State of Minnesota, Respondent, vs. Timothy Garth Hansen, Sr., Appellant.

State of Minnesota, Respondent, vs. Timothy Garth Hansen, Sr., Appellant. A04-1588, Court of Appeals Unpublished, August 30, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1588

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy Garth Hansen, Sr.,

Appellant.

 

Filed August 30, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Blue Earth County District Court

File No. K3-03-2013

 

 

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

 

Ross E. Arneson, Blue Earth County Attorney, Christopher J. Rovney, Assistant County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414-3230 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Appellant challenges his convictions of felon in possession of a firearm and various traffic offenses, arguing that the police unlawfully seized a rifle from the car he was driving.  He also argues that the prosecutor committed misconduct during the trial and that the evidence was insufficient to prove the possession and careless-driving convictions.  We affirm.

FACTS

On October 7, 2003, Mankato police officer Tom Cusey went to the apartment of Tara Volk, appellant Timothy Hansen's girlfriend, to execute a warrant for Volk's arrest.  Hansen was in the apartment and told Cusey that Volk was not there.  Cusey determined that no warrants were outstanding for Hansen but that Hansen's driving privileges had been revoked.

The next day, Cusey returned to Volk's apartment to attempt to execute the warrant.  Cusey heard voices from inside the apartment and knocked on the door.  No one answered.  Cusey decided to wait in a parking lot across the street in hopes of apprehending Volk when she left her residence.  Cusey had to abandon his plan when he received a call to handle a separate incident.

After Cusey left the parking lot, he saw Hansen driving a car with Volk in the passenger seat.  Cusey made a U-turn and activated his emergency lights, intending to stop Hansen for the offense of driving after revocation of his license.  Hansen put his car into reverse and drove at a speed between 25 and 30 miles an hour backward for about half a block and then into a parking stall at Volk's apartment complex.  While Hansen's car was moving, Cusey saw the passenger door open and Volk attempt to get out of the car.  Hansen parked the car and began to walk away.

Cusey arrested Hansen and placed him in the squad car and then arrested Volk, who was hiding behind a dumpster.

After the arrests, Cusey looked into Hansen's car and saw shotgun shells, a shotgun case, and some camouflage clothing on the back seat.  Cusey then entered the car and seized the case, which contained a rifle.  Ultimately, the state charged Hansen with the offenses of felon in possession of a firearm, careless driving, driving after cancellation of his driver's license, and having no insurance.

The district court denied Hansen's omnibus motion to suppress the rifle, and the matter went to trial.  The jury found Hansen guilty of all charged offenses.  This appeal followed.

D E C I S I O N

1.         Motion to Suppress the Rifle

            Hansen argues that the district court erred when it denied his motion to suppress the rifle because the search revealing the rifle was unconstitutional.  "When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  And, when reviewing the legality of a seizure or search, a reviewing court will not reverse the district court's findings unless clearly erroneous or contrary to law.  In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997).

            Generally, a search conducted without a search warrant is unreasonable under the Fourth Amendment.  Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971).  However, certain exceptions allow a search to be conducted without a warrant.  Geer v. State, 406 N.W.2d 34, 35 (Minn. App. 1987), review denied (Minn. July 15, 1987).  A search incident to a lawful arrest is one of those exceptions.  United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973).  The rationale for allowing a warrantless search incident to arrest is to prevent a suspect from harming a police officer and to prevent the destruction of evidence.  Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2039-40 (1969).  "A search incident to arrest is valid by itself and does not require any additional justification."  State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998) (citing Robinson, 414 U.S. at 235, 94 S. Ct. 467).  "However, the crime for which there is probable cause to arrest must be a crime for which a custodial arrest is authorized."  Id.

            Hansen argues that the offenses for which Cusey arrested him were minor and that they warranted only citations rather than arrest.  The general rule is that a peace officer acting without a warrant "shall issue citations to persons subject to lawful arrest for misdemeanors" unless the officer reasonably concludes that arrest is necessary to prevent bodily harm or further criminal conduct, or unless the officer concludes that the accused will likely fail to respond to a citation.  Minn. R. Crim P. 6.01, subd. 1(a).

            According to the criminal complaint, Cusey believed that Hansen's arrest was necessary to prevent further criminal activity.  Before the arrest, Cusey knew of Hansen's complicity in preventing the execution of the arrest warrant for Volk.  He observed Hansen's bizarre driving conduct, from which Cusey could reasonably conclude that Hansen was attempting to evade the officer.  He saw Volk leave the car and flee.  The officer could reasonably conclude that misdemeanants do not ordinarily flee from the police; and when he saw shotgun shells and a shotgun case on the back seat of Hansen's car, he reasonably concluded that a custodial arrest was necessary to ensure that there would be no further criminal activity.  Had there been a mere traffic offense, without the surrounding suspicious circumstances, the general rule regarding a citation rather than an arrest would control.  But it would have been irresponsible for Cusey merely to give citations in this case.  Thus, we hold that the seizure was incident to a lawful arrest and that the district court did not err in denying the motion to suppress the firearm.

