State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1896

State of Minnesota,
Respondent,

vs.
Michael Anthony Thurstin,
Appellant.

Filed September 24, 2018
Affirmed in part and remanded
Peterson, Judge

Crow Wing County District Court
File No. 18-CR-17-2502

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

Donald F. Ryan, Crow Wing County Attorney, Mark Mitchell, Assistant County Attorney,
Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Lydia Mar ia Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peters on, Presiding Judge; Cleary, C hief Judge; and
Schellhas, Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from three convictions of firearms offenses fol lowing a court trial,
appellant challenges the sufficien cy of evidence that he posses sed the firearms, the
adequacy of findings on the essential facts to support the convictions, and the inclusion of

2
a fourth conviction in the warrant of commitment. Because we f ind the evidence and the
findings on the essential facts sufficient to support appellant’s three convictions, we affirm
the convictions. But because th e warrant of commitment incorre ctly includes four
convictions, we remand for correction of the warrant of commitment.
FACTS
On the evening of June 18, 2017, two Crow Wing County deputies , Kristopher
Brose and Nathan Augustine, and their sergeant, Tyler Burke, re ceived information that
appellant Michael Thurstin was staying at a motel in the Deerwo o d a r e a . A f t e r t h e y
discovered that room 2 at the Deerwood Motel was registered to Thurstin’s female friend,
S.K., they went to the motel to arrest Thurstin on an outstanding felony warrant.
When Burke drove up to the motel, he saw Thurstin, whom he reco gnized, and
another male standing outside roo m 2, and he immediately arrest e d T h u r s t i n . B u r k e
directed S.K. and a third male, K.L., to exit room 2, which they did. During a consensual
search of the room, the deputies discovered a 9-mm handgun, a . 45 caliber handgun, a
modified rifle with a pistol grip , a m m u n i t i o n , a n d t w o m a g a z i n es, all located inside a
collapsible blue bag that also contained men’s clothing.
Thurstin was charged with three counts of possession of a fire arm or ammunition
by a person convicted of a crime of violence, in violation of M inn. Stat. § 624.713, subd.
1(2) (2016) (Counts 1-3), and one count of possession of a fire arm or ammunition by a
person convicted of a crime of vi olence, in violation of Minn. Stat. § 609.165, subd. 1b
(2016) (Count 4).

3
At a trial to the court, S.K. testified that she did not rememb er many of the events
that occurred on the night of June 18 because she had ingested methamphetamine and
alcohol. But S.K. also testified that she did not have any gun s with her when she went to
the motel, and Thurstin, who had planned to stay there with her, brought “[a] backpack and
like a hamper thing” that was blue. She identified the “blue-type duffle bag” as belonging
to Thurstin, and, upon looking at a photograph of the blue bag found during the search of
room 2, she agreed that it was “similar to the bag that Mr. Thu rstin brought with him that
night.” After being presented with evidence of the incriminating statements that she made
to law enforcement on June 18, S.K. testified that she saw Thur stin cleaning the rifle and
that he had two handguns in his possession, a 9-mm handgun and a .45 caliber handgun.
K.L. testified that he had no guns in room 2 and did not have p ersonal belongings
in the room other than a wallet, a phone, keys, and a phone charger. He helped carry bags
into the room, but he did not remember seeing a blue bag.
Brose testified that he found the firearms in the blue bag and that the bag contained
“[l]ots of clothing,” but it did not contain “any female clothi ng.” He also testified that
when he interviewed S.K. shortly after Thurstin’s arrest, she t old him that the blue bag
where the guns were found belonged to Thurstin, she and Thurstin got a ride to the motel
from K.L., they carried the bags into the motel with them, and Thurstin brought the blue
bag with him. Brose also testif ied that S.K. told him that she saw Thurstin cleaning the
rifle. Burke testified that S.K. told him that “Thurstin had possession of the rifle just prior
to the deputies arriving on scene, and he had just placed it right inside the doorway.”

