                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0873

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                               Delbert Keith Sybrandt,
                                     Appellant.

                                 Filed June 15, 2015
                                      Affirmed
                                   Hudson, Judge

                              Pine County District Court
                                File No. 58-CR-13-593

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John K. Carlson, Pine County Attorney, Steven C. Cundy, Assistant County Attorney,
Pine City, Minnesota (for respondent)

Ll. Rhyddid Watkins, Special Assistant Public Defender, Karianne Jones, Certified
Student Attorney, Minneapolis, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and

Bjorkman, Judge.

                       UNPUBLISHED OPINION

HUDSON , Judge

      Appellant challenges his conviction of possession of a firearm by an ineligible

person, arguing that the district court erred by finding that a disassembled pellet gun
constitutes a “firearm” under Minn. Stat. § 624.713, subd. 1 (2012), and alternatively that

the evidence obtained from the warrantless search should be suppressed because it was

illegally obtained. We affirm.

                                         FACTS

       On August 13, 2013, police were dispatched to a property in Pine County on the

report of a stolen motorcycle located there. The responding officers were familiar with

the residence based on prior encounters. The officers went to the side of the house and

onto the main entry off the patio, although there is a door closer to the driveway.

Through a sliding glass door, officers observed appellant Delbert Keith Sybrandt sitting

on the couch with “what appeared to be a rifle barrel in his lap.” Officers recognized

Sybrandt as a person ineligible to possess firearms. Officers knocked on the door,

Sybrandt lunged out of view, and then came to the door empty-handed. When questioned

about the firearm he attempted to close the door, but an officer’s foot was in the way.

Officers pulled Sybrandt out of the house and handcuffed him.

       After Sybrandt told officers the house was empty, the homeowner’s 15-year-old

daughter came outside. She stated that Sybrandt was not supposed to be in the house and

gave officers permission to enter. Officers found a Gamo pellet gun in pieces on the

living room couch and end table. The Gamo’s trigger, barrel, stock, and scope were

detached from each other. Sybrandt said he was repairing the Gamo for the homeowner’s

son.

       One of the officers testified that the Gamo was operated by “break action,” and not

CO2, that “it was just like a spring gun” and needed to be pumped to fire. But the officer


                                            2
also stated that he did not see a spring or ascertain exactly how the Gamo operated. A

jury found Sybrandt guilty of possession of a firearm by an ineligible person. See Minn.

Stat. § 624.713, subd. 1(2) (prohibiting a person who has been convicted of a crime of

violence from possessing “a pistol or semiautomatic military-style assault weapon or . . .

any other firearm”). This appeal follows.

                                     DECISION

                                             I

       Sybrandt first argues that the district court erred by finding that the pellet gun

satisfied the firearm component of the felon-in-possession statute and instructing the jury

that “[a] BB gun is a firearm as a matter of law.”1 District courts have “considerable

latitude” in selecting jury instruction language. State v. Baird, 654 N.W.2d 105, 113

(Minn. 2002). “[J]ury instructions must be viewed in their entirety to determine whether

they fairly and adequately explained the law of the case.” State v. Flores, 418 N.W.2d

150, 155 (Minn. 1998). “An instruction is in error if it materially misstates the law.”

State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). We review statutory interpretation

de novo because it presents a question of law. State v. Newman, 538 N.W.2d 476, 477

(Minn. App. 1995), review denied (Minn. Nov. 30, 1995).

       Sybrandt does not dispute that he is prohibited from possessing a firearm. But he

contends that the Gamo is not a firearm. “Firearm” is not defined by the felon-in-


1
 We note that a BB gun and pellet gun are very similar, but vary in the type of shot fired.
See Random House Webster’s Unabridged Dictionary 180, 1431 (2d ed. 1998) (defining
“BB” as a “size of shot, .18 in. in diameter, fired from an air rifle or BB gun” and “pellet”
as a “a charge of small shot”).

                                             3
possession statute. Minn. Stat. § 624.713, subd. 1(2); cf. Minn. Stat. § 624.712, subd. 2

(2012) (defining “pistol” and specifically excluding BB guns from that definition).

Sybrandt urges us to limit the definition of “firearm” under the felon-in-possession statute

to a “gun from which shot or a projectile is discharged by means of an explosive, a gas,

or compressed air.” See Minn. Stat. § 97A.015, subd. 19 (2012) (defining “firearm” for

purposes of game-and-fish law). He argues that the Gamo is spring operated and not

fired “by means of an explosive, a gas, or compressed air,” and therefore should not be

considered a “firearm” for purposes of the felon-in-possession statute. The record does

not establish how the Gamo operated.2 At trial, the responding officer stated that he did

not know precisely how the Gamo functioned and whether or not it was spring operated.

And though the jury examined the Gamo during their deliberations, there is no other

evidence that explains how the Gamo fired. Despite that lack of evidence, the jury was

instructed that “[a] BB gun is a firearm as a matter of law.” Accordingly, we must decide

whether the definition of “firearm” under the felon-in-possession statute includes BB

guns that are not fired by an explosive, a gas, or compressed air. For the reasons stated

below, we conclude that it does.




