A04-1271

State of Minnesota,

Respondent,

vs.

Jesse M. Glaser,

Appellant.

Filed June 7, 2005

Affirmed

Hudson, Judge

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, 123 Fourth Street Northeast, Grand Rapids, Minnesota 55744 (for respondent)

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

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

HUDSON, Judge

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.

FACTS

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

Appellant challenges his conviction under the felon-in-possession statute, arguing that a BB gun is not a “firearm” as required by the statute. Minnesota law provides that any person who has been convicted of certain violent predicate offenses commits a felony if that person “ships, transports, possesses, or receives a firearm.” Minn. Stat. § 609.165, subd. 1b (2004). The term “firearm” is not otherwise defined in 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 (Minn. 1993)), review denied (Minn. Dec. 14, 1999). “The objective of statutory interpretation is to ascertain and effectuate the intent of the legislature.” Id., 601 N.W.2d at 445 (citing Minn. Stat. § 645.16 (1998)). When interpreting a statute, this court should be guided by the natural and obvious meaning of the statutory language in dispute. State v. Newman, 538 N.W.2d 476, 477 (Minn. App. 1995), review denied (Minn. Nov. 30, 1995).

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 (Minn. Sept. 26, 2000). Moreover, it is presumed that “[w]hen a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language.” Minn. Stat. § 645.17(4) (2004).

Appellant’s position lacks support in Minnesota precedent. In State v. Seifert, the supreme court concluded that Seifert used a “dangerous weapon” in committing a robbery after appellant admitted possessing an unloaded CO 2 BB pistol during the offense. 256 N.W.2d 87, 88 (Minn. 1977). The statute at issue defined “dangerous weapon” to include “any firearm, whether loaded or unloaded.” Id. (quoting Minn. Stat. § 609.02, subd. 6 (1974)). The supreme court stated,

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.

Id. In reaching this conclusion, the supreme court noted the definition of firearm for purposes of the fish and game laws, which defines a firearm to include “any gun from which shot or a projectile is discharged by means of an explosive, gas, or compressed air.” Id. (quoting Minn. Stat. § 97.40, subd. 34 (1974)).[1]

In Newman, 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 definition. Id. In addition, the Newman court noted, “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.” Id. Because the Seifert court willingly relied on the game and fish law definition of firearm, and because the felony drive-by shooting statute was not inconsistent with that definition, the Newman court concluded that the game and fish law definition was “adequate for purposes of the drive-by shooting statute.” Id.

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.

Newman 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.’” Id.

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 809; Minn. Stat. § 645.17(4). It is the legislature’s prerogative to amend the statute. Because Newman remains good law, the district court did not err by concluding that the BB gun was a firearm for purposes of the felon-in-possession statute.

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 (Minn. 1992) (quotation omitted); accord U.S. Const. amend. XIV; Minn. Const. art. I, § 7. But “the accused must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Richards, 495 N.W.2d at 195 (quotation omitted). Accordingly, even when a defendant alleges that the district court violated his constitutional rights, evidentiary questions are reviewed for abuse of discretion. State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999).

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 Minn. R. Evid. 401 (defining “relevant evidence”). Accordingly, appellant has not demonstrated that the district court abused its discretion in suppressing the evidence.

Affirmed.

[1] Minn. Stat. § 97.40, subd. 34 is now codified at Minn. Stat. § 97A.015, subd. 19 (2004).