This opinion will be unpublished and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

A05-2035

 

 

State of Minnesota,

Respondent,

 

vs.

 

Hans Kohene,

Appellant.

 

 

Filed December 12, 2006

Affirmed
Crippen, Judge*

 

Ramsey County District Court

File No. K7-05-614

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Renee Bergeron, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge, Ross, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant Hans Kohene was convicted of felon in possession of a firearm.  He disputes the sufficiency of the evidence and claims that the state denied him due process and violated the doctrine of judicial estoppel by trying the case after alleging in his cousin’s trial that his cousin possessed the gun.  We affirm.

FACTS

            In August 2004, appellant and his cousin were arrested in connection with an incident involving a firearm.  Appellant’s cousin was charged with felon in possession of a firearm, theft of a motor vehicle, and drive-by shooting.  Appellant was released without being charged. 

            On the morning of his cousin’s trial, appellant told defense counsel and Officer Mark Kempe that he was the one in possession of the gun and that he fired it, but appellant denied possessing the gun when the defense offered his testimony.  Shortly thereafter, appellant was charged with ineligible person in possession of a firearm in violation of Minn. Stat. §§ 624.713, subd. 1(b), 609.11, subd. 5(b) (2004), and reckless discharge of a firearm in violation of Minn. Stat. § 609.66, subd. 1a(a)(3) (2004). 

            In a subsequent jury trial, appellant stipulated that he was not eligible to possess a firearm, but he testified that on the night before his cousin’s jury trial, his cousin convinced him to take responsibility for the gun so that his cousin would not be convicted at trial.  Appellant said that his cousin told him “exactly what to say,” and that he relayed this information to Officer Kempe “to try to help out [his] cousin,” explaining that “he didn’t want [his] cousin to get convicted.”  He testified that he “backed down” when he was called as a witness for his cousin.  Appellant further testified that he did not even know that his cousin had a firearm.  Appellant was acquitted on the charge of reckless discharge.

D E C I S I O N

1.

 

            On appellant’s dispute on the evidence, we are to carefully examine the record to determine whether the evidence, “when viewed in a light most favorable to the conviction,” supports the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The verdict is not to be disturbed if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty as charged.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            To obtain a conviction under Minn. Stat. § 624.713, subd. 1(b) (2004), the state must establish either actual or constructive possession of a firearm.  State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982).  To prove constructive possession, when others have access to the place where the item is found, the state must prove 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. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).

            The record reflects that after briefly following a Buick driven by appellant’s cousin, police observed appellant, his cousin, and a third individual jump out of the moving car.  After appellant and his cousin were apprehended a few blocks away, police discovered a gun under their squad car, just behind the front tire.  Both appellant and his cousin exited the car on the side nearest to where the gun was found.

            The record also reflects appellant’s later statement, at the time his cousin was tried, that he and not his cousin was the one in possession of the gun.  Although appellant testified at his trial that he concocted the story because “he didn’t want [his] cousin to get convicted,” it is evident that the jury did not believe this testimony.  See Moore, 438 N.W.2d at 108 (stating that this court defers to jury credibility determinations).  We conclude that the location of the firearm when it was discovered, appellant’s flight from police, and appellant’s prior admission to possessing the gun, constitutes sufficient evidence from which a reasonable jury could conclude that appellant was guilty of the charged offense.

2.

            Appellant claims that he was denied due process because the district court did not apply the doctrine of judicial estoppel to prevent the prosecuting attorney from asserting theories of guilt that conflicted with theories asserted by the prosecuting attorney when his cousin was tried.  “Whether to apply the doctrine of judicial estoppel is a question of law, reviewed de novo.”  State v. Pendleton, 706 N.W.2d 500, 507 (Minn. 2005). 

            The state argues that the judicial estoppel issue was raised for the first time on appeal and should not be considered.  But we may consider an unobjected-to-error if it is a plain error or defect affecting substantial rights.  Minn. R. Crim. P. 31.02; State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  Appellant cannot meet the plain-error test.  Minnesota has not expressly recognized the doctrine of judicial estoppel.  See Pendleton, 706 N.W.2d at 507.  Under these circumstances, it was not an error for the district court to decline to apply the doctrine.

            Affirmed.