This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Brian Gregory Johnson,



Filed October 16, 2001


Willis, Judge


Ramsey County District Court

File No. K2001733



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN  55102 (for respondent)


Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN  55113-3724 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the constitutionality of Minn. Stat. § 624.713 (2000), the statute under which he was convicted of illegally possessing a firearm.  Because he has failed to meet his burden of demonstrating that the statute is unconstitutional, we affirm.


In May 2000, two St. Paul police officers went to appellant Brian Gregory Johnson’s home to conduct a “knock and talk.”  When Johnson answered the door, Officer Steven Bystrom identified himself and his partner.  Officer Bystrom told Johnson that the police had received complaints about possible narcotics activity at the residence and wanted to see whether there was “any substance” to the complaints.  Johnson told the officers that he did not sell drugs but that he used marijuana.  Upon entering the house with Johnson’s consent, the officers told Johnson that “if he turned over paraphernalia to us,” they would not charge him with possessing it.  Johnson agreed to give the officers his marijuana pipes and consented to a search of the home.

Officer Bystrom went into Johnson’s bedroom and saw a shotgun on the floor in plain view.  He asked Johnson if the gun belonged to him, and Johnson explained that he was borrowing it from a friend because his former roommates had been robbed at gunpoint in the house.  Officer Bystrom then asked Johnson whether he had ever been arrested, and Johnson told him that he had been adjudicated delinquent for felony auto theft four years earlier, when he was 17 years old.  The officers placed Johnson under arrest after being informed by a supervisor that Johnson was ineligible to be in possession of the shotgun. 

            Johnson was charged with and convicted of unlawful possession of a firearm under Minn. Stat. § 624.713, subd. 1(b) (2000).  The court sentenced him to 60 months, stayed; 30 days in the Ramsey County Workhouse; and five years’ probation.  On appeal, Johnson challenges the constitutionality of the statute.



Johnson argues that Minn. Stat. § 624.713, subd. 1(b) (2000), is unconstitutional and violates his right to procedural due process because it does not provide notice that it is illegal for persons convicted of certain crimes to possess firearms.  A statute’s constitutionality is a question of law, which appellate courts review de novo.  State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999).  Because Minnesota statutes are presumed constitutional, reviewing courts exercise their power to declare a statute unconstitutional “with extreme caution and only when absolutely necessary.”  Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn. 1999).  To challenge successfully the constitutionality of a statute, a party must demonstrate beyond a reasonable doubt that the statute is unconstitutional.  State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990).

Subdivision 1(b) of section 624.713 provides that a person who has been adjudicated delinquent for committing a “crime of violence” is not entitled to possess a firearm, “unless ten years have elapsed since the person has been restored to civil rights or the sentence or disposition has expired, whichever occurs first.”  Auto theft is defined as a crime of violence.  Minn. Stat. § 624.712, subd. 5 (2000).

This court has held that a person who has been adjudicated delinquent and found in possession of a firearm is not entitled to notice of ineligibility under section 624.713, subdivision 1(b).  State v. Taylor, 590 N.W.2d 155, 158 (Minn. App. 1999), review denied (Minn. May 18, 1999).  While Johnson acknowledges the holding in Taylor, he argues that that case “was not decided on the due process issue but was limited solely to the legislature’s intent.” 

Johnson cites Lambert v. California, 355 U.S. 225, 229-30, 78 S. Ct. 240, 243-44 (1957), to support his assertion that because the statute does not provide notice of his ineligibility to possess a firearm, it violates his right to due process.  Lambert was charged with violating an ordinance that required a convicted felon to register with the City of Los Angeles if he or she planned to live there for more than five days.  Id. at 226, 78 S. Ct. at 242.  The Supreme Court held that the ordinance was unconstitutional because the city failed to establish that Lambert had notice that her conduct could result in criminal prosecution.  Id. at 229, 78 S. Ct. at 243.  The Court concluded that Lambert’s actions were “wholly passive * * * unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.”  Id. at 228, 78 S. Ct. at 243.  Johnson contends that his situation is analogous to Lambert’s and is, therefore, an exception to the general rule that ignorance of the law is no defense to criminal prosecution.  See id. (noting that “ignorance of the law will not excuse”).

