State of Minnesota v. Jonathan Andrew Bursch

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1845

State of Minnesota,
Respondent,

vs.

Jonathan Andrew Bursch,
Appellant.

Filed August 24, 2015
Affirmed in part and reversed in part
Bjorkman, Judge

Polk County District Court
File No. 60-CR-13-1878

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and

Bjorkman, Judge.

UNPUBLISHED OPINION

BJORKMAN, Judge

Appellant challenges his convictions of possession of a firearm by a prohibited

person and receiving stolen property, arguing that (1) the evidence was insufficient to
prove constructive possession of either a firearm or stolen property, (2) the district court

erred in instructing the jury on constructive possession, (3) the prosecutor elicited overly

prejudicial testimony, (4) the district court improperly sentenced him on all three

convictions, and (5) the district court erroneously directed appellant to pay witness travel

expenses as prosecution costs. We affirm in part and reverse in part.

FACTS

On September 17, 2013, police officers conducted a probation search at a home in

Crookston. Appellant Jonathan Bursch had been living there with his brother and a

roommate, Jacob Syverson, since June 2013. Officers found a shotgun and a gun case

containing a rifle in an upstairs bedroom that Bursch shared with Syverson. Bursch is

prohibited from possessing firearms due to prior felony convictions. Both firearms were

leaning upright against the wall behind Bursch’s bed. On the bed, officers discovered a

letter addressed to Bursch from Polk County Social Services (PCSS). Officers also found

a Bible containing Bursch’s signature on a night stand next to the bed. A dresser at the

foot of Bursch’s bed contained medication prescribed to Bursch and his driver’s license.

Officers also found two laptop computers in a closet near Bursch’s bed. The

laptops belonged to K.M.H. and K.A.H., and had been stolen from their Elk River home

on August 31. Bursch and Syverson were at the Elk River home the night the laptops

were stolen. Both men were present when K.M.H. and K.A.H.’s sister, J.H., went to bed

around 1:00 a.m.; when she woke up the next morning they were gone and the laptops

were missing.

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 Respondent State of Minnesota charged Bursch with possession of a firearm by a

prohibited person and two counts of receiving stolen property. At trial, Bursch stipulated

that he was prohibited from possessing a firearm and the district court instructed counsel

not to elicit testimony about Bursch’s past crimes. Bursch chose not to testify.

The three officers who conducted the search described the items they found and

where they were located in Bursch’s bedroom. Bursch’s probation agent, Shannon

Marks, testified that she was aware Bursch was living at the Crookston residence during

the summer and early fall of 2013. Marks stated that Bursch was on probation at that

time but she did not mention the nature of Bursch’s prior convictions. The district court

offered to provide a cautionary instruction regarding Bursch’s probationary status, but

Bursch’s counsel declined this offer.

PCSS representative Katie Hann testified that in late July Bursch submitted a

public assistance application to her office indicating that he had moved to the Crookston

residence from Anoka County. Hann testified that the form listed the home in which the

firearms and laptops were located as Bursch’s current address. She also confirmed that

her office sent the letter found on Bursch’s bed during the search. The remaining

witnesses included J.H. and her sisters, who testified regarding the stolen laptops, and

Bursch’s mother, who testified that Bursch was visiting her at the time of the search.

The jury found Bursch guilty of all charges. The district court sentenced Bursch

to 60 months in prison for firearm possession and 19 months and 25 months for

possessing the laptops, all to be served concurrently. The district court also ordered

Bursch to pay prosecution costs, including $580.37 in hotel expenses incurred by J.H.,

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K.M.H., K.A.H., Marks and Bursch’s brother in connection with the trial. Bursch

appeals.

DECISION

I. The evidence was sufficient to prove Bursch constructively possessed the
firearms and stolen property.

When considering a sufficiency-of-the-evidence challenge, we view the evidence

in the light most favorable to the conviction to determine whether it would permit a jury

to reasonably conclude that the defendant was guilty of the offense. State v. Webb, 440

N.W.2d 426, 430 (Minn. 1989). When a conviction is based on circumstantial evidence,

we use a two-step process. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).1

First, we identify the circumstances proved, assuming that the jury resolved any factual

disputes in a manner that is consistent with the jury’s verdict. Id. at 598-99. Second, we

independently examine the reasonableness of the inferences the jury could draw from

those circumstances. Id. at 599. All circumstances proved must be consistent with guilt

and inconsistent with any rational hypothesis except that of guilt. State v. Andersen, 784

N.W.2d 320, 329 (Minn. 2010).

