This opinion will be unpublished and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
                                      A16-0015

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                   Damien Kent Hallmon,
                                        Appellant.

                                Filed December 27, 2016
                    Affirmed in part, reversed in part, and remanded
                                      Reyes, Judge

                               Hennepin County District Court
                                 File No. 27-CR-14-23354

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Reyes,

Judge.

                          UNPUBLISHED OPINION

REYES, Judge

         Appellant challenges his convictions of first-degree aggravated robbery, felon-in-

possession of a firearm, and fifth-degree possession of a controlled substance. He argues
that (1) the district court erred in denying his motion to suppress physical evidence;

(2) the district court committed reversible error in admitting Spreigl evidence of his prior

bad acts; (3) there was insufficient evidence to convict him; and (4) he was sentenced

improperly. We affirm in part, reverse in part, and remand.

                                          FACTS

       The challenged convictions stem from a series of events incident to a June 2014

drug sale between appellant Damien Kent Hallmon, the seller, and Z.G., the buyer.

Appellant and Z.G. were acquainted prior to the sale, as appellant had sold drugs to Z.G.

on a number of occasions. On this particular day, Z.G. received a ride from a friend,

D.B., to a park in south Minneapolis. Z.G. had been drinking heavily before arriving at

the park and was inebriated.

       Z.G. testified that, upon meeting appellant in the park, appellant pulled a Walther

9mm handgun from his pocket, and two unidentified men accompanying appellant

punched Z.G. and robbed him while appellant held Z.G. at gunpoint. Conversely,

appellant testified that Z.G. was the aggressor, stating that after appellant told Z.G. he did

not have any marijuana to sell, Z.G. pulled the gun on appellant, and demanded he hand

over everything in his possession. Both men testified that they attempted to take the gun

from the other man. In the ensuing struggle, the gun went off three times. Z.G. testified

that the two unidentified men fled when the gun went off. Appellant was hit twice in the

arm, and Z.G. was grazed behind his ear. Appellant also suffered a broken arm in the

struggle.




                                              2
       At the conclusion of the struggle, Z.G. possessed the gun. At this point, Z.G.

either offered or agreed to take appellant to a nearby hospital, and D.B. drove them both.

Z.G. testified that, on the way to the hospital, he removed the magazine from the gun and

gave the entire magazine and the unfired bullet from the chamber to appellant as a

pacifying gesture. Appellant, on the other hand, testified that Z.G. dumped all of the

bullets on the ground outside the hospital, and appellant picked up one of the bullets and

put it in his pocket hoping that fingerprints on the bullet would help the police to identify

Z.G. if appellant did not survive. After dropping appellant off at the emergency room for

treatment, D.B. and Z.G. drove away.

       At the hospital, medical personnel removed appellant’s bloody clothing to treat his

wounds. In response to the hospital’s notification that a patient with a gunshot wound

was seeking treatment, a Minneapolis police officer entered appellant’s room. As

medical personnel continued to treat appellant, hospital staff collected his clothing and

placed it into paper bags. While a staff member was handling appellant’s pants, an

unfired 9mm bullet and two bags of marijuana fell from appellant’s pants onto the floor.

After all of appellant’s clothes were bagged, the officer took possession of the bags and

transported them to the Minneapolis Police Department property room. A subsequent

search by the property-room clerk revealed several bags of cocaine.

       Neither Z.G. nor D.B. notified the police of the incident. Instead, shortly after

dropping appellant off at the hospital, Z.G. asked D.B. for a ride to St. Paul. In St. Paul,

Z.G. used the gun as collateral in lieu of money to acquire methamphetamine. Between

one day and one week later, after describing the events to his girlfriend, Z.G. bought the


                                              3
gun back. Z.G.’s girlfriend shared the story with a friend, who contacted the police. Two

weeks after the incident, Z.G. met with the police and turned over the gun. When the

police tested the gun for DNA, both the trigger and grip returned results from at least four

individuals, and appellant and Z.G. could not be excluded from contributors.

