State of Minnesota, Respondent, vs. Brent William Kruse, Appellant.

State of Minnesota, Respondent, vs. Brent William Kruse, Appellant. A04-2121, Court of Appeals Unpublished, October 18, 2005.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2121

 

State of Minnesota,

Respondent,

 

vs.

 

Brent William Kruse,

Appellant.

 

Filed October 18, 2005

Affirmed Willis, Judge

 

Morrison County District Court

File No. K9-04-83

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

 Conrad Freeberg, Morrison County Attorney, Kyra L. Ladd, Assistant County Attorney, 213 Southeast First Avenue, Little Falls, MN  56345 (for respondent)

 

David W. Buchin, 16 North Ninth Avenue, St. Cloud, MN  56303 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Klaphake, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

In this appeal from a conviction of felon in possession of a firearm, appellant argues that the evidence does not show that his 1999 conviction was for a crime punishable by imprisonment for a term of more than one year and that the district court erred by determining that Minn. Stat. § 609.13, subd. 1(2) (2002), does not render the 1999 conviction a misdemeanor.  We affirm.

FACTS

On November 15, 2003, Officer Paul Kuske of the Minnesota Department of Natural Resources responded to a tip that appellant Brent Kruse was deer hunting with a firearm and that Kruse is a convicted felon.  Officer Kuske saw Kruse walking out of the woods wearing a blaze-orange jacket and carrying a hunting rifle.  Officer Kuske approached Kruse and asked him if he had a hunting license.  Kruse had a valid hunting license, and when asked, Kruse acknowledged that he had "some prior dealings with the law and . . . a felony-type violation."  Officer Kuske radioed the state-patrol dispatcher, and the dispatcher confirmed that Kruse had a felony conviction.  Officer Kuske seized Kruse's rifle and ammunition, recorded his personal information, and released him. 

            On January 22, 2004, Kruse was charged with felon in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(j)(1) (2002).  At trial, Officer Kuske testified, and the state introduced Kruse's rifle and the sentencing order from a 1999 conviction of violating an order for protection.  The district court found Kruse guilty of felon in possession of a firearm and imposed a one-year jail term, 185 days of which the district court stayed for two years, and a $3,000 fine, $2,100 of which the district court suspended.  Kruse's appeal follows.

D E C I S I O N

Kruse first argues that the record does not support his conviction of felon in possession of a firearm.  When an appellant challenges the sufficiency of the evidence, we review the record in a light most favorable to the judgment.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).  We determine "whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted."  Id. (quotation omitted).  When determining whether the evidence is sufficient to sustain a conviction, our review of criminal bench trials is the same as our review of jury trials.  Id.

            Minnesota law prohibits firearm possession by a person who "has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year."  Minn. Stat. § 624.713, subd. 1(j)(1) (2002).  Kruse concedes that there is sufficient record evidence to prove his possession of a firearm, but he argues that "[t]he State failed to meet its burden of showing that [he] had been convicted of a crime punishable by imprisonment for a term of more than one year."  He contends that because the district court did not impose a prison sentence in the sentencing order for his 1999 conviction, there is "no evidence that the conviction was for more than one year." 

            The 1999 sentencing order shows that Kruse pleaded guilty to violating an order for protection but that the district court stayed the imposition of a prison sentence for up to five years and fined him $50.  Although the 1999 sentencing order does not explicitly indicate whether the crime of which Kruse was convicted was a felony, the district court here noted that Kruse's prior conviction was of felony violation of a domestic-abuse order for protection. 

The maximum prison sentence for felony violation of a protective order is five years.  Minn. Stat. § 518B.01, subd. 14(d) (1998).  The maximum permitted stay of a felony conviction is four years or the "maximum period for which the sentence of imprisonment might have been imposed, whichever is longer."  Minn. Stat. § 609.135, subd. 2(a) (Supp. 1999).  A stay of a gross-misdemeanor conviction "shall be for not more than two years."  Id., subd. 2(c).  And a stay of imposition of a sentence for a misdemeanor conviction "shall be for not more than one year."  Id., subd. 2(e).   Because the imposition of the sentence here was stayed for up to five years, a disposition possible only for a felony conviction, the 1999 sentencing order shows that Kruse's 1999 conviction was of a felony.

Additionally, Officer Kuske testified that Kruse acknowledged that he had "a felony-type violation" and that the dispatcher confirmed Kruse's felony conviction by checking Kruse's criminal history.  This testimony, along with the 1999 sentencing order, permitted the district court to reasonably conclude beyond a reasonable doubt that Kruse had been convicted of felony violation of an order for protection.  We therefore conclude that the record contains sufficient evidence supporting Kruse's conviction of felon in possession of a firearm.

Kruse next argues that the district court erred by not deeming his felony conviction to be a misdemeanor by application of Minn. Stat. § 609.13, subd. 1(2) (2002), which provides that notwithstanding the fact that a conviction is of a felony, "the conviction is deemed to be for a misdemeanor if the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence."  The district court determined that section 609.13 does not apply here.  Whether a district court has properly construed a statute is a question of law, which we review de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

The 1999 sentencing order shows that the sentence for Kruse's conviction was stayed and that Kruse was placed on probation.  But nothing in the record shows that Kruse's stay was discharged.  And the five-year period for which the imposition of a sentence was stayed had not yet expired when Kruse was arrested and charged with felon in possession of a firearm.  Kruse claims that there is nothing in the record showing that he was still on probation, butthe 1999 sentencing order shows that he was on probation for up to five years, which would have ended on October 4, 2004.  Because Kruse's probation had not expired and there is no evidence that he was discharged, we conclude that Minn. Stat. § 609.13, subd. 1(2), does not render Kruse's felony conviction a misdemeanor conviction and that the district court did not err by finding Kruse guilty of felon in possession of a firearm.

Affirmed.