This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2008).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed February 3, 2009
Itasca County District Court
File No. 31-CR-07-1043
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
MN 55101; and
John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, Itasca
County Courthouse, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for
Lawrence Hammerling, Chief Appellate Public Defender, Davi E. Axelson, 540 Fairview
Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)
Considered and decided by Johnson, Presiding Judge; Schellhas, Judge; and
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
Appellant challenges his conviction of fifth-degree possession of a controlled
substance, arguing that his trial counsel was ineffective and the evidence was insufficient
to establish he possessed methamphetamine. Because he fails to show his counsel was
ineffective and because the evidence was sufficient to support his conviction, we affirm.
During a late afternoon blizzard in March 2007, Leech Lake Police Sergeant Jeff
Carlson drove his squad car through the city of Ball Club and saw two vehicles, a Chevy
Nova and a pickup, parked in the middle of a dirt road. Considering the poor weather, he
initially thought that someone was having car trouble and needed assistance, but, as he
approached, he noticed Anthony Bebeau, Mark Allen, and appellant Eugene Nason
standing beside the pickup, exchanging something in their hands, and suspected they
were engaged in a drug deal. As Sergeant Carlson pulled up, Bebeau noticed him and
quickly began walking toward the Nova. Appellant and Allen attempted to get into the
passenger side of the pickup. At that time, Sergeant Carlson became concerned that the
men may be entering the pickup to get a weapon, so he drew his gun and ordered the men
to stop and exit the pickup. While appellant was doing so, Sergeant Carlson saw him
raise his arm and throw a baggie over the passenger door of the pickup.
Sergeant Carlson directed the men and a fourth individual found in the pickup,
Nicole Gustafson, to his squad car. He radioed for backup and handcuffed Allen and
appellant. Several deputies arrived at the scene, and appellant was searched and placed in
the back of a squad car. He was found to have $160 cash in his front pocket and $100 in
Additional searches of the suspects and the pickup revealed a total of
$1,144.53, a methamphetamine smoking pipe, and a scale. Sergeant Carlson located the
baggie thrown by appellant, and testing revealed that it contained methamphetamine.
In a recorded statement, appellant conceded that a drug deal was taking place
between Bebeau and Allen but claimed that he was not a party to the sale. Appellant
stated that Allen encouraged him to throw the drugs out of the pickup, and appellant
admitted that he did throw the baggie. As for the $260 in cash found in his pockets,
appellant claimed that he intended to use it to pay utility bills. At appellant‟s trial, Allen
testified that the group was engaged in a drug sale and that, because there was a concern
over the weight of the drugs, he, appellant, and Gustafson used the scale to weigh the
baggie of methamphetamine. Allen testified that, when Sergeant Carlson arrived, either
appellant or Gustafson got rid of the drugs by throwing them, but he could not see who
threw the baggie. Gustafson testified as well and claimed that Allen threw the drugs at
appellant and told him to get rid of the drugs, and the drugs merely deflected off
appellant‟s hand into a snow bank. Gustafson said that, except in this brief deflection,
appellant never touched the drugs.
After closing arguments, the district court instructed the jury regarding the
elements of the possession charge and explained that appellant would be guilty of the
offense if he either committed it or was an accomplice to anyone who committed it.
Appellant was convicted of fifth degree possession of a controlled substance under Minn.
Stat. § 152.025, subd. 2(1) (2006).
In a postconviction petition, appellant asserted that his counsel was ineffective
because she failed to request an omnibus hearing to challenge his seizure and failed to
request a jury instruction on the issue of “fleeting possession.”
The petition was
reviewed by the judge who presided over appellant‟s trial. The judge denied the petition,
concluding that the seizure was reasonable, that Sergeant Carlson‟s decision to draw his
weapon did not convert the stop into an arrest, that a motion by appellant challenging the
stop would have been denied, that appellant‟s personal possession of methamphetamine
was not necessary to his conviction because he was charged both as a principal and as an
accomplice for the crime of possession, that the evidence at trial was sufficient for the
jury to conclude that the defendant was an accomplice, and that appellant was not entitled
to a jury instruction regarding “fleeting possession” because Minnesota has not
recognized it as a defense to possession crimes.
Appellant now renews his claims of ineffective assistance of counsel and also
claims there was insufficient evidence to establish possession within the meaning of the
We first address the issue of whether appellant received ineffective assistance of
The right to effective assistance of counsel forms a part of the Sixth
Amendment right to a fair trial under the United States Constitution. U.S. Const. amend.
VI; State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2002). A postconviction decision
regarding a claim of ineffective assistance of counsel involves mixed questions of fact
and law and is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).
