                          This opinion will be unpublished and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
                                     A15-1635

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Robert Jamal Poole,
                                       Appellant.

                                  Filed August 22, 2016
                                        Affirmed
                                      Hooten, Judge

                              Hennepin County District Court
                                File No. 27-CR-14-25867

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Jesson, Presiding Judge; Schellhas, Judge; and Hooten,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

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

person, arguing that (1) the district court erred by denying his motion to suppress evidence
found after a search of his person; (2) his conviction must be reversed because a BB gun is

not a firearm within the meaning of Minn. Stat. § 624.713 (2014); (3) the district court

committed reversible error by allowing police officers to testify that a BB gun is a firearm;

and (4) the district court committed reversible error in instructing the jury. We affirm.

                                          FACTS

       On August 31, 2014, a concerned citizen called 911 and reported that two black

males were passing a gun back and forth near a transit hub. The caller stated that one of

the males was wearing a red shirt and tan shorts and the other male was wearing a black

shirt. This information was broadcast by the dispatcher to officers of the Brooklyn Center

Police Department.

       Five officers responded to the scene. Upon spotting two males matching the

description provided by dispatch, the officers approached them with their weapons drawn.

The officers ordered both males, one of whom was later identified as appellant Robert

Jamal Poole, to lie on the ground, whereupon they were both handcuffed. As he was being

frisked for weapons, Poole stated that he had a BB gun in his waistband. After the black

BB gun was retrieved by an officer, Poole was placed in the back seat of a squad car, read

his Miranda rights, and interviewed. After running a background check on Poole, the

officers discovered that Poole was prohibited from possessing firearms and placed him

under arrest.

       Poole was charged with being a prohibited person in possession of a firearm in

violation of Minn. Stat. § 624.713, subd. 1(2). He moved to suppress all evidence on the

grounds that it was obtained as the result of an unlawful seizure. The district court denied


                                             2
the motion, and the matter was tried to a jury. The jury found Poole guilty of the offense,

and he was sentenced to 48 months in prison. This appeal followed.

                                      DECISION

                                              I.

       Poole argues that the district court erred by denying his motion to suppress all

evidence on the grounds that it was obtained as the result of an unlawful seizure.1 “When

reviewing a district court’s pretrial order on a motion to suppress evidence, we review the

district court’s factual findings under a clearly erroneous standard and the district court’s

legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008)

(quotation omitted).

       The Fourth Amendment of the United States Constitution and article 1, section 10,

of the Minnesota Constitution guarantee individuals the right to be free from unreasonable

searches and seizures. A police officer seizes a citizen when the officer restrains a citizen’s

liberty by means of physical force or show of authority. State v. Klamar, 823 N.W.2d 687,

692 (Minn. App. 2012). “Under the Minnesota Constitution, a person has been seized if in

view of all the circumstances surrounding the incident, a reasonable person would have

believed that he or she was neither free to disregard the police questions nor free to

terminate the encounter.” Id. (quotation omitted).




1
  While Poole argued at the district court level that the police’s seizure of him constituted
a de facto arrest, requiring probable cause, rather than a brief investigatory seizure, he does
not raise this argument on appeal. Therefore, we limit our analysis to whether the police
had reasonable suspicion to conduct a brief investigatory detention.

                                              3
       “[W]arrantless, investigatory seizures that are limited in scope, duration, and

purpose are reasonable if supported by circumstances that create an objectively reasonable

suspicion of criminal activity.” State v. Theng Yang, 814 N.W.2d 716, 718 (Minn. App.

2012). The reasonable suspicion standard is “not high.” State v. Bourke, 718 N.W.2d 922,

927 (Minn. 2006) (quotation omitted). In order to seize an individual, “[p]olice must be

able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal

activity.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotations omitted).

       The reasonable suspicion standard may be met based on information provided by a

reliable informant. Id. “But information given by an informant must bear indicia of

reliability that make the alleged criminal conduct sufficiently likely to justify an

investigatory stop by police.” Id. at 393–94. Tips from private citizens are presumed to

be reliable, especially “when informants give information about their identity so that the

police can locate them if necessary.” Id. at 394 (quotation omitted).

