A Defendant May Be Sentenced on Both Offenses of Ineligible in Possession of Gun and Possession of Gun With a Removed Serial Number

State v. Watson, Minn.Ct.App., 4/15/13.  Officers were called to a party on multiple reports that two guys had guns.  One of the guys was Mr. Watson, whom the officers saw fighting with another male.  The officers broke up the fight.  They also found a gun in Mr. Watson’s waistband.    There was a difference of opinion among the various witnesses whether Mr. Watson actually had the gun or whether the guy with whom he was fighting “scooted” it under Mr. Watson just as the cops scooped him up off the floor.  Good trial fodder but not really pertinent to this appeal.

Oh, did I mention that the gun’s serial number had been removed?  It had.  And that Mr. Watson was not allowed to possess guns?  He was not.  This resulted in charges that Mr.. Watson was ineligible to possess a gun; and that he either had received or possessed a gun with the serial number removed.  The jury convicted him on both offenses, rejecting both his “he scooted it” and his necessity defenses.

The trial court sentenced Mr. Watson on both offenses.  He objected, saying that because the offenses rose out of the same behavioral incident the court could only sentence him on one of them.  Minn.Stat. 609.035, subd. 1.  The state conceded as much, and Mr. Watson pointed to three unpublished opinions that said just this.  The court thumbs its nose at them both.  Unpublished opinions, the court reminds us, are not precedential, in part, they candidly admit, because such opinions “rarely contain a full recitation of the facts.”  As to the state’s concession, the same need not generally be accepted when it presents a question of law; and not in this instance, the court certainly implies, when based upon “counsel’s oversights, lack of research, failure to specify issues or to cite relevant authorities.”  [Citations omitted.]  Whew.

Minn.Stat. 609.035, subd. 1 says:

Except as provided in subdivisions 2, 3, 4, and 5, . . . 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.

Subdivision 3 says:

Notwithstanding section 609.04, a prosecution for or a conviction of a violation of section … 624.713, subdivision 1, clause (2), [ineligible person in possession of gun] is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.

The court says that this is about as clear as it gets and that “any other crime” means just that, and certainly means the serial number charge.

The trial court gave the jury a necessity instruction.  During closing argument the prosecutor told the jury that because Mr. Watson started the fight he was not entitled to a necessity defense.  Mr. Watson said that this misstated the law of necessity.  The court of appeals disagrees, saying that the defense of necessity is available in “emergency situations where the peril is instant, overwhelming, and leaves no authorities but the conduct in question.”  The necessity must have arisen without negligence or fault on the part of the defendant.