                          This opinion will be unpublished and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
                                     A14-1880

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Javon Lamar Johnson,
                                       Appellant.

                                 Filed September 8, 2015
                                        Affirmed
                                       Reilly, Judge

                              Hennepin County District Court
                                File No. 27-CR-13-27842

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

Susan L. Segal, Minneapolis City Attorney, Heather Robertson, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

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

         Considered and decided by Hudson, Presiding Judge; Schellhas, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

         Appellant challenges his conviction of gross misdemeanor negligent storage of a

loaded firearm, arguing that the evidence presented at the jury trial was insufficient to
prove him guilty, that the jury instruction defining negligence was plainly erroneous and

affected his substantial rights, and that the district court erred by designating a certain

juror the alternate. We affirm.

                                         FACTS

       In July 2013, Sergeant Patrick King of the Minneapolis Police Department stopped

a vehicle driven by appellant Javon Lamar Johnson. Johnson’s two teenage children

were riding in the backseat. During the traffic stop, Sergeant King observed the barrel of

a handgun protruding from underneath the driver’s seat into the rear passenger

compartment and pointing toward the backseat. The vehicle was later searched, and

officers discovered that the handgun was loaded.       Johnson was charged with gross

misdemeanor negligent storage of a loaded firearm, in violation of Minn. Stat. § 609.666,

subd. 2 (2012).

       A two-day jury trial was held in July 2014. On the first day of trial, the district

court judge’s clerk informed the judge that one of the jurors approached the clerk and

stated “[I] kind of feel sorry for [Johnson]” and then “oh, wait I’m not supposed to say

anything to you.” The district court questioned the juror about the incident on the record

the following day, and the juror asserted that he did not remember making those

statements to the clerk but that he did not know for sure and “might have said that.” The

juror denied speaking to any of the other jurors about his views of the case or of Johnson

and stated that he would be able to decide the case based on the evidence presented and

the law. The district court confirmed with the rest of the jurors that they had not

overheard or had any communications about the case. The district court designated the


                                            2
questioned juror the alternate and dismissed him before the jury was released to

deliberate. That juror would not have otherwise been designated the alternate. The jury

found Johnson guilty of negligent storage of a loaded firearm, and this appeal follows.

                                     DECISION

                                            I.

       “A person is guilty of a gross misdemeanor who negligently stores or leaves a

loaded firearm in a location where the person knows, or reasonably should know, that a

child is likely to gain access, unless reasonable action is taken to secure the firearm

against access by the child.” Minn. Stat. § 609.666, subd. 2. Johnson argues that the

evidence presented at trial was insufficient to prove beyond a reasonable doubt (1) that he

knew or reasonably should have known that a child was likely to gain access to the

handgun discovered in his vehicle and (2) that reasonable action was not taken to secure

the handgun against access by a child.

       Assessing the sufficiency of the evidence involves “a painstaking review of the

record to determine whether the evidence and reasonable inferences drawn therefrom,

viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach

its verdict.” State v. Vang, 847 N.W.2d 248, 258 (Minn. 2014) (quotation omitted). The

reviewing court must “assume that the [jury] believed the state’s witnesses and

disbelieved any contrary evidence.” Gulbertson v. State, 843 N.W.2d 240, 245 (Minn.

2014) (quotation omitted); see also State v. Hurd, 819 N.W.2d 591, 598 (Minn. 2012)

(stating that “the jury is in the best position to weigh credibility and thus determines

which witnesses to believe and how much weight to give their testimony” (quotation


                                            3
omitted)). A guilty verdict will not be reversed “if, giving due regard to the presumption

of innocence and to the prosecution’s burden of proving guilt beyond a reasonable doubt,

the jury could reasonably have found the defendant guilty of the charged offense.” Vang,

847 N.W.2d at 258 (quotation omitted).

       Sergeant King testified at trial that he initially observed Johnson’s vehicle while it

was parked. He saw several males outside the vehicle on its driver’s side “looking like

peering down into the car, toward the floor of the driver’s side of the vehicle.” Sergeant

King testified that, when he later stopped the vehicle, two juveniles were riding in the

backseat. After the occupants exited the vehicle, he approached the vehicle on the

driver’s side and saw “a handgun that was protruding underneath the seat on the driver’s

side, protruding into the rear passenger compartment” with “the barrel . . . facing toward

the rear.” He testified that the handgun was loaded. Photographs were admitted into

evidence showing the handgun and its location in the vehicle. Sergeant King testified

that the photographs depicted the handgun in the place he had seen it in the vehicle and

that the driver’s seat was moved forward to take some of the photographs.

       Johnson contends that the evidence did not prove that a backseat passenger was

likely to gain access to the handgun and that he did not reasonably secure the handgun.

Johnson testified at trial that there is a “safe spot [he] created” on the driver’s side of his

vehicle that is “more cushion and things around it so it [is] a safe, tight area.” He

testified that he put the handgun in this area when he got into the vehicle before the

traffic stop and that the handgun was “secure.” He disputed that the handgun was located




                                              4
underneath the driver’s seat. Johnson further testified that a backseat passenger in his

vehicle cannot reach something under the front seat.

