State v. Nielsen, A18-0553

State of Minnesota, Respondent, v. David Alan Nielsen, Appellant.

A18-0553

STATE OF MINNESOTA IN COURT OF APPEALS

April 8, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Larkin, Judge

St. Louis County District Court

File No. 69VI-CR-17-550

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Bonnie A. Thayer, Assistant County Attorney, Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina Schulz, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and Halbrooks, Judge.

UNPUBLISHED OPINION

LARKIN, Judge

Appellant challenges his conviction of possession of a firearm by a prohibited person, arguing that the evidence was insufficient to sustain the conviction. Appellant also makes several pro se arguments. We affirm.

FACTS

Respondent State of Minnesota charged appellant David Alan Nielsen with possession of a firearm by a prohibited person. Nielsen stipulated that he was ineligible to possess a firearm, and the case was tried to a jury. At trial, State Trooper David Rock testified that on May 17, 2017, he was on patrol and observed a vehicle without working taillights. Trooper Rock stopped the vehicle and approached the driver's side. The trooper spoke with the driver, who stated that he did not have his driver's license with him. The driver identified himself as Michael Alvin Nielsen and provided a date of birth. Trooper Rock determined that Michael Alvin Nielsen had a date of birth different than the one the driver had provided and that appellant was the driver.

Trooper Rock testified that he asked Nielsen where he was headed, and Nielsen "mentioned something about moving." As the trooper was speaking with Nielsen, he observed that Nielsen was sweaty, had dilated pupils, and was making furtive movements. Trooper Rock called for assistance and asked Nielsen to step out of the vehicle to perform field sobriety tests.

Officer Elijah Allen of the Eveleth Police Department responded to the scene. While standing on the passenger side of the vehicle, Officer Allen observed a gunstocksticking out of clothes and other items in the vehicle. Officer Allen testified that the barrel of the firearm was on the "passenger side floorboard . . . leaning up against the front of the seat." The gunstock was visible from outside the vehicle and was within reach of the driver's seat. Officer Allen alerted Trooper Rock to the presence of the firearm.

Trooper Rock testified that initially, he did not notice the firearm because he was focused on Nielsen's hands and movements. Trooper Rock testified that only the gunstock was visible because the vehicle was filled with garbage bags and "miscellaneous household items." Trooper Rock also testified that when he observed the firearm, it was located on the "front passenger side [of the vehicle], . . . leaning up against the seat from the floor." Trooper Rock removed the firearm from the vehicle. The officers did not photograph the firearm in the vehicle before removing it. The police stored the firearm in an evidence locker and did not arrange any DNA or fingerprint testing of the firearm. Investigation revealed that the firearm did not have a registered owner.

The officers searched the vehicle and found a wallet containing Nielsen's Minnesota identification card and prescription bottles with his name on them. Police eventually determined that the vehicle was registered to S.C., and not to Nielsen.

The jury found Nielsen guilty of possession of a firearm by a prohibited person. The district court entered judgment of conviction and sentenced Nielsen to serve a 60-month prison term. Nielsen appeals.

DECISION

I.

Nielsen contends that the evidence was insufficient to sustain his conviction. When considering a claim of insufficient evidence, an appellate court carefully analyzes the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jury to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The appellate court "assume[s] that the jury believed the state's witnesses and disbelieved contrary evidence." State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998). An appellate court will not disturb a guilty verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the state proved that the defendant was guilty of the offense charged. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

When the state relies on circumstantial evidence to prove an element of an offense, an appellate court applies a heightened standard of review. See State v. Harris, 895 N.W.2d 592, 601-03 (Minn. 2017) (applying circumstantial-evidence standard to individual element of criminal offense that was proved by circumstantial evidence). Circumstantial evidence is "evidence from which the factfinder can infer whether the facts in dispute existed or did not exist." Id. at 599 (quotation omitted). Direct evidence is "evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption." Id. (quotation omitted). Circumstantial evidence always requires an inferential step that is not required with direct evidence. Id.

"Possession of a firearm may be proved through actual or constructive possession." State v. Salyers, 858 N.W.2d 156, 159 (Minn. 2015). "Actual possession, also referred to as physical possession, involves 'direct physical control.'" State v. Barker, 888 N.W.2d 348, 353 (Minn. App. 2016) (quoting Jacobson v. Aetna Cas. & Sur. Co., 46 N.W.2d 868, 871 (Minn. 1951)). The purpose of the constructive-possession doctrine is to establish possession in

those cases where the state cannot prove actual or physical possession at the time of arrest but where 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.

State v. Florine, 226 N.W.2d 609, 610 (Minn. 1975).

To establish constructive possession the state must show either (1) the prohibited item was found "in a place under [the] defendant's exclusive control to which other people did not normally have access" or (2) if police found the prohibited item "in a place to which others had access, there is a strong probability (inferable from other evidence) that [the] defendant was at the time consciously exercising dominion and control over it." Id. at 611.¹

Because the state relied on circumstantial evidence to prove constructive possession, we evaluate the sufficiency of the evidence using the heightened standard of review. See Harris, 895 N.W.2d at 601-03. First, we determine the circumstances proved. Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017). When evaluating the circumstances proved, the court "disregard[s] evidence that is inconsistent with the jury's verdict." Harris, 895 N.W.2d at 601. Next, we "determine whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis other than guilt." Loving, 891 N.W.2d at 643. We will reverse a conviction based on circumstantial evidence only if there is a reasonable inference other than guilt. Id.

The circumstances proved are as follows: (1) police discovered a firearm in the vehicle that Nielsen was driving; (2) Nielsen was alone in the vehicle; (3) the firearm was in the front passenger compartment, within reach of the driver's seat; (4) the stock of the firearm was clearly visible from outside the vehicle; (5) police found Nielsen's state identification card and other items with his name on them in the vehicle; and (6) Nielsen gave the police a false name.

The state argues that, when Trooper Rock stopped Nielsen, "the firearm was under [Nielsen's] exclusive control." However, the relevant inquiry is whether the firearm was found "in a place" under Nielsen's exclusive control, that is, in a place "to which other people did not normally have access." Florine, 226 N.W.2d at 611 (emphasis added). Because the vehicle was registered to another person, it is reasonable to infer that at least one other person (the registered owner) normally had access to the vehicle. We thereforeask whether there was a strong probability that Nielsen was consciously exercising dominion and control over the firearm as he drove the vehicle.

When the trooper stopped Nielsen, he was alone in the vehicle. The firearm was in the front passenger compartment, and the stock of the firearm was visible and within reach of the driver's seat. In State v. Prigge, the supreme court held that "carry," in the context of a statute prohibiting the carrying of a pistol by certain persons, includes "having the [firearm] in one's personal vicinity while moving." 907 N.W.2d 635, 639 (Minn. 2018). Nielsen's transportation of a visible firearm within his reach while driving a vehicle constitutes "carrying" the firearm and shows that Nielsen consciously exercised dominion and control over the firearm. Thus, the circumstances proved are consistent with guilt.

Nielsen argues that the circumstantial evidence is insufficient because "the circumstances proved support another rational hypothesis [other than guilt]: the firearm belonged to the owner of the [vehicle] and Nielsen never consciously exercised dominion or control over it." Moreover, Nielsen argues, even if he was aware of the firearm's presence, "knowledge and proximity alone are not sufficient to prove constructive possession."

Nielsen does not explain, and we do not discern, why another person's ownership of the firearm would be inconsistent with guilt, that is, a conclusion that Nielsen consciously...