State of Minnesota, Respondent, vs. William George Lang, 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This opinion will be unpublished and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

A03-1587

 

State of Minnesota,

Respondent,

 

vs.

 

William George Lang,

Appellant.

 

Filed November 9, 2004

Affirmed

Halbrooks, Judge

 

 

Ramsey County District Court

File No. K4-02-3486

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102  (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of felon in possession of a firearm on the grounds that the words "dominion" and "control" in the definition of possession denote two separate concepts and that the district court thus erred in instructing the jury that dominion means "exercise of control."  Because the district court did not plainly err in defining the term dominion, we affirm.

FACTS

            In September 2002, appellant William George Lang was pulled over by St. Paul police while driving a car that matched the description of a vehicle involved in a shooting.  The police subsequently determined that appellant was not involved in this incident.

            After appellant was pulled over, Officer Tony Spencer asked him if the police were going to find anything in the vehicle.  There is some disagreement about appellant's response.  Officer Spencer testified that appellant said, "Yes, there's a gun in the vehicle."  Appellant maintains that he told the officer "that there was a clip," but that he did not know about the gun.[1]

            When the police first searched the car, they found a gun between the driver's seat and the center console.  A subsequent search produced a second gun in a case underneath the rear seat.  Appellant was subsequently charged with two counts of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).

            Appellant stipulated at trial that he was a person who was ineligible to possess a firearm on the date that he was arrested and that the vehicle he was driving was registered to and owned by him.  Appellant testified that he knew that he could not own or have access to a firearm, but that he did not know that the guns were in the car.  Appellant's brother, Michael Lang, testified that both guns belonged to him and that he had placed them in the vehicle without appellant's knowledge.

At the end of the proceedings, the jurors were given the following instructions with respect to both counts:

The statutes of Minnesota provide that an ineligible person who knowingly possesses a firearm, is guilty of a crime.

 

. . . .

 

"To know" requires only that the actor believes that the specified fact exists.

 

. . . .

 

A person . . . possesses a firearm if it was in a place under his exclusive control to which other people did not normally have access, or if the person knowingly exercised dominion and control over it.

 

Neither party objected to these instructions.

            After beginning deliberations, the jury asked the district court for the definition of dominion.  The court responded by stating, "I will instruct you that dominion means exercise of control.  There is no further definition in Minnesota law.  You are instructed that you are not to look up any dictionary definitions."  There was no objection to the court's response.

            During deliberations, the jury sent a note to the district court asking to "either read or [provide] the transcripts" of the testimony of the arresting officers.  The court provided the following response:  "The court reporter who took the testimony is not available the rest of this week.  Another reporter cannot translate her notes.  Since the trial was short, you must rely upon your own recollection of the testimony."  Appellant's counsel stated that he had "no objection" to this response. 

            The jurors later sent out another note stating that a verdict had been reached on count 2, but that the jury was undecided on count 1, and asking how long they needed to deliberate before it was a hung jury.  The court responded by saying,

[y]ou are to deliberate today until four.  And we earlier discussed one of you is graduating tonight.  And the lawyers and myself all want you to go to that graduation.  If you have not reached a verdict by four, then you should come back tomorrow morning and continue your deliberations.

 

No objection was made.

At the conclusion of deliberations, the jury convicted appellant of count 1, possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).  He was acquitted on count 2.  Appellant was sentenced to the mandatory minimum of 60 months in prison as required by Minn. Stat. § 609.11, subd. 5 (2002).  This appeal follows.

D E C I S I O N

I.

Appellant argues that his conviction must be reversed because the district court materially misstated the law defining possession in the supplemental instruction to the jury.  District courts are "given considerable latitude in selecting the language of jury instructions, but instructions may not materially misstate the law."  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  When a jury, after beginning deliberations, has a question regarding a point of law, the court may "give any additional instructions as the court deems appropriate."  Minn. R. Crim. P. 26.03, subd. 19(3)3.

Generally, when a defendant fails to object to instructions before they are given to the jury, the issue is waived.  State v. Gutierrez, 667 N.W.2d 426, 433 (Minn. 2003).  Nonetheless, an appellate court may grant relief if the instruction constitutes plain error affecting substantial rights.  Id.  Demonstrating plain error involves a three-part test:  (1) there must be error; (2) which is plain; and (3) which affects the defendant's substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  "If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings."  Id.