2.         Prosecutorial Misconduct

            Hansen claims that he was prejudiced when the prosecutor committed misconduct, and, thus, his conviction on the firearm charge should be reversed.  Specifically, he claims that the prosecutor committed prejudicial misconduct when he (a) elicited evidence of appellant's post-arrest silence and request for counsel and (b) implied through questioning that appellant was prohibited from owning a muzzleloader.  

            Prosecutorial misconduct warrants reversal "only when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant's constitutional right to a fair trial was impaired."  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) 

            a.         Testimony as to post-arrest silence

The prosecutor asked Cusey whether Hansen made any statements to him.  Cusey testified: "No, he asked for his attorney.  Or, I asked him if he would speak to me with reference to the firearm and he said ‘no.'''  It is improper for a prosecutor to disclose that an accused requested counsel during an interrogation.  See State v. McCullum, 289 N.W.2d 89, 92 (Minn. 1979).  But despite defense counsel's several objections to various parts of Cusey's testimony, he did not object to the question about any statements by Hansen and did not move to strike Cusey's testimony.  There was no further reference during the trial to Cusey's testimony on this subject.  Hansen has failed to show how this information may have played a substantial part in influencing the jury to convict him.

b.         Questions about possession of a "muzzleloader."

The prosecutor asked Volk about Hansen's possession of a firearm known as a muzzleloader.  She testified that he recently had hunted with such a firearm.  Hansen contends that it is not illegal for a felon to possess an antique firearm, including a muzzleloader, and that the prosecutor's questioning caused the jury to be confused and to inaccurately apply the law.  See State v. Strommen, 648 N.W.2d 681, 689-90 (Minn. 2002) (stating it is improper for a prosecutor to misstate the law).  Hansen did not object to the question.  And it is clear that the jury knew that he was charged with possession of the rifle in his car and not with any other firearm offense.  Hansen has failed to show that the jury was confused in any way about what the firearm charge was, what particular firearm the charge pertained to, or what its obligation was before it could find Hansen guilty of any firearm charge.

3.         Sufficient Evidence to Support Appellant's Convictions

            Hansen claims that the state did not provide sufficient evidence to convict appellant of possessing a firearm or careless driving.  In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the 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).  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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            a.         Possession of a firearm

Hansen claims that the conviction for being a felon in possession of a firearm was based entirely on circumstantial evidence.  "[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).  "While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence."  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence on which the conviction rests must not be consistent with a rational hypothesis other than that of guilt.  Webb, 440 N.W.2d at 431.  Inconsistencies in the state's case or possibilities of innocence do not require reversal of a jury verdict; however, so long as the evidence taken as a whole makes such theories seem unreasonable.  State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985).  A jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

            To obtain a conviction under Minn. Stat. § 624.713, the state must establish either actual or constructive possession of a firearm.  State v. Loyd, 321 N.W.2d 901, 902 (Minn.1982).  Actual possession requires proof that the defendant had the firearm on his physical person.  State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000).

            To prove constructive possession, the state must prove that: (1) the police found the item in a place under the defendant's exclusive control to which other people did not normally have access, or (2) if the police found it in a place to which others had access, 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. Porter, 674 N.W.2d 424, 427 (Minn. App. 2004).

            Hansen was not in actual personal possession of the rifle at the time of his arrest.  But the rifle was in a car titled in Hansen's name, and Hansen was controlling the movement of the car.  These are circumstances that link Hansen to the rifle.  Furthermore, Volk stated, without objection, that she believed the rifle belonged to either Hansen or to his son and that Hansen had used it a couple of days earlier for hunting.  These are further circumstances that link Hansen to the rifle.  Volk stated further that she and Hansen were going to a pawn shop to pawn the rifle.  She made no claim that the rifle belonged to her.  Thus, the jury could have reasonably inferred that the rifle, lying as it was on the back seat of a car titled in Hansen's name and was being taken to a pawn shop to pawn, was in the conscious control and dominion of Hansen as the rifle's apparent owner.  The jury is the judge of the credibility of the evidence.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).  There was sufficient credible evidence to support a finding that Hansen constructively possessed the rifle.

            b.         Careless Driving

            Hansen argues that the state failed to prove that he committed the offense of careless driving.  

Any person who operates or halts any vehicle upon any street or highway carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person, including the driver or passengers of the vehicle, is guilty of a misdemeanor.

Minn. Stat. § 169.13, subd. 2 (2002). 

            Hansen was driving in reverse on a city street for approximately 50-75 yards.  Cusey testified that he estimated appellant to be traveling at 25-30 miles per hour.  Cusey also testified that, while the vehicle was still in motion, the passenger door opened and it appeared that the passenger was attempting to exit the vehicle.  On the other hand, Volk testified that Hansen "couldn't have been going very fast."  

            "When reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the State and assume that the jury believed the State's witnesses and disbelieved contrary evidence."  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  Cusey also testified that he knew that children lived in the area, although he saw none in the roadway at the time of the incident.  However, Cusey did see individuals in the parking lot into which Hansen backed the car.  Hansen was driving in reverse at almost 30 miles per hour as the door opened and his girlfriend prepared to jump out.  The driving conduct satisfied the prohibition against careless driving.  Because we assume that the jury believed the state's witnesses and disbelieved contrary evidence, sufficient evidence was presented to support the jury's determination that Hansen was driving carelessly.  

      Affirmed.