This opinion will be unpublished and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

A04-2480
A05-608

 

State of Minnesota,
Respondent,

vs.

Ariel Suzette Pedersen,
Appellant

AND

Ariel Suzette Pedersen, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed July 18, 2006

Affirmed in part and reversed in part

Minge, Judge

 

Mille Lacs County District Court

File No. TK-2-03-603

 

 

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

 

Jan Kolb, Mille Lacs County Attorney, Christopher J. Zipko, Assistant County Attorney, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)

 

Randall D.B. Tigue, Randall Tigue Law Office, P.A., 3960 Minnehaha Avenue South, Suite 100, Minneapolis, MN 55406 (for appellant)

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            In this consolidated appeal, appellant challenges the sufficiency of the evidence to support her convictions, the district court’s refusal to give certain jury instructions, and the district court’s denial of her postconviction petition without a hearing.  Because there is sufficient evidence that appellant constructively possessed marijuana and because the district court did not abuse its discretion in refusing to give requested jury instructions or in denying appellant’s postconviction petition, we affirm appellant’s conviction for possession of marijuana and the denial of postconviction relief.  But because there is not sufficient evidence that appellant constructively possessed a firearm, we reverse her conviction for being a prohibited person in possession of a firearm. 

FACTS

            After receiving a tip from a confidential informant, police obtained a search warrant for appellant’s property and went to conduct a search.  Appellant and her husband were present and consented to the search.  Michael Schwerzler rented an outbuilding 40 to 60 feet from the home and resided there.  When appellant and her husband were reluctant to permit police to search the Schwerzler outbuilding, an officer executed the search warrant. 

            Officers found a small amount of marijuana in appellant’s bedroom.  Officers also found objects related to marijuana, mushrooms, and the growth of both plants throughout appellant’s home.  In a downstairs closet, officers found two firearms.  Finally, officers searched the outbuilding and found a “marijuana grow operation,” consisting of 37 to 39 starter marijuana plants and equipment to grow the plants. 

            Appellant was charged with prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (2002); fifth-degree possession of a controlled substance (marijuana), second offense, in violation of Minn. Stat. §§ 152.025, subds. 2(1), 3(b) (2002), 609.11, subd. 5 (2002); fifth-degree possession of a controlled substance (mescaline), second offense, in violation of Minn. Stat. §§ 152.025, subds. 2(1), 3(b) (2002), 609.11, subd. 5; and conspiracy to commit sale of a controlled substance in the fifth degree, in violation of Minn. Stat. §§ 152.025, subd. 1 (2002), 152.096, subd. 1 (2002), 609.11, subd. 5.  A jury trial was held in July 2004. 

At trial, appellant denied knowledge of the grow operation and the guns in the closet.  Schwerzler testified that he grew the marijuana himself and that appellant was not involved.  Schwerzler also testified that this was his first time growing marijuana, but refused to identify the source of the plants or his knowledge of how to grow them.  The state argued that the relationship between appellant and Schwerzler and the contents and proximity of their respective residences proved appellant’s possession of the marijuana and the mescaline.  The state also argued that the presence in the same closet in appellant’s home of both firearms and clothing and other objects that may have belonged to appellant established appellant’s possession of the firearms.  The district court granted a directed verdict for appellant on the conspiracy-to-sell charge.  The jury found appellant guilty of the firearm-possession and marijuana-possession charges, and not guilty of the mescaline-possession charge. 

            Appellant moved for judgment of acquittal or a new trial on the basis of insufficient evidence for both offenses and the district court’s failure to give certain jury instructions.  The district court denied this motion and sentenced appellant to 60 months for the firearm-possession conviction and a concurrent term of one year and one day for the marijuana-possession conviction.  Appellant filed a notice of direct appeal, and a motion to stay the direct appeal pending resolution of her petition for postconviction relief, which she filed with the district court.  This court granted appellant’s motion to stay the direct appeal.

In her postconviction petition, appellant presented evidence identifying the source of the marijuana plants in the outbuilding and evidence that the confidential informant was a bitter, former employee of appellant’s.  Appellant also argued that because appellant’s husband had a lawful right to possess the firearms, there was insufficient evidence that appellant possessed the guns.  The district court denied appellant’s postconviction petition without a hearing.  Appellant filed a notice of appeal from the denial of postconviction relief, and her two appeals were consolidated. 

D E C I S I O N

I.

            The first issue is whether appellant’s convictions are supported by sufficient evidence.  This court reviews the findings of the postconviction court “to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  The district court’s factual findings are afforded great deference and will not be reversed unless they are clearly erroneous.  Id.  The postconviction court will not be reversed absent an abuse of discretion.  Id. 

            In considering a claim of insufficient evidence, 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 the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).  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 that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The 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). 

