(dissenting).
I respectfully dissent. Under Minnesota’s enhancement statute, Minn.Stat. § 609.11 (1996), a defendant’s sentence can be enhanced up to three years, if “at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm.” Minn.Stat. § 609.11, subd. 5 (1996).
First of all, I agree with the majority that pure “constructive possession” anywhere in the home or the building where the crime occurred would not trigger this enhancement statute. Thus, I agree with the majority’s statement, “[a] blanket statement by this court that the language ‘had in possession’ includes both actual and constructive possession would be inappropriate.”
Also, I do not agree with appellant’s strict interpretation wherein he argues that the enhancement statute can only apply in fact situations involving “actual possession” of a firearm when committing a predicate or underlying offense.
The words the legislature used are not ambiguous and have simple and explainable meanings. The enhancement can come in when a defendant either brandishes, displays, threatens with, or otherwise employs a firearm. Common sense tells us that if a person brandishes, displays, threatens with, or otherwise employs a firearm, those .actions will come under either possession or use. Put another way, you cannot brandish, display, threaten with, or otherwise employ a firearm without using or possessing it in some way. This is not a difficult concept. Using or otherwise employing can involve either actual or constructive possession, depending on the facts.
Appellant argues that “had in possession” can refer only to actual possession and not constructive possession. That interpretation would not cover fact situations that the legislative language intended to cover. For instance, a defendant could point to a firearm, within a few feet or even several feet of *460himself, but visible to another person, and tell that person that if they do not act in a certain way “I will get that gun and use it on you” or similar language. Someone standing 20, 40, or 50 feet away from a man who is both displaying and threatening with a firearm only 5, 10, or 15 feet away could feel truly threatened. In that fact situation, or some variation thereof, that defendant is “using” the firearm and is somehow “otherwise employing” it.. Yet, in that fact situation, or a variation thereof, the defendant could make a strong case that he was not in actual possession. I suggest that a common sense reading of the enhancement statute indicates it covers this example of not strict actual possession, but constructive possession, plus an affirmative use of that firearm.
But on the other hand, I cannot agree with the majority that this enhancement statute can be handled either fairly to defendants, or accurately under the meaning of the enhancement statute, by simply using a “reasonable proximity” test. Reasonable proximity, standing alone, has nothing to do with brandishing, displaying, threatening with, or otherwise employing. To me, one of those four categories (brandish, display, threaten with, or otherwise employ), an essential element of the crime, must be shown by proof of at least some affirmative act on the part of the defendant. For instance, if the firearm is in reasonable proximity, and the defendant points to it, he has done enough of an affirmative act to come within one of the four modifiers. But some evidence of some affirmative act showing an intention to brandish, display, threaten with, or otherwise employ has to be part of the state’s proof. That element is missing in this case. The state’s only argument is that the gun was close and the defendant “could have used it” if he wanted to.
The legislative use of the terms is clear. The intent of the legislature was to limit enhancement to those situations where the firearm is in some manner involved in the commission of a predicate offense. They spelled out for the prosecution three specific terms, brandish, display, and threaten with, and even gave the prosecution a broad general term, otherwise employ. But with each term it is clear that the firearm has to be used in some way.
On these, facts, appellant’s pistol was not any part of the predicate offense. Appellant never brandished it, never displayed it, never threatened with it, and did not in any way employ it as part of his offense of selling and possessing narcotics. All that can be said about it is that it was discovered close by during a search. But it cannot be said that appellant in any way employed that pistol.
I suggest the district court’s interpretation was overly broad and contrary to the intent of the enhancement statute. I would reverse and vacate the application of the enhancement statute.