       We conclude that there was a reasonable, articulable suspicion of criminal activity

based on the information provided in the tip. The caller, who provided his or her name and

phone number, reported that two black males were passing a gun back and forth near a

transit hub and described their clothing. Upon arriving at the transit hub, officers spotted

two males matching the description of the suspects. Although possession of a handgun is

not illegal, the fact that the officers had received information that two males were passing

a handgun back and forth near a public transit hub gave the officers reasonable suspicion




                                             4
that they were engaging in criminal conduct by recklessly handling a firearm so as to

endanger the safety of another, a crime under Minn. Stat. § 609.66, subd. 1(a)(1) (2014).2

       “Once a person is permissibly stopped, an officer may frisk that person for weapons

if the officer is justified in believing that the suspect is armed and dangerous.” State v.

Munson, 594 N.W.2d 128, 137 (Minn. 1999). Based on their reasonable suspicion that

Poole was engaged in criminal activity and their justified belief that he may have been

armed, the officers properly frisked Poole and discovered a BB gun.

       The officers needed probable cause to believe Poole had committed a crime for

which arrest is permitted before they could arrest him. State v. Ortega, 770 N.W.2d 145,

150 (Minn. 2009) (“The crime for which probable cause exists must be one for which a

custodial arrest is authorized.”). An officer may arrest an individual without a warrant

when a public offense, including a gross misdemeanor, has been committed or attempted

in the officer’s presence. Minn. Stat. § 629.34, subd. 1(c)(1) (2014); see Minn. R. Crim.

P. 6.01, subd. 2 (providing for permissive issuance of citations, rather than arrest, in gross

misdemeanor and felony cases). Probable cause to arrest “exists where the facts would

lead a person of ordinary care and prudence to hold an honest and strong suspicion that the




2
 The state does not argue on appeal, and did not argue to the district court, that the officers
had a reasonable suspicion of any crime other than possessing a weapon in public without
a permit in violation of Minn. Stat. § 624.714, subd. 1a (2014). However, “[a] reviewing
court may uphold a [seizure] as valid on other grounds, even if not properly asserted by the
parties.” See State v. Bauman, 586 N.W.2d 416, 422 (Minn. App. 1998), review denied
(Minn. Jan. 27, 1999); see also State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn.
1990).

                                              5
person under consideration is guilty of a crime.” State v. Trei, 624 N.W.2d 595, 597 (Minn.

App. 2001), review dismissed (Minn. June 22, 2001).

       Following their valid frisk, the officers had probable cause to arrest Poole based on

their discovery that he was carrying a BB gun in public. Minnesota law provides that

“[w]hoever carries a BB gun . . . on or about the person in a public place is guilty of a gross

misdemeanor.” Minn. Stat. § 624.7181, subd. 2 (2014). The definition of “carry” under

Minn. Stat. § 624.7181, subd. 1(b)(1) (2014), does not include carrying a BB gun “to, from,

or at a place where firearms are repaired, bought, sold, traded, or displayed, or where

hunting, target shooting, or other lawful activity involving firearms occurs, or at funerals,

parades, or other lawful ceremonies.” It is undisputed that Poole was not at any of the

locations that would exempt him from liability under Minn. Stat. § 624.7181 (2014) at the

time he was seized by police, and there is no evidence in the record that Poole was traveling

to or from any of those locations. Poole points out, however, that at the time they seized

him, police did not have information suggesting that he was not carrying the BB gun to or

from a place where possession of a BB gun would have been lawful. The question then

becomes whether an officer has probable cause to arrest an individual for carrying a BB

gun in a public place without knowing whether one of the exceptions to the definition of

“carry” under Minn. Stat. § 624.7181 applies.