2
  The state submitted evidence on appeal that the Gamo is a high-powered air rifle,
claiming that the prosecutor knew this at trial but did not have evidence available. But
we cannot consider this information because it is not part of the district court record.
State v. Larson, 520 N.W.2d 456, 464 (Minn. App. 1994) (“[M]atters not produced and
received in evidence below may not be considered.” (quotation omitted)), review denied,
(Minn. Oct. 14, 1999). Likewise, Sybrandt’s claim that he would have testified the Gamo
was spring operated is not relevant because Sybrandt chose not to testify and made no
attempt to offer this information as evidence at trial.

                                             4
       In State v. Seifert, the defendant argued that the CO2 powered BB pistol he

possessed was not a “dangerous weapon” as defined by the criminal code. 256 N.W.2d

87, 88 (Minn. 1977). The Minnesota Supreme Court held that “the fact that the gun

defendant used required gas rather than gunpowder to discharge its projectile does not

mean . . . that the gun could not be a firearm” as defined by statute. Id. Rather, the court

explained that “firearm” “should be defined broadly to include guns using newer types of

projectile propellants.” Id. In addition, the court concluded that the CO2 pistol met the

definition of “firearm” from game-and-fish law, which defined “firearm” as “any gun

from which shot or a projectile is discharged by means of an explosive, gas, or

compressed air.”    Id.   The court also noted that the pistol might also qualify as a

dangerous weapon under the alternative test used in the dangerous weapon definition.

Id.; Minn. Stat. § 609.02, subd. 6 (2012) (defining “dangerous weapon” as “any device

designed as a weapon and capable of producing death or great bodily harm”).

Significantly, Seifert did not limit the definition of firearm to those weapons that were

“discharged by means of an explosive, gas, or compressed air”; but instead considered

the statutory definition of “dangerous-weapons” and did not exclude guns using other

“types of projective propellants.” Seifert, 256 N.W.2d at 87.

       Similarly, in State v. Fleming, the district court dismissed the charges against a

defendant who possessed a BB gun and was ineligible to possess a firearm because it

interpreted the felon-in-possession statute to exclude BB guns. 724 N.W.2d 537, 538

(Minn. App. 2006). Reversing the district court, this court noted that, in Seifert, the

Minnesota Supreme Court adopted the definition of a firearm as “any gun from which a


                                             5
shot or a projectile is discharged by means of explosive, gas, or compressed air.” Id. at

540 (quotation omitted). This court then concluded that the defendant’s BB gun fell

under the definition of “firearm.” Id. We acknowledge that the BB gun in Fleming

utilized a gas cartridge. Id. But we also note that the Fleming court held that “the

operative definition of ‘firearm’ includes a BB gun” without limiting the definition of

“firearm” to gas, explosive, or compressed-air powered BB guns. Id. at 541.

      Our examination of other statutes and contexts also informs our analysis. To that

end, the “dangerous weapons” statute also does not define “firearm” but contains a

reference to the game-and-fish law definition of firearm and defines BB gun as “a device

that fires or ejects a shot measuring .18 of an inch or less in diameter.” Minn. Stat.

§ 609.66, subd. 1d(e)(1) (2012). The definition does not indicate how a BB gun is

powered. Id. In addition, we have held that a BB gun is a dangerous weapon in the

context of a drive-by shooting because “it probably would not matter to the victim of a

drive-by shooting [how] the weapon used in the attack was powered” because the harm

will be the same under most circumstances. Newman, 538 N.W.2d at 478.

      Because the legislature did not further define “firearm” under the felon-in-

possession statute after Seifert and Fleming, we presume, as as our statutory canons of

construction require, that “the legislature presumptively adopted the Minnesota Supreme

Court’s definition” from game-and-fish law. Fleming, 724 N.W.2d at 540; Minn. Stat.

§ 645.17(4) (2012) (stating that when the Minnesota Supreme Court has “construed the

language of a law, the legislature in subsequent laws on the same subject matter intends

the same construction to be placed upon such language”).        But neither Seifert nor


                                           6
Fleming expressly limits the definition of a firearm to those weapons that are “discharged

by means of an explosive, gas, or compressed air.” Seifert, 256 N.W.2d at 88; Fleming,

724 N.W.2d at 540-41. Accordingly, even assuming the Gamo is spring operated, we

conclude that the district court did not err when it instructed the jury that a “BB gun is a

firearm as a matter of law.”

                                             II

       Sybrandt next argues that even if he was prohibited from possessing the Gamo, it

could not constitute a firearm because it was disassembled. “[T]he felon-in-possession

statute may properly be applied to possession of an inoperable [gun].” State v. Knaeble,

652 N.W.2d 551, 552 (Minn. App. 2002), review denied (Minn. Jan. 21, 2003).

       In Knaeble, a felon possessed a shotgun that was “inoperable ‘in a traditional

sense’ because the hammer springs were broken.” Id. at 553. An expert testified that the

shotgun could be fired if the hammer were manually struck. Id. This court held, based

on previous Minnesota Supreme Court decisions considering the possession of inoperable

firearms in the context of dangerous and illegal firearms, that possession of an inoperable

firearm was sufficient to convict under the felon-in-possession statute. Id. at 554-55.

