                               STATE OF MINNESOTA

                                   IN SUPREME COURT

                                       A14-1792

Court of Appeals                                                           Hudson, J.
                                                   Took no part, Chutich, McKeig, JJ.

State of Minnesota,

                      Respondent,

vs.                                                            Filed: October 19, 2016
                                                             Office of Appellate Courts
David Lee Haywood,

                      Appellant.

                             ________________________


Lori Swanson, Attorney General, Saint Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant Ramsey County
Attorney, Saint Paul, Minnesota, for respondent.

Rochelle Winn, Assistant Public Defender, Saint Paul, Minnesota; and

Grant Gibeau, Special Assistant Public Defender, St. Louis Park, Minnesota, Tara Reese
Duginske, Special Assistant Public Defender, Minneapolis, Minnesota, for appellant.

Cort C. Holten, Jeffrey D. Bores, Gary K. Luloff, Chestnut Cambronne PA, Minneapolis,
Minnesota, for amicus curiae Minnesota Police and Peace Officers Association Legal
Defense Fund.


                             ________________________




                                          1
                                     SYLLABUS

      Under Minn. Stat. § 609.165 (2014), the plain meaning of the word “firearm” does

not include an air-powered BB gun.

      Reversed, conviction vacated.

                                      OPINION

HUDSON, Justice.

      This case presents the question of whether an air-powered BB gun is a “firearm”

under the felon-in-possession statute, Minn. Stat. § 609.165 (2014). The State charged

appellant David Haywood with one count of Possession of a Firearm by an Ineligible

Person under Minn. Stat. § 609.165, subd. 1b. Haywood filed two motions to dismiss. In

the first motion, Haywood argued that the charge should be dismissed because the BB gun

that police found in his possession was not a “firearm” within the meaning of Minn. Stat.

§ 609.165.   In his second, alternative motion, Haywood challenged the statute as

unconstitutionally vague. The district court denied both motions.

      At trial, the district court instructed the jury that a BB gun is a firearm under

Minnesota law. Haywood objected to the instruction. The jury found Haywood guilty and

he was sentenced to 60 months in prison. The court of appeals affirmed the district court,

holding that an air-powered BB gun is a “firearm” under Minn. Stat. § 609.165. State v.

Haywood, 869 N.W.2d 902, 909 (Minn. App. 2015). The court of appeals also explained

that the term “firearm” had developed a “reasonably definite meaning” through case law

and, therefore, Minn. Stat. § 609.165 was not unconstitutionally vague as applied to



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Haywood. 869 N.W.2d at 910. We reverse and vacate Haywood’s conviction because an

air-powered BB gun is not a “firearm” under the plain meaning of Minn. Stat. § 609.165.

                                             I.

       On January 1, 2013, Haywood was driving in downtown St. Paul when a St. Paul

police officer arrested him for violating a no-contact order. Following an inventory search

of his vehicle, the officers found a BB gun inside the glove compartment. The BB gun, a

Walther CP99 Compact pistol, fires projectiles measuring .177 of an inch in diameter,

using compressed air as a propellant. The parties do not dispute that the BB gun is a CO2

air pistol replica of the Walther P99 Compact, a semi-automatic pistol chambered for either

9mm or .40-caliber cartridges. Because Haywood has a prior felony conviction that

prevents him from lawfully possessing a firearm, the State charged him with one count of

Possession of a Firearm by an Ineligible Person under Minn. Stat. § 609.165, subd. 1b.

       Haywood moved to dismiss the charge on two grounds: (1) an air-powered BB gun

is not a “firearm” within the meaning of Minn. Stat. § 609.165, subd. 1b; and (2) Minn.

Stat. § 609.165, subd. 1b, is unconstitutionally vague because it does not give adequate

notice that a convicted felon’s possession of an air-powered BB gun is prohibited. The

district court denied both motions in an order issued on May 31, 2013. 1 At trial, the court

instructed the jury that a BB gun is a firearm under Minnesota law. The jury found


1
      In a subsequent hearing, the district court heard Haywood’s motion to suppress the
BB gun and other physical evidence seized by police from his car, as well as statements he
made to police while in custody. The district court denied Haywood’s motion to suppress
the BB gun. It granted in part and denied in part Haywood’s motion to suppress statements
he made to police, holding that the statements were taken in violation of Haywood’s
Miranda rights. These matters are not before us.
                                             3
Haywood guilty of unlawfully possessing a firearm and the district court sentenced

Haywood to 60 months in prison.

