Opinion
No. C4-01-64.
Filed January 29, 2002.
Appeal from the District Court, Ramsey County, File No. K000984.
Mike Hatch, Attorney General;
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, (for respondent)
Bradford Colbert, Assistant State Public Defender, (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges his convictions of possession of a pistol by an ineligible person, possession of marijuana with intent to sell, and terroristic threats. He argues that (1) the state failed to establish that there was probable cause for his arrest because the arresting officer did not have personal knowledge of the factual basis for the arrest, (2) the trial court erred by refusing to sever the terroristic-threats charge for trial, (3) he was denied the protection of a unanimous verdict, and (4) he was denied due process of law because he was not given notice of his ineligibility to possess a firearm based on a prior conviction. Because we conclude that the record is sufficient to prove probable cause, the trial court's decision not to sever the charges for trial was within its discretion, and it was not plain error not to give a unanimity instruction to the jury, we affirm. We do not reach appellant's due-process argument because it was not raised in the trial court and is, therefore, waived.
FACTS
At approximately 6:00 p.m. on March 25, 2000, appellant Byron Dean Brantley and Demetrius Spencer knocked on the door of David Grewe and Denise Graf. When Grewe opened the door, appellant and Spencer came in, locked the door, and demanded money for drugs. Appellant first demanded $1,500 and later increased the demand to $2,000. Grewe recognized appellant and Spencer as friends of Graf's daughter. Grewe told them that he did not owe them any money and that, if Graf's daughter did, it was her business to take care of it.
Grewe further informed appellant that he did not have that kind of money and that he was going to call the police. But before Grewe could reach the phone, appellant ripped it off the wall. Grewe and Graf became increasingly frightened as appellant began threatening them. Both of them believed that they saw the outline of a gun in appellant's pocket. Appellant told them that he had a pistol and that he would kill Grewe if Grewe did not give appellant money. Appellant permitted Grewe to call his brother, ostensibly to ask him for some money. Instead, Grewe told his brother to call 911. At that point, appellant and Spencer left, and the police arrived ten minutes later.
Officers Michael Bratsch and Tom Olson responded to the call and interviewed Grewe, Graf, and Graf's daughter, who had been hiding while appellant and Spencer were in the home. Grewe identified the intruders and told the officers about appellant's threats and his belief that appellant had a gun. As a result, the officers issued a dispatch for a "pick-up-and-hold" order for the two suspects at 6:38 p.m. The dispatch stated that the men were wanted for making terroristic threats involving a gun at 639 Thomas, Grewe's home.
When Officer Thomas Arnold began his shift at 4:00 p.m. on March 25, 2000, he was advised that there was a "pick-up-and-hold" order for appellant for deprivation of parental rights. Officer Arnold also heard the second "pick-up-and-hold" order involving appellant and Spencer. He knew both individuals from prior experience and suspected that he would find them at an address just one block away from Grewe's home. As a result, Officer Arnold periodically checked the area. Just before 11:00 p.m., Officer Arnold saw appellant and Spencer sitting in a taxi cab in front of 670 Edmund. Appellant was seated in the back, directly behind the driver's seat. Because the 6:38 p.m. dispatch had indicated that appellant might be armed, Officer Arnold put his car between himself and the cab, drew his gun, and radioed for assistance.
Officers Bratsch and Olson responded to the call. After appellant and Spencer were out of the cab, arrested, and handcuffed, Officer Arnold searched the vehicle. He found a Llama nine-millimeter pistol, loaded with one round, under the driver's seat. Later testing established that appellant's left thumb print was on the gun.
Officer Bratsch searched appellant at police headquarters and found a zip-lock bag containing 26 individually wrapped baggies of marijuana. Officer Olson searched Spencer and discovered a pistol magazine containing a number of nine-millimeter rounds and some marijuana.