       Neither party cites precedential caselaw on whether the possession of a

disassembled—and not merely inoperable—firearm is prohibited by Minn. Stat.

§ 624.713, subd. 1. We are similarly unable to locate any dispositive authority. But the

plain language of the statute does not require the state to prove a firearm was operable at

the time of possession. See Minn. Stat. § 624.713, subd. 1. Moreover, contrary to

Sybrandt’s claims, he did not simply have a box of random gun parts. Sybrandt was


                                             7
actively repairing the Gamo when the officers knocked on the door and all the gun’s

major components were close by. The Gamo could easily have been assembled. We thus

conclude that the Gamo’s disassembled state at the time of discovery does not prohibit

Sybrandt’s felon-in-possession conviction.

                                             III

      Sybrandt finally argues that the Gamo was obtained during an unlawful search and

should therefore be suppressed. The United States and Minnesota Constitutions protect

against unreasonable searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Any

evidence acquired as the result of an unlawful search must be suppressed. Wong Sun v.

United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416 (1963); State v. Askerooth, 681

N.W.2d 353, 370 (Minn. 2004).          A warrantless search of a home is presumed

unreasonable unless there is an exception to the warrant requirement. Kyllo v. United

States, 533 U.S. 27, 37, 121 S. Ct. 2038, 2045 (2001); State v. Thompson, 578 N.W.2d

734, 740 (Minn. 1998).      Searches conducted with valid, voluntary consent are an

exception to the warrant requirement. State v. Othoudt, 482 N.W.2d 218, 222 (Minn.

1992). The state has the burden of proving consent. Id. “The question of whether

consent is voluntary is a question of fact, and is based on the totality of circumstances.”

Id. Here, the district court found the search constituted an exception to the warrant

requirement based on the consent of the homeowner’s 15-year-old daughter, E.K.

      This court reviews the district court’s finding of voluntary consent for clear error.

State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011).      We “view the evidence in the light

most favorable” to the outcome and will affirm the district court’s decision “if there is


                                             8
reasonable evidence in the record to support the court’s findings.” Rasmussen v. Two

Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013) (quotations omitted). We will

reverse only if we are left with the definite and firm conviction that a mistake occurred.

Diede, 795 N.W.2d at 845-47.

       A third party has actual authority to consent to a search if she possesses common

authority over the premises. State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003). A

common authority exists when there is “mutual use of the property by persons generally

having joint access or control for most purposes.” Id. (quoting United States v. Matlock,

415 U.S. 164, 171 n.7, 94 S. Ct. 988, 993 n.7 (1974)). A minor child possesses authority

to consent to a warrantless entry if the child resides on the premises and satisfies the

mutual use and joint access or control elements. Pesterfield v. Comm’r of Pub. Safety,

399 N.W.2d 605, 609-10 (Minn. App. 1987); State v. Lotton, 527 N.W.2d 840, 845

(Minn. App. 1995), review denied (Minn. Apr. 18, 1995).

       In Lotton, this court held that the district court erred by excluding evidence from a

search when a 10-year-old opened her home’s door and did not object to an officer

following her in. 527 N.W.2d at 843. The child was familiar with police because her

step-father was an officer and the officer who searched her residence was her D.A.R.E.

instructor and a family friend. Id. Even though the officer never requested permission to

enter, because the 10-year-old was intelligent and mature and her actions demonstrated

an intent for the officers to enter, this court held that the consent was valid. Id. at 844.

       In Pesterfield, a 17-year-old consented to an officer’s entrance into her home to

speak with her mother who was suspected of driving while intoxicated. 399 N.W.2d at


                                               9
607. Although the minor eventually gave her consent, she was reluctant to allow the

police entry and first called a neighbor to ask for advice. Id. at 609. The appellant

claimed that the officers used a show of force and that the minor’s consent was not

voluntary under the circumstances.      Id.   This court held that “[w]hile the subject’s

knowledge of her right to refuse is a factor, establishing such knowledge is not a

prerequisite to finding voluntary consent.” Id.

       Here, the officers informed E.K. why they wanted to search the home. E.K.

resided in the home and therefore had joint access and control to the common living area

where the Gamo was found. There is no indication that E.K.’s age affected her decision

making. Sybrandt argues that E.K.’s consent was not voluntary because the police told

E.K. to come outside where Sybrandt was in handcuffs, did not invite her to speak with

an adult, and did not inform her she could refuse consent. But the officers were not

required to allow E.K. to speak to an adult prior to consenting, nor were they required to

inform her of her right to refuse consent.     Based on the totality of the circumstances,

Sybrandt has not shown the district court clearly erred in finding that E.K. gave valid

consent. Because we conclude that consent provided a valid exception to the warrant

requirement, we need not address the state’s other arguments.

       Affirmed.




                                              10