       The court of appeals affirmed the district court, holding that an air-powered BB gun

is a firearm under Minn. Stat. § 609.165. Haywood, 869 N.W.2d at 908-09. Relying on

our decision in State v. Seifert, 256 N.W.2d 87 (Minn. 1977) (per curiam), the court held

that the definition of the term “firearm” is not “ ‘restricted in meaning to guns using

gunpowder,’ ” but is to be broadly construed to also include guns using compressed air as

a propellant. Haywood, 869 N.W.2d at 906 (quoting Seifert, 256 N.W.2d at 88). The court

reasoned that the Legislature’s re-enactment of Minn. Stat. § 609.165 after Seifert without

giving “firearm” another definition indicated its presumptive adoption of Seifert’s broad

definition. Haywood, 869 N.W.2d at 906-08. It also explained that the term “firearm” had

developed a “reasonably definite meaning” under case law and therefore Minn. Stat.

§ 609.165 was not unconstitutionally vague as applied to Haywood. Haywood, 869

N.W.2d at 910. We granted review to determine whether an air-powered BB gun is a

firearm under Minn. Stat. § 609.165.

                                            II.

       We review statutory interpretation issues de novo. State v. Rick, 835 N.W.2d 478,

482 (Minn. 2013). “The objective of statutory interpretation is to ascertain and effectuate

the Legislature’s intent. If the Legislature’s intent is clear from the statute’s plain and

unambiguous language, then [a court] interpret[s] the statute according to its plain meaning

without resorting to the canons of statutory construction.” Id. (citation omitted). “In the

absence of a statutory definition, we generally turn to the plain, ordinary meaning of a

                                             4
statutory phrase.”   State v. Leathers, 799 N.W.2d 606, 609 (Minn. 2011).             When

determining the plain and ordinary meaning of undefined words or phrases in a statute,

courts should look to the dictionary definitions of those words and apply them in the

context of the statute. See, e.g., A.A.A. v. Minn. Dept. of Human Servs., 832 N.W.2d 816,

820-21 (Minn. 2013).

       Minnesota Statutes § 609.165, subd. 1b, provides:

       (a) Any person who has been convicted of a crime of violence, as defined in
       section 624.712, subdivision 5, and who ships, transports, possesses, or
       receives a firearm, commits a felony and may be sentenced to imprisonment
       for not more than 15 years or to payment of a fine of not more than $30,000,
       or both.

Minn. Stat. § 609.165, subd. 1b(a). Significantly, section 609.165 does not define the word

“firearm.” In addition, the word is not defined in Minn. Stat. § 609.02 (2014), the

definitions section for Minn. Stat. ch. 609 (2014).

       No Minnesota appellate court has defined the term “firearm” in section 609.165.

We have, however, construed the word “firearm” in the context of the definition of a

“dangerous weapon” under Minn. Stat. § 609.02. See Seifert, 256 N.W.2d at 87-88.

       In Seifert, we held that a .177-caliber CO2 BB pistol was a “firearm” under Minn.

Stat. § 609.02, subd. 6 (1974). Seifert pleaded guilty to aggravated robbery, Minn. Stat.

§ 609.245 (1974), which required proof that he was “armed with a dangerous weapon or

inflict[ed] bodily harm,” while committing a robbery.        Seifert, 256 N.W.2d at 88.

Minnesota Statutes § 609.02, subd. 6, defined “dangerous weapon” as “any firearm,

whether loaded or unloaded, or any device designed as a weapon and capable of producing

death or great bodily harm . . . .” (Emphasis added.) At the plea hearing, Seifert admitted

                                             5
possessing an unloaded CO2 BB pistol during the robbery; he also admitted that, to the best

of his knowledge, his accomplice used a firearm. Seifert, 256 N.W.2d at 88. The district

court accepted Seifert’s plea and sentenced him to a minimum term of one year and one

day in prison under Minn. Stat. § 609.11 (1975), which permitted imposition of a minimum

sentence in certain situations in which the offender “possess[ed] a firearm or used a

dangerous weapon at the time of the offense.” Seifert, 256 N.W.2d at 88. Seifert later

challenged both his plea and the imposition of the minimum sentence on the ground that

he did not possess a dangerous weapon during the robbery because his BB gun was not a

“firearm.” Id. The district court denied relief, holding that the gun Seifert admitted using

was clearly a “dangerous weapon,” 2 and we affirmed. Id. In explaining our decision, we

stated:

          In our opinion, the fact that the gun defendant used required gas rather than
          gunpowder to discharge its projectile does not mean, as defendant contends,
          that the gun could not be a firearm within the meaning of the term “firearm”
          used in [section] 609.02. Having statutory purpose in mind, we think that
          term should be defined broadly to include guns using newer types of
          projectile propellants and should not be restricted in meaning to guns using
          gunpowder.