Because Bursch did not physically possess the firearms or stolen laptops at the

time of the search, the state was required to show that he constructively possessed them.

State v. Porter, 674 N.W.2d 424, 427 (Minn. App. 2004); State v. Peterson, 375 N.W.2d

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We apply the heightened circumstantial-evidence standard of review because this case
involves constructive possession of items found in a shared space, requiring the
conscious exercise of dominion and control. See State v. Salyers, 858 N.W.2d 156
(Minn. 2015) (applying direct-evidence standard of review in case involving constructive
possession of items within the defendant’s exclusive control).

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93, 95 (Minn. App. 1985). Where items are found in a shared space, the state must prove

that there is a strong probability that the defendant consciously exercised dominion and

control over the items seized. State v. Wiley, 366 N.W.2d 265, 270 (Minn. 1985); State v.

Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975). Generally, evidence that

contraband was discovered in a shared bedroom or residence in close proximity to

defendant’s personal belongings is sufficient to establish constructive possession. See,

e.g., State v. Simon, 275 N.W.2d 51, 52 (Minn. 1979) (defendant constructively

possessed narcotics found, along with a passport, in his bedroom in a mobile home

defendant jointly leased with a friend); State v. Mollberg, 310 Minn. 376, 390, 246

N.W.2d 463, 472 (1976) (defendant constructively possessed marijuana found in

bedroom along with letters addressed to defendant and the front end of defendant’s

motorcycle); State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000) (defendant

constructively possessed marijuana found inside closet in home she shared with her

husband), review denied (Minn. June 13, 2000).

The circumstances proved include the following: the Crookston house had been

Bursch’s primary residence since June 2013; Bursch shared the bedroom where the

firearms and laptops were found; the firearms were found in plain view along the wall

behind Bursch’s bed in his portion of the bedroom; a variety of Bursch’s belongings,

including mail, a personal Bible, prescribed medication, and his driver’s license were

found in close proximity to the firearms; the stolen laptops were found in a closet on

Bursch’s side of the bedroom; and Bursch and Syverson were at J.H.’s house around the

time the laptops went missing.

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 Bursch acknowledges that these circumstances are consistent with guilt but asserts

they are equally consistent with the alternative hypothesis that either his brother or

Syverson placed the items in his shared bedroom while he was away. Bursch notes that

firearms were also found in his brother’s room, which he argues supports the inference

that the firearms in his bedroom also belonged to his brother. We disagree. It is not

logical to conclude that Bursch’s brother would keep two firearms behind Bursch’s bed

when he had his own bedroom in which he stored other firearms. It is also not rational to

infer that the firearms belonged to Syverson based on their placement alongside the wall

beside Bursch’s bed in close proximity to many of Bursch’s personal effects.

With respect to the laptops, J.H.’s testimony regarding Bursch and Syverson’s

presence at her house around the time they were stolen, combined with the eventual

discovery of the laptops in their shared bedroom, overwhelmingly supports the

hypothesis that Bursch knowingly possessed the stolen laptops. Considering that Bursch

and Syverson were together at the time and place of the theft, and shared the bedroom

and closet where the laptops were found, it is not rational to infer that Syverson alone

knew the stolen laptops were in the shared closet. See State v. Lozar, 458 N.W.2d 434,

441 (Minn. App. 1990) (concluding there was “an overwhelming probability” defendant

exercised dominion and control over marijuana seized from house and garage defendant

jointly owned with husband), review denied (Minn. Sept. 28, 1990). And even if Bursch

was not the one who placed the laptops in the closet, it is irrational to infer that he was

not aware of and acquiesced to their presence. Accordingly, we conclude that the

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circumstances proved are only consistent with a rational hypothesis of guilt and the

evidence is sufficient to sustain Bursch’s convictions.

II. The district court did not plainly err in instructing the jury on constructive
possession of a firearm.

Bursch challenges the following instruction:

In determining whether or not the State has proven
beyond a reasonable doubt that the defendant was in knowing
possession of a firearm, you may consider such factors,
including, but not limited to, whether the defendant was the
owner or lessee of the premises in which the firearm was
found; whether the defendant had exclusive control over the
area within the premises where the firearm was found; the
defendant’s proximity to the firearm at the time it was found;
the number of other people, if any, present at the time the
firearm was found; the defendant’s relationship or association
with any other people present at the time the firearm was
found; and the defendant’s conduct at the time the firearm
was found.

