State of Minnesota, Respondent, vs. Elmer Michael King, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

IN COURT OF APPEALS

State of Minnesota,
Respondent,
 
vs.
 
Elmer Michael King,
Appellant.

Affirmed

Hennepin County District Court

File No. 99005038

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

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

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

            Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

CRIPPEN, Judge

            Appellant Elmer King, who acknowledges his status as a convicted felon, was convicted of being a felon in possession of a semiautomatic, military-style assault weapon, in violation of Minn. Stat. § 624.713, subd. 1(b) 1998.  He asserts that he was entitled to a jury instruction to accommodate his argument that possession of the rifle merely for purposes of disposing of it did not constitute prohibited possession under the statute.  We affirm.

            On January 17, 1999, at approximately 10:15 p.m., while appellant was walking across a street in Minneapolis, two uniformed and armed private security guards, patrolling the area in an unmarked car, noticed that appellant was carrying what appeared to be a rifle.  When asked, appellant acknowledged that he had a gun.  When a guard commanded him to do so, appellant dropped the gunan unloaded Chinese S.K.S. semiautomatic assault rifle. 

At trial, after being charged with illegal possession of the weapon, appellant testified that he found the rifle in the bedroom of the trailer home that he had recently rented.  Believing that the gun belonged to the previous occupant or the trailer's owner and knowing that he was not allowed to possess the rifle, appellant said he took the rifle to Minneapolis in an attempt to give it to the trailer owner's brother.  The jury found appellant guilty as charged, and the court later sentenced appellant to the applicable mandatory minimum sentence of 60 months in prison.

1.         Jury instruction

            We note initially that appellant did not object to the jury instructions given at trial and did not request an instruction on his theory that possessing the rifle for purposes of disposing of it did not constitute prohibited possession under the statute.   Rather, appellant requested an instruction on the necessity defense.  The 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 raise the issue on appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  Nevertheless, despite a failure to object, this court will still review the instructions for "plain error affecting substantial rights or an error of fundamental law."  Cross, 577 N.W.2d at 726 (citation omitted).

            The trial court has "broad discretion" on jury instructions and is given "considerable latitude" in selecting the language of jury instructions.  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998) (citation omitted).  If the instructions, when read as a whole, correctly state "the law in language that can be understood by the jury, there is no reversible error."  Id. (citation omitted).

            Appellant asks that we apply a doctrine developed in other jurisdictions, whereby "fleeting" control of a weapon does not constitute the possession that is prohibited by criminal statutes.  See United States v. Landry, 257 F.2d 425, 431 (7th Cir. 1958) ("[t]o ‘possess' means to have actual control, care and management of, and not a passing control, fleeting and shadowy in its nature") (citation omitted). 

As appellant acknowledges, the fleeting-control principle has not been accepted in Minnesota law.  See 10A Minnesota Practice, CRIMJIG 32.21 (1999) (element of offense of possession of a semiautomatic, military-style assault weapon by a prohibited person is that the defendant "knowingly possessed" the weapon or "consciously exercised dominion and control over it"); see also State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982) (even if not actually in physical possession of a weapon, a convicted felon still possessed a weapon for purposes of the statute if the convicted felon "consciously exercised dominion and control" over it). 

More importantly, the circumstances of this case are not those that would invite a determination of whether this principle should be adopted in Minnesota.  Appellant's control of the rifle was not fleeting but involved a substantial possession over the course of two hours, ultimately detected on a public street.  These are circumstances that come within the language of the statute, and there was no plain error in the trial court's exercise of discretion to refuse giving an instruction on the fleeting-control doctrine.

2.         Sentencing

            Appellant was subject to a mandatory minimum sentence of five years in prison.  Minn. Stat. § 609.11, subd. 5(b) (1998).  The trial court had discretion to sentence appellant without regard to this mandatory minimum, "if the court [found] substantial and compelling reasons," and such a departure would be a departure from the sentencing guidelines.  Minn. Stat. § 609.11, subd. 8(a) (1998).  This court reviews a trial court's decision on whether to depart from a presumptive sentence for an abuse of discretion.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  Generally, we are not to interfere on appeal with the exercise of this discretion, and it is a "rare case" that warrants reversal of a trial court's refusal to depart from the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

            The trial court stated that the facts of this case "don't amount" to reasons for departure.  This is not, as appellant suggests, evidence that the trial court overlooked the circumstances or the possibility of a sentencing departure.  Rather, it is evident that the trial court examined the circumstances and concluded the facts did not present sufficiently "substantial and compelling" reasons to grant a departure.  This was not reversible error. 

Affirmed.