This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Dean A. Schwalm,


Filed July 21, 1998

Affirmed; motion denied

Willis, Judge

Washington County District Court

File No. K1963158

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and Thomas J. Foley, Washington County Attorney, Michael C. Hutchinson, Assistant County Attorney, 14900 61st Street North, Stillwater, MN 55082 (for respondent)

Jay M. Quam, Fredrikson & Bryon, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for appellant)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Holtan, Judge.*

*Retired judge of the district court, serving as judge on the Minnesota Court of Appeals by apointment pursuant to Minn. Const. Art. VI, § 10.



Appellant challenges his seven convictions of second-degree assault and seven convictions of pointing a dangerous weapon on the grounds that (1) a pellet gun is not a firearm under the criminal code and (2) there was insufficient evidence to support the convictions. The state moves to strike appellant's reply brief. We deny the state's motion and affirm the convictions.


On May 7, 1996, Elizabeth Junker left Lakeland, Minnesota, piloting a hot-air balloon with six passengers. After being in the air for approximately an hour, Junker lowered the balloon to look for a landing spot. She attempted to land in a sod field but could not lower the balloon fast enough. Junker then performed a "touch-and-go" landing on property owned by appellant Dean Schwalm and his wife.

As the balloon landed, the occupants of the balloon's gondola heard a voice. Junker asked if it would be all right to land and a man replied, "No. Get the hell out of here." Junker lifted the balloon into the air again. A man, later identified as Schwalm, came out of the house on the property and pointed a long-barreled, dark gun at the occupants of the gondola. Mury Johnson, a passenger, testified that Schwalm told them that he was going to kill all of them and that he did not "need any more balloons over [his] property." Junker testified that she was afraid if a bullet hit one of the balloon's propane tanks, the tank would explode. Junker then piloted the balloon away from Schwalm's property and landed it in a nearby field. During a search of Schwalm's residence, police seized a Mossberg 12-gauge shotgun and a Benjamin Sheridan pellet gun.

Schwalm was charged with seven counts of second-degree assault under Minn. Stat. § 609.222 (1996) and seven counts of pointing a dangerous weapon under Minn. Stat. § 609.66 (1996). At trial the state introduced both the shotgun and the pellet gun into evidence. At the close of the state's case-in-chief, Schwalm moved for judgment of acquittal on several grounds, including arguments (1) that a pellet gun is not a firearm and (2) that the state had not shown that the pellet gun was capable of injuring or killing another human being. The court found there was not sufficient proof that Schwalm used the shotgun during the incident but also determined that a pellet gun was a firearm for the purpose of the charges against Schwalm and denied Schwalm's motion.

On cross-examination, Schwalm admitted ownership of both the shotgun and the pellet gun. He testified that the shotgun could hurt or kill a person when discharged and the pellet gun could hurt a person when discharged if the person were close enough.

The jury found appellant guilty on all fourteen counts. The district court stayed imposition of sentencing, placed Schwalm on probation for seven years, and ordered him to pay a $35,000 fine. Schwalm appeals his convictions.



The state moves to strike Schwalm's reply brief on the ground that it contains reargument of matters discussed in his brief. On appeal, a "reply brief must be confined to new matter[s] raised in the brief of the respondent." Minn. R. Civ. App. P. 128.02, subd. 3. We conclude that appellant's reply brief is primarily in rebuttal of the state's brief. Those isolated statements that might be considered reargument have had no effect on our determinations in this matter; we therefore deny the motion to strike.


Schwalm argues that the district court erred in concluding that a pellet gun is a firearm and instructing the jury accordingly. Schwalm was charged with seven counts of assault in the second degree under Minn. Stat. § 609.222, subd. 1 (1996), which provides that

[w]hoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years or to payment of a fine of not more than $14,000, or both.

A firearm is a dangerous weapon. Minn. Stat. § 609.02, subd. 6 (1996). But the criminal code does not define the term "firearm." Whether a pellet gun is a firearm is a question of statutory interpretation, which this court reviews de novo. State v. Newman, 538 N.W.2d 476, 477 (Minn. App. 1995) (holding that BB gun is firearm within meaning of drive-by shooting statute), review denied (Minn. Nov. 30, 1995) . Courts must strictly construe penal statutes "with all reasonable doubts concerning legislative intent to be resolved in favor of the defendant." State v. Wagner, 555 N.W.2d 752, 754 (Minn. App. 1996). But a court is not required to "assign the narrowest possible interpretation to the statute." State v. Peng, 524 N.W.2d 21, 23 (Minn. App. 1994) (quoting State v. Zacher, 504 N.W.2d 468, 473 (Minn. 1993)).