            The first prong requires this court to determine whether the instructions were in error.  State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002).  "An instruction is in error if it materially misstates the law."  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).  Here, demonstrating constructive possession requires that the state prove that the firearm was in a place under the appellant's exclusive control and to which others do not normally have access or that, if the police found the gun in a place to which others had access, "there is a strong probability (inferable from other evidence) that [appellant] was at the time consciously exercising dominion and control over it."  State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).  10A Minnesota Practice, CRIMJIG 32.42 (Supp. 2003), defines possession, providing in relevant part that "[a] person . . . possesses _____ if it was in a place under his exclusive control to which other people did not normally have access, or if the person knowingly exercised dominion and control over it."  This was the precise language used by the district court in the initial jury instructions.  The initial instruction was, therefore, not in error.

            But appellant contends that the court erred in subsequently defining the word "dominion" for the jury.  He argues that the definition provided by the court "exercise of control" rendered the word dominion meaningless and thus materially misstated the law.  In support of this argument, appellant cites State v. Porter, 674 N.W.2d 424 (Minn. App. 2004).  In Porter, we reversed a conviction for possession of a firearm and remanded for a new trial where the district court instructed the jury that the defendant possessed the firearm if he exercised "authority, dominion or control" over it.  Id. at 428-29.  Appellant argues that defining dominion as "exercise of control" is functionally equivalent to using the disjunctive and thus, pursuant to Porter, requires reversal.

            The context of Porter is important but is not noted by appellant.  In Porter, the defendant was accused of both possession of a controlled substance and possession of a firearm.  Id. at 426.  The same standard for constructive possession applies to both charges, but the court instructed the jury using the conjunctive "and" for the controlled-substance charge and the disjunctive "or" for the firearms charge.  Id. at 429.  It was this distinction between the two sets of instructions, not whether dominion is substantively different from control, that concerned this court.  Id.  "Whether or not there is a substantive difference between ‘dominion' and ‘control,' the instructions suggested to the jury that the standard for showing constructive possession of a firearm is lower than the standard for showing constructive possession of powder cocaine."  Id. (emphasis added).

            The Minnesota courts have not further defined "dominion."  Black's Law Dictionary 502 (7th ed. 1999) defines dominion as "control; possession."  Similarly, the definition of dominion in The American Heritage Dictionary 550 (3d ed. 1992) is "control or the exercise of control; sovereignty."  Thus, the district court did not err in defining dominion as "exercise of control."

            Even if the district court erred in its definition, the second prong requires that the error be plain.  Ihle, 640 N.W.2d at 917.  "[I]t is sufficient that the error is plain at the time of the appeal."  Griller, 583 N.W.2d at 741.  "For purposes of plain error rule, ‘plain' is synonymous with ‘clear' or, equivalently ‘obvious.'"  Ihle, 640 N.W.2d at 917 (quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993)).  Even if error occurred, the error would not have been plain.

            The third prong requires that the defendant's substantial rights be affected.  Ihle, 640 N.W.2d at 917.  An error affects a defendant's substantial rights if it is prejudicial and affects the outcome of the case.  Id.  "Plain error is prejudicial if there is a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury."  Id. (quotation omitted).  Appellant has not demonstrated a reasonable likelihood that the definition of dominion had a significant impact on the verdict.  Thus, even if the district court plainly erred, appellant has not demonstrated that his substantial rights were affected.

II.

            Appellant argues a number of other issues in his pro se supplemental brief.  None of these issues were raised before the district court.  An appellate court will generally not consider matters that are outside the record or that were not argued and considered in the district court.  State v. Packard, 366 N.W.2d 721, 726 (Minn. App. 1985), review denied (Minn. July 17, 1985).

            Appellant first contends that he made a motion that the judge recuse herself because appellant had recently fired his attorney, the judge's cousin.  Appellant claims that this motion was made during the disposition conference on December 12, 2002.  However, no evidence of such a motion appears in the transcript of this conference.  Because this matter is outside the record, it is not appropriately considered on appeal.

            Appellant next argues that the statements he made to Officer Spencer were not admissible because he had not been read his Miranda rights.  He also argues that he did not consent to a search of his vehicle.  Because no objection was made before the district court, these issues will not be considered by this court.

            Third, appellant objects to the district court's response to the jury's request for a transcript of the testimony of two of the police officers.  Before responding to the request, the court set forth the proposed response and asked if there were any objections.  None was forthcoming; thus the issue is not properly considered on appeal.

            Finally, appellant argues that the district court's instructions to the jury regarding continued deliberations was in error and influenced the verdict.  Once again, no objection was made to the district court.  Therefore, the issue is not properly considered on appeal.

            Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1]  Appellant testified that he did not initially know about the clip; he only noticed it after he was pulled over.