Appellant was charged with possession of a firearm by an ineligible person under Minn. Stat. § 624.713, subd. 1(b) (2000), as a result of his prior conviction of fifth-degree possession of a controlled substance. The state later amended its complaint to include charges of terroristic threats under Minn. Stat. § 609.713, subd. 1 (2000), and possession of marijuana with intent to sell under Minn. Stat. § 152.025, subds. 1(1), 3(b) (2000).
Appellant moved to suppress all the evidence and dismiss the charges for lack of probable cause on the ground that Officer Arnold did not have personal knowledge of the facts that justified the "pick-up-and-hold" order arising out of the incident at Grewe's home. Appellant also moved to sever the terroristic threats charge from the other charges, because he claimed that the offenses were not related.
The trial court denied both motions. The court found that Officer Arnold had probable cause to arrest appellant. The trial court denied the motion to sever because it found "there is or can be a causal link made between the two offenses," based on the short period of time between the alleged offenses and the presence of a gun at both.
Appellant was convicted by a jury on all counts. The trial court sentenced appellant to 60 months for ineligible possession of the firearm, with concurrent sentences of 18 months for the terroristic threats, and 15 months for possession of marijuana with intent to sell. This appeal follows.
DECISION
Appellant argues that the state failed to prove probable cause for his arrest because the only police officer to testify was Officer Arnold, the arresting officer. Appellant contends that the state cannot meet its burden without calling the officer who took the original report of the terroristic threats. In determining whether there is probable cause for an arrest, this court reviews the factual findings for clear error, but independently applies the law to those facts. State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).
Probable cause exists when the facts and circumstances would lead a person of ordinary care and prudence to have a strong suspicion that a crime has been committed. State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982). It is not uncommon for an arresting officer to rely on factual data learned from police communications when acting on a "pick-up-and-hold" order. Recognizing that "it is unrealistic to demand that each officer in the department personally know all the facts necessary to justify an arrest," the supreme court has stated that a determination of whether sufficient probable cause for the arrest exists should be judged by "total knowledge of the police department." State v. Radil, 288 Minn. 279, 283, 179 N.W.2d 602, 605 (1970). "Under the `collective knowledge' approach, the entire knowledge of the police force is pooled and imputed to the arresting officer * * * ." State v. Conway, 319 N.W.2d 35, 40 (Minn. 1982) (emphasis in original).
Here, Officer Arnold testified that he heard the dispatch to "pick up and hold" appellant, who was suspected of making terroristic threats involving a gun at a specific address. Officer Arnold was familiar with appellant from prior contact with him. At the time the trial court ruled on the motion to dismiss, the court had a copy of the police report that detailed all the information that underscored the dispatch order, including Grewe's statements to Officers Bratsch and Olson. The report indicated that appellant demanded money, told Grewe that he had a gun, and said things like "I should do you right here," and "I ought to take this out and pop you."
Under a "collective knowledge" analysis, Officer Arnold was entitled to rely on the information that he received from other officers at the time of appellant's arrest. The information contained in the police report was sufficient to support the probable cause determination. Appellant points to no weakness in the report of Officers Bratsch and Olson that would have made cross-examination of the officers helpful to the defense. Cf. Jensen v. State, 278 N.W.2d 752, 754 (Minn. 1979) (holding that state should have presented testimony of one of two interrogating officers on Miranda issue, but expressing no opinion as to whether a written report would have been adequate). Therefore, the trial court properly denied the motion to dismiss.
Appellant next argues that Minn.R.Crim.P. 17.03, subd. 3(1)(a) (2000), required that the terroristic threats charge be severed from the other charges because they were separate, unrelated incidents. Appellant contends that, because the crimes were not sufficiently related in time or motivation to be tried together, he was unduly prejudiced by the trial court's denial of his motion to sever.
Whether the trial court properly applied the rules of criminal procedure is a question of law, which we review de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998). Minn.R.Crim.P. 17.03, subd. 3(1), the rule governing severance of offenses, provides as follows:
Severance of Offenses. On motion of the prosecuting attorney or the defendant, the court shall sever offenses or charges if:
(a) the offenses or charges are not related;
(b) before trial, the court determines severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense or charge; or
(c) during trial, with the defendant's consent or upon a finding of manifest necessity, the court determines severance is necessary to achieve a fair determination of the defendant's guilt or innocence of each crime.
