State of Minnesota, Respondent, vs. Jeffrey Allen Stoltz, 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This opinion will be unpublished and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

A03-748

State of Minnesota,

Respondent,

vs.

Jeffrey Allen Stoltz,

Appellant.

Filed April 27, 2004

Affirmed

Lansing, Judge

Douglas County District Court

File No. KX-02-700

Christopher D. Karpan, Douglas County Attorney, 305 Eighth Avenue West, Alexandria, MN  56308 (for respondent)

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

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On appeal from his conviction for being a felon in possession of a firearm, Jeffrey Stoltz challenges the sufficiency of the evidence showing possession.  Because the evidence sufficiently establishes possession, we affirm.

F A C T S

Shortly after 9 a.m. on June 4, 2002, an Alexandria police officer received a complaint that Jeffrey Stoltz, a person the officer knew by sight, had been squealing his tires in a parking lot.  Approximately one hour later the officer saw Stoltz at a stop sign, driving the same truck involved in the driving incident.  As the officer started to turn his squad car around, Stoltz began to accelerate.  The officer then activated his siren and emergency lights and pursued Stoltz. 

The officer followed Stoltz through a parking lot, down several city streets, and into an alley located between Hawthorne and Irving Streets.  But he lost sight of him when Stoltz turned off the alley onto Eighth Avenue.  Soon after losing sight of Stoltz, the officer heard on the police radio that Stoltz's truck had been found parked in a driveway on Jefferson Street.  The officer went to the house on Jefferson and secured the truck.  Although the officer had not actually seen Stoltz throw anything from the truck, he called dispatch and requested that other officers search along the chase route, because he thought that Stoltz might have thrown something out of his truck during the chase.

Shortly after noon, a thirteen-year-old boy who was mowing a lawn near Hawthorne Street and Eighth Avenue noticed a pistol on the curb.  He picked up the pistol thinking it was a toy and then put it back where he found it.  He showed the pistol to his mother and to a neighbor, who picked up the pistol and took it out of its holster.  The police were then called, and an officer was dispatched to Eighth Avenue to investigate at 1:50 p.m.  When the officer arrived she photographed the area, picked up the pistol, and brought it back to the police station.  The officer who had pursued Stoltz sealed the pistol and placed it in his evidence locker.  The pistol was not sent for fingerprinting because the police believed that useful prints could not be obtained after the boy and his neighbor had handled it.  The pistol was unique, and the officers involved in the case testified that they had never seen one like it.

Later that night the police obtained information that Stoltz had returned to the duplex on Sixth Avenue where he had been staying.  Officers were dispatched to the duplex, but Stoltz fled the area on a bicycle before they arrived.  The officers eventually found Stoltz in the back seat of a vehicle and arrested him. 

The pistol was identified as an item that had been stolen during a residential burglary in Benton County, along with a camcorder, a Nintendo Gameboy, and an asthma inhaler.  Recorded phone calls that Stoltz made from prison established that he was in possession of several items stolen during the burglary.  In one phone call, Stoltz asked an unidentified female to retrieve a camcorder, a Nintendo game, and a bow and arrow from the Sixth Avenue duplex where he had been staying.  In another phone call, the unidentified female told Stoltz that she was unable to get into the duplex but that it did not matter because the police had already searched it.  Later in that same phone call, Stoltz spoke with a woman named Marie and told her that the police were "gonna make [him] for that burglary."  The two discussed whether to tell the police that Stoltz bought the items from someone else.  Stoltz then suggested he could blame the burglary on another acquaintance, but he abandoned the idea when he realized that the acquaintance was in jail at the time the burglary occurred.

