State v. Newman

DAVIES, Judge

(dissenting).

I respectfully dissent.

Dylan Arber Newman was convicted of violating the drive-by shooting statute, which requires use of a “firearm” (not a “dangerous weapon”):

Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward a person, another motor vehicle, or a building is guilty of a felony * * *.

Minn.Stat. § 609.66, subd. le(a) (Supp.1993) (emphasis added).

In the American Heritage Dictionary, 684 (3d ed. 1992), a “firearm” is defined as

[a] weapon, especially a pistol or rifle, capable of firing a projectile and using an explosive charge as a propellant.

(Emphasis added.) That definition excludes guns that use compressed air or gas, not explosive powder, as the propellant. The weapon here is a compressed gas gun, a “glorified” BB gun.

The majority cites State v. Seifert, 256 N.W.2d 87, 88 (Minn.1977), to support its decision. The issue in Seifert, though, was not whether a BB gun is a “firearm,” but whether it could be considered a “dangerous weapon” for purposes of the aggravated rob*479bery statute, Minn.Stat. § 609.245 (1974). Id. at 88. A “dangerous weapon” was defined at the time as

any firearm, * * ⅝ or any device designed as a weapon and capable of producing death or great bodily harm, or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.

Minn.Stat. 609.02, subd. 6 (1974).1 As the supreme court noted in Seifert, under this definition a BB gun “might also qualify5’ even if it is not a firearm. Id. Indeed, Seifert further stated that the aggravated robbery conviction could be affirmed “[i]n any event” because the defendant had admitted at a change-of-plea hearing that he believed his accomplice had used a (real) firearm. Id. In short, contrary to the majority’s suggestion, Seifert does not so clearly hold that a BB gun is a firearm.

I have no trouble with the proposition that a BB gun is a “dangerous weapon” for all of Minn.Stat. eh. 609, our criminal code. But I cannot hold that a BB gun is a “firearm” so as to bring one under the drive-by shooting statute. Criminal statutes are to be interpreted strictly against the state. State v. Soto, 378 N.W.2d 625, 627-28 (Minn.1985). Therefore, the definition of firearm must — in this criminal prosecution — be read literally.

The conviction should be reversed.

. The 1993 version of this provision, applicable here, is nearly identical' simply adding "combustible or flammable liquid[s]” as "dangerous weapons.” Minn.Stat. § 609.02, subd. 6 (Supp. 1993).