       The Minnesota Supreme Court’s decision in Timberlake is informative. Timberlake

reaffirmed the supreme court’s earlier decision in State v. Paige, 256 N.W.2d 298 (Minn.

1977), that the “without a permit” language in Minn. Stat. § 624.714 (2006), which

prohibits carrying weapons in public without a permit, does not add another element to the


                                              6
crime, but rather creates an exception that requires the defendant to present evidence of a

permit in order to avoid criminal liability. Timberlake, 744 N.W.2d at 394–96.

       In deciding that the phrase “without a permit” in Minn. Stat. § 624.714 did not add

an element to the crime, but only created an exception to the general prohibition against

possessing a pistol, the supreme court in Paige reasoned that a defendant had the immediate

opportunity to present his permit to avoid prosecution and the statute was intended to

prevent possession of firearms in places where they are most likely to cause harm in the

wrong hands. 256 N.W.2d at 303. The same considerations are at play under Minn. Stat.

§ 624.7181, which is also aimed at preventing harm caused by possession of certain

firearms, namely BB guns, rifles, or shotguns, in public.

       Furthermore, like Minn. Stat. § 624.714, which generally prohibits the carrying of

a pistol unless the individual possesses a permit, Minn. Stat. § 624.7181 generally prohibits

the carrying of a BB gun in public unless the BB gun is being carried to, from, or at certain

specified locations. But, unlike Minn. Stat. § 624.714, which includes the “without a

permit” language in describing the offense, Minn. Stat. § 624.7181, subd. 2, provides

simply that “[w]hoever carries a BB gun . . . on or about the person in a public place is

guilty of a gross misdemeanor” and lists exclusions from the definition “carry” in a separate

provision, providing a stronger case than was present in Timberlake for concluding that the

exclusions are merely exceptions to criminal liability. Under these circumstances, we

conclude that the language in Minn. Stat. § 624.7181 delineating where carrying a BB gun

in public is not a crime is clearly an exception to the general prohibition against carrying a

BB gun in a public place, rather than an element of the crime.


                                              7
       To establish probable cause to arrest, “the police must show that they reasonably

could have believed that a crime has been committed by the person to be arrested.” State

v. Riley, 568 N.W.2d 518, 523 (Minn. 1997) (quotation omitted). Because Poole possessed

the BB gun in public in the presence of the officers, the officers had reason to believe that

Poole had committed a crime and therefore lawfully arrested him, even though they were

not aware whether Poole’s conduct would fall within one of the exceptions of section

624.7181. Because the police had reasonable suspicion to seize Poole and probable cause

to arrest him for a violation of Minn. Stat. § 624.7181, the district court did not err by

denying Poole’s motion to suppress.

                                             II.

       Poole argues that his conviction must be reversed because a BB gun is not a firearm

within the meaning of Minn. Stat. § 624.713. In State v. Fleming, 724 N.W.2d 537, 541

(Minn. App. 2006), this court held that the definition of “firearm” in Minn. Stat. § 624.713,

subd. 1, includes a BB gun. The Fleming court drew upon the Minnesota Supreme Court’s

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

that a BB gun was a “firearm” within the definition of “dangerous weapon” under Minn.

Stat. § 609.02, subd. 6 (1974). Fleming, 724 N.W.2d at 539–40. Poole argues that Fleming

was wrongly decided and should not be used to decide this case. But, because we have

controlling caselaw holding that a BB gun is a firearm within the meaning of Minn. Stat.

§ 624.713, we reject this argument.3


3
  This court recently reaffirmed Fleming in State v. Haywood, 869 N.W.2d 902 (2015),
review granted (Minn. Dec. 15, 2015). This court held in Haywood that “[a] BB gun is a

                                             8
                                             III.

       Poole contends that the district court erred by allowing two police officers to testify

that a BB gun is a firearm under Minnesota law. When asked if a BB gun is a firearm

under Minnesota law, one police officer testified, over Poole’s objection, that a CO2

firearm, such as the BB gun found in Poole’s possession, is considered a firearm under

Minnesota law. Another police officer also testified that a BB gun is a firearm under

Minnesota law.

