Gerdes v. State

• Decision Date: 28 May 1982
• Docket Number: No. 81-315.,81-315.
• Citation: 319 NW 2d 710
• Parties: Mark GERDES, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

319 N.W.2d 710 (1982)

Mark GERDES, Appellant, v. STATE of Minnesota, Respondent.

No. 81-315.

Supreme Court of Minnesota.

May 28, 1982.

C. Paul Jones, Public Defender, and Mary E. Steenson, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Gary Hansen and Kenneth Saffold, Sp. Asst. Attys. Gen., St. Paul, James E. O'Neill, County Atty., Pipestone, for respondent.

Considered and decided by the court en banc without oral argument.

SCOTT, Justice.

The appellant, Mark Gerdes, was found guilty by a jury of possession of a short-barreled shotgun, in violation of Minn.Stat. § 609.67, subd. 2 (1980).¹ For this conviction the trial judge sentenced appellant to a 5-year prison term, with execution of sentence stayed provided that he serve 60 days in the county jail.

On this appeal from judgment of conviction and from an order of the district court denying post-conviction relief, appellant contends:

(1) that the conviction was based on insufficient evidence because the gun in question was inoperable and possession of an inoperable short-barreled shotgun is not illegal;

(2) that his rights were prejudiced by the amendment of the complaint, after he testified, to change the date of the alleged illegal possession of the gun from "on or about the 25th day of August, 1978" to read "on or about the 15th day of July, 1978"; and

(3) that the gun should have been suppressed as the fruit of a Fourth Amendment violation; namely, a warranted search based on stale probable cause.

The charges filed against appellant were the result of investigations conducted by the Pipestone County police and statements made by informants. At all relevant times appellant's residence, owned by an absentee landlord, was rented as a rooming house to male students at the local vocational school. Steven Perkins and Lon Saulsbury were on appellant's premises in late July, 1978, at the request of the owner, to conduct a real estate appraisal of the premises. During the visit, Perkins observed what he believed to be stolen traffic control devices. He described these items to the chief of police in late August, 1978. Law enforcement officials had independently been conducting a surveillance of appellant's rooming house which began in late July, 1978. On August 25, 1978, after obtaining a search warrant based on Perkins' statements and the information obtained during their own surveillance, police officers went to the residence and executed the warrant. In various rooms of the house, including the room which appellant had rented, they found numerous street signs and similar items which had been stolen in recent months. In appellant's room they also found several guns, including the short-barreled shotgun appellant was later convicted of possessing. They also found identification papers connecting appellant with that room. Testifying in his own behalf at trial, appellant admitted possessing the illegal weapon in July 1978. He further admitted purchasing the weapon, but claimed he had given the gun to his roommate, Jim Holinka, since deceased, before August 25, 1978. In response to the testimony, the state moved to amend the complaint to read that appellant possessed the shotgun on July 15, 1978, as indicated above. The court granted the state's motion.

1. The appellant concedes that the possession of an "operable" short-barreled shotgun would sustain his conviction and that "the legislative policy behind the prohibition of the possession of an operable short-barreled shotgun is valid." The appellant contends, though, that the statute only applies to operable short-barreled shotguns. Upon examination of section 609.67 we do not find the word "operable," nor any indication that such a word should be read into the statute. The statute only addresses the original design of the weapon and reflects a strong public policy to dissuade persons from possessing a certain class of dangerous weapons. Under the statute, it appears to be sufficient to show only that the gun was possessed by the defendant. The state argues that the intent of the legislature is demonstrated by the fact that one can be convicted of a violation for the mere possession, even if there is no intent to employ such weapon criminally. The statute seems to indicate that a short-barreled shotgun is a dangerous weapon because a person merely displaying such a weapon during a crime would meet with very little resistance.

Although no Minnesota case has directly addressed this issue, LaMere v. State, 278 N.W.2d 552 (Minn.1979), is instructive. In LaMere, this court dealt with whether an inoperable firearm is a dangerous weapon. In affirmatively answering that question, we observed: "An unloaded firearm has the same capacity to create fear and/or to cause people to comply with criminal demands as a loaded one." Id. at 556. In Commonwealth v. Ponds, 236 Pa.Super. 107, 113, 345 A.2d 253, 256 (1975), the Pennsylvania court stated:

The fact that a sawed-off shotgun is at a given time inoperable does not discount the danger which the legislature intended to prevent. The mere possession of an item identifiable as a sawed-off shotgun, even though inoperable is still an ominous presence, and has no place nor possible use in the community and should be prohibited.

We therefore hold that the operability of the weapon was immaterial.

2. The second contention of the appellant is that his substantial rights were prejudiced by the trial court's allowance of the amendment of the complaint, as stated above. Minn.R.Crim.P. 17.05 provides: "The court may permit an indictment...