State of Minnesota, Appellant, vs. William Anthony Moore, Respondent.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-98-788

Gordon David Reese, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed December 8, 1998

Affirmed in part and reversed in part

Crippen, Judge

St. Louis County District Court

File No. K496600348

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Hubert H. Humphrey III, Attorney General, Nancy J. Bode, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802-1298 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant Gordon Reese challenges his convictions for drive-by shooting and possession of a short-barreled shotgun, arguing that the trial court, in a bench trial, was given too little evidence to support the convictions. Having concluded that the state's evidence falls short of the minimum threshold for a reasonable decision of appellant's guilt beyond a reasonable doubt, we reverse the drive-by shooting conviction. The weapon offense conviction is affirmed.

FACTS

Before dawn on May 16, 1996, a drive-by shooting took place at 610 North Fourth Avenue in Duluth. Two people at the apartment saw the offense occur. A blue car stopped in the adjacent alley, two persons exited from the driver's side of the car, and the two walked toward the apartment. One witness recognized the first person out of the car as a woman named Candace Defoe[1] and testified that the second person out of the car was a man wearing a black overcoat and a white T-shirt. The second witness did not recognize either person, but thought one of them had a "dark jacket on with white." This witness yelled down to the two people, and the man with Candace (who evidently was not seen with a gun) yelled back and began shooting at the apartment. The same witness told the police that he thought the man was firing a shotgun, but at trial he testified that it might have been a rifle.

A third occupant of the apartment, talking on the phone after a 911 call was begun, said that appellant Reese, Candace Defoe, and "some other dudes" had gotten out of a blue car and that he heard four to five gunshots. At trial this witness testified that he originally identified appellant and Defoe only because he had heard their names mentioned by someone else. He told police that he had seen a man wearing a dark jacket and a knit cap get out of the car's passenger side carrying a shotgun.

During the same night, there was a party on East Fifth Street in Duluth. At about the same hour as the shooting, a blue car pulled up to the party. In the car were one woman, Candace Defoe, and three males, appellant, Stacy Archambeau, and Shah Jordaine. Appellant and Stacy Archambeau were both wearing white T-shirts and blue jeans, Jordaine was wearing a red, white, and blue windbreaker outfit, and Defoe was wearing a black and white "Adidas" outfit. Defoe and at least one of the men were carrying guns when they ran into the apartment.

The blue car at the Fifth Street apartment was identified as the car the assailants exited before the shooting on Fourth Avenue. Police who arrived at the Fifth Street apartment shortly after the 911 call from Fourth Avenue found that the car's engine was still warm. They searched the apartment and found two .22-caliber rifles and a 12-gauge, double-barreled shotgun with both barrels partly cut off. All were used in the shooting. The shotgun had a blood stain on the barrel, near the breach. The blood stain contained the residue of a palm print or fingerprint that evidently was not identified. Blood was also found on the back of the driver's seat in the blue car. In scientific tests, appellant was not eliminated as the person whose blood was found in the car and on the gun.

Appellant was charged with a drive-by shooting at an occupied building in violation of Minn. Stat. § 609.66, subd. 1e(a) (1996), and possession of a short-barreled shotgun in violation of Minn. Stat. § 609.67, subd. 2 (1996).[1] Following a bench trial, appellant was convicted on both counts and sentenced to concurrent terms of 36 months (shooting) and 13 months (weapon). The trial judge, as factfinder, specifically found that appellant exited the blue car immediately after Candice Defoe and fired two shots.

D E C I S I O N

1. Standard of review

This court must review the record and legitimate inferences from the record in the light most favorable to the conviction to determine whether the factfinder could reasonably have concluded appellant was guilty of the charged offense, giving due regard to the presumption of appellant's innocence and the state's burden to prove his guilt beyond a reasonable doubt. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).

Where a conviction is based on circumstantial evidence, the verdict will be sustained on appeal when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

First Count: Drive-by Shooting

Minn. Stat. § 609.66, subd. 1e(a), requires that the state prove appellant "exited from a motor vehicle" and "recklessly discharge[d] a firearm." The state contends that four facts support a conviction on this charge:

a. Blood was found on the shotgun and in the blue car. Appellant admits having a bloody nose on May 15, admits having seen the shotgun that was used in the shooting, and admits to having been a passenger in the blue car. A forensic scientist determined that the blood found on the shotgun and driver's seat could have been appellant's and was not the blood of Shah Jordaine, one of the persons seen exiting the blue car with appellant on East Fifth Street. The other two people exiting the car, Stacy Archambeau and Candace Defoe, were not tested on the blood evidence.