Bursch did not object to this instruction, but now contends it was improper for the district

court to provide the jury with a list of factors from which it could infer possession.

A defendant’s failure to object to jury instructions generally waives the right to

challenge them on appeal unless the instructions contain plain error affecting the

defendant’s substantial rights. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). In

applying the plain-error test, we will reverse only if the district court (1) committed an

error; (2) that was plain; (3) that affected the defendant’s substantial rights; and (4) that

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011).

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 Here, we discern no error, plain or otherwise. In State v. Olson, our supreme court

endorsed a multi-factor constructive possession instruction that was almost identical to

the one given here. 482 N.W.2d 212, 216 n.3 (Minn. 1992). The supreme court reversed

Olson’s conviction because the district court improperly instructed the jurors that they

could infer possession of a controlled substance based on proximity alone. The supreme

court concluded that such an instruction is erroneous because it “single[s] out and

unfairly emphasize[s] one factor, one piece of the circumstantial evidence” bearing on the

jury’s determination of possession. Id. at 216. While the supreme court also emphasized

that district courts should “avoid as much as possible the giving of instructions on

particular kinds of evidence, especially inferences,” it noted that if such instructions were

given they should be “balanced” and address “various relevant factors.” Id.

The instruction here complied with this directive. It lists six factors that the jury

could consider, as opposed to instructing the jury that it may infer possession from one or

two specific factors. Moreover, the only difference between the supreme court’s

suggested instruction in Olson and the one given in this case, is that the district court took

the additional protective measure of informing the jury that the factors it could consider

were “not limited” to those listed in the instruction. See State v. Hollins, 765 N.W.2d

125, 130-31 (Minn. App. 2009) (concluding permissive inference instruction that was

“nearly identical to language found in a number of Minnesota Supreme Court cases” was

not erroneous). Accordingly, the district court did not err in instructing the jury.

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III. Testimony about Bursch’s probation status and his application for public
assistance was not overly prejudicial.

Evidence of a defendant’s prior crimes or bad acts is not admissible to prove the

defendant’s character for purposes of showing that he acted in conformity with that

character. Minn. R. Evid. 404(b); see also State v. Spreigl, 272 Minn. 488, 491, 139

N.W.2d 167, 169 (1965). And even relevant evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403.

Because Bursch did not object to the challenged testimony, we review its admission for

plain error. See State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001). Bursch bears the

“heavy burden” of showing that any claimed “error was prejudicial and affected the

outcome of the case.” Id.

Bursch first argues that the district court plainly erred by permitting Marks to

testify regarding his probation status. He contends that Marks’s testimony violated the

district court’s pretrial order allowing him to stipulate to his prior convictions, and that

Marks’s testimony was unfairly prejudicial. We disagree.

Marks testified that Bursch had been on probation since January 2013, was

prohibited from owning a firearm, and was required to notify her of address changes.

She did not identify his underlying offenses. And Marks’s references to Bursch

undergoing “testing” and meeting him at a probation hearing constituted only a few

isolated remarks in a trial where there was strong evidence linking Bursch to the firearms

and stolen laptops. Moreover, Bursch declined the district court’s offer to provide a

cautionary instruction directing the jury to only consider Marks’s testimony for the

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limited purpose of showing that Bursch lived at the Crookston house. When this record

is considered as a whole, we conclude that any prejudice resulting from Marks’s

testimony did not affect Bursch’s substantial rights.

Likewise, we conclude that Hann’s testimony that Bursch applied for assistance

from her office, which provides “food support, cash, and health care programs for

adults,” did not affect Bursch’s substantial rights. Hann’s reference to Bursch’s

application was brief, and provided necessary foundation for her knowledge of Bursch’s

address. The state did not focus on Bursch’s application for public assistance in

subsequent questioning or in closing argument. The limited extent of this testimony

demonstrates it likely had little impact on the jury’s determination in a case where the

evidence of guilt was strong.

IV. The district court did not abuse its discretion by imposing multiple sentences.

Generally, a district court may not impose more than one sentence when a

defendant commits multiple offenses as part of a single behavioral incident. See Minn.