       However, any error in admitting the testimony was harmless. “On appeal, the

appellant has the burden of establishing that the [district] court abused its discretion and

that appellant was thereby prejudiced.” State v. Fichtner, 867 N.W.2d 242, 250 (Minn.

App. 2015) (quotation omitted), review denied (Minn. Sept. 29, 2015). Evidentiary errors

in admitting testimony “warrant a new trial only when the error substantially influences

the jury’s decision.” State v. Valtierra, 718 N.W.2d 425, 435 (Minn. 2006) (quotations

omitted). As discussed above, Minnesota law unambiguously provides that a BB gun is a

firearm within the meaning of Minn. Stat. § 624.713. See Fleming, 724 N.W.2d at 541.

And, as discussed in the next section, the district court properly instructed the jury that a

BB gun is a firearm under Minnesota law. As the officers’ testimony merely duplicated


firearm within the meaning of prohibited possession of a firearm under Minn. Stat.
§ 609.165, subd. 1b(a) (2012).” Id. at 904. This court relied heavily on Fleming in making
its decision, noting that the possession offense in Fleming, which is the same offense as in
the present case, was substantively identical to the possession offense that Haywood was
charged with. Id. at 907. Although it is possible that the Minnesota Supreme Court’s
pending decision in Haywood may alter the law regarding whether a BB gun is a firearm
within the meaning of Minn. Stat. § 624.713, we are bound by this court’s decision in
Fleming unless and until the Minnesota Supreme Court overrules that decision.

                                              9
the district court’s proper jury instruction, Poole cannot demonstrate any prejudice from

the officers’ testimony.

                                             IV.

       Poole argues that the district court committed reversible error in instructing the jury,

arguing that the district court impermissibly directed a verdict on an essential element of

the charged offense by instructing the jury that a BB gun is a firearm and erred by

instructing the jury that knowledge that a BB gun is a firearm is not an element of the

offense.

       District courts have considerable latitude in selecting the language of jury

instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011). We review a district

court’s jury instructions for an abuse of discretion. See State v. Carridine, 812 N.W.2d

130, 142 (Minn. 2012). “Jury instructions are viewed as a whole to determine whether

they fairly and adequately explain the law.” State v. Moore, 699 N.W.2d 733, 736 (Minn.

2005). A jury instruction that materially misstates the law is erroneous. Id.

       As discussed above, this court held in Fleming that the operative definition of

“firearm” for the purposes of Minn. Stat. § 624.713, subd. 1, includes a BB gun. 724

N.W.2d at 541. Despite this court’s holding in Fleming, Poole argues that it was error for

the district court to instruct the jury that a BB gun is a firearm because doing so effectively

directed a verdict on an element of the charged offense. Poole cites the Minnesota Supreme

Court’s decision in Moore in support of his argument. In Moore, the defendant was

charged with first-degree assault for an incident that resulted in the loss of the victim’s




                                              10
tooth. 699 N.W.2d at 735–36. At trial, the district court instructed the jury, over Moore’s

objection, that the loss of a tooth constituted great bodily harm. Id. at 736.

       The supreme court reversed, stating that whether an injury constitutes great bodily

harm is a question for the jury. Id. at 737–38. The supreme court noted that this court held

in State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn. App. 1984), review denied (Minn.

Feb. 6, 1985), that there was a sufficient factual basis for a plea to first-degree assault where

a defendant admitted that the victim had lost a tooth when he had assaulted her. Id. at 737.

The supreme court stated, however, that “there is a distinction between determining

whether the evidence was sufficient to support a plea or conviction, as Bridgeforth

concluded, and instructing the jury as a matter of law that an element of the offense has

been established.” Id. The supreme court stated that because the jury instruction removed

from the jury’s consideration the question of whether the loss of a tooth constituted great

bodily harm, the district court’s instructions “violat[ed] the requirement that criminal

convictions must rest upon a jury determination that the defendant is guilty of every

element of the crime with which he is charged, beyond a reasonable doubt.” Id. (quotation

omitted).