In State v. Seifert, 256 N.W.2d 87, 88 (Minn. 1977), the court concluded that an air-powered BB pistol could qualify as a "firearm" or as "dangerous weapon" under Minn. Stat. § 609.02. The court stated that:

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. In this respect we note that § 97.40, subd. 34, defines "firearms" for purposes of game and fish laws as "any gun from which shot or a projectile is discharged by means of an explosive, gas, or compressed air."

Id. (emphasis added).

In Newman, this court used the definition of firearm found in the game and fish law in holding that an air-powered BB gun is a firearm within the meaning of the drive-by shooting statute, Minn. Stat. § 609.66, subd. 1e(a) (1996). Newman, 538 N.W.2d at 477-78; see Minn. Stat. § 97A.015, subd. 19 (1996) ("`[f]irearm' means a gun that discharges shot or a projectile by means of an explosive, a gas, or compressed air"). The court also noted that

from a public policy standpoint, especially when dealing with crimes against persons, it probably would not matter to the victim of a drive-by shooting whether the weapon used in the attack was powered by air or by an explosive. Under most circumstances, the physical or psychological harm will be the same.

Newman, 538 N.W.2d at 478.

The same policy applies here. It likely did not matter to Junker and her passengers whether Schwalm pointed a shotgun or a pellet gun at them; all those who testified indicated that they feared bodily harm or death. Further, the supreme court indicated in Seifert that courts should use a "broad[]" definition for the term "firearm" as used in section 609.02, subdivision 6. See Seifert, 256 N.W.2d at 88. We therefore conclude that a pellet gun is a "firearm" and that the district court did not abuse its discretion in so instructing the jury.


Schwalm contends that the evidence was insufficient to support his convictions because the state did not produce evidence as to "the characteristics and capabilities of the pellet gun." In a sufficiency of the evidence case, this court's review is

limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The test is whether

the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty * * * .

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). A reviewing court must assume that the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Grube, 531 N.W.2d 484, 491 (Minn. 1995). Any inconsistencies in the evidence are resolved in favor of the state. State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990).

Assault is "[a]n act done with intent to cause fear in another of immediate bodily harm or death." Minn. Stat. § 609.02, subd. 10(1) (1996). To prove second-degree assault with a firearm, the state must show that the defendant assaulted another with a firearm, whether loaded or unloaded. Minn. Stat. §§ 609.222; 609.02, subd. 6. Because we conclude that a pellet gun is a firearm, the state met its burden regarding the capabilities of the gun. The statute does not require that a gun be fully operational--in fact, a person who assaults another with an unloaded gun incapable of causing harm violates the statute if the person intended to cause fear of bodily harm or death. See Minn. Stat. § 609.02, subd. 6 (defining "dangerous weapon" to include unloaded firearm). Schwalm testified that he intended to point the gun to send a "message" to the balloon company and Junker so that hot-air balloons would no longer land on his property. Further, all of the gondola's occupants who testified stated that they feared bodily harm or death. We conclude there was sufficient evidence to support Schwalm's convictions of second-degree assault.

Schwalm also was convicted of seven counts of "intentionally point[ing] a gun of any kind, capable of injuring or killing a human being and whether loaded or unloaded, at or toward another" under Minn. Stat. § 609.66, subd. 1(a)(2) (1996). Schwalm contends that the state improperly used his testimony on cross-examination to show that the pellet gun was capable of injuring or killing a human being rather than presenting such evidence as part of its case-in-chief. But the state presented the pellet gun itself during its case-in-chief, and the jury could have inferred that such a gun is capable of, at the very least, injuring a human being. Even without Schwalm's testimony, the evidence, viewed in the light most favorable to the conviction, was sufficient to permit the jurors to conclude that the pellet gun was capable of injuring or killing a human being.

Affirmed; motion denied.