       A jury found appellant guilty of one count each of first-degree aggravated robbery,

felon-in-possession of a firearm, and fifth-degree possession of a controlled substance.

The district court sentenced appellant to 129 months in prison for the aggravated-robbery

conviction, with concurrent sentences of 60 months and 36 months for the felon-in-

possession and controlled-substance convictions, respectively. This appeal follows.

                                     DECISION

I.     The district court did not err by denying appellant’s motion to suppress
       evidence of the cocaine.

       Appellant argues that the district court erred by denying his motion to suppress the

cocaine found in his pants based on an inventory search. We disagree.

       When reviewing a district court’s order on a motion to suppress evidence, we

review the district court’s factual findings for clear error. State v. Gauster, 752 N.W.2d

496, 502 (Minn. 2008). However, we review whether the facts support the district court’s

decision to suppress evidence de novo. Id.

       The district court found that the cocaine was not discovered until after the police

seized appellant’s bloody pants and performed a subsequent search in the police property

room. This factual finding is adequately supported by testimony in the record and is not




                                             4
clearly erroneous. Based on this factual finding, the district court determined that the

property clerk’s search was valid under the inventory-search exception.

       It is uncontested that the police at no point obtained a warrant to search appellant’s

pants. Generally, under the Fourth Amendment of the United States Constitution,

warrantless searches are “per se unreasonable.” Id. However, inventory searches are a

“well-defined exception to the warrant requirement” that “serve to protect an owner[’]s

property while it is in the custody of the police, to insure against claims of lost, stolen, or

vandalized property, and to guard the police from danger.” Id. (quotations omitted). The

state bears the burden of demonstrating that the inventory-search exception applies to a

warrantless search. Id.

       As a threshold matter, appellant argues that this exception only applies to vehicles.

We disagree. Examples of the application of the inventory-search exception include

police inventories of impounded vehicles as well as administrative inventory searches

incident to booking or jailing. See Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct.

2605, 2610 (1983) (drawing parallel between inventory search of impounded vehicle and

inventory search incident to booking based on legitimate governmental interests served);

State v. Rodewald, 376 N.W.2d 416, 420–21 (Minn. 1985) (applying Lafayette to search

of wallet incident to booking). Therefore, we analyze the validity of the search of

appellant’s clothing under the inventory-search exception framework.

       Two requirements must be met for a warrantless inventory search to be valid.

First, the police must have seized the item in a lawful manner. State v. Rohde, 852

N.W.2d 260, 264 (Minn. 2014). Second, the scope of the subsequent inventory search


                                               5
must be such that the intrusion does not exceed the caretaking function. State v. Holmes,

569 N.W.2d 181, 187 (Minn. 1997). Appellant challenges only the seizure of the pants,

arguing that police could not lawfully seize the pants without seeing the cocaine in plain

view first.

       An item in plain view may be seized if police are lawfully present when the item is

discovered and the police have probable cause to believe the item is incriminating in

nature. State v. Zanter, 535 N.W.2d 624, 631 (Minn. 1995). An item is incriminating in

nature if “the facts available to the officer would warrant a person of reasonable caution

in the belief that [the] item[] may be contraband or stolen property or useful as evidence

of crime.” Id. at 632 (emphasis added) (alteration omitted) (quoting Texas v. Brown, 460

U.S. 730, 742, 103 S. Ct. 1535, 1543 (1983)).

       At the suppression hearing, by conceding that police could seize the bullet that fell

from his pants under the plain-view exception, appellant effectively conceded that the

police officer’s presence in his hospital room was lawful.1 The responding officer

testified that he seized appellant’s clothing because he believed the blood on them would

have value as evidence of the shooting of which appellant was the apparent victim.

Because the officer was lawfully present and had reasonable suspicion that the pants


1
  Appellant argues for the first time on appeal that the officer had no lawful reason to be
in appellant’s hospital room. Appellant forfeited this argument by not raising it below.
See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). In any case, it is without merit.
Hospitals are required by statute to notify law enforcement when treating a patient with a
gunshot wound. See Minn. Stat. § 626.52 subd. 2 (2012). We agree with the district
court that a police officer in the hospital room of a gunshot victim as a response to a
statutorily mandated notification is lawfully present for purposes of Fourth Amendment
analysis.