Assuming, arguendo, that it is appellant's blood on the shotgun and car seat, the scientist could not establish when either of the blood deposits was made. Appellant attributed the blood in the blue car to a bloody nose he had received several days earlier while playing basketball in Minneapolis. Even if the judge disbelieved this story, there is no evidence linking the blood in either location to the shooting. The limited blood tests do not eliminate reasonable doubt that appellant was a shooter.

b. The shooter may have worn a white T-shirt. One witness said that the second person out of the car (the first shooter) was a man wearing a "black overcoat or something and a white T-shirt." Another witness said one of the first two people out of the car had a "dark jacket on with white." He did not specify if he was describing the man or the woman. The 911 caller said he saw a man wearing a dark, overcoat-length jacket and dark knit cap get out of the car's passenger side carrying a shotgun.

Appellant was wearing a white T-shirt and blue jeans on May 15, as was Stacy Archambeau. None of the descriptions given by the witnesses provides any way to determine if the shooter was Stacy or appellant. Moreover, the third male in the car was wearing a red, white, and blue windbreaker outfit. The record does not say whether he was or was not wearing a white T-shirt, but if he wore a dark overcoat over the windbreaker he could fit the above descriptions. Candace Defoe was wearing a black "Adidas" outfit with white stripes. The description provided by one witness, not specific to the shooter, could have been a description of Defoe's clothes. The witnesses' descriptions are too vague to eliminate reasonable doubt that appellant was the shooter.

c. The 911 caller identified appellant as an assailant. At trial this witness said he saw too little to identify people getting out of the car and that he mentioned appellant's name during the call only because he had heard the name mentioned by someone else. Even assuming that the 911 call was an accurate report, the call only places appellant at the scene. The witness did not report that appellant held or fired a gun. In fact, no one testified that appellant held or fired a gun. The 911 reporter's testimony, even when viewed in the light most favorable to the verdict, only places appellant at the scene; it does not eliminate reasonable doubt as to whether he was the shooter.

d. Three guns were used in the shooting, Candace Defoe was seen without a gun at the site of the shooting, and three men later exited the blue car. Three guns were used in the attack on the Fourth Avenue apartment, suggesting that each of the men later seen exiting the car at the Fifth Street apartment was a shooter. But there is at least one other reasonable interpretation. Candace could have picked up or been given a gun after the shooting began. Candace did have a gun in her hand when the car pulled up in front of the Fifth Street apartment.

Even viewing the evidence in the light most favorable to the verdict, the circumstantial nature of the evidence presented does not allow reasonable inferences consistent only with defendant's guilt. Because the state did not prove beyond a reasonable doubt that appellant exited the blue car and fired a shotgun, we must reverse appellant's conviction for the drive-by shooting.

The record contains evidence suggesting that appellant was an accomplice to the crime even if he were not the shooter and thus liable under Minn. Stat. § 609.05 (1996). The complaint did not charge appellant as an accomplice under Minn. Stat. § 609.05. More significantly, the issue was not raised at trial. Cf. State v. Defoe, 280 N.W.2d 38, 40 (Minn. 1979) (affirming a conviction based on accomplice liability even though Minn. Stat. § 609.05 was not specifically mentioned in the complaint).

Second Count: Possession of a short-barreled shotgun

Minnesota Statute § 609.67, subd. 2 (1996), requires that the state prove appellant owned, possessed, or operated a short-barreled shotgun. At trial, no one testified that they saw appellant in possession of the shotgun. But if contraband is found in a place to which he had access, even if with others, appellant had constructive possession of the contraband if there is a strong probability, inferable from other evidence, that appellant was at the time consciously exercising dominion and control over it. State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (Minn. 1975). Courts have found possession when drugs or firearms were found "in close proximity" to the defendant. See State v. Willis, 320 N.W.2d 726 (Minn. 1982) (constructive possession established where gun found in car in which defendant was one of two passengers and where before stop officer saw defendant make furtive movement and gun was under defendant's seat.); Ramon v. State, 416 N.W.2d 739, 744 (Minn. App. 1987) (constructive possession established where drugs were found in glove compartment, defendant was in passenger seat, and driver denied possession of drugs), review denied (Minn. Feb. 17, 1988).

It is undisputed that the shotgun was a short-barreled shotgun, that appellant was in the blue car at the same time as the shotgun, and that appellant knew the shotgun was in the trunk of the blue car as he traveled to Duluth. The evidence also clearly suggests that appellant was in the Fifth Street apartment at the same time as the shotgun (police arrested appellant just prior to the search that located the shotgun). In addition, appellant admitted bleeding on May 16, and blood matching appellant's was found on the shotgun. Given the evidence placing appellant in the proximity of the shotgun on or about May 16, it was reasonable for the trial court to conclude that appellant was in possession of the short-barreled shotgun.

Given that inferences drawn from circumstantial evidence must be consistent only with a hypothesis of guilt, and the plausibility that another person(s) committed the drive-by shooting, we reverse appellant's conviction for the drive-by shooting, but affirm the conviction for possession of a short-barreled shotgun.

Affirmed in part and reversed in part.

[1] Appellant was charged with reference to Minn. Stat. § 609.11 (1996) (setting forth minimum sentences) and Minn. Stat. § 609.67, subd. 1(c) (1996) (defining a short-barreled shotgun). He was also charged with possession of a stolen firearm, but found not guilty of this charge.