State of Minnesota, Respondent, vs. Houa V. Lee, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-2278

 

State of Minnesota,

Respondent,

 

vs.

 

Houa V. Lee,

Appellant.

 

Filed November 4, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Washington County District Court

File No. K202411

 

 

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

 

Doug Johnson, Washington County Attorney, Kari A. Lindstrom, Assistant Washington County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082-0006 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Roy G. Spurbeck, Assistant State Public Defenders, Suite 425, 2221 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

 

 

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

On appeal from his convictions of fifth-degree controlled substance crime, receiving stolen property for the benefit of a gang, and possession of an illegal firearm, appellant argues that the evidence of firearms and marijuana found at his house was not sufficient to prove that he constructively possessed them.  Appellant also argues that the district court failed to instruct the jury that he could not be convicted based solely on the testimony of an accomplice.  Finally, appellant argues that the prosecutor committed prejudicial misconduct in questioning appellant about the facts of a prior conviction that was admitted only for impeachment purposes.  Because the evidence is sufficient, the witness testimony is not accomplice testimony and is corroborated, and no objection was made to the improper prior-conviction evidence, we affirm.

FACTS

            On New Year's Eve 2001, appellant Houa Vang Lee hosted a party and invited individuals Lee knew to be gang members, including James Her, to stay at his house.  Sometime shortly after New Year's Eve, Her and other known members of the Imperial Gangsters were arrested in Milwaukee.  While in custody, Her told Milwaukee police that he had information about two drive-by shootings that took place in Minneapolis over New Year's Eve.  Her told police that he and other gang members had stayed with Lee at his house, that everybody there had marijuana, that the gang members had stolen guns and had given the guns to Lee, and that the guns were hidden in Lee's garage.  

            The state charged Lee with receiving stolen property, receiving stolen property for the benefit of a gang, possession of a controlled substance, and possession of a firearm with an altered serial number.  The state introduced evidence of Lee's gang involvement and of a rifle with the serial number scratched off, several firearms, and marijuana, all found in Lee's garage.  Her was granted immunity at trial and testified for the state.  This appeal follows.

D E C I S I O N

          Appellant Houa Vang Lee first argues that the evidence is insufficient to support his convictions.

1.         Sufficiency of Evidence

            "[T]he standard for overturning a conviction for insufficiency of the evidence is a high one."  State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).  This court's review is limited to determining whether the evidence is sufficient to support the verdict when the evidence is viewed in the light most favorable to the conviction.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary."  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  It is within the province of the jury to assess the credibility of the witnesses.  State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002).

a.         Her's Testimony

A threshold issue here is whether Her was an accomplice to Lee in receiving stolen property or in receiving stolen property for the benefit of a gang.  Lee argues that Her could have been charged with receiving stolen property, so he was an accomplice and his testimony needed to be corroborated.  Because Her's testimony was uncorroborated, he contends the evidence was insufficient to support his conviction.  See State v. Harris, 405 N.W.2d 224, 227 (Minn. 1987) (stating "a conviction cannot be had upon the testimony of an accomplice, unless it is corroborated"); Minn. Stat. § 634.04 (2002).

An accomplice is one who could have been charged with and convicted of the same crime as the defendant.  State v. Jones, 347 N.W.2d 796, 800 (Minn. 1984).  However, "where the acts of the several participants are declared by statute to constitute separate and distinct crimes, the participants guilty of one crime are not accomplices of those who are guilty of a separate and distinct crime."  State v. Pederson, 614 N.W.2d 724, 733 (Minn. 2000).  A thief is not an accomplice of a person who receives stolen property.  State v. Gordon, 105 Minn. 217, 219, 117 N.W. 483, 484 (1908).  A person who receives stolen property is not an accomplice of a thief.  State v. Rosenberg, 155 Minn. 37, 41, 192 N.W. 194, 195 (1923).