            Circumstantial evidence is entitled to the same weight as direct evidence, but warrants stricter scrutiny.  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must “form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference” other than guilt.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  “The evidence as [a] whole need not exclude all possibility that the defendant is innocent; it must only make such a theory seem unreasonable.”  State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).  In general, a jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to deference.  Webb, 440 N.W.2d at 430.

A.        Prohibited person in possession of a firearm

            Under Minn. Stat. § 624.713, subd. 1(b) (2002), it is a felony for a person convicted of a crime of violence to possess any type of firearm.  A conviction under this section requires either actual or constructive possession of a firearm.  State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982).  Actual possession means the defendant physically had the firearm on her person.  Smith, 619 N.W.2d at 770.  Constructive possession requires that

(1) the police found the item in a place under the defendant’s exclusive control to which other people did not normally have access, or (2) if the police found it in a place to which others had access, that there is a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over it.

 

State v. Porter, 674 N.W.2d 424, 427 (Minn. App. 2004) (citing State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975)).  The Minnesota Supreme Court has recognized that even though actual possession may not exist in many cases, the constructive possession doctrine is sufficient to establish possession for a conviction “where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it up to the time of the arrest.”  Florine, 303 Minn. at 104, 226 N.W.2d at 610.           

            Whether constructive possession exists is a fact-specific inquiry.  In Salcido-Perez v. State, we found sufficient evidence of constructive possession where a firearm was found in a closet in the home where the appellant lived, and the appellant admitted to having put it there, although he did not own it.  615 N.W.2d 846, 848 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).  In State v. Willis, the supreme court found sufficient evidence of constructive possession where the gun was found beneath the appellant’s seat in the car, and the appellant had moved around furtively in the car prior to the car pulling over.  320 N.W.2d 726, 727-28 (Minn. 1982).  

            Here, appellant’s husband testified that the guns belonged to him.  He testified that he usually kept the guns at his parents’ home, but that he brought them back to his home and placed them in a downstairs closet in preparation for a hunting trip.  Prior to the trip, appellant was in a serious accident, so the trip was cancelled, and appellant’s husband forgot that the guns were in the house.  Appellant testified that she did not know the guns were in the closet.  She testified that her husband was the primary user of the closet where the guns were located and that she kept her clothes in her bedroom and in the closet in her daughter’s bedroom.  Officers testified that the closet contained a number of objects that could have belonged to appellant or the couple’s children.  But appellant provided explanations for how these objects could have been in the closet without her having put them there.  The husband of appellant’s former domestic employee testified that articles of women’s clothing in the closet were his wife’s, not appellant’s.  There was no evidence that appellant used the closet or was aware the guns were on the premises.

            Viewed in the light most favorable to the conviction, the most the state proved here was that the firearms were in the closet of appellant’s home and that it was possible she knew of their presence.  Other cases finding sufficient evidence to establish “dominion and control” over an object have not done so on the basis of possible knowledge alone.  See Willis, 320 N.W.2d at 727-28; Salcido-Perez, 615 N.W.2d at 848.  The guns here belonged to appellant’s husband and he provided a reasonable explanation for their presence in the home.  This evidence does not create a strong probability that appellant possessed the guns at any time.  See Florine, 303 Minn. at 105, 226 N.W.2d at 611. 

            Minn. Stat. § 152.028, subd. 1 (2002), supports the reversal of appellant’s conviction.  The statute permits an inference of possession of a controlled substance based on a person’s presence in a room with a controlled substance, but specifically prohibits drawing this inference when another party in the room has a legal right to possess the controlled substance.  Id.  Although this statute applies to controlled substances, not firearms, it is illustrative of the proof problem here.  Appellant’s conviction was based on the presence of firearms in her home, but her husband had a legal right to possess the firearms. 

            Caselaw from outside Minnesota also supports the reversal of appellant’s conviction for possession of firearms.  In State v. Banks, a weapon was found under a pillow in a bedroom, but no evidence suggested that the bedroom belonged to the appellant.  720 P.2d 1380, 1384 (Utah 1986).  The Utah Supreme Court rejected the argument that the presence of the weapon in the appellant’s residence was sufficient to establish possession, reasoning that such presence did not necessarily imply that the appellant knew of or controlled the gun.  Id. at 1384-85; see also People v. Brown, 581 N.Y.S.2d 961 (N.Y. App. Div. 1992) (lacking sufficient evidence where appellant merely resided in the apartment where the gun was found); People v. Bailey, 552 N.Y.S.2d 733 (N.Y. App. Div. 1990) (lacking sufficient evidence where gun was found in a jacket on a bed even though the defendant admitted the jacket was his); People v. Vastola, 417 N.Y.S.2d 287 (N.Y. App. Div. 1979) (reversing third-degree firearms conviction where gun was found in an area where no single individual could exercise exclusive dominion or control over it); Commonwealth v. Frometa, 580 A.2d 865 (Pa. Super. Ct. 1990) (reversing conviction where appellant had a key to a basement room where drugs were found but no evidence indicated that appellant had exclusive dominion or control over the area). We conclude that the presence of firearms in a closet in appellant’s home and a possibility that she knew they were there without more is not sufficient to establish constructive possession.  We thus reverse appellant’s conviction for being a prohibited person in possession of a firearm. 