         While Bridgeforth did not hold that the loss of a tooth constitutes great bodily

harm as a matter of law, this court has held that “the operative definition of ‘firearm’

includes a BB gun” under Minn. Stat. § 624.713, subd. 1. Fleming, 724 N.W.2d at 541.

Unlike our holding in Bridgeforth, our holding in Fleming was not merely that evidence of

a defendant’s possession of a BB gun was sufficient to satisfy the “firearm” element of the

offense; rather, we determined that a BB gun is a firearm as a matter of law under Minn.


                                               11
Stat. § 624.713. The district court “must instruct the jury on all matters of law necessary

to render a verdict.” Minn. R. Crim. P. 26.03, subd. 19(6). Here, the district court

instructed the jury that “[a] BB gun is a firearm if it discharges a shot or projectile by

me[a]ns of explosive gas or compressed air.” The instruction was an accurate description

of the law. See Fleming, 724 N.W.2d at 540–41. Accordingly, the district court did not

erroneously direct a verdict on an element of the offense.

       Next, Poole argues that the district court misstated the law by instructing the jury

that “knowledge that a BB gun is a firearm is not an element of the crime.” The district

court instructed the jury that the first element of possession of a firearm is that “the

defendant knowingly possessed a firearm.” Poole concedes that there was sufficient

evidence that he knowingly possessed the BB gun, but argues that Minn. Stat. § 624.713

requires that the state prove that he knew that a BB gun was a firearm under the law.

       Minn. Stat. § 624.713 does not have an express mens rea or knowledge requirement.

Rather, the statute provides that “a person who has been convicted of, or adjudicated

delinquent or convicted as an extended jurisdiction juvenile for committing, in this state or

elsewhere, a crime of violence” is not eligible to possess a firearm. Minn. Stat. § 624.713,

subd. 1(2). The Minnesota Supreme Court has said that, in order to obtain a conviction

under Minn. Stat. § 624.713, the state must prove that an ineligible person possessed a

firearm with “knowledge of the prohibited item.” State v. Salyers, 858 N.W.2d 156, 161

(Minn. 2015).

       But, the state need not prove that the defendant had an accurate understanding of

the law, including the definition of “firearm” under Minnesota law. Poole points out that,


                                             12
with regard to possession of controlled substance crimes, “the state must prove that

defendant consciously possessed, either physically or constructively, the substance and that

defendant had actual knowledge of the nature of the substance.” State v. Florine, 303

Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (emphasis added). While the reasoning of

Florine has been applied to cases involving section 624.713, these cases have used Florine

to imply a mental state regarding a defendant’s knowing possession of a firearm, not a

defendant’s knowledge of the fact that the possessed object is a firearm under Minnesota

law. See State v. Olson, 326 N.W.2d 661, 662–63 (Minn. 1982) (citing Florine and noting

that Olson “consciously exercised” control over a firearm, in violation of Minn. Stat.

§ 624.713); State v. Willis, 320 N.W.2d 726, 728–29 (Minn. 1982) (same).

       Moreover, Poole’s knowledge that a BB gun is a firearm under Minnesota law is

distinguishable from knowledge of the nature of a controlled substance because Poole is

not arguing that he did not know that the BB gun was a BB gun, but that he was unaware

that a BB gun constituted a firearm under Minnesota law. See State v. King, 257 N.W.2d

693, 697 (Minn. 1977) (stating that “ignorance of the law is no excuse”); cf. Minn. Stat.

§ 609.02, subd. 9(5) (2014) (“Criminal intent does not require proof of knowledge of the

existence or constitutionality of the statute under which the actor is prosecuted or the scope

or meaning of the terms used in that statute.”). The district court did not err in




                                             13
instructing the jury that Poole’s knowledge that a BB gun is a firearm is not an element of

the crime.

       Affirmed.




                                            14