                                             6
would be valuable as “evidence of crime,” the initial warrantless seizure of appellant’s

pants was proper.

         Because the district court did not err by determining that the warrantless search of

appellant’s pants was valid within the inventory-search exception and denying appellant’s

motion to suppress the cocaine, we affirm his conviction for criminal possession of a

controlled substance.

II.      Allowing the state to present Spreigl evidence of appellant’s prior bad acts
         was an abuse of discretion requiring reversal.

         A.     Admitting Spreigl evidence of an act that was not proved by clear and
                convincing evidence was an abuse of discretion.

         Appellant next argues that the district court committed reversible error by

allowing the state to present evidence that appellant had intimated that he always carries a

gun when selling drugs and had shown Z.G. a gun during a previous drug sale. We

agree.

         Generally, evidence of prior bad acts by a criminal defendant is inadmissible for

the purpose of showing action in conformity therewith. Minn. R. Evid. 404(b); see also

State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). However, this evidence, often

referred to as Spreigl evidence, may be admitted for limited other purposes provided

certain requirements are met. Minn. R. Evid. 404(b). One requirement is that the prior

act “and the participation in it by a relevant person are proven by clear and convincing

evidence.” Id. We review a district court’s decision to admit Spreigl evidence for an

abuse of discretion. State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006).




                                               7
       Z.G. testified that “[o]ne other time when I met [appellant] he kind of made it

clear that he always carried a gun and he had an old .22 revolver with him.” The state

argued to the district court that this past-acts evidence was relevant because “[i]f [Z.G.]

knows that [appellant] is always armed and has actually seen him with a gun in the past,

why wouldn’t [Z.G.] choose some random other person to rob?” The district court

concluded that this evidence would not be admissible under rule 404(b) because there

wasn’t clear and convincing evidence that the incident occurred. However, the district

court did allow the evidence to be admitted as relevant to Z.G.’s state of mind, given that

appellant was claiming self-defense.

       An exception to the rule excluding Spreigl evidence exists where prior bad acts of

the victim are admissible to demonstrate the defendant’s state of mind at the time of the

altercation. See State v. Taylor, 258 N.W.2d 615, 620–21 (Minn. 1977) (concluding that

evidence of relevant criminal convictions of victim may be admissible to bolster

defendant’s self-defense claim). Here, we encounter the reverse situation. The state

sought to introduce evidence of prior bad acts of the defendant to demonstrate the state of

mind of the victim. Therefore, evidence of appellant’s past acts does not fall within this

exception.

       The state relies on dicta from State v. Rossberg to argue that appellant’s past-acts

evidence is admissible to defeat his claim of self-defense: “[I]f the defendant claims to

have acted in self-defense, the fact that the victim was afraid of the defendant might bear

on whether the defendant’s account is believable.” 851 N.W.2d 609, 619 (Minn. 2014).

But a closer examination of the facts in Rossberg illuminates several key distinctions.


                                              8
       First, this situation differs factually from Rossberg. There, the admitted

statements being challenged were statements of a homicide victim that were admitted as

an exception to the general inadmissibility of hearsay evidence. Id. Here, Z.G. is not a

homicide victim. Even if he were, the evidence at issue here is not a statement by Z.G.

that he was afraid of appellant.

       Second, the legal issue in Rossberg was whether an exception to the hearsay rule

applied. Id.2 The statements in that case were not analyzed under the Spreigl rule. Here,

on the other hand, the evidence was not hearsay, but rather first-hand testimony about the

circumstances surrounding a previous drug deal between the two men. In other words,

this was evidence of the defendant’s prior bad acts, not of the victim’s state of mind, a

crucial distinction.