During a warrant-authorized search of Stoltz's duplex, police found a camcorder, an asthma inhaler, and a bow and arrow, all of which were identified as items stolen during the Benton County burglary.  Stoltz was further connected to the Benton County burglary by the testimony of an informant and a detective.  Two days after Stoltz was arrested, a convicted felon who had cooperated with the police in the past told police in a recorded statement that on the evening of June 1 or 2, 2002, Stoltz had shown him three different guns, including a German-made, .22 short pistol with a "whitish" grip.  The informant identified a picture of the pistol that police recovered from the chase route as being similar to one of the pistols Stoltz had shown him.  In addition, a detective testified that on the day of the burglary, police found tire tracks at the residence that were very similar to the tracks Stoltz's tires made.

The state charged Stoltz with two counts of being a felon in possession of a firearm in violation of Minn. Stat. §§ 609.165, subd. 1b (2000), 624.713, subd. 1(b) (2000), and one count of fleeing a peace officer in violation of Minn. Stat. § 609.487, subd. 3 (2002).  Before trial, the parties stipulated that Stoltz was a felon and that he was prohibited from possessing firearms.  The court granted the state's motion to dismiss one of the possession counts, and a jury found Stoltz guilty of the remaining charges.  The court imposed the presumptive sentence.  This appeal follows.

D E C I S I O N

Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude that the defendant committed the crime charged.  State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995).  Circumstantial evidence is entitled to as much weight as other evidence.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  To sustain a conviction based on circumstantial evidence, however, the evidence as a whole must form a complete chain that excludes beyond a reasonable doubt any rational hypothesis other than guilt.  State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).

Because the pistol was recovered from the street rather than from Stoltz's person, the state had to prove beyond a reasonable doubt through direct or circumstantial evidence that Stoltz possessed or constructively possessed the pistol.  To prove constructive possession, the state had to establish that there was a strong probability, inferable from other evidence, that Stoltz consciously exercised control over the pistol.  See State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).  The conviction may thus stand if the evidence leads to the conclusion that Stoltz was consciously exercising control over the pistol and excludes, beyond a reasonable doubt, any other explanation. 

The evidence leads to the conclusion that Stoltz consciously exercised control over the pistol during the chase and excludes any other explanation.  The pistol was found at Hawthorne Street and Eighth Avenue, the exact place where the pursuing officer lost sight of Stoltz and the first place where Stoltz had the opportunity to discard the pistol without being seen.  The pistol was traced to a Benton County burglary to which the evidence clearly connected Stoltz.  Several items stolen during that burglary were found in the duplex where Stoltz had stayed, and recorded phone calls showed Stoltz's unsuccessful efforts to have those items removed from the duplex, his concern that the police would charge him with the burglary, and his frustrated plan to blame the burglary on someone else.  In addition, the informant told police that on June 1 or 2 Stoltz had shown him a pistol matching the description of the pistol found along the chase route.  Because the pistol was unique, the jury could reasonably have believed the informant's testimony, even though he acknowledged that he was "high" on drugs and had not slept for days when Stoltz showed him the pistol.  Finally, Stoltz's truck's tire tracks were similar to the tire tracks left at the burglarized residence.

The evidence also excludes beyond a reasonable doubt any other rational hypothesis of guilt.  We find no merit in Stoltz's claim that the evidence supports the alternative theory that the informant or someone associated with the burglary planted the pistol along the search route, fearing that police would eventually discover that person's involvement in the burglary.  There is simply no evidence to support a theory that the pistol was placed along the chase route by someone other than Stoltz.

The evidence fully supports a finding through direct and circumstantial evidence that Stoltz was in possession of items stolen during the Benton County burglary, including the pistol found along the search route, and that he threw the pistol out of his truck window as soon as the officer lost sight of him.  The inferences that may reasonably be drawn from the evidence are consistent with Stoltz's guilt and inconsistent with any rational hypothesis except that of his guilt.  Furthermore, because the state charged Stoltz with possession "on or about June 4, 2002," the direct evidence proved by the informant's testimony is alone sufficient to prove that Stoltz possessed the pistol.  See State v. Dufour, 123 Minn. 451, 452, 143 N.W. 1126 (1913) (noting that in general, it is not necessary to prove the commission of a crime on the precise day specified in the indictment, except when it is an essential element of the crime).

            Affirmed.