Id. We went on to note that the game-and-fish laws defined “firearm” as “any gun from

which shot or a projectile is discharged by means of an explosive, gas, or compressed air.”

Id. (quoting Minn. Stat. § 97.40, subd. 34 (1976) (currently codified at Minn. Stat.

§ 97A.015, subd. 19 (2014)). We also observed that:

          The gun used by defendant might also qualify as a dangerous weapon under
          the alternative test contained in [section] 609.02 (“any device designed as a

2
       The district court made no finding with respect to whether Seifert’s accomplice did
or did not possess a “dangerous weapon.” Seifert, 256 N.W.2d at 88.
                                               6
       weapon and capable of producing death or great bodily harm”). In any event,
       defendant also admitted at the change-of-plea hearing that to the best of his
       knowledge the gun his accomplice used was a firearm. In conclusion,
       defendant’s testimony at the change-of-plea hearing provided a sufficient
       factual basis for the plea . . . .

Id.

       The court of appeals has twice relied on our opinion in Seifert to interpret the word

“firearm” in other statutes. In the first of these two cases, State v. Newman, 538 N.W.2d

476, 477-78 (Minn. App. 1995), the court applied Seifert to interpret Minn. Stat. § 609.66,

subd. 1e(a) (Supp. 1993), the felony drive-by shooting statute. In the second case, State v.

Fleming, 724 N.W.2d 537, 538 (Minn. App. 2006), the statute at issue was Minn. Stat.

§ 624.713, subd. 1(b) (2004), which—like the statute at issue here—prohibits a person

convicted of a crime of violence from possessing “a pistol . . . or any other firearm.” And

once again in this case, the court of appeals relied heavily on the rationale we articulated

in Seifert to affirm Haywood’s conviction.

       The State urges us to follow Seifert and hold that a BB gun is a firearm under Minn.

Stat. § 609.165. In support of its position, the State notes that in the nearly four decades

since Seifert, the Legislature had ample opportunity to exclude BB guns from the definition

of “firearm” in the criminal code. The failure to do so, the State contends, indicates that

the Legislature has presumptively adopted the definition from Seifert.

       Conversely, Haywood argues that we should reconsider our holding in Seifert

because the definition of “firearm” applied in Seifert and by the court of appeals does not

take into account the word’s plain and ordinary meaning. Relying on the definition of

“firearm” in various dictionaries, Haywood argues that in order for an object to be a

                                             7
“firearm,” the object must use gunpowder or some similar chemical explosive force.

Haywood asserts that because an air-powered BB gun does not fire bullets or use explosive

force, it is not a firearm under Minn. Stat. § 609.165. We agree and, for the reasons set

forth below, hold that an air-powered BB gun is not a firearm.

       As noted earlier, Minn. Stat. § 609.165, subd. 1(b)(a), does not define “firearm.” In

the absence of a statutory definition, we look to dictionary definitions to determine the

plain meaning of words. Larson v. Nw. Mut. Life Ins. Co., 855 N.W.2d 293, 301 (Minn.

2014); see also Abrahamson v. St. Louis Cty. Sch. Dist, 819 N.W.2d 129, 133 (Minn. 2012)

(“We construe the words of a statute ‘according to their common and approved usage.’ ”

(quoting Minn. Stat. § 645.08 (1) (2014)). Here, the plain and ordinary meaning of the

word “firearm” includes only devices that require explosive force. Merriam-Webster

defines firearm as a “weapon from which a shot is discharged by gunpowder.” Merriam-

Webster’s Collegiate Dictionary 471 (11th ed. 2003). Webster’s defines firearm as “a

small arms weapon, as a rifle or pistol, from which a projectile is fired by gun-powder.”

Random House Webster’s Unabridged Dictionary 722 (2d ed. 2001). The American

Heritage Dictionary defines firearm as “[a] weapon, especially a pistol or rifle, capable of

firing a projectile and using an explosive charge as a propellant.” The American Heritage

Dictionary of the English Language 661 (5th ed. 2011). Black’s Law Dictionary defines

firearm as “[a] weapon that expels a projectile (such as a bullet or pellets) by the

combustion of gunpowder or other explosive.” Firearm, Black’s Law Dictionary (9th ed.