Here, Her stole the guns and delivered them to Lee.  Lee testified he was neither a participant in the planning nor in the stealing of the guns.  The act of stealing property and then passing it along to another is a separate and distinct crime from the act of receiving stolen property.  And the record does not indicate that Her could reasonably have been charged with receiving stolen property.  Thus, we conclude that Her was not an accomplice to Lee in receiving stolen property or receiving stolen property for the benefit of a gang.  Because Her was not an accomplice, his testimony need not have been corroborated.  But even if Her were an accomplice, the physical evidence tends to corroborate his testimony.  See State v. Wallert, 402 N.W.2d 570, 571-72 (Minn. App. 1987) (holding that corroborating evidence may overcome the inherently untrustworthy nature of an accomplice's testimony), review denied (Minn. May 18, 1987).

b.         Possession of Marijuana Evidence

Lee argues that the evidence is insufficient to prove that he possessed the marijuana because the state failed to present any evidence that Lee actually or constructively possessed the marijuana.  The state concedes that Lee's possession is premised on constructive rather than actual possession.

"A person is guilty of controlled substance crime in the fifth degree if . . . the person unlawfully possesses one or more mixtures containing a controlled substance," which includes marijuana.  Minn. Stat. § 152.025, subd 2(1) (2000).  A person is guilty of possession of a controlled substance if he knew the nature of the substance and either physically or constructively possessed it.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).

A person may constructively possess a controlled substance alone or with others.   Comm'r of Revenue v. Fort, 479 N.W.2d 43, 46 (Minn. 1992).  Constructive possession may be proved by showing either that (1) the controlled substance was found in an area under the defendant's control and to which others normally had no access; or (2) if others had access to the location of the controlled substance, the evidence indicates a strong probability that the defendant exercised dominion and control over the area.  Florine, 303 Minn. at 105, 226 N.W.2d at 611.  We look to the totality of the circumstances in assessing whether or not constructive possession has been proved.  State v. Munoz, 385 N.W.2d 373, 377-78 (Minn. App. 1986).  The evidence as a whole need not exclude all possibility that Lee is innocent; it must only make such a theory seem unreasonable.  State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985). 

Her testified he saw people at Lee's house smoking marijuana and that "[e]verybody had . . . a little [marijuana]" when they were at Lee's house.  Marijuana found underneath a pile of clothes in Lee's garage, in an area to which others had access, was introduced into evidence.  Thus, we next determine whether Lee exercised dominion and control over the garage.

The record supports the conclusion that Lee exercised dominion and control over his garage when the marijuana was found there.  Lee allowed gang members into his garage and testified he gave them permission to use the garage, Lee's wife was not present at the house during this time, and Lee was aware that marijuana was being used in his house. 

            When this evidence is viewed in the light most favorable to the conviction, it is sufficient to support a verdict of guilty.  In addition, based on the totality of the circumstances here, a theory that Lee is innocent seems unreasonable.  Thus we conclude that the evidence established that Lee constructively possessed the controlled substance that was the basis for his conviction.

c.       Possession-of-Stolen-Property and Altered-Firearm-for-Gang-Purposes Evidence

Lee next argues that he did not actually or constructively possess the stolen firearms, including the altered firearm, in his garage and that he is not a member of a gang.  The facts do not show that Lee actually possessed the firearms.  But a conviction may be upheld if the state proved Lee constructively possessed them.  Florine, 303 Minn. at 104-05, 226 N.W.2d at 610.  When the state cannot prove that the defendant had actual or physical possession at the time of arrest, the state may prove constructive possession if the "inference is strong that the defendant at one time physically possessed the [item] and did not abandon his possessory interest in the [item] but rather continued to exercise dominion and control over it up to the time of the arrest."  Id.  If police found the items in a place to which others had access, the state has the burden of showing that a strong probability exists that Lee was consciously exercising dominion and control over the items. 

            Her testified stolen guns were "transported from Wisconsin up to Minneapolis" and that the stolen guns were transferred to Lee because Lee "wanted the guns."  The stolen firearms were found in Lee's garage, and one of the firearm's serial numbers had been scratched off.  Her also testified he was a member of the Imperial Gangsters, that he stayed at Lee's house, that during his stay there were "lots of gauges [of guns], handguns, assault rifles" present, that the guns were sometimes covered in the garage, but also brought out and shown, that Lee had seen and handled most of the stolen firearms, and that Lee had ordered people to go and "take care of this one other house" in a drive-by shooting. 

