Opinion
A-13421
02-16-2022
TREVOR JOHN KALEO BERNARD, Appellant, v. STATE OF ALASKA, Appellee.
David T. McGee, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madison Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Trial Court No. 3AN-17-06293 CR
David T. McGee, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Madison Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Following a jury trial, Trevor John Kaleo Bernard was convicted of one count of third-degree weapons misconduct - felon in possession of a concealable firearm - after police discovered a handgun under his seat during a traffic stop.Bernard now challenges the sufficiency of the evidence presented at trial. Specifically, Bernard argues that the State failed to prove that he had actual possession of the gun, or that he had any right, authority, or intention to exercise control over the gun. Bernard also argues that the State failed to prove that his act of possessing the gun was voluntary - i.e., that he "was aware of the physical possession or control for a sufficient period to have been able to terminate it."
AS 11.61.200(a)(1).
See Dirks v. State, 386 P.3d 1269, 1271-72 (Alaska App. 2017) (holding that "possession" of an item of property requires something more than physical access to the property and knowledge of its presence). The court gave a jury instruction intended to reflect the Dirks decision, and Bernard does not challenge the instruction.
AS 11.81.900(b)(68) (defining "voluntary act"); see also Wagner v. State, 390 P.3d 1179, 1182 (Alaska App. 2017) (explaining that voluntariness, although rarely disputed, is an "implicit element of all crimes" (quoting State v. Simpson, 53 P.3d 165, 169 (Alaska App. 2002)).
When we evaluate a claim of insufficient evidence, we view the evidence, and all reasonable inferences from that evidence, in the light most favorable to upholding the verdict. We then ask whether a reasonable juror could find the defendant guilty beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Here, the evidence presented at trial established that the police stopped a vehicle Bernard was driving after seeing him make an illegal left turn. When Bernard opened his door to speak with the officer, the officer saw two pistol magazines: one in the door pocket and another on the floor. The officer asked if there were any guns in the car, and one of Bernard's passengers admitted to having two guns. The officer then specifically asked Bernard whether he had any guns, and Bernard responded, "Yes. One ... a nine underneath the seat." The gun under Bernard's seat was a Glock Model 17, which fit the magazines in the driver's side door. A subsequent search of the car revealed additional ammunition, in the center console and backseat, that also fit the Glock.
According to the officer, Bernard told him that they had picked up the guns from his mother's house and, alternatively, that they had been storing the guns in his car. Although Bernard denied making these statements when he took the stand in his own defense, the jury was entitled to weigh Bernard's account against the officer's and determine whose testimony to credit. In addition, Bernard's girlfriend testified that she and Bernard had recently been living in the car, and that other belongings in the car were theirs. The jury could reasonably reject Bernard's testimony that he was unaware of the presence of the Glock in the car until his passenger told him as he was being pulled over.
See Iyapana, 284 P.3d at 848-49.
Drawing all inferences in the light most favorable to upholding the jury's verdict, we conclude that the evidence was sufficient for a reasonable juror to conclude that Bernard had the right, authority, or intention to exercise control over the gun, and that his act of possessing the gun was voluntary.
Accordingly, the judgment of the superior court is AFFIRMED.