gun was “not a fact that has any bearing on the issue in this case” and was “to be disregarded” and “shall have no place in your discussions.”

Appellant cites several cases for the proposition that a mistrial is appropriate when the prosecution tries to inject matters into trial that it knows are inadmissible.  But the district court found the testimony to be inadvertent, and appellant provides no reason, other than that the word was spoken, to support his claim that it was an attempt by the prosecution to prejudice him.  While both sides agreed that the word “stolen” should not be used to describe the handgun, the curative instruction provided the jury with clear guidance to ignore that description.  An appellate court presumes that jurors followed a district court’s instructions.  State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).  The district court did not abuse its discretion by denying the motion for a mistrial.

IV

 

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).  “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.”  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  “An instruction is in error if it materially misstates the law.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). 

The district court instructed the jury on the elements of the crime, including the instruction that they must find that appellant “knowingly possessed a pistol or other firearm or knowingly exercised dominion and control over it.”  After a period of deliberation, the jury submitted a question to the district court: “[appellant] must knowingly possess the firearm or knowingly exercise control over it.  However, the definition of possession does not appear to require knowledge of the firearm if it was in a place under his exclusive control.  Is knowledge required for the defendant to be guilty?”  In response, the district court stated: “Knowledge is required for possession.  Knowledge may be inferred if the firearm was in a place under [appellant’s] exclusive control to which other people do not normally have access.”

            Appellant argues that the district court’s clarification misstated the law because it should have stated only that “knowledge is required for possession” and not language about permissible inferences.  To establish guilt following a charge of felon in possession of a handgun, the state must prove either actual or constructive possession of a gun by the defendant.  State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982). 

The purpose of the constructive-possession doctrine is to include within the possession statute those cases where the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance [or  firearm] and did not abandon his possessory interest . . . but rather continued to exercise dominion and control over it[.]  

 

State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975) (emphasis added).  Absent a confession or witness testimony about the defendant’s knowledge, any finding of possession with respect to a weapon or contraband not found on a defendant’s person requires an inferential leap.  Therefore, the district court did not abuse its discretion by clarifying its original jury instruction to include the permissible inference.

            Affirmed.