            Evidence was also introduced that Lee was a gang member.  This included photographs of Lee displaying signs and symbols associated with gang members.  And an expert witness testified that (1) the Imperial Gangsters organization is a gang, (2) he was familiar with Lee, (3) Lee is known to be a gang member with the Imperial Gangsters, (4) Lee was in several photographs "throwing [gang] signs," (5) the gang pictures were taken as recently as April of 2001, and (6) Lee was on an active gang members list. 

          We conclude that there is a strong inference that Lee at one time physically possessed the guns, that he did not abandon his possessory interest in the guns, and that he continued to exercise dominion and control over the guns up to the time of his arrest.  The evidence when viewed in a light most favorable to Lee's convictions is sufficient to support the convictions because a jury could reasonably have concluded that Lee was guilty of receiving stolen property, receiving stolen property for the benefit of a gang, and possessing a firearm with altered identification.

2.         Accomplice Jury Instruction

Lee next argues that he was denied a fair trial because the district court failed to give an instruction telling the jury that Lee could not be convicted on the basis of uncorroborated accomplice testimony.  Because we conclude that Her was not an accomplice, no jury instruction was required or warranted to explain the law on accomplice testimony. 

3.         Prosecutorial Misconduct

Lee next argues that a new trial is warranted because he was denied the right to a fair trial when the prosecutor cross-examined him about the details of his prior conviction for witness tampering, thus introducing his conviction as substantive evidence, even though his conviction was admissible only for impeachment purposes. 

A district court's admission of evidence of other crimes or bad acts will not be reversed unless an abuse of discretion is clearly shown.  State v. Doughman, 384 N.W.2d 450, 454 (Minn. 1986).  Generally, inquiry into the facts underlying prior convictions is improper.  State v. Edwards, 343 N.W.2d 269, 273 (Minn. 1984).  Specific instances of misconduct of the defendant-witness may be inquired into on cross-examination at the discretion of the trial judge if it is found that such acts are relevant and probative of veracity, and the probative value outweighs the risk of undue prejudice, confusion of issues, or unnecessary delay.  Minn. R. Evid. 608(b).  Ordinarily, the examination on a prior conviction "must be limited to the fact of the conviction, the nature of the offense, and the identity of the defendant."  State v. Williams, 297 Minn. 76, 84, 210 N.W.2d 21, 25 (1973). 

The state moved before trial for admission of Lee's prior 1995 conviction for witness tampering for impeachment purposes and as substantive evidence.  Although the district court granted the motion to admit Lee's conviction for impeachment, it denied the motion to use the conviction as substantive evidence.

During direct examination, Lee testified that he was a member of a gang.  During cross-examination, Lee was asked the details surrounding his prior conviction for witness tampering and whether the crime was gang-related.  These questions were beyond the scope allowed.  However, Lee failed to object at trial to the prosecutor's improper inquiry.  By failing to object, Lee waived his right to have this issued considered on appeal.  State v. Djonne, 293 N.W.2d 45, 46 (Minn. 1980). 

Lee also argues that the prosecutor was guilty of prosecutorial misconduct in posing improper questions on cross-examination.  Whether prosecutorial misconduct warrants a new trial is a matter within the district court's broad discretion.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  This court will reverse a conviction on the ground of prosecutorial misconduct only if the misconduct was "inexcusable and so serious and prejudicial that a defendant's right to a fair trial is denied."  State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).  But defendants waive their rights to raise the issue of prosecutorial misconduct on appeal when they fail to object or to seek a curative instruction in the district court.  See State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001) (stating that "[w]here a defendant fails to object to a prosecutor's statements . . .  the defendant is deemed to have waived the right to appeal on the basis of those statements").  Lee did not object during the prosecutor's questioning about his prior conviction; thus, this issue is waived.  

            Affirmed.