“[Appellant] must affirmatively prove that his counsel‟s representation „fell below an
objective standard of reasonableness‟ and „that there is a reasonable probability that, but
for counsel‟s unprofessional errors, the results of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.‟” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
reviewing court considers the totality of the evidence . . . in making this determination
. . . [and] need not address both performance and prejudice prongs if one is
determinative.” Rhodes, 657 N.W.2d at 842 (citation omitted). A strong presumption
exists “that a counsel‟s performance falls within the wide range of „reasonable
professional assistance.”‟ State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). In
hindsight, reviewing courts may not review counsel‟s tactical decisions involving trial
strategy. State v. Miller, 666 N.W.2d 703, 717 (Minn. 2003).
Failure to challenge Sergeant Carlson’s seizure of appellant.
Appellant argues that his counsel should have challenged the constitutionality of
his seizure and that, if she had, the district court would have suppressed the state‟s
evidence. Evidence obtained by unconstitutional means is generally inadmissible. State
v. Bergerson, 659 N.W.2d 791, 797 (Minn. App. 2003). For a finding of ineffective
assistance of counsel, however, we would need to conclude that suppression of the state‟s
evidence was reasonably probable.
Due to the weather and his public safety concerns, Sergeant Carlson would have
been justified in engaging in a brief encounter with appellant‟s group. Also, because
appellant and the other individuals were stopped in a lane of traffic in violation of Minn.
Stat. § 169.32(a) (2006), which prohibits stopping a vehicle upon the main travelled part
of the highway, Sergeant Carlson had reasonable, articulable suspicion that justified a
traffic stop. State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003) (“A brief investigatory
stop requires only reasonable suspicion of criminal activity, a lesser quantum of proof
than probable cause.”). As Sergeant Carlson approached the men, he saw them standing
in the blizzard and gesturing with their hands in a manner that led him to believe that they
were engaged in a drug sale, and this further justified the stop.
When the men appeared to flee to their vehicles upon seeing him, Sergeant
Carlson became concerned that they were seeking a weapon, and, only after he became
concerned for his safety, he drew his gun and ordered the men from the pickup. State v.
Ailport, 413 N.W.2d 140, 144 (Minn. App. 1987) (holding that officers are permitted to
draw their weapon if they have a reasonable belief that a weapon is present and that such
conduct does not automatically transform a stop into an arrest), review denied (Minn.
Nov. 18, 1987). Sergeant Carlson then observed appellant throw a baggie from the
pickup, and this observation led him to believe more confidently that he was
encountering a drug sale. This was when Sergeant Carlson directed appellant and the
others to his squad car, called for backup, and handcuffed appellant. Meanwhile, the
baggie of methamphetamine remained on the ground, abandoned by appellant when he
threw it there. See Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 698 (1960)
(holding that an unlawful seizure does not occur when an officer appropriates abandoned
property). We agree with the district court‟s conclusion that a motion to suppress would
have been denied. Thus, we find no prejudice.
It is also unlikely that appellant‟s counsel‟s performance “fell below an objective
standard of reasonableness.” Not only would a suppression motion have failed, effective
assistance “does not require an attorney to advance every conceivable argument.” See
Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986) (applying to effectiveness of
counsel). Furthermore, a reviewing court cannot review counsel‟s tactical decisions
involving trial strategy. Miller, 666 N.W.2d at 717. Here, appellant‟s attorney reviewed
the available discovery and determined that no omnibus issues existed. Appellant fails to
show that his attorney‟s tactical decision to not seek suppression of the evidence was
Accordingly, we conclude that appellant‟s argument that he received
ineffective assistance of counsel is without merit.
Failure to request a “fleeting control” instruction.
Appellant also argues that his trial counsel was ineffective because she failed to
request an instruction regarding fleeting control when the facts supported such an
instruction. His argument is premised on this court‟s statements in State v. Houston, 654
N.W.2d 727, 735 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003), and the
proposition that Minnesota courts recognize the fleeting control defense in possession
cases.1 In Houston, this court reviewed a gun possession case and affirmed the district
court‟s rejection of the defense attorney‟s request for a “fleeting control” instruction but
stated that “an instruction on „fleeting control‟ may have been appropriate.” Id. at 735.
Respondent counters by noting that Houston itself expressly states that “a „fleeting
control‟ exception has not been recognized in Minnesota.” Id. at 734.
Further, we have refused to recognize a fleeting control jury instruction on more recent
occasions. See In re the Welfare of S.J.J., 755 N.W.2d 316, 318-19 (Minn. App. 2008)
(reaffirming that Minnesota does not recognize a fleeting control exception to possession
of a firearm).
