State of Minnesota, Respondent, vs. Eric (NMN) Vera, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

State of Minnesota,
Respondent,

vs.

Damon NMN Davenport,
Appellant.

Hennepin County District Court
File No. 98114131

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, No. 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Peterson, Judge.

Appellant Damon Davenport challenges the sufficiency of the evidence to support his conviction for possession of a handgun. We affirm.

At about midnight, Minneapolis police officers James Burns and Michael Geere were on patrol near 14th Street and Knox Avenue North in Minneapolis. The officers heard two gunshots that sounded as if they had come from about a block away. Both Geere and Burns set out on foot to investigate.

The officers saw a man come running around the corner of a building. They described the man as a black male, about six feet tall, medium build or weight, wearing a black, three-quarter length, leather jacket and dark or black pants. The man ran toward the officers, and Geere saw that he was holding a silver metallic handgun in his right hand. Burns also testified that he saw the man carrying a silver handgun in his right hand. Burns testified that he could see the barrel of the gun because the man was holding the gun out to the side and that he was able to "distinctly make out" that the object was a handgun. Burns testified that when he first saw the man, he was about 75 feet away, and he continued to observe the man for two or three seconds as he ran toward the officers. Although it was nighttime, both officers testified that the area was well lighted with street lamps and stoplights. Burns described the visibility as being "plain as daylight." Both officers testified that they were absolutely certain that the object in the man's right hand was a gun.

Geere removed his gun from his holster, pointed it at the man, identified himself as a police officer, and instructed the man to stop running and drop his weapon. The man turned and ran in the opposite direction. Geere pursued him on foot but lost sight of him. Other police squads came to assist, and, within seconds after Geere lost sight of the man, officers had set up a perimeter to contain him. Geere found the man, who was identified as appellant Damon Davenport, hiding behind the air conditioning unit of an apartment complex. Burns positively identified Davenport as the man he had seen earlier carrying the handgun, and, when apprehended, Davenport was wearing a black, three-quarter length, leather jacket and black pants.

Minneapolis police sergeant Michael Friestleben found a silver handgun on top of a retaining wall near where Davenport was apprehended. The retaining wall abutted a sidewalk on Plymouth Avenue. Friestleben did not think the handgun could have been on the retaining wall very long because the gun was shiny and very visible, even during the nighttime, and Plymouth Avenue is a busy street at all hours of the night. Friestleben thought that a passerby would have picked up the gun if it had been on the retaining wall for some time. Friestleben also noted that it was autumn, and no leaves had blown over the gun.

While the search perimeter was in place, police did not allow any foot traffic on the part of Plymouth Avenue within the perimeter. Burns testified that while police were pursuing Davenport, he did not see anyone else on Plymouth Avenue. Davenport's mother testified that she knew Davenport did not have a gun in his possession because he lived with her, and she did not allow guns in her house. No fingerprints were found on the gun.

When the sufficiency of the evidence is challenged, this court must view the evidence in the record in the light most favorable to the jury's verdict and assume that the jury believed the state's witnesses and disbelieved contrary evidence. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). An appellate court will uphold the verdict if the jury, giving due regard to the presumption of innocence and the state's burden of proving the defendant's guilt beyond a reasonable doubt, could reasonably have found the defendant guilty. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). Burns was convicted of possession of a handgun by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (1998) (person convicted for crime of violence not entitled to possess pistol).

Davenport does not dispute that he was the person whom Burns and Geere saw running toward them from around the building. He argues that the object that Geere and Burns saw in his right hand could have been something other than a gun and that the officers might have mistaken it for a gun because they had just heard gunshots. But both officers testified that they were absolutely certain that the object in Davenport's right hand was a gun. Burns testified that he could see the barrel of the gun because Davenport was holding the gun out to the side and that he was able to "distinctly make out" that the object in Davenport's hand was a handgun. Davenport was about 75 feet away when Burns first saw him, and Burns continued to observe Davenport for two or three seconds as he ran toward the officers. Although it was nighttime, the area was well lighted. Burns explained that police officers are trained to check a suspect's hands for weapons, so their eyes are automatically drawn right to a suspect's hands. The officers' testimony that they saw Davenport carrying a silver handgun was corroborated by the discovery of a handgun matching that description on a retaining wall near where Davenport was apprehended. No one else was seen in that area while police pursued Davenport.

Citing Burns's testimony that (1) guns were frequently dumped by fleeing criminals in the area where Davenport was apprehended and (2) he frequently found abandoned guns when patrolling in that area, Davenport argues that the gun found on the retaining wall could have belonged to someone else. But Burns did not testify that he frequently found abandoned guns; he testified that he often investigated incidents involving guns and that fleeing suspects routinely dump guns in an effort to avoid being caught with them. Burns described backtracking and point-of-reference methods used by police when trying to find a gun dumped during a chase. His testimony indicated that in most cases, police locate a dumped gun shortly after apprehending the suspect.

Viewed in the light most favorable to the verdict, the evidence is sufficient to prove beyond a reasonable doubt that Davenport possessed a handgun. See State v. McGhee, 359 N.W.2d 286, 287 (Minn. App. 1984) (holding testimony by two officers was sufficient to support conviction for possession of handgun by felon where appellant got out of his car, fumbled with something in his waistband that appeared to be dark metal; when ordered to freeze, appellant crouched toward car's front seat, bent over, and reached into front seat as if putting an object underneath the driver's seat; and a pistol was found underneath the seat).