B.        Fifth-degree possession of marijuana

            Minn. Stat. § 152.025, subd. 2(1) (2002), defines controlled substance crime in the fifth degree as when “the person unlawfully possesses one or more mixtures containing a controlled substance.”  The same definition of constructive possession applies to controlled substance crimes as applies to firearms possession.  Porter, 674 N.W.2d at 429. 

            In State v. Cusick, the supreme court considered the sufficiency of the evidence supporting the appellant’s conviction for possession of cocaine.  387 N.W.2d 179, 180 (Minn. 1986).  The appellant lost control of the car and it tipped on its side in a ditch.  Id.  Several objects were thrown from the car, and appellant’s wallet was found within inches of a case containing cocaine.  Id.  Despite the fact that the appellant’s girlfriend owned the car and testified that the cocaine was also hers, the court held that the evidence of constructive possession was sufficient.  Id. at 181.  

            The state identifies a number of pieces of evidence that show appellant’s constructive possession of the marijuana found in the outbuilding occupied by Schwerzler.  Appellant argues that this evidence is also consistent with the theory that Schwerzler grew the marijuana on his own or had help from a third party. 

            The objects in appellant’s home indicating her general familiarity and use of marijuana include: a small amount of marijuana, a marijuana pipe, and a magazine and videotapes on growing marijuana.  The state also produced evidence of the close relationship between appellant and Schwerzler.  Appellant testified that Schwerzler is like “my brother or my son,” and Schwerzler testified that he loves appellant “more than anybody.”  Schwerzler testified that he and appellant used to smoke marijuana together and that they spent time in her bedroom together.  Schwerzler also spent considerable time in appellant’s home caring for her children.  This evidence suggests appellant was familiar with Schwerzler’s activities, including those involving marijuana.

            There was also evidence that Schwerzler used supplies, equipment, and techniques for growing marijuana that were the same or similar to appellant’s gardening activity.  Officers found such material in appellant’s home, and appellant testified that she used the reflective sheets, fish tanks, and lights to grow plants.  Officers found fish tanks, a growing material, a grow lamp, and reflective sheets in the outbuilding, set up in a similar fashion to appellant’s description of her growing techniques.  Schwerzler testified that he did not see the reflective sheets and grow lamps in appellant’s home and that “a friend of [his] down in the Cities,” who he would not identify, gave him the starter plants and showed him how to use the material and grow lamps.  It appears that the jury did not find this innocent-coincidence testimony credible.  Officers additionally found a box in the outbuilding from “Fungi Perfecti,” addressed to appellant at a previous address.  Schwerzler testified that the starter plants were in the box at some point. 

            Finally, the state presented evidence that a woman called appellant’s residence during the search, stating that she wanted to obtain some “stuff” to celebrate a friend’s birthday over the weekend.  An officer answered the telephone, pretending to be Schwerzler.  The officer indicated to the woman that police were at the home conducting a search, and the woman asked if the police had found any of Schwerzler’s “stuff.”  The explanation that the caller was referring to a birthday cake is not credible.  Schwerzler testified that he did not tell the woman about his marijuana operation; therefore, the only way she could have known of Schwerzler’s marijuana was if appellant told her.  This indicates that appellant knew of Schwerzler’s marijuana-growing operation. 

            Based on the totality of the circumstances, we find sufficient evidence that appellant constructively possessed the marijuana found in the outbuilding.[1] 

II.

            The second issue is whether the district court abused its discretion when it denied appellant’s request to give certain jury instructions.  The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of that discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  This court reviews an erroneous refusal to give a requested jury instruction under a harmless error analysis.  State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989).  “[I]f we conclude beyond a reasonable doubt that the omission did not have a significant impact on the verdict, reversal is not warranted.”  Id. at 481. 

A.        Tenant’s superior right to possess property

            Appellant first argues that the district court abused its discretion in refusing to instruct the jury that a tenant’s right to possess leased property is superior to the landlord’s right to possess the property.  See Neilan v. Braun, 354 N.W.2d 856, 859 (Minn. App. 1984).  Appellant provides no authority to suggest that it was error not to give this instruction.  Although appellant requested that this concept be addressed in a jury instruction, it seems that she was actually making a legal argument that she cannot be guilty of constructively possessing marijuana in an area that Schwerzler rented from her.  Appellant’s conviction was based on her numerous contacts and the totality of the circumstances, not her ownership of the leased outbuilding.  The district court did not abuse its discretion in refusing to give this instruction. 