Because the fleeting control exception is not recognized in Minnesota, we cannot
hold that appellant was prejudiced by his attorney‟s failure to request an instruction on it;
it is likely that, if the request had been made, it would have been rejected by the district
The parties in this action refer to the term “fleeting possession”; however, we prefer
“fleeting control,” the term used in Houston. The concept of “fleeting control” has been
developed by courts in other jurisdictions. See, e.g., United States v. Landry, 257 F.2d
425, 431 (7th Cir. 1958) (stating that possession is “actual control, care and management
of, and not a passing control, fleeting and shadowy in its nature” (citation omitted));
Jordan v. State, 819 P.2d 39, 43 (Alaska Ct. App. 1991) (holding that a jury instruction
including “passing control” was necessary under the circumstances); People v. Martin, 25
Cal. 4th 1180, 108 Cal. Rptr. 2d 599, 25 P.3d 1081, 1084 (2001) (holding transitory
possession applied only to momentary or transitory possession of contraband for the
purpose of disposal); see also Model Penal Code § 5.07 (1985) (stating “[i]t is a defense
under this Section for the defendant to prove by a preponderance of evidence . . . that he
possessed it briefly in consequence of having found it or taken it from an aggressor, or
under circumstances similarly negativing any purpose or likelihood that the weapon
would be used unlawfully”).
court. Moreover, the lack of the instruction did not prevent appellant‟s attorney from
arguing that appellant did not possess or knowingly possess the drugs. In Houston, we
emphasized that, even without an explicit “fleeting control” instruction, a defense
attorney may argue that a conviction for possession requires proof of knowing possession.
Houston, 654 N.W.2d at 735.
We note that appellant‟s attorney took advantage of the
opportunity to so argue. Lastly, because appellant was charged as a principal actor and as
an accomplice, appellant could have been convicted under an accomplice rationale even
if the jury found that he personally did not possess the drugs. Consequently, appellant
has failed to show that there is a “reasonable probability” that requesting a fleeting
control instruction would have resulted in a better trial outcome for him.
As for the reasonableness of not requesting the instruction, we note that counsel
readily admitted at the postconviction hearing that she had never heard of “fleeting
control” but stated that, at trial, she raised an argument regarding lack of possession or
knowing possession and that this amounted to a similar argument. Because “fleeting
control” is a not a defense in Minnesota and because appellant‟s attorney otherwise
vigorously argued that appellant did not knowingly possess the drugs, appellant is unable
to show that his attorney‟s failure to request the instruction was unreasonable.
Appellant next argues that there was not sufficient evidence to support his
conviction of possession of a controlled substance. In claims of insufficient evidence to
support a jury verdict, this court‟s review is limited to a “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 which they did.” State v.
Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume that the jury believed
the state‟s witnesses and disbelieved any contrary evidence, State v. Moore, 438 N.W.2d
101, 108 (Minn. 1989), especially if resolution of the matter depends mainly on
conflicting testimony, State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). This 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. Bernhardt v. State, 684
N.W.2d 465, 476-77 (Minn. 2004).
We examine the “facts in the record and the
legitimate inferences that can be drawn from those facts” to determine if a jury could
have reasonably found the defendant guilty. State v. Merrill, 274 N.W.2d 99, 111 (Minn.
Appellant was convicted under Minn. Stat. § 152.025, subd. 2(1), which provides
that a person is guilty if he or she “unlawfully possesses one or more mixtures containing
an [applicable] controlled substance . . . .” Appellant is only challenging whether there
was sufficient evidence of “possession” to support his conviction. Appellant also was
charged as an accomplice to this offense, and the accomplice statute states that “[a]
person is criminally liable for a crime committed by another if the person intentionally
aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit
the crime.” Minn. Stat. § 609.05, subd. 1 (2006).
Appellant argues that the evidence shows only that he had momentary control of
the drugs when he threw the baggie and that it is “absurd and unreasonable” to
criminalize “such innocent behavior.”
He cites no Minnesota statute or caselaw,
however, that recognizes the sort of “fleeting control” exception in possession cases that
Indeed, there is nothing in the statutory language of section 152.025,
subdivision 2(1), indicating possession of the drugs must be more than “brief” or
“temporary.” The statute unambiguously states that a person is guilty if “the person
unlawfully possesses one or more mixtures containing [an applicable] controlled
substance . . . .” When a statute‟s language is unambiguous, the court must apply the
statute‟s plain meaning. State v. Smoot, 737 N.W.2d 849, 853 (Minn. App. 2007), review
denied (Minn. Nov. 21, 2007). Moreover, as previously discussed, Minnesota has opted
not to recognize a “fleeting control” exception for the purpose of criminal statutes. See
Houston, 654 N.W.2d at 734.
Here, Sergeant Carlson testified that appellant possessed the drugs when he
observed him raise his left arm over the pickup door and throw the baggie into the snow.
Allen testified that appellant participated in weighing the baggie and that either appellant
or Gustafson threw the baggie out of the vehicle when Sergeant Carlson arrived.
Gustafson testified that appellant was the last person to touch the baggie before it fell out
of the pickup, though she minimized his involvement by stating that he merely deflected
the baggie out of the pickup. The combination of this testimony supports a finding that
appellant directly possessed the baggie, which contained 1.3 grams of methamphetamine.
Without even speculating on whether the jury found appellant guilty as an accomplice to
Allen, the jury could have reasonably concluded that appellant actually did possess the
methamphetamine, for however short of a time, as required by the statute. There was
sufficient evidence to support appellant‟s conviction.