Ramsey County District Court File No. 62-CR-11-8807
The opinion of the court was delivered by: Kirk, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Considered and decided by Hudson, Presiding Judge; Kirk, Judge; and Klaphake, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
On appeal from his conviction of possession of a firearm by an ineligible person, appellant argues that: (1) the district court erred by denying his motion to suppress evidence; (2) the prosecutor committed misconduct in her closing argument; and (3) the district court abused its discretion by denying his motion for a downward dispositional departure. We affirm.
At approximately 11:45 a.m. on October 30, 2011, Mounds View Police Officer Keith Demarest was patrolling the parking lot of an apartment complex that generates a high number of calls for police assistance, when he noticed a red Nissan Altima parked in a parking spot. Officer Demarest had recovered two stolen midsized vehicles from the parking lot the previous day, and the Altima was parked in the same parking spot in which one of the stolen vehicles had been parked. Officer Demarest noticed that a male, who was later identified as appellant Richard Lor Xiong, was reclined in the vehicle's driver's seat and appeared to be sleeping or relaxing.
Due to a slow computer system, Officer Demarest was unable to determine whether the vehicle was stolen by running the license plates. He asked the dispatcher to run the license plates, and the dispatcher reported that the vehicle had not been reported stolen. However, based on his training and experience, Officer Demarest believed that the vehicle was "fresh stolen," meaning that the vehicle had been recently stolen but the owner had not yet reported it stolen.
Officer Demarest approached the vehicle and knocked on the window to get appellant's attention. The vehicle was not running and Officer Demarest was unable to see if the keys were in the ignition. Appellant sat up quickly, looked around, saw Officer Demarest, opened the door, and exited the vehicle. Officer Demarest noticed that appellant was looking over the officer's shoulders toward the tree line and not making eye contact with him. Because Officer Demarest determined that appellant's behavior indicated that he intended to run away, he asked appellant to sit back down in the vehicle. Appellant sat down in the driver's seat as two additional police officers arrived.
When appellant was seated in the vehicle, Officer Demarest began asking him questions about the vehicle and what he was doing. Appellant appeared fidgety and uncomfortable, looked around the interior of the vehicle, made furtive movements, and gave several different answers to Officer Demarest's questions. Approximately two minutes after Officer Demarest began questioning appellant, an officer who was standing on the passenger side of the vehicle yelled that a bullet was in plain view in the vehicle. Officer Demarest asked appellant to exit the vehicle. Once appellant stood up, Officer Demarest conducted a pat-down search to check for weapons, told him that he was not under arrest, and placed him in a squad car. He did not handcuff appellant.
Meanwhile, the other officer searched the vehicle and found a .380-caliber semiautomatic pistol in a Dremel drill case on the floorboard of the rear passenger seat. Because of the degree to which the driver's seat was reclined, the gun was within appellant's reach when he was lying in the driver's seat. The gun was loaded, a live round was in the chamber, and a full magazine was next to the gun. The police later determined ...