                           This opinion will be unpublished and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
                                      A15-1421

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                  Stephen Anthony Reed,
                                        Appellant.

                                    Filed July 11, 2016
                                         Affirmed
                                   Smith, John, Judge

                              Hennepin County District Court
                                 File No. 27-CR-15-4923

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Stauber, Judge; and Smith, John,

Judge.





Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

SMITH, JOHN, Judge

       We affirm because the district court did not err by concluding that police had a

reasonable, articulable suspicion of criminal activity sufficient to temporarily detain

Stephen Anthony Reed and because Reed was not prejudiced by the state’s discovery

violation.

                                         FACTS

       On February 21, 2015, at approximately midnight, off-duty police officers working

at a parking garage in downtown Minneapolis reported hearing gunshots. Minneapolis

Police Officer Samantha Belcourt, who was on duty and just one block away from the

scene, responded to the call and arrived in less than one minute. As Officer Belcourt

arrived she observed a man, who was the only person in the area, walking away from where

gunshots were heard. The man was later identified as Reed. Officer Belcourt rolled down

the passenger-side window of her squad car and asked Reed if he had heard or seen

anything. Officer Belcourt believed that Reed “seemed really nonchalant about it and said

that he might have heard something that sounded like shots.” Officer Belcourt observed

that Reed tried to scoot away while she was asking questions, that he was fidgeting with

the waistband area of his jacket during the interaction, and that he appeared nervous.

       After approximately 30 seconds of conversation, Reed began to walk away. Officer

Belcourt yelled at Reed to come back to the front of her squad car, at which time Reed

started running away. Officer Belcourt then exited her squad car to pursue Reed on foot.

She heard a loud clang as she exited her vehicle and suspected that Reed had thrown a gun


                                             2
through a nearby iron fence. She radioed other officers to inform them that there may be

a gun near the fence. She then pursued Reed for approximately 30 seconds before arresting

him with the help of other officers who arrived on the scene. Another officer placed Reed

in a squad car and found two knives in Reed’s pockets. Officer Belcourt and other officers

subsequently returned to the iron fence to search for a gun, but did not find anything there.

However, another officer found a gun, placed inside a glove, approximately 30 feet from

the spot where Reed was apprehended. Officers found a matching glove under Reed’s

body when they arrested him.

       The state charged Reed with one count of being an ineligible person in possession

of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(2) (2014). Reed moved the

district court to suppress all evidence (i.e., the gun and gloves) found after he was seized.

Reed argued that Officer Belcourt did not have a constitutionally-sufficient basis for an

investigatory stop. The district court held a contested omnibus hearing to address Reed’s

motion. Only Belcourt testified at the hearing. The district court ruled on Reed’s motion

on the record at the hearing. The district court concluded that the stop was justified by a

reasonable, articulable suspicion of criminal activity and denied Reed’s motion to suppress

evidence.

       The case proceeded to trial. Prior to trial, the state submitted a list of witnesses,

which included five Minneapolis police officers and a forensic scientist from the

Minneapolis Crime Lab. Before the second day of trial, the state sought to call another

witness, Andrea Feia, a forensic scientist at the Minnesota Bureau of Criminal

Apprehension (BCA). Feia was not included on the state’s witness list. Reed opposed


                                             3
admission of Feia’s testimony, arguing that doing so was prejudicial. The district court

ruled that Feia’s testimony was admissible. Reed then immediately moved the district

court for production of the state’s DNA packet and also for a one-week continuance to

review the packet and prepare for cross-examination. The district court granted the request

for production but denied the continuance. The district court then clarified its earlier ruling,

stating that it would allow Feia “to talk about basically the substance of [her] report, which

is [that] there was no DNA material, and in general about DNA testing.” At the conclusion

of trial, the jury found Reed guilty of being an ineligible person in possession of a firearm.

       Reed moved for a new trial. Reed argued that he was denied a fair trial because the

district court allowed Feia to testify even though she was not on the state’s witness list and

because he did not have sufficient time to prepare for cross-examination. The district court

held a sentencing hearing at which it also addressed Reed’s motion for a new trial. The

district court began the hearing by sentencing Reed to 60 months of imprisonment, which

is the mandatory minimum sentence for the underlying offense. The district court then

heard argument on Reed’s motion for a new trial. At the conclusion of the hearing, the

district court took the matter under advisement. Subsequently, the district court issued an

eight-page order denying Reed’s motion for a new trial.

       Reed appeals.




                                               4
                                      DECISION

                                              I.

       Reed contends that the district court erred by denying his motion to suppress

evidence on the ground that Officer Belcourt did not have a reasonable, articulable

suspicion of criminal activity when she told Reed to stop before he ran away.

       The Fourth Amendment to the United States Constitution guarantees the “right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. As a

general rule, a law-enforcement officer may not make a warrantless arrest of a person

without probable cause that the person “had committed or was committing an offense.”

Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225 (1964). But a law-enforcement officer

may temporarily detain a person for investigatory purposes if the officer has a reasonable,

articulable suspicion that the person has engaged in criminal activity. Terry v. Ohio, 392

U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80 (1968); State v. Diede, 795 N.W.2d 836, 842-43

(Minn. 2011). A reasonable, articulable suspicion exists if “in justifying the particular

intrusion the police officer [is] able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that intrusion.”