Stat. § 609.035, subd. 1 (2014) (providing if defendant’s conduct constitutes more than

one offense, he may be punished for only one of the offenses). We review a district

court’s sentence for an abuse of discretion. State v. Franklin, 604 N.W.2d 79, 82 (Minn.

2000).2

2
Bursch’s failure to raise this issue in the district court does not prevent him from
raising it on appeal. State v. Mendoza, 297 N.W.2d 286, 288 (Minn. 1980) (stating that
appellant does not forfeit the issue of multiple sentencing under Minn. Stat. § 609.035 by
failing to raise the issue in the trial court).

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 The district court imposed separate, concurrent sentences on the three conviction

offenses. Bursch contends that multiple sentences are not permitted because the state

failed to show that the three possessory crimes arose from separate behavioral incidents.

We disagree.

First, it is clear that the firearm-possession offense and the two receiving-stolen-

property offenses did not arise from the same behavioral incident. The firearms and

laptops are distinct objects with no connection to each other besides the fact that they

were all found in Bursch’s bedroom. Even if these possessory crimes arose from the

same behavioral incident, Minn. Stat. § 609.035, subd. 3 (2014), expressly permits

separate sentences in cases involving ineligible-firearm-possession convictions.

Second, imposing separate sentences for each possession-of-stolen-property

conviction is permissible under the multiple-victim exception to Minn. Stat. § 609.035.

A district court may impose multiple sentences for convictions arising out of a single

behavioral incident if (1) the offenses involve multiple victims and (2) multiple sentences

do not unfairly exaggerate the criminality of the defendant’s conduct. State v.

Marquardt, 294 N.W.2d 849, 850-51 (Minn. 1980). This exception applies to property

crimes. State v. Lundberg, 575 N.W.2d 589, 592-93 (Minn. App. 1998), review denied

(Minn. May 20, 1998). And while the laptops were stolen from the same house, K.M.H.

and K.A.H. testified that they each owned their respective laptop and kept them in

separate bedrooms. This separate ownership establishes that there were two victims,

which allowed the district court to impose multiple sentences.

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 Finally, imposing multiple sentences does not unfairly exaggerate the criminality

of Bursch’s conduct. We look to the imposition of sentences in other cases when

determining whether sentencing exaggerates the criminality of conduct. State v. Cole,

542 N.W.2d 43, 53 (Minn. 1996). In State v. Lundberg, this court affirmed the

imposition of multiple sentences where the defendant stole money belonging to two

different parties that was stored separately at the same location. 575 N.W.2d at 592-93.

These circumstances are analogous to this case. We also note that Bursch received

concurrent, not consecutive sentences, which would further mitigate any prejudice caused

by multiple sentences. On this record, we conclude that the district court did not abuse its

discretion by imposing three sentences.

V. The district court erred by awarding witness travel expenses as prosecution
costs.

Minn. Stat. § 631.48 (2014) permits the sentencing court to order a defendant to

“pay the whole or any part of the disbursements of the prosecution.” This payment may

be in addition to any other penalty authorized by law. Id. But travel-related expenses

incurred by lay witnesses may not be awarded as costs of prosecution. See State v.

Lopez-Solis, 589 N.W.2d 290, 296 (Minn. 1999). The state concedes that the district

court erred by requiring Bursch to pay hotel expenses incurred by lay witnesses as

prosecution costs, but argues that Bursch cannot raise this issue on appeal because he

failed to object at sentencing.

While a defendant cannot waive the right to appeal a sentence, State v. Anyanwu,

681 N.W.2d 411, 413 (Minn. App. 2004), he can forfeit the right to challenge fines and

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fees imposed as part of a sentence by not objecting in the district court. Blondheim v.

State, 573 N.W.2d 368, 368-69 (Minn. 1998). But we retain the discretion to consider an

issue where the interests of justice so require, and doing so would not unfairly surprise

the opposing party. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). That is the

situation here. The interests of justice would not be well served if we permit these costs

to stand when the state concedes that they were awarded in error. The record reflects that

Bursch has limited financial resources; $580.37 is likely not an insignificant amount of

money for him. Finally, any concerns about unfair surprise to the state are outweighed

by the fact that the fees the state requested, and the district court granted, are clearly not

permitted. Accordingly, we reverse the $580.37 in costs assessed to Bursch.

Affirmed in part and reversed in part.

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