This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1679

 

State of Minnesota,
Respondent,

vs.

Chad Ray Altman,
Appellant.

 

Filed August 29, 2006

Affirmed

Peterson, Judge

 

Kanabec County District Court

File No. K9-03-795

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

 

Norman J. Loren, Kanabec County Attorney, 18 North Vine Street, Suite 202, Mora, MN  55051 (for respondent)

 

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a conviction of felon in possession of a firearm, appellant argues that the state should have been required to prove that he had received notice that he was ineligible to possess a hunting rifle.  We affirm.

FACTS

            On November 8, 2003, a conservation officer received a call stating that appellant Chad Ray Altman is a convicted felon and would be hunting on his uncle’s property.  The conservation officer went to the uncle’s property and found an individual, who identified himself as appellant, in a tree stand holding a Remington pump .280-caliber rifle.  Appellant admitted to the conservation officer that he is a convicted felon, and the officer took the rifle away from him. 

            Appellant was charged by complaint with one count of felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (Supp. 2003).[1]  The case was tried to a jury.  A Department of Corrections agent testified that appellant had been convicted of third-degree assault and that his sentence for that offense expired on July 24, 2002.  The jury found appellant guilty, and the district court sentenced appellant to an executed term of 60 months in prison.  This appeal followed.

D E C I S I O N

            Minn. Stat. § 624.713, subd. 1(b) (Supp. 2003), states, “The following persons shall not be entitled to possess a pistol or semiautomatic military-style assault weapon or . . . any other firearm: . . . a person who has been convicted of . . . committing . . . a crime of violence.”  Appellant does not dispute that he has been convicted of committing a crime of violence or that he possessed a hunting rifle.  Instead, citing Minn. Stat. § 624.713, subd. 3(a) (Supp. 2003), appellant argues that he was not notified that he is ineligible to possess any firearm and that Minn. Stat. § 624.713, subd. 1(b), should be construed to require the state to prove that he had been notified about his ineligibility.

            Minn. Stat. § 624.713, subd. 3(a), states,

            When a person is convicted of . . . a crime of violence . . ., the court shall inform the defendant that the defendant is prohibited from possessing a pistol or semiautomatic military-style assault weapon for the remainder of the person’s lifetime, and that it is a felony offense to violate this prohibition.  The failure of the court to provide this information to a defendant does not affect the applicability of the pistol or semiautomatic military-style assault weapon possession prohibition or the felony penalty to that defendant.

 

            Appellant argues that because the statute only provides that the applicability of the possession prohibition is not affected by a failure to inform a defendant that the defendant is prohibited from possessing a pistol or semiautomatic military-style assault weapon, the legislature must have intended that the applicability of the possession prohibition is affected by a failure to inform a defendant that the prohibition applies to any firearm.  Therefore, appellant contends, to be convicted of illegally possessing a hunting rifle, a defendant must have been provided notice that he is ineligible to possess a hunting rifle. 

            But in State v. Taylor, 590 N.W.2d 155, 158 (Minn. App. 1999), review denied (Minn. May 18, 1999), this court rejected the construction urged by appellant.  Taylor involved a defendant who possessed a shotgun after being adjudicated delinquent for committing a crime of violence.  Id. at 157.  The district court determined that notice of ineligibility to possess the shotgun was an element of the unlawful-possession offense and that because the defendant was not given notice that he could not possess the shotgun, he could not be convicted under the statute.  Id.  Based on the plain meaning of the statute, this court reversed the district court and explained:

            The problem in the present case arises because the “any firearm” language, added to subdivision one, was not added to the notice provision in subdivision three when the legislature amended the statute in 1994.  The notice requirement specifically provides that the court shall inform the defendant that he is prohibited from possessing a pistol or semiautomatic military-style assault weapon.  The district court concluded that because subdivision three, the notice exception, was not amended in 1994, as was subdivision one, to include “any firearm,” and because Taylor was not told of his ineligibility to possess a shotgun, the rule of lenity requires the statute be construed in favor of the accused.

 

            . . . .

 

            The legislature has amended this statute numerous times.  Taylor argues that because of these legislative changes, if ineligible persons are prohibited from possessing “any firearm” under the statute, a question arises whether the notice provision still only applies to pistols or semiautomatic military-style assault weapons.  But, despite these changes, the notice subdivision was never amended to reflect the addition of the “any firearm” language; it still only requires notice for ineligibility to carry a “pistol or semiautomatic military-style assault weapon.”   The notice subdivision does not include shotguns or firearms among the weapons requiring a prohibition notice.

 

            Taylor argues that because the law must be construed to give effect to all provisions, subdivision one and three should be read together and, therefore, the notice subdivision should be interpreted to require the court to give him notice that he was prohibited from possessing a shotgun.  Conversely, the state argues that if it was the legislature’s intent to include shotguns under the notice subdivision, the legislature could have done so explicitly.

 

            Interpreting the statute to give effect to all provisions and reading the unambiguous plain meaning of each subdivision, we find that subdivision one expressly applies to Taylor because he is a person adjudicated of a violent crime and he was in possession of a “firearm.”  However, subdivision three does not apply to Taylor because the notice subdivision does not include possession of a shotgun or a “firearm” among the violations requiring notice; therefore notice is not required.

 

Id. at 158.

            In State v. Dendy, 598 N.W.2d 4, 6-7 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999), this court applied the Taylor holding to possession of a shotgun used for hunting.  Because we see no basis for treating a rifle used for hunting differently from a shotgun used for hunting, we conclude that appellant did not have to be provided notice that he is ineligible to possess a hunting rifle. 

            Affirmed.