4
The district court found Thurstin guilty of all counts but entered convictions for only
Counts 1-3. The district court imposed a 60-month sentence. D espite the district court’s
statement that Thurstin was not convicted of Count 4, the warra nt of commitment states
that Thurstin is “[c]onvicted” of Count 4 under Minn. Stat. § 609.165, subd. 1b.
Thurstin appeals.
D E C I S I O N
Sufficiency of evidence
In reviewing the sufficiency of evidence to support a criminal conviction, an
appellate court must determine “whether, given the facts in the record and the legitimate
inferences that can be drawn from those facts, a [fact-finder] could reasonably conclude
that the defendant was guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465,
476 (Minn. 2004) (quotation omitte d). We consider the evidence in the light most
favorable to the verdict and assume that “the [fact-finder] bel ieved the state’s witnesses
and disbelieved any evidence to the contrary.” State v. Porter , 674 N.W.2d 424, 427
(Minn. App. 2004).
In Minnesota, a person who has b een convicted of a crime of violence “shall not be
entitled to possess ammunition or a pistol or semiautomatic military-style assault weapon
or . . . any other firearm.” Minn. Stat. § 624.713, subd. 1(2). Similarly, under the criminal
code, a person who has been convicted of a crime of violence ma y not “possess[] . . . a

5
firearm or ammunition.” 1 Minn. Stat. § 609.165, subd. 1b(a). Possession, which is not
defined in either statute, can be proved by establishing “eithe r actual or constructive
possession.” Porter, 674 N.W.2d at 427. Actual possession “require[s] proof that
appellant physically had the [weapon] on his person.” State v. Smith , 619 N.W.2d 766,
770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). “The mere fact that an item
is not in a defendant’s physical possession at the time of appr ehension does not preclude
prosecution for actual possession of contraband.” State v. Barker, 888 N.W.2d 348, 354
(Minn. App. 2016).
Thurstin argues that “[t]he state did not prove beyond a reason able doubt that [he]
possessed the firearms found in the motel room.” The standard of proof in a criminal case
is proof beyond a reasonable doubt. State v. Peterson, 673 N.W.2d 482, 486 (Minn. 2004).
That standard may be met with dir ect or circumstantial evidence . See Bernhardt , 684
N.W.2d at 477. “[D]irect evidence is evidence that is based on personal knowledge or
observation and that, if true, proves a fact without inference or presumption.” State v.
Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). Circumstantial evidence
is “evidence based on inference and not on personal knowledge o r observation.”
Bernhardt, 684 N.W.2d at 477 n.11 (quotation omitted).
At trial, S.K. testified as follows:
Q: So before law enforcement showed up and you and Mr.
Thurstin were in the room did he -- did you become
aware that he had possession of any firearms?

1 Thurstin does not challenge the evidence proffered by the stat e that he was previously
convicted of third-degree assault, a crime of violence, in Febr uary 2017. See Minn. Stat.
§ 624.712, subd. 5 (2016) (defining “crime of violence”).

6
A: Yeah.
Q: And what did he have?
A: I don’t remember.
Q: Okay. Do you remember whether or not the firearms --
what bag the firearms were carried into the hotel room
in?
A: I don’t know. I wasn’t paying attention.
Q: Okay.
A: I wasn’t sure what was in them.
Q: Okay. You’re not sure what kind of gun he had there,
but did you remember what he did with the gun that you
saw him be in possession of?
A: I know he was cleaning something.
Q: Okay. Did you give a statement to law enforcement that
night?
A: Yes.
Q: And you were telling the truth when you gave those
statements to law enforcement?
A: I’m not -- yeah. To the best of my ability.
Q: Okay.
A: But I know I’d been drinking.
Q: Okay. I just want to show you the statement that you
gave law enforcement that night.
. . . .

Q: Just to yourself I just want you to read these first few
sentences.
Does that help refresh your recollection of at
least what you told law enforcement that night?
A: Uh-huh. Yes.
Q: What did you tell law enforcement that night? What
kind of gun was it?
A: I guess I didn’t read far. I don’t know.
Q: Okay. Was it a long gun or a short gun?
A: I can’t even remember, I mean --
Q: Okay. So I’m just going to ask you, again, to read to
yourself to read the third A, which would be your
answer.
A: This one?
Q: Yep.
A: That he was cleaning it.
Q: Does that help refresh your recollection a little bit more?
A: What?

7
Q: Of what he was doing with that gun.
A: He was cleaning it.
Q: Okay. Do you remember i f you saw any handguns in
Mr. Thurstin’s possession that night?
A: Yep.
Q: Did he have some?
A: I believe so.
Q: How many?
A: Two.
Q: Okay. Do you remember -- were you able to identify,
when you spoke with law enforcement, what kind of
guns those were, caliber-wise?
A: 9. That’s all I remember.
Q: Again, showing you your statement.
. . . .

A: 9 and a .45.