       The testimony by Z.G. was evidence of prior bad acts offered to demonstrate

conformity therewith: during a previous deal, appellant implied he carries a gun when he

is selling drugs and that he was carrying a gun; therefore, he was carrying a gun at the

time of this incident. This was Spreigl evidence of an act that the state failed to prove by

clear and convincing evidence, and no other valid exception exists to the general rule




2
  Rossberg is a case that follows from State v. Blanchard. 315 N.W.2d 427, 432 (Minn.
1982). In Blanchard, the evidence at issue was a statement made by a homicide victim
that she was afraid of the defendant. 315 N.W.2d at 432. See also State v. Ulvinen, 313
N.W.2d 425, 427-28 (Minn. 1981) (finding hearsay statements by homicide victim that
she feared her mother-in-law would poison her deemed not admissible). The Spreigl
evidence in this case was not the type addressed by Rossberg and Blanchard. Moreover,
for such evidence to be admissible under Blanchard, a proper limiting instruction must be
given to the jury. 315 N.W.2d at 432-33. No limiting instruction was given here.

                                             9
against its admissibility. Accordingly, the district court abused its discretion in admitting

evidence of appellant’s prior bad acts.

       B.     The admission of the Spreigl evidence was reversible error.

       We must now determine if the admission was reversible error. State v. Fardan,

773 N.W.2d 303, 320 (Minn. 2009). Erroneous admission of prior-acts evidence

constitutes reversible error if it was not harmless. State v. Thao, 875 N.W.2d 834, 839

(Minn. 2016). “An error is harmful if there is a reasonable possibility that the wrongfully

admitted evidence significantly affected the verdict.” Id. (quotation omitted). Relevant

factors to consider in making this determination include the strength of evidence of guilt,

the presence of a limiting instruction to the jury, and the prosecutor’s reliance on the

evidence in closing. Id.

       Here, the state’s evidence is far from overwhelming. The state offered no

cumulative evidence that appellant had shown Z.G. a gun on a prior occasion, nor any

evidence that appellant was known by reputation to carry a gun. The state offered no

evidence linking appellant to the gun at any time before this incident. No witnesses other

than Z.G. testified to seeing appellant holding the gun during the incident. Multiple

witnesses corroborate that Z.G. possessed the gun after the incident. There is no physical

evidence that supports the state’s version of the events that does not also support

appellant’s version of the events. While not necessarily indicative of him being the non-

aggressor, appellant received the gravest wounds from the altercation, and Z.G. possessed




                                             10
the gun after the struggle. The state’s case relied primarily on the testimony of Z.G., a

witness who was, in his own words, “inebriated” at the time of the event.3

       On the second factor, no limiting instruction was given to the jury.

       Finally, in addressing the jury during closing argument, while the prosecutor did

not specifically reference Z.G.’s prior bad-acts testimony, the prosecutor made it clear the

issue of who brought the gun to the park was the central and pivotal point in the case:

                       The self-defense charge is what I want to get to because
              this—we’re kind of moving into what this really—this case is
              really all about.
              . . . The defense of self-defense is not available to [appellant]
              . . . if you find the [s]tate proves [appellant] is the one that
              brought the gun to the park and pulled it on [Z.G.]. . .
                       So the—let me be very clear to make this decision easy
              for you. If you’re going back in that jury room and you’re
              talking about all this and you’re thinking, you know, “I really
              have a reasonable doubt as to, you know, whether [Z.G.]
              brought it or [appellant] brought it” . . . you can basically get
              rid of the first two counts, aggravated robbery and prohibited
              person in possession of a firearm because self-defense would
              have excused [appellant]’s contact . . . .

The prosecutor’s framing of the issue of which party brought the gun to the park as the

central question of the aggravated-robbery and felon-in-possession charges would

inevitably lead the jury to seek out evidence to help answer that central question—and as

the district court noted, this improper Spreigl evidence could have enabled the jury “to




3
  It is also noteworthy that the state acknowledged Z.G.’s lack of credibility. During
closing arguments, the prosecutor stated to the jury: “I do not have to prove to you that
[Z.G.] is not a liar. If I had to prove that, I would lose this case . . . because he lied about
a lot of things.”

                                               11
draw the conclusion that [if appellant] brought a gun last time or at some time in the past,

he brought a gun this time.”