B.        Circumstantial evidence requires exclusion of other theories

            Appellant also argues that the district court abused its discretion in refusing to instruct the jury that a guilty verdict based on circumstantial evidence alone requires the exclusion of every reasonable hypothesis other than guilt.  See Jones, 516 N.W.2d at 549.  In State v. Turnipseed, the supreme court held that it was not improper for the district court to refuse to give an instruction that “all circumstances proved must be . . . inconsistent with any other rational conclusion.”  297 N.W.2d 308, 312 (Minn. 1980).  The court quoted a United States Supreme Court decision stating that “where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.”  Id. at 313 (quoting Holland v. United States, 348 U.S. 121, 139-40, 75 S. Ct. 127, 137 (1954)). 

            In State v. Jones, this court distinguished Turnipseed.  498 N.W.2d 44, 46 (Minn. App. 1993).  The supreme court reversed on other grounds, but stated the following in a footnote: “We believe that Turnipseed would control here and that the trial court did not abuse its discretion in failing to give the requested jury instruction.”  State v. Jones, 516 N.W.2d 545, 548 n.4 (Minn. 1994).  Thus, the circumstantial evidence instruction is not mandatory.  See id.; State v. Beard, 574 N.W.2d 87, 92 (Minn. App. 1998), review denied (Minn. April 14, 1998).  The district court did not abuse its discretion in refusing to give the requested instruction. 

III.

             The third issue is whether the district court abused its discretion in denying appellant’s postconviction petition without an evidentiary hearing.  A district court’s denial of postconviction relief without a hearing is reviewed for abuse of discretion.  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).  A postconviction court need not conduct an evidentiary hearing when the petition and the record “conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2004); see Voorhees v. State, 627 N.W.2d 642, 648 (Minn. 2001).  The postconviction court must conduct an evidentiary hearing “whenever material facts are in dispute that have not been resolved in the proceedings resulting in conviction and that must be resolved in order to determine the issues raised on the merits.”  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995). 

            Appellant argues that she is entitled to a new trial based on newly discovered evidence.  To obtain a new trial based on newly discovered evidence, a defendant must show

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.

 

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).  When a defendant alleges that false testimony was given at trial, a different standard is used.  See Dukes, 621 N.W.2d at 257.  But when a witness refuses to testify at trial, but then offers testimony at the postconviction stage, courts generally use the four-part newly discovered evidence standard to evaluate the petitioner’s claim.  See State v. Warren, 592 N.W.2d 440, 450 (Minn. 1999) (“[W]e will apply the newly discovered evidence test to a claim of newly available evidence.”).

            In Johnson v. State, the appellant requested postconviction relief based on newly discovered evidence in the form of a confession to the crime at issue from a witness who was then willing to testify, despite his refusal to testify and his invocation of his Fifth Amendment privilege at trial.  486 N.W.2d 825, 827 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).  This court affirmed the district court’s denial of the postconviction petition, reasoning that the evidence was not newly discovered “because the defendant knew of the witness’ existence and attempted to call him at trial.”  Id. at 828.  The court went on to note that the proposed witness’s testimony was questionable because the witness would not serve any additional time if convicted for the offense, the witness and the appellant were friends, and the witness’s testimony would contradict unimpeached testimony from police and was only corroborated by the appellant’s testimony.  Id.

Here, appellant claims she is entitled to a new trial based on two items of new evidence.  First, appellant submitted an affidavit from Schwerzler stating that he did not identify the source of the marijuana at the trial out of fear for his personal safety, but that he was now willing to identify the source as the husband of one of appellant’s previous personal care attendants.  Second, appellant submitted her own affidavit, stating that she learned the identity of the confidential informant that started the investigation, that the informant’s husband was the source of the marijuana found in Schwerzler’s home, and that the informant had a motive to frame appellant rather than expose her husband. 

Schwerzler’s new testimony is questionable.  As in Johnson, Schwerzler has been convicted and sentenced for his role in the marijuana operation.  He had a close relationship with the accused and his new testimony would not subject him to negative legal consequences.  See 486 N.W.2d at 828.  Also, other evidence shows appellant’s connection to the marijuana, including her relationship with Schwerzler, her familiarity with marijuana, her use of a similar growing method for plants as that found in the outbuilding, and the phone call from the woman during the search.  Even if Schwerzler’s affidavit is believed, it only establishes that a different source provided the marijuana initially and possibly provided some guidance on how to grow it.  The similarity in growing methods still indicates that appellant had a role in the operation.  Because appellant did not show that the newly discovered evidence would be apt to produce an acquittal or that the evidence was reliable, we conclude the district court did not abuse its discretion in summarily denying appellant’s postconviction petition. 

            Affirmed in part and reversed in part.