Whether offenses are sufficiently related depends on the particular facts and circumstances of a case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). Appropriate factors for consideration include the time and place of the crimes and whether or not they were motivated by a single criminal objective. State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983).
Appellant argues that the crimes of terroristic threats and ineligibility to possess a firearm are not related because they can be explained without reference to one another and because six hours separated the incidents. See id. at 494 (holding that trial court properly concluded that offenses of unlawful possession of a firearm by a felon and fleeing a police officer in a motor vehicle were unrelated because they could be explained without reference to one another); State v. Krampotich, 282 Minn. 182, 186-87, 163 N.W.2d 772, 776 (1968) (finding that three crimes were unrelated when separated by 2 1/2 hours). Here, appellant attempted to heighten his threats to Grewe with his statement that he had a gun, and Grewe told police that he saw the shape of a gun in appellant's pocket. When appellant was picked up by Officer Arnold, just over four hours later, he was found in a vehicle that contained a gun that had his left thumb print on it. Officer Arnold's effort to find and arrest appellant started with the "pick-up-and-hold" dispatch at 6:38 p.m. and continued until he found him. At that time, appellant was within a block of Grewe's home.
Appellant's terroristic threats and possession of the pistol were motivated by the same criminal goal — to obtain money from Grewe. Because we conclude that the offenses were related, the trial court properly denied appellant's motion to sever the terroristic threats charge.
Appellant also argues that he was denied his right to a unanimous verdict because the state charged him with one count of possession of a pistol by an ineligible person but presented evidence of his possession of a gun at two different points during the same night and because the trial court did not instruct the jury that it had to find unanimously as to the time of possession. Appellant did not ask for such an instruction and, in fact, declined the court's invitation to add anything to the proposed instructions. Nevertheless, this court will review an allegation of plain error affecting a substantial right even if it is not raised in the trial court. Minn.R.Crim.P. 31.02. Thus, the issue on appeal is whether the trial court's failure to sua sponte so instruct the jury in this case amounts to plain error.
Appellant bases his argument on this court's decision in State v. Stempf, 627 N.W.2d 352 (Minn.App. 2001). In Stempf, the state charged the defendant with one count of possession of a controlled substance, but presented evidence that a search of defendant's place of employment yielded 0.1 grams of the substance. Id. at 354. When defendant arrived at work that same morning, .03 grams of the substance was found during a subsequent search of the vehicle in which he was a passenger. Id. The defendant presented different defenses to each alleged act of possession. Id. Defense counsel in Stempf requested that the trial court give an instruction that would require the jury to evaluate the two alleged acts of the possession separately and to agree that the state had proven the same criminal conduct beyond a reasonable doubt. The trial court refused to so instruct the jury. Id. at 357-58. The prosecutor then told the jury in closing argument that it could convict the defendant if some jurors found that he possessed drugs in the vehicle while others found that he possessed drugs at work. We held that this was error because it was possible that the jury's guilty verdict was not unanimous. Id. at 359. This court in Stempf noted that the state "alleged two distinct acts to support a conviction." Id. at 357.
Here, the state did not present evidence of two distinct acts of appellant's possession of the gun. Instead, the state presented evidence of what it theorized was one continuous act of possession. Further, appellant's defense to the possession charge was a single theory — that he never possessed a pistol on the night the terroristic threats were made. As a result, the jury was not asked to base its verdict on alternative theories as to what act of possession appellant committed. Therefore, the fact that the trial court did not sua sponte instruct the jury as appellant now suggests did not constitute plain error or deprive him of a unanimous verdict.
Finally, appellant argues that he was denied his right to due process because he was not given notice of his ineligibility to possess a firearm due to a prior conviction. Because appellant failed to raise this issue to the trial court, we decline to address it here. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that reviewing courts should only consider those issues raised in the district court).