St. Louis County District Court

File No. K496600219

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Forsberg, Judge.

Appellant Sylvan Allen Larson appeals from his firearm conviction, claiming the evidence was insufficient to prove he possessed a firearm. Larson also claims the trial court violated his constitutional right to select counsel. We affirm.

The day after the incident, a detective interviewed Faling at the house. Faling told the detective that he did not remember what happened the night before because he had been too drunk. The following day, March 28, 1996, Faling called the detective and told him that he wanted to tell the truth and that he had not been too drunk to remember. Faling said that on the night of the incident, he and his wife (Welsh) were arguing when Larson began to intimidate and threaten him. Faling said he went to his room and that Larson came in, pointed a gun at Faling's face and said, "Don't f--- with me. Don't ever f--- with me or I'll kill ya." Faling also said that Larson called him from jail warning him to change his story.

Faling recognized the rifle Larson pointed at him because Larson previously had shown it to Faling on March 12, 1996. Faling's wife, Welsh, stated that Failing previously told her that Larson had a gun that Larson showed him on March 12.

Larson was charged with felony possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (1994). He was also charged with second-degree assault, terroristic threats and witness tampering.

Larson, an indigent, was appointed a public defender. Immediately before the trial began, the public defender requested a continuance, in part because Larson wanted to retain a private lawyer that his family hired. The private lawyer contacted the trial court and the public defender the day before trial, seeking a continuance so he could assume Larson's defense. The court denied the continuance because of the lateness of the request and because Larson's public defender was providing adequate representation.

At trial, Faling testified that he moved into Larson's house on March 8 or 9, 1996. Faling was renting one bedroom and the use of the rest of the house except Larson's bedroom. Faling's wife, Welsh, moved in a week or two later. Faling stated that Larson lived in the house the entire time he was a resident there, and that Larson locked the door to his bedroom. Faling had no knowledge of anyone who had a key to Larson's bedroom other than Larson. Faling stated that while he lived there another man rented a room, but he was evicted around March 23, 1996.

Larson did not testify, but the defense presented three witnesses at trial: Sandra Pinsonnault, Larson's sister; Michael Vezina, who was at Larson's house at the time of the incident; and Officer Kevin Hudson of the Duluth Police Department. Pinsonnault testified that on the night of the incident Faling told her that a gun was involved, but twice later told her that nothing happened involving a gun the night of the incident. Pinsonnault also testified that Larson bought the house from their father's estate, and that she helped move some guns out of her father's bedroom (now Larson's bedroom) after he died in 1994. She said she never looked in any of her father's closets and did not recognize the rifle found in Larson's closet. Vezina testified that he never saw Larson point a gun at Faling. Officer Hudson testified that Welsh and Vezina laughed when he asked them if Larson had a gun, even though Faling reported that the incident occurred in their presence.

The jury acquitted Larson on the charges of assault, terroristic threats, and witness tampering. They found him guilty of felony possession of a firearm. Larson appeals from his conviction, arguing that the evidence was insufficient and that his Sixth Amendment right to counsel was violated.

The state must prove each element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970). Larson was convicted of felony possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b). Larson argues that the state failed to prove that Larson possessed the weapon.

The state may prove constructive possession of an item when actual or physical possession is difficult to prove at the time of arrest. State v. Lozar, 458 N.W.2d 434, 441 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990) (citing State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975)). The state can prove constructive possession if it shows

(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 it in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.

Florine, 303 Minn. at 105, 226 N.W.2d at 611.

Faling testified that Larson had shown him the rifle early in March and that Larson pointed the rifle at Faling's head the night of the incident. Faling further testified that Larson occupied the bedroom during the entire time Faling rented the house. Welsh testified that Faling told her that Larson had a rifle. Police found the rifle in the closet of Larson's locked bedroom. Only Larson and his sister, Pinsonnault, had keys to the bedroom and Pinsonnault did not live in the house.

Under the Florine test, Larson was in constructive possession of the rifle. The rifle was found in an area under Larson's control to which others did not normally have access--his locked bedroom. In addition, assuming Pinsonnault had access to the bedroom, there is a strong probability that Larson was at the time consciously exercising dominion and control over the rifle. This is inferable from the evidence that Pinsonnault did not live at the house, did not go into the closets of the house, and had never seen the rifle.

Larson argues that Faling's testimony was unbelievable and that the evidence is insufficient to prove possession, but we must assume that the jury believed all of the state's evidence and disbelieved any contrary evidence. See Moore, 438 N.W.2d at 108. Larson's possession of the rifle is reasonably inferred from the evidence. The evidence is inconsistent with any rational hypothesis except for guilt. The state's evidence is sufficient for the jury to come to the conclusion that Larson constructively possessed the rifle.

Larson argues that the cases cited by the state are distinguishable because they all concern defendants who sought the opportunity to hire private counsel or to seek a different public defender, whereas Larson had already retained private counsel and sought a continuance so his newly retained counsel could assume representation. The trial court denied the continuance because it found Larson's request untimely and because it found no prejudice to Larson because the public defender had been adequately representing him. Larson did not have any complaints about the public defender's representation of him. Additionally, the public defender did get Larson acquitted of all of the charges against him except the firearm charge. Larson's public defender represented him adequately.

The trial court did not abuse its discretion in denying Larson's request for a continuance because there was no prejudice to Larson's defense.

Affirmed.

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