This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Gregory A. Pawlitschek,
Filed September 4, 2007
Ramsey County District Court
File No. K0-05-1989
Lori Swanson, Attorney General,
John M. Stuart, State Public
Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue
Southeast, Suite 425,
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant Gregory A. Pawlitschek challenges his conviction of possession of a firearm by an ineligible person. Appellant argues that he is eligible to possess firearms and that his conviction violates the rule against serial prosecution of offenses that arise from a single behavioral incident. Because appellant has been convicted of a crime of violence and his conviction does not violate the rule against serial prosecution, we affirm.
In the early morning of January 24,
After escorting appellant from the home, the police talked with appellant’s wife. She informed them that appellant possessed two handguns and that she wanted them removed from the premises. Unsure of the whereabouts of the guns, appellant’s wife searched his bedroom and found a 9 mm pistol, which was hidden in his dresser drawer, and a .22-caliber revolver, which was hidden in his clothes hamper. She gave both guns to the police.
Appellant lawfully purchased the guns in 1992 and 1993. But on February 13, 1996, appellant was convicted of third-degree assault, a crime of violence, and placed on probation for five years. This assault conviction rendered appellant ineligible to possess firearms.
On November 30, 1998, the district court discharged appellant from probation. The discharge order states that “pursuant to [Minn. Stat. § 609.13, subd. 1(2) (1998)] this conviction be deemed a misdemeanor.” The order, however, makes explicit that the reduction of the offense’s severity level “does not entitle [appellant] to ship, transport, possess or receive a firearm until ten years have elapsed since restoration of civil rights.”
Appellant first claims that he is
eligible to possess firearms because his 1996 third-degree assault conviction
is not a crime of violence. We review
the construction of criminal statutes de novo.
State v. Koenig, 666 N.W.2d
366, 372 (
observe as a threshold matter that appellant raises this argument for the first
time on appeal. Generally, issues not
raised to, and not considered by, the district court are waived on appeal. Roby v.
State, 547 N.W.2d 354, 357 (Minn. 1996).
Accordingly, appellant has waived consideration of this issue. But we note that in any event, the Minnesota
Supreme Court recently rejected this exact argument in State v. Anderson, 733 N.W.2d 128, 135 (
Appellant also argues that the district court erred by denying his motion to dismiss. Appellant maintains that the firearm-prohibition charge and domestic-abuse charge arose from a single behavioral incident; thus, under Minn. Stat. § 609.035, subd. 1 (2004), the state should have simultaneously prosecuted the gun-prohibition and the domestic-abuse charges.
if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
Appellant argues that the firearm-prohibition and domestic-assault charges occurred at the same time and place. He also argues that because the domestic assault caused his wife to fear that he may use the guns against her, both offenses arose from a continuous and uninterrupted course of criminal behavior, which in turn reflects appellant’s indivisible state of mind. But it is appellant’s state of mind, rather than that of his wife, which is relevant in determining whether the offenses are linked for the purposes of section 609.035. And while the evidence shows that appellant assaulted his wife and unlawfully possessed firearms at the same time and place, appellant failed to present any evidence to demonstrate that a single criminal objective motivated him to commit both offenses. Nor did his conduct manifest an indivisible state of mind because appellant’s intent to possess the handguns had no connection to his state of mind regarding the assault. And finally, there is no evidence that the offenses were the product of a continuous and uninterrupted course of conduct.
Finally, we note that section 609.035, subdivision 1, is subject to subdivision 3, which states the exception that “a prosecution for or conviction of a violation of section . . . 624.713, subdivision 1, clause (b), is not a bar to a conviction of or punishment for any other crime committed by the defendant as part of the same conduct.” On this record, the district court did not err in denying appellant’s motion to dismiss.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Even the satisfaction of this requirement is subject
to honest debate because there is merit to the state’s position that appellant
possessed the firearms as part of a “continuing offense” beginning with his
conviction in 1996 continuing to the January 24, 2005 assault.