       We must assume that the jury believed Sergeant King’s testimony that he saw

people outside the vehicle looking down at the floor of the driver’s side of the vehicle and

that, when he approached the vehicle and looked inside, he saw the handgun protruding

underneath the driver’s seat into the rear passenger compartment. See Gulbertson, 843

N.W.2d at 245 (stating that a court reviewing the sufficiency of the evidence “assume[s]

that the [jury] believed the state’s witnesses”). From the testimony that the handgun was

protruding underneath the driver’s seat into the rear passenger compartment, the jury

could use common sense to determine that the handgun was located where Johnson

reasonably should have known that the backseat passengers were likely to gain access.

See State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993) (“In making its factual

determination, the jury was entitled to make reasonable inferences from the evidence,

including inferences based on their experiences or common sense.” (quotation omitted));

State v. Bouwman, 328 N.W.2d 703, 705 (Minn. 1982) (stating that jurors “rely[] on their

sensory perceptions, experiences in life, and their common sense” when considering

evidence). The jury was free to discount Johnson’s testimony that a backseat passenger

in his vehicle cannot reach something under the front seat. See State v. Tscheu, 758

N.W.2d 849, 858 (Minn. 2008) (stating that a court reviewing the sufficiency of the

evidence assumes that the jury disbelieved the defense witnesses); State v. Guy, 409

N.W.2d 248, 251 (Minn. App. 1987) (stating that “the jury, within their discretion, was

entitled to completely discount appellant’s explanation”), review denied (Minn. Sept. 18,


                                             5
1987). From Sergeant King’s testimony about the location of the handgun and from the

photographs admitted into evidence, which Sergeant King testified depicted the handgun

as he saw it in the vehicle, the jury could also use common sense to determine whether

reasonable action was taken to secure the handgun against access by the backseat

passengers. The jury was free to discount Johnson’s testimony that the handgun was

located in “a safe, tight area” and was “secure.” We conclude that the evidence presented

at trial and the reasonable inferences to be drawn from the evidence were sufficient to

permit the jury to find Johnson guilty of negligent storage of a loaded firearm.

                                            II.

       “A person is guilty of a gross misdemeanor who negligently stores or leaves a

loaded firearm in a location where the person knows, or reasonably should know, that a

child is likely to gain access, unless reasonable action is taken to secure the firearm

against access by the child.”       Minn. Stat. § 609.666, subd. 2 (emphasis added).

According to the jury instruction guide for this offense, “[t]he term ‘negligence’ means

the doing of something that a reasonable person would not do or the failure to do

something that a reasonable person would do under the circumstances.” 10 Minnesota

Practice, CRIMJIG 13.98 (2006). The jury was given this definition of negligence in the

jury instructions, and Johnson did not object to the instruction. Johnson challenges the

jury instruction on appeal.

       An appellate court may review an unobjected-to jury instruction using plain-error

analysis. State v. Davis, 864 N.W.2d 171, 176 (Minn. 2015). The defendant must

establish that there was an error that was plain and that affected his substantial rights.


                                             6
State v. Bustos, 861 N.W.2d 655, 660-63 (applying plain-error analysis to a challenge to a

definition contained in jury instructions when the definition was not objected to at trial).

“An error is plain if it is clear or obvious; usually this means an error that violates or

contradicts case law, a rule, or an applicable standard of conduct.”          Id. at 660-61

(quotation omitted). A jury instruction is erroneous if it materially misstates the law.

Davis, 864 N.W.2d at 176; see also State v. Gunderson, 812 N.W.2d 156, 162 (Minn.

App. 2012) (stating that a jury instruction “is not necessarily insulated from being plain

error because it follows the applicable CRIMJIG” and that, if a CRIMJIG conflicts with

the applicable law, “the district court is expected to depart from the CRIMJIG and

properly instruct the jury”).

       The statutes do not define the terms negligent, negligence, or negligently as used

in the criminal code. Johnson argues that these terms are defined differently in the

criminal context than in the civil context and that the definition of negligence in the jury

instruction guide and provided to the jury is the civil definition. Compare 10 Minnesota

Practice, CRIMJIG 13.98 (defining negligence as “the doing of something that a

reasonable person would not do or the failure to do something that a reasonable person

would do under the circumstances”), with Doe 169 v. Brandon, 845 N.W.2d 174, 177

(Minn. 2014) (defining negligence in a civil context as “the failure to exercise the level of

care that a person of ordinary prudence would exercise under the same or similar

circumstances”).