       Weighing these factors, we conclude that it is reasonably possible that the

improper admission of appellant’s past acts significantly affected the verdict regarding

the aggravated-robbery and felon-in-possession charges. Therefore, the district court’s

improper admission of Spreigl evidence was reversible error.

III.   The evidence is sufficient to support the jury’s guilty verdicts for the
       aggravated-robbery and felon-in-possession charges.

       Appellant argues that a judgment of acquittal is the appropriate remedy because

the evidence presented was insufficient to support the jury’s guilty verdicts for the

aggravated-robbery and felon-in-possession charges. We disagree.

       Despite having already found reversible error, because appellant’s challenge

affects the new trial, we will consider his sufficiency-of-the-evidence argument. See

Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 2150-51 (1978). If the evidence

presented against appellant was legally insufficient, “the only ‘just’ remedy is the

direction of a judgment of acquittal.” State v. Clark, 755 N.W.2d 241, 256 (Minn. 2008)

(alteration omitted) (quotation omitted). Conversely, remanding for a new trial is

appropriate where an appellate court concludes there was sufficient evidence to convict,

but determines reversible error occurred during trial. See State v. Hersi, 763 N.W.2d 339,

345 (Minn. App. 2009) (remanding for new trial after concluding jury was improperly

instructed, but state presented sufficient evidence to convict).




                                             12
         Appellant argues that the evidence did not preclude a reasonable possibility that he

acted in self-defense. Appellant misstates the standard of review for sufficiency of the

evidence. Unlike the “reasonable possibility” standard for improperly admitted Spreigl

evidence, sufficiency of the evidence review is more stringent. When considering a

claim of insufficient evidence, we must analyze the record and determine if the evidence,

viewed in the light most favorable to the state, was sufficient to convict. State v. Webb,

440 N.W.2d 426, 430 (Minn. 1989). A verdict will be upheld where the evidence shows

the jury, acting with due regard for the defendant’s presumption of innocence and the

necessity of the state providing proof of guilt beyond a reasonable doubt, could

reasonably find the defendant guilty of the charged offense. Bernhardt v. State, 684

N.W.2d 465, 476-77 (Minn. 2004). We assume the jury believed the state’s witnesses

and disbelieved evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.

1989).

         The burden is on the state to “prove beyond a reasonable doubt that the defendant

did not act in self-defense, once the defense is raised.” State v. Spaulding, 296 N.W.2d

870, 875 (Minn. 1980). To meet this burden, the state must negate one of the three

elements of self-defense: (1) the absence of aggression on the part of the defendant;

(2) that the defendant actually and honestly believed that he was in imminent danger of

death or great bodily harm, and the action he took was necessary to prevent that harm;

and (3) the actual and honest belief was reasonable. Id.

         In support of this argument, in both his brief and pro se supplemental brief,

appellant identifies all of the inconsistencies in Z.G.’s account of the incident, the lack of


                                              13
corroboration of Z.G.’s testimony, and the lack of physical evidence in support of the

state’s theory of the incident. However, these factors were also identified for the jury,

and assessing the credibility of witness testimony is the function of the jury. Moore, 438

N.W.2d at 108.

       Z.G. testified that appellant drew a gun and robbed him at gunpoint. This

testimony demonstrates that appellant was the aggressor, and thereby negates the first

element of self-defense: the absence of aggression. We must assume that the jury

believed Z.G. and disbelieved all evidence that contradicted his testimony. See id.

Viewing the evidence in the light most favorable to the verdict, we conclude the state

presented sufficient evidence for a jury to find appellant guilty of both first-degree

aggravated-robbery and felon-in-possession. Therefore, the appropriate remedy is to

reverse appellant’s convictions for aggravated-robbery and felon-in-possession and to

remand to the district court for a new trial on those charges.

       Because we affirm appellant’s conviction for possession of a controlled substance

but reverse appellant’s conviction for aggravated robbery, we do not address his

argument that he was sentenced improperly.

       Affirmed in part, reversed in part, and remanded.




                                             14