Opinion
No. C9-00-1233.
Filed June 12, 2001.
Appeal from the District Court, Hennepin County, File No. 98048809.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Vincent McKinney was convicted of felon in possession of a weapon and fifth-degree controlled substance crime committed while constructively possessing a firearm. He contends he is entitled to a new trial because of improper jury instructions. In the alternative, he contends the evidence was insufficient to sustain the conviction. We affirm.
DECISION I.
The district court has "considerable latitude in selecting the language for jury instructions." State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998) (citation omitted). The court's jury charge must be read as a whole, and if the charge "correctly states the law in language that can be understood by the jury, there is no reversible error." Id. (citation omitted).
Appellant contends that the instructions did not properly instruct the jury on the elements of constructive possession of a weapon. We agree. Regarding constructive possession, the district court instructed the jury that it may be inferred when a firearm "is in reasonable proximity to the defendant or to the controlled substance." But in order to prove constructive possession, the state must show
(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 [the item] 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.State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975) (citations omitted). The district court's instructions do not fully address the requirements of the Florine test. The second part of the Florine test is at issue here. Instead of requiring a strong possibility that appellant exercised dominion or control over the firearm, the jury was instructed that constructive possession is established when the firearm "is in reasonable proximity to the defendant or to the controlled substance."
But appellant did not object to the jury instructions in the district court.
A defendant's failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (citation omitted). An exception is made when the instruction involves "plain error affecting substantial rights." State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted). To determine if a defendant's substantial rights were affected, this court analyzes whether the error was prejudicial and whether it affected the outcome of the case. Id. at 741. If plain error is established, this court must decide "whether it should address the error to ensure fairness and the integrity of the judicial proceedings." Id. at 740 (citation omitted).
Because the jury was not properly instructed on constructive possession of a weapon, the jury instructions constitute plain error. See State v. Pendleton, 567 N.W.2d 265, 269-70 (Minn. 1997) (finding error when an instruction materially misstates the law). But an erroneous instruction may not require a new trial if the error had no significant impact on the verdict. Id. at 270; see Griller, 583 N.W.2d at 741 (defining "plain error as prejudicial if there is a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury" (quotation omitted)). Significantly, although the jury here did not receive a correct instruction on constructive possession of a weapon, the court properly instructed the jury on the necessary elements for constructive possession of a controlled substance. Moreover, the location and the facts surrounding where the weapon and the controlled substance were found are identical. Both items were found in oversized coats with pill bottles bearing appellant's name in the pocket. Because the jury found appellant guilty of constructive possession of a controlled substance, we conclude that on the unique facts of this case there is not a reasonable likelihood that the correct instruction would have had a significant effect on the jury's verdict.
Appellant also contends that CRIMJIG 20.57 does not properly instruct the jury about the applicable factors required in State v. Royster, 590 N.W.2d 82 (Minn. 1999), to enhance a sentence when a controlled substance crime is committed while in constructive possession of a firearm. The district court submitted a special interrogatory question to the jury asking them to decide if
the presence of the firearm increased the risk of violence and if so, the degree that this risk was increased; the nature, type, and condition of the firearm; its ownership; whether it was loaded; its ease of accessibility; its proximity to the drugs or to the defendant; why the firearm was present; and whether the nature of the offense of Controlled Substance Crime in the Fifth Degree is frequently or typically being accompanied by the use of a firearm.
See 10A Minnesota Practice, CRIMJIG 20.57 (1999). In Royster, the supreme court discussed what is required to enhance a drug offense when the defendant is in constructive possession of a weapon. 590 N.W.2d at 85. Some factors set forth as guidelines in determining if the weapon increased the risk of violence were
the nature, type and condition of the firearm, its ownership, whether it was loaded, its ease of accessibility, its proximity to the drugs, why the firearm was present and whether the nature of the predicate offense is frequently or typically accompanied by use of a firearm.
Id. Here, CRIMJIG 20.57 specifically lists these factors verbatim. Thus, we conclude the court properly instructed the jury on the Royster factors.
In the alternative, appellant contends that a remand is necessary so the judge, not the jury, can decide if the gun was used in conjunction with the controlled substance crime. In State v. Hannam, decided after appellant's trial but before sentencing, this court held that the judge, not the jury, should decide whether a sentence should be enhanced when a defendant possesses a weapon while committing a drug offense. State v. Hannam, 601 N.W.2d 454, 456 (Minn.App. 1999), review denied (Minn. Dec. 21, 1999). In making this determination, the district court should apply the preponderance of the evidence standard. Id. At the sentencing hearing, appellant's attorney informed the district court of the Hannam holding and the district court found "that the gun was used in conjunction with the drugs in this case, as the jury found." We reject appellant's argument that this statement by the district court was not a formal determination on his possession of the weapon but instead was part of a discussion of a separate clerical error. The record is clear that the district court corroborated the jury's finding that appellant possessed the gun, and then went on to discuss the clerical error.
Finally, appellant argues that State v. Robinson, 480 N.W.2d 644 (Minn. 1992), requires a remand for resentencing because the enhancement in that case required proof beyond a reasonable doubt. But Hannan only requires proof based on a preponderance of the evidence, and both the district court and the jury decided that the evidence met this standard.
II.
In considering a claim of insufficient evidence, this court's review is limited to the "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) (citation omitted). 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) (citation omitted). 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. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
A conviction "based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence." State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted). The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. Id. A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to deference. Webb, 440 N.W.2d at 430.
Appellant contends the circumstantial evidence in the record is not sufficient to show he constructively possessed the firearm or the marijuana. Because appellant was not in actual possession of the firearm or marijuana, the state must prove he constructively possessed these items. Florine, 303 Minn. at 104, 226 N.W.2d at 610. To prove constructive possession, the state must show
(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 [the item] 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.Id. at 105, 226 N.W.2d at 611.
Here, the evidence indicates that: (1) appellant was inside the home when the search warrant was executed; (2) appellant had been observed in the past at the residence; (3) although other people in the house were as tall as appellant, he was the largest person in the home; (5) the clothing in the upstairs closet was all extra-extra large; (6) a pill bottle bearing appellant's name was found in an extra-extra-large leather coat with a loaded gun in the upstairs closet; and (7) a pill bottle bearing appellant's name was found in an extra-extra-large jacket containing 147 grams of marijuana also in the upstairs closet. We conclude that the evidence is sufficient to sustain appellant's conviction.