This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jesse M. Glaser,
Filed June 7, 2005
Itasca County District Court
File No. KX-03-2294
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
John J. Muhar, Itasca County Attorney, Courthouse,
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant
Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
A jury convicted appellant of unlawful possession of a firearm after officers found a compressed air BB gun in appellant’s possession. On appeal, appellant argues that a BB gun is not a “firearm” for purposes of the felon-in-possession statute. Appellant also argues that the district court abused its discretion by ruling that he could not present evidence of police mistakes in gathering evidence. We affirm.
Officers obtained a search warrant for appellant’s Ford Bronco after a deputy observed a white powdery substance between the driver and passenger seats. Upon execution of the warrant, the deputy found a Daisy Powerline 880 air rifle, commonly referred to as a BB gun, in the back seat. A person operates the 880 air rifle by placing lead pellets, steel BBs, or copper BBs inside the chamber, then pumping the air pressure to the desired level. The projectile is then discharged as a result of the compressed air. The deputy also found a plastic baggie with .03 grams of a white powdery film containing methamphetamine.
Appellant stipulated to the predicate felony required for a felon-in-possession charge, and a jury convicted appellant of unlawful possession of a firearm under Minn. Stat. § 609.165, subd. 1b (2004) and Minn. Stat. § 609.11, subd. 9 (2004), and fifth-degree controlled substance crime under Minn. Stat. § 152.025, subds. 2(1), 3(1) (2004). The trial court sentenced appellant to 60 months executed for the firearm offense and 21 months executed for the controlled substance crime to be served concurrently. This appeal follows.
D E C I S I O N
challenges his conviction under the felon-in-possession statute, arguing that a
BB gun is not a “firearm” as required by the statute.
Statutory interpretation is
a question of law, which this court reviews de novo. State
v. Coauette, 601 N.W.2d 443, 445 (Minn. App. 1999) (citing State v. Zacher, 504 N.W.2d 468, 470 (
In addition, when
interpreting statutes, courts presume the legislature acts with full knowledge
of previous statutes and existing case law.
Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 809 (Minn. App.
2000), review denied (
position lacks support in
In our opinion, the fact that the gun defendant used required gas rather than gunpowder to discharge its projectile does not mean, as defendant contends, that the gun could not be a firearm within the meaning of the term “firearm” used in § 609.02. Having statutory purpose in mind, we think that term should be defined broadly to include guns using newer types of projectile propellants and should not be restricted in meaning to guns using gunpowder.
538 N.W.2d at 478, this court relied on Siefert
and held that a BB gun is a firearm under the felony drive-by-shooting
statute. In reaching this conclusion,
the Newman court stated that the legislature had reenacted the criminal
statutes following Seifert without providing an alternative definition
of “firearm” and had, therefore, presumptively adopted the supreme court’s
Appellant argues that the Newman decision is not dispositive because the legislature subsequently enacted a statute criminalizing civil disorder, which provides an alternative definition of a firearm that does not include a compressed air gun. See Minn. Stat. § 609.669, subd. 2(2) (2004) (defining “firearm” to include “any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive; or the frame or receiver of any such weapon”). We disagree.
remains the controlling precedent on this issue. Although the legislature enacted section
609.669 after this court decided Newman,
the legislature explicitly limited that definition of “firearm” to the civil
disorder statute. See Minn. Stat § 609.669, subd. 2 (2004) (stating that the terms
have the following meaning “[f]or purposes of this section”). Moreover, this court implicitly affirmed the
holding in Newman following the
enactment of section 609.669 in Coauette,
where this court held that a paintball gun is not a firearm for purposes of the
drive-by-shooting statute or the felon-in-possession statutes. 601 N.W.2d at 447. The Coauette
court reached its decision by examining the purposes of the projectile the gun
is designed to discharge. Because the
paintball has “nothing like the destructive capacity of a bullet or BB,” the Coauette court found that a paintball
gun “does not—as a matter of statutory interpretation—constitute a ‘firearm.’”
In addition, the reasoning in Siefert and Newman is not affected by the enactment of section 609.669. We continue to interpret the definition of
firearm in criminal statutes broadly to best effectuate the statutory purpose: a BB gun is a firearm because the potential
victim is not concerned with the method of propulsion. We acknowledge that our precedent may not align
with the public’s common perception of a “firearm.” See The
American Heritage Dictionary 684 (3d ed. 1996) (defining a firearm as “[a]
weapon, especially a pistol or rifle, capable of firing a projectile and using
an explosive charge as a propellant”).
But the legislature has reenacted the felon-in-possession statutes
following Seifert and Newman without altering this court’s
application of the fish and game law definition to the criminal code, creating
a presumption that the legislature adopts the appropriation. See Pecinovsky,613 N.W.2d at
Appellant next challenges the
district court’s ruling excluding evidence that the investigating sheriff
provided the incorrect VIN number on the search warrant for appellant’s Ford
Bronco. Appellant argues that the ruling
deprived him of his constitutional right to present evidence in his
defense. “[E]very criminal defendant has
the right to be treated with fundamental fairness and afforded a meaningful
opportunity to present a complete defense.”
State v. Richards, 495 N.W.2d 187, 191 (
Appellant’s argument fails because
he has not demonstrated how the suppressed evidence was relevant. Appellant argued at trial that the evidence
was relevant to the issue of whether the police conducted a thorough and
professional investigation. The district
court suppressed the evidence because appellant did not relate the mistaken VIN
number to any other parts of the investigation and because appellant had
previously argued this issue at the omnibus hearing. Appellant has not identified how the
suppressed evidence has a tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable. See