Thurstin argues that S.K.’s testimony that she saw him “cleanin g something” does
not prove that he was cleaning th e rifle. But it is clear from the context of the testimony
that when S.K. testified that Thurstin was cleaning “it,” she was a referring to cleaning the
r i f l e . The r i f l e ha d t o be i n T h u r s t i n’ s pos s e s s i on whe n he was cleaning it. S.K. also
testified that she saw two ha ndguns in Thurstin’s possession. S.K.’s testimony is direct
evidence that Thurstin possessed firearms and, when we assume t hat the district court
believed S.K. and we view her te stimony in the light most favor able to the verdicts, the
evidence is sufficient to support the district court’s guilty verdicts. Because we conclude
that direct evidence sufficiently supports the verdicts, we nee d not consider whether the
verdicts are supported by circumstantial evidence.
Written findings of essential facts
The rules of criminal procedure provide:

8
(a) In a case tried without a jury, the court, within 7 days
after the completion of trial, must make a general finding of
guilty; not guilty; or if the applicable pleas have been made, a
general finding of not guilty by reason of mental illness or
deficiency, double jeopardy, or that Minn. Stat. § 609.035 bars
the prosecution.

(b) The court, within 7 days after making its general
finding in felony and gross misdemeanor cases, must in
addition make findings in writing of the essential facts.

. . . .

(e) If the court omits a finding on an issue of fact
essential to sustain the general finding, it must be deemed to
have made a finding consistent with the general finding.

Minn. R. Crim. P. 26.01, subd. 2.
Thurstin argues that the district court did not comply with the requirement in Minn.
R. Crim. P. 26.01, subd. 2(b), that the court make written find ings of the essential facts.
“The purpose of written findings is to aid the appellate court in its review of [a] conviction
resulting from a nonjury trial.” State v. Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990).
This court has remanded for written findings when the district court failed to comply with
the rule. See id. at 168-69; State v. Taylor, 427 N.W.2d 1, 5 (Minn. App. 1988), review
denied (Minn. Sept. 28, 1988). But, in both Scarver and Taylor, the district court made
only a general finding that the d efendant was guilty and made n o written findings of
essential facts. Scarver, 458 N.W.2d at 168; Taylor, 427 N.W.2d at 4-5.
Here, the district court made four written findings of fact to support its general
findings of guilt: (1) Thurstin was present at the Deerwood Motel on June 18; (2) Thurstin
possessed three firearms and amm unition that police found withi n his hotel room;

9
(3) Thurstin had a prior conviction of a crime of violence in F ebruary 2017; and
(4) Thurstin unlawfully possessed the firearms and ammunition on June 18, 2017. Thurstin
contends that these findings do not state which witnesses the d istrict court found credible
or which evidence the district court found most probative and d o not state whether the
court’s verdict was based on actual or constructive possession.
Such detailed findings are not necessary for our review. The d istrict court found
that Thurstin possessed three firearms and ammunition. The pri ncipal issue before us is
whether the evidence is sufficien t to support this finding. We can examine the evidence
and determine whether it is sufficient without knowing whether the district court based its
decision on actual or constructive possession or which evidence the district court found
more credible or persuasive. Under our standard of review, we view the evidence in the
light most favorable to the verdic t and assume that the distric t court believed the state’s
witnesses. And, if the district court omitted an essential finding, we must deem the finding
to have been made. See State v. Oanes, 543 N.W.2d 658, 663 (Minn. App. 1996) (stating
that “after a bench trial, if the [district] court omits a factual finding essential to the merits
of guilt or innocence, it shall be deemed to have made a finding consistent with the general
finding”). Under these circumstances, we need not remand for additional findings.
Warrant of commitment
Finally, the parties agree that the warrant of commitment contains an error that must
be corrected. “Clerical mistakes in a judgment, order, or in t he record arising from
oversight or omission may be corrected by the court at any time, or after notice if ordered
by the court.” Minn. R. Crim. P. 27.03, subd. 10. The warrant of commitment erroneously

10
states that Thurstin was “[c]onvicted” of Count 4, the violatio n of Minn. Stat. § 609.165,
subd. 1b, even though the distric t court’s verdict properly ref rained from convicting
Thurstin on that count because a person may not be convicted and sentenced for violating
both section 609.165 and secti on 624.713, subdivision 2. See Minn. Stat. § 609.165,
subd. 1b(b) (stating that “[a] conviction and sentencing under this section shall be
construed to bar a conviction and sentencing for a violation of section 624.713, subdivision
2”). We therefore remand for correction of the warrant of comm itment to reflect that
Thurstin was not convicted of Count 4.
Affirmed in part and remanded.