       The legislature may criminalize negligence if it gives a clear indication of its

intention to do so. See State v. Tice, 686 N.W.2d 351, 355 (Minn. App. 2004) (stating


                                             7
that, in using the terms willfully, intentionally, and recklessly in a statute, the legislature

expressed intent not to criminalize ordinary negligence), review denied (Minn. Nov. 16,

2004); see also State v. Munnell, 344 N.W.2d 883, 886 (Minn. App. 1984) (stating that

“the Minnesota Supreme Court [has] upheld the constitutionality of using an ordinary

negligence standard in criminal statutes”).       In addition to the statute criminalizing

negligent storage of a loaded firearm, several other Minnesota statutes criminalize actions

performed negligently or in a negligent manner. See, e.g., Minn. Stat. §§ 609.205(2), (4),

.2665(2), (4) (2014) (defining second-degree manslaughter as causing a death “as a result

of negligently believing [a person] to be a deer or other animal” or “by negligently or

intentionally permitting any animal, known by the person to have vicious propensities or

to have caused great or substantial bodily harm in the past, to run uncontrolled off the

owner’s premises, or negligently failing to keep it properly confined”); Minn. Stat.

§ 609.2112, subd. 1(2), (5), (6) (2014) (defining criminal vehicular homicide as causing a

death as a result of operating a motor vehicle “in a negligent manner” plus other factors);

Minn. Stat. §§ 609.2113, subds. 1–3, .2114, subds. 1, 2 (2014) (defining criminal

vehicular operation as causing bodily harm to another or death or injury to an unborn

child as a result of operating a motor vehicle “in a negligent manner” plus other factors);

Minn. Stat. § 609.226, subd. 1 (2014) (“A person who causes great or substantial bodily

harm to another by negligently or intentionally permitting any dog to run uncontrolled off

the owner’s premises, or negligently failing to keep it properly confined is guilty of a

misdemeanor.”).




                                              8
       In State v. Hayes, the supreme court stated that the terms carelessness and

negligence as used in the criminal context are synonymous and may be defined as “[n]ot

taking ordinary or proper care” or “a lack of ordinary care; that is, lack of such care as a

man of ordinary care would exercise under the particular circumstances of the case.” 244

Minn. 296, 299, 70 N.W.2d 110, 113 (1955) (quotations omitted); see also State v. Crace,

289 N.W.2d 54, 58-59 (Minn. 1979) (approving of a jury instruction defining negligence

as “the failure to use that degree of care which an ordinary prudent or careful person

would use under the circumstances that existed at the time the act was committed”

(quotation omitted)); Munnell, 344 N.W.2d at 886 (defining negligence as “the doing of

something which an ordinarily prudent person would not do or the failure to do

something which an ordinarily prudent person would do under like or similar

circumstances” (quotation omitted)).       The definition of negligence contained in 10

Minnesota Practice, CRIMJIG 13.98 and given to the jury is consistent with these

definitions. The jury instruction did not contradict caselaw, a rule, or an applicable

standard of conduct and was not plain error.

                                             III.

       Johnson challenges the district court’s decision to designate the questioned juror

the alternate, leading to the juror’s dismissal. When concerns arise during a trial as to a

juror’s potential prejudice or partiality, the district court’s decision to remove the juror is

reviewed for an abuse of discretion. State v. Manley, 664 N.W.2d 275, 284-85 (Minn.

2003). Johnson argues that the district court’s action constituted a structural error that

impacted the entire trial and mandates automatic reversal. Structural errors “affect the


                                               9
entire trial . . . and undermine the structural integrity of the criminal tribunal itself.” State

v. Watkins, 840 N.W.2d 21, 25 (Minn. 2013). A deprivation of the right to an impartial

jury constitutes structural error that requires automatic reversal. State v. Dorsey, 701

N.W.2d 238, 252-53 (Minn. 2005); see also State v. Fraga, 864 N.W.2d 615, 623 (Minn.

2015) (“Permitting a biased juror to serve is structural error requiring automatic

reversal.”). But Johnson has not alleged a structural error because he does not claim that

any of the jurors who deliberated were biased.

       “The [district] court is responsible for ensuring that the trial proceedings are fair.

When circumstances arise during trial that raise concerns about the fairness of the

proceedings, it is appropriate for the [district] court to address those concerns.” Manley,

664 N.W.2d at 284 (citation omitted) (concluding that a district court acted within its

discretion by removing a seated juror during trial and replacing the juror with an alternate

after concerns arose about the juror’s impartiality). The juror was asked whether he told

the district court judge’s clerk “[I] kind of feel sorry for [Johnson]” and then “oh, wait

I’m not supposed to say anything to you.” The juror responded “I don’t know what

you’re talking about” and asserted that he did not remember making such statements.

But the juror also stated that he did not know for sure and “might have said that.” The

district court stated that it was “a little bit concerned because [it had] conflicting

information.” The district court’s resolution of this conflicting information and decision

to dismiss the juror due to potential bias involved a credibility determination that is given

deference on appeal. See, e.g., State v. Evans, 756 N.W.2d 854, 870 (Minn. 2008) (“A

finding by a district court of the presence or absence of [juror] bias is based upon


                                               10
determinations of demeanor and credibility and, thus, entitled to deference.” (quotation

omitted)); State v. Richards, 552 N.W.2d 197, 210 (Minn. 1996) (“Because the decision

whether the affected juror may continue to sit involves determinations of credibility and

demeanor, which are best left to the [district] court, this court affords the [district] court’s

decision significant deference.”).     The district court did not abuse its discretion by

designating the juror the alternate and then dismissing the juror.

       Affirmed.




                                              11