                                             8
2009). In sum, dictionaries consistently define “firearm” as including only weapons that

use explosive force. 3

       Here, Haywood was in possession of an air-powered BB gun: a Walther CP99

Compact pistol, which fires a projectile measuring .177 of an inch in diameter, using

compressed air—not gunpowder or any other explosive force—as a propellant. Under the

plain and ordinary meaning of the term “firearm,” Haywood’s air-powered BB gun is not

a firearm, and thus Haywood’s possession of it did not violate section 609.165. 4

       Because our holding today rests on a plain-language analysis, we need not address

Haywood’s secondary argument that Seifert does not reflect the Legislature’s post-Seifert

definitions of “firearms” that have been incorporated into the criminal code. Still, we note

that our holding today finds support in the Minnesota criminal code. At the time we

decided Seifert, the term “firearm” was not defined in the criminal code. Since Seifert,

however, the Legislature has twice defined “firearm” in chapter 609. Section 609.666

provides, in pertinent part, that a person who negligently stores a loaded firearm in a

location to which a child is likely to gain access is guilty of a misdemeanor. Minn. Stat.

§ 609.666, subd. 2 (2014). Section 609.669 prohibits certain activities intended to further



3
       Our more expansive definition of “firearm” in Seifert (in which we adverted to the
game-and-fish law definition of firearm) was dictum in that we had no need to define
firearm because Seifert had already admitted that his accomplice possessed a firearm.
4
        We also held in Seifert that the district court did not err in imposing a minimum
sentence on Seifert and that Seifert’s testimony at the plea hearing that his accomplice used
a firearm adequately supported his guilty plea. Seifert, 256 N.W.2d at 88. These holdings
are undisturbed by our decision today.

                                             9
a civil disorder, including teaching or training another person in the use or manufacture of

firearms and explosives, and assembly for the purpose of training or practicing with

firearms or explosives. Minn. Stat. § 609.669, subd. 1(a) (2014). Significantly, both

statutes define a “firearm” as a device that expels a projectile by the action or force of an

explosion or combustion. See Minn. Stat. §§ 609.666, subd. 1(a); 609.669, subd. 2(2).

       Moreover, the Legislature has adopted other provisions that clearly differentiate

“airguns” from “firearms.”      See Minn. Stat. § 609.66, subd. 1(a)(6) (defining the

misdemeanor or gross-misdemeanor offense of furnishing “a firearm or airgun of any kind”

to a child under 14 years of age outside of a municipality without parental permission), id.,

subd. 1b (2014) (defining the felony offense of furnishing “a firearm, airgun, ammunition,

or explosive” to a minor under 18 years of age in any municipality without parental

permission). Yet other provisions refer broadly to “a gun,” Minn. Stat. § 609.66, subd.

1(a)(1) (reckless handling or use of “a gun or other dangerous weapon”), or “a gun of any

kind,” id., subd. 1(a)(2) (intentionally pointing “a gun of any kind” at or toward another),

suggesting that when the Legislature intends to refer broadly to guns that expel projectiles

by explosive force, gunpowder, and compressed air, it knows how to do so.

       The court of appeals relied on our opinion in Seifert to construe the word “firearm,”

not only in the present case, but in Newman and Fleming, as well. The court of appeals’

reliance on Seifert in the absence of other authority was understandable, but the reliance is

on dictum, nevertheless. Today, we have clarified the plain meaning of “firearm.” We do

not minimize the concerns of the State and amicus that, regardless of the means of

propulsion, a BB gun is capable of producing death or great bodily harm. But that is

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arguably true of nail guns and other devices that use compressed air, as well. Even so, the

question of how to define a “firearm” is best left to the Legislature. See Morris v. State,

765 N.W.2d 78, 85 (Minn. 2009) (“The development of . . . public policy . . . [is] better left

to the [L]egislature.”). “It is not for the courts to make, amend, or change the statutory

law, but only to apply it.” R.S. v. State, 459 N.W.2d 680, 696 (Minn. 1990) (quoting State

v. West, 285 Minn. 188, 197, 173 N.W.2d 468, 474 (1969)). 5

       Reversed, conviction vacated.



       CHUTICH, J., took no part in the consideration or decision of this case.

       MCKEIG, J., not having been a member of this court at the time of submission, took

no part in the consideration or decision of this case.




5
      Because we reverse the decision of the court of appeals and vacate Haywood’s
conviction, we need not address his constitutional void-for-vagueness claim.
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