Terry, 392 U.S. at 21, 88 S. Ct. at 1880. The reasonable-suspicion standard is not high, but

the suspicion required must be based on more than a mere “hunch.” State v. Timberlake,

744 N.W.2d 390, 393 (Minn. 2008). Police must “articulate a ‘particularized and objective

basis for suspecting the particular person stopped of criminal activity.’” Id. (quoting

United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). If the facts are


                                              5
not in dispute, this court applies a de novo standard of review to the question whether a

police officer had a reasonable, articulable suspicion of criminal activity. State v. Flowers,

734 N.W.2d 239, 248 (Minn. 2007).

       The parties agree that Officer Belcourt seized Reed for investigatory purposes when

Officer Belcourt told Reed to stop moving away and to come back to the front of her squad

car.   However, the parties disagree about whether the seizure was supported by a

reasonable, articulable suspicion of criminal activity. Specifically, Reed argues that

nervousness, fidgeting with one’s waistband, and walking away from a police interaction

are insufficient to create a reasonable suspicion of criminal activity.

       “In deciding the propriety of investigative stops, we review the events surrounding

the stop and consider the totality of the circumstances in determining whether the police

had a reasonable basis justifying the stop.” State v. Britton, 604 N.W.2d 84, 87 (Minn.

2000). Furthermore, “We are deferential to police officer training and experience and

recognize that a trained officer can properly act on suspicion that would elude an untrained

eye.” Id. at 88-89. In this case, the pertinent events surrounding the stop are that (1) Officer

Belcourt was responding to a shots-fired call; (2) she arrived on the scene less than a minute

after receiving the call; (3) Reed was the only person present at the scene when she arrived;

and (4) Reed was fidgeting with a “bulge” near his waist. In another setting nervousness,

fidgeting, and walking away from a police interaction may not create a reasonable

suspicion of criminal activity. However, under the totality of the circumstances in this

setting, Officer Belcourt reasonably could believe that Reed fired the shots and that he was

concealing a gun under his clothing, and we defer to her training and experience in reaching


                                               6
that conclusion. For this reason, we conclude that Officer Belcourt had reasonable

suspicion sufficient to justify an investigatory stop.

       In sum, the district court did not err by denying Reed’s motion to suppress evidence.

                                              II.

       Reed also contends that the district court erred by denying his post-verdict motion

for a new trial.

       The Minnesota Rules of Criminal Procedure permit the district court to grant a post-

verdict motion for a new trial. Minn. R. Crim. P. 26.04, subd. 1. One basis for a new trial

is prosecutorial misconduct, which may take the form of a discovery violation. See id.;

State v. Scanlon, 719 N.W.2d 674, 685-87 (Minn. 2006). To obtain a new trial for a

discovery violation, a defendant generally must establish: (1) that there was a discovery

violation and (2) that the discovery violation prejudiced the defendant. State v. Boldman,

813 N.W.2d 102, 109 (Minn. 2012). To show prejudice a defendant must demonstrate a

reasonable probability that the outcome of the case would have been different but for the

discovery violation. See State v. Jackson, 770 N.W.2d 470, 479 (Minn. 2009). The

determination of whether a defendant is prejudiced rests “within the discretion of the trial

judge,” and will not be reversed unless “the discovery violation, viewed in the light of the

whole record, appears to be inexcusable and so prejudicial that the defendant’s right to a

fair trial was denied.” Boldman, 813 N.W.2d at 109. This court applies an abuse-of-

discretion standard of review to the district court’s decision to deny a post-verdict motion

for a new trial. State v. Gatson, 801 N.W.2d 134, 151 (Minn. 2011).




                                              7
       The parties agree that there was a discovery violation because the state failed to

provide notice of its intention to call Feia as a witness. See Minn. R. Crim. P. 9.01, subd.

1(1). The parties disagree about whether the discovery violation prejudiced Reed. Reed

contends that he was prejudiced by the state’s discovery violation because Feia’s testimony

undercut his chosen defense theory, which was “to argue that the state lacked DNA

evidence linking Reed to the glove and gun.” Reed argues that the testimony undercut his

defense theory because the prosecutor used the testimony to “insinuat[e] that Reed’s DNA

was probably on the gun.” Reed’s argument is without merit, for three reasons.

       First, Reed’s argument is without merit because Feia’s testimony did not undercut

his defense theory. Feia testified at trial that there was not enough DNA on the firearm to

compare with a sample of Reed’s DNA.             Her testimony thus aligned with Reed’s

contention that “the state lacked DNA evidence linking Reed to the glove and gun.”

Second, Reed’s argument is without merit because the prosecutor’s “insinuation” that his

DNA was on the gun was duplicative of other evidence presented at trial. Forensic scientist

David Carlisle had examined the firearm for Reed’s fingerprints prior to trial and testified

that there were partial fingerprints on the firearm, but none suitable for comparison to

Reed’s fingerprints. Carlisle’s testimony permitted the state to “insinuat[e]” that Reed’s

fingerprints were on the firearm, without proving that his fingerprints were on the firearm.

Feia’s testimony did not prejudice Reed because the testimony was merely duplicative of

Carlisle’s testimony.   Third, Reed’s argument is without merit because he has not

demonstrated how his trial strategy would have changed in a way that would have affected

the outcome of the case. He contends that he would have consulted his own forensic expert


                                             8
and prepared a more thorough cross-examination of Feia. But Reed has not demonstrated

how this cross-examination would have led to a different outcome at trial. Without doing

so, Reed cannot demonstrate that he was prejudiced. See Jackson, 770 N.W.2d at 479.

      In sum, the district court did not err by denying Reed’s motion for a new trial.

      Affirmed.




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