State of Minnesota, Respondent, vs. Gregory A. Pawlitschek, Appellant.

State of Minnesota, Respondent, vs. Gregory A. Pawlitschek, Appellant. A06-811, Court of Appeals Unpublished, September 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-811

 

State of Minnesota,

Respondent,

 

vs.

 

Gregory A. Pawlitschek,

Appellant.

 

Filed September 4, 2007

Affirmed Hudson, Judge

 

Ramsey County District Court

File No. K0-05-1989

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, Minnesota 55102-1657 (for respondent)

 

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            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

HUDSON, Judge

            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. 

FACTS

            In the early morning of January 24, 2005, Saint Paul police responded to a report that appellant had assaulted his wife.  Appellant was sleeping in his bedroom when the police arrived at his home and placed him under arrest. 

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."

Based on the events of January 24, 2005, appellant pleaded guilty to domestic abuse on March 16, 2005.  On June 13, 2005, appellant was charged with one count of possession of a firearm by an ineligible person in violation of Minn. Stat. §§ 624.713, subd. 1(b), 609.11, subd. 5(b) (2004).  Claiming that prosecution of the charge exaggerated the severity of the offense, appellant moved to dismiss the charge.  The motion was denied, and the case was tried to a jury.  At trial, appellant stipulated that he was ineligible to possess firearms and waived his right to testify.  The jury found appellant guilty, and the district court sentenced appellant to an executed presumptive sentence of 60 months.  This appeal follows.

D E C I S I O N

I

            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 (Minn. 2003). 

            Under Minnesota law, a person who has been convicted of a crime of violence is ineligible to possess a firearm.  Minn. Stat. § 624.713, subd. 1(b) (2004).  A "crime of violence" includes a "felony conviction" of third-degree assault.  Minn. Stat. § 624.712, subd. 5 (2004).  Appellant claims that because, when he was discharged from probation, his third-degree-assault conviction was reduced to a misdemeanor pursuant to Minn. Stat. § 609.13, subd. 1(2) (1998), it is not a "crime of violence" under Minn. Stat. §§ 624.712, subd. 5, .713, subd. 1(b). 

We 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 (Minn. 2007).  The supreme court held that a court must consider the elements of a prior offense, not the offense's subsequent disposition, in determining whether the offense is a crime of violence.  Id.  Thus, the reduction of a felony conviction to a misdemeanor does not change the character of the underlying conviction for the purposes of the firearm-prohibition statute.  Id. 

II

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.

Under Minnesota law, with certain exceptions not applicable here,

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. 

 

Minn. Stat. § 609.035, subd. 1.  Offenses constitute a single behavioral incident when "they arise from a continuous and uninterrupted course of conduct, occur at substantially the same time and place, manifest an indivisible state of mind, and . . . the conduct involved is motivated by a desire to obtain a single criminal objective."  State v. Baxter, 686 N.W.2d 846, 850 (Minn. App. 2004); accord State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983). 

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,[1] 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.

            Affirmed.

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] 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.  See State v. Berry, 331 N.W.2d 491, 494 (Minn. 1983).  And, contrary to appellant's contention, it is irrelevant that the jury was not instructed on the "continuing offense."