The United States Court of Appeals for the Eighth Circuit recently decided United States v. Hutzell, a case with facts similar to those here.  United States v. Hutzell, 217 F.3d 966 (8th Cir. 2000). Relying on Lambert, Hutzell argued that his conviction of illegally possessing a firearm violated his due-process rights because “there is nothing intuitively unlawful” about possessing a gun and, therefore, his conviction did not give him “notice that his ability to [possess] a gun might be subject to restrictions after such a conviction.”[1]  Id. at 968.  But the eighth circuit concluded that Hutzell’s conviction should have put him on notice that his “subsequent possession of a gun might well be subject to regulation” and that gun possession, “especially by anyone who has been convicted of a violent crime, is nevertheless a highly regulated activity, and everyone knows it.”  Id. at 968-69.  We agree with this reasoning and conclude that Johnson’s adjudication itself put him on notice that he was ineligible to possess a firearm.

Moreover, despite his contention that he was not aware that it was illegal for him to possess a firearm, Johnson told Officer Bystrom that he was considering joining the military but “they told him that he couldn’t because of his felony conviction, that he could never carry a gun.”  Johnson has not demonstrated beyond a reasonable doubt that the statute violates his right to procedural due process.



Johnson argues that his substantive due-process rights also were violated because (1) the legislature’s intent to make Minn. Stat. § 624.713, subd. 1(b) (2000), a strict-liability offense is not “sufficiently clear” and (2) the provision must include a mens rea element “when the penalty for the offense is a mandatory prison sentence.”  Strict- liability offenses are disfavored.  Staples v. United States, 511 U.S. 600, 606, 114 S. Ct. 1793, 1797 (1994).  Therefore, an appellate court will determine that the legislature intended to create a strict-liability crime only after a careful and close examination of the statutory language.  State v. Orsello, 554 N.W.2d 70, 74 (Minn. 1996). 

            Johnson’s arguments presuppose that Minn. Stat. § 624.713, subd. 1(b), is, in fact, a strict-liability offense.  He argues, essentially, that because the statute does not include terms such as “knowingly,” “intended,” or “willfully,” it creates a strict-liability offense.  But absence of these terms does not necessarily create a strict-liability offense.  See, e.g., Staples, 511 U.S. at 606, 114 S. Ct. at 1797 (noting that mens rea may be read into crimes even where statute does not require it); United States v. United States Gypsum Co., 438 U.S. 422, 436-38, 98 S. Ct. 2864, 2873-74 (1978) (explaining that if legislature chooses not to include intent requirement in statutory crime one is implied as a matter of law and “far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.”); State v. Hart, 477 N.W.2d 732, 736 (Minn. App. 1991) (noting that absence of an intent element does not necessarily create strict-liability crime).[2]

Further, caselaw indicates that other possession offenses imply a mental state.  See State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (noting that “if defendant consciously possessed the controlled substance, either constructively or physically, then the judge could easily infer from that and from the nature of the substance that defendant had knowledge of the substance’s nature.”) (emphasis added).  The reasoning of Florine has been applied to cases involving the statute at issue here.  See, e.g., State  v. Olson, 326 N.W.2d 661, 663 (Minn. 1982) (citing Florine and noting that defendant “consciously exercised” control over firearm, in violation of section 624.713); State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982) (same).  The use of the word “consciously” in Florine and its progeny suggests that intent is an implied element of a crime involving possession, and, in any event, Johnson does not argue that he did not consciously possess the firearm.

Johnson has not demonstrated beyond a reasonable doubt that the statute violates his right to substantive due process.



[1] Hutzell was convicted under a federal law that makes it unlawful for a person who has been convicted of domestic violence to possess a firearm.  Id. at 967.

[2] We note that CRIMJIG 32.17 defines the offense with which Johnson was convicted as the “knowing possession” of a firearm.  10A Minnesota Practice, CRIMJIG 32.17 (1999) (emphasis added).