State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0196

State of Minnesota,
Respondent,

vs.

Eric Walter Braunig,
Appellant.

Filed February 3, 2020
Affirmed
Bratvold, Judge

Beltrami County District Court
File No. 04-CR-18-1943

Keith Ellison, Attorney General, St. Paul, Minnesota; and

David L. Hanson, Beltrami County Attorney, Michael V. Mahlen, Assistant County
Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, Andrew Nelson (certified student attorney), St. Paul, Minnesota (for appellant)

Considered and decided by Cleary , Chief Judge; Worke, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this direct appeal from the judgment of conviction for being a felon in possession
of a firearm, appellant argues that his conviction must be reversed for two reasons. First,
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appellant argues that his 2012 conviction for fifth-degree controlled-substance possession
cannot serve as the predicate “crime of violence” for his felon-in-possession conviction
based on changes adopted by the 2016 Drug Sentencing Reform Act (DSRA). Second,
appellant argues that the felon-in-possession statute violates equal protection as
applied to him because he is treated differently from similarly situated post-DSRA
controlled-substance offenders based on the date of his 2012 conviction offense. We
affirm.
FACTS
On June 9, 2018, Sergeant Petrie stopped a car in Be midji after observing that the
vehicle had no front license plate and was missing its front bumper. As Petrie approached
the car and its four occupants, he saw a passenger in the back seat making furtive
movements with both hands. He later identified the passenger as appellant Eric Walter
Braunig. Petrie questioned Braunig about his movements, and suspected that Braunig
may have a knife. Petrie asked Braunig to exit the car, patted him down, found a
methamphetamine pipe in his pocket, and placed him in the squad car. Police later searched
the stopped car and found an unloaded 12-gau ge shotgun with a shortened barrel in the
trunk. Petrie arrested Braunig. After a Miranda warning, Braunig admitted to handling the
shotgun, stating that he took the gun from a friend who owed him money.
On June 12, 2018, the state charged Braunig by complaint with one count of being
a felon in possession of a firearm under Minn. Stat. § 609.165, subd. 1b(a) (2016). The
complaint alleged that Braunig was a felon because he had a 2 012 felony conviction for
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fifth-degree controlled-substance possession (2012 felony conviction) under Minn. Stat.
§ 152.025, subd. 2(a)(1) (2010).
Braunig moved to dismiss, arguing the complaint lacked probable cause. Braunig
asserted that his 2012 felony conviction “would be a gross misdemeanor conviction under
the present version of Minn. Stat. § 152.025, ” and so would not render him ineligible to
possess a firearm. In a written order, the district court denied Braunig’s motion, reasoning
that “[t]he Drug Sentencing Reform Act had not been enacted at the time of [Braunig’s]
conviction of fifth-degree controlled substance possession in violation of Minn. Stat.
§ 152.025.” Relying on a Minnesota Supreme Court decision, the district court concluded
that the DSRA does not apply to Braunig because his case was final before any DSRA
amendments became effective. See State v. Kirby, 899 N.W.2d 485, 490 (Minn. 2017).
The district court concluded that Braunig’s “conviction remains a felony” because he was
not “entitled to resentencing under the [DSRA].”
The parties agreed to a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3.
A week later, the district court found Braunig guilty of being a felon in possession of a
firearm. The district court committed Braunig to the commissioner of corrections for 60
months. Braunig appeals.
D E C I S I O N
I. The district court did not err by convicting Braunig of being a felon in
possession of a firearm.

Braunig contends that the district court erred by determining that his 2012 felony
conviction was the “predicate offense” for his felon-in-possession conviction, making two
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arguments. First, he argues that his 2012 felony conviction was for an offense that became
a gross misdemeanor after the DSRA was enacted and that a predicate felony must be
“determined based on current statutory definitions.” Braunig contends that there is no
“predicate felony crime of violence” to support his felon-in-possession conviction. Second,
Braunig argues that the state is treating him “differently than other offenders based solely
on the date of his prior conviction [which] violates equal protection.” We discuss Braunig’s
arguments in turn.
Statutory interpretation is a matter of law that this court reviews de novo. State v.
Tomlin, 622 N.W.2d 546, 548 (Minn. 2001). This court also reviews constitutional issues
de novo. State v. Frazier, 649 N.W.2d 828, 832 (Minn. 2002).
A. Braunig’s 2012 felony conviction is a “crime of violence” under the
felon-in-possession statute.

The felon-in-possession statute provides that “[a]ny 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 or ammunition, commits a felony.” Minn. Stat.
§ 609.165, subd. 1b(a) . A “crime of violence” means felony convictions for several
offenses, including fifth-degree controlled-substance possession. Minn. Stat. § 624.712,
subd. 5 (2016).
In 2016, the legislature adopted the DSRA, which generally “amended criminal
drug-possession statutes and specific corresponding portions of the drug-offender
sentencing grid.” Kirby, 899 N.W.2d at 491 . Relevant here, the DSRA amended the
fifth-degree controlled-substance-possession statute, lowering the severity of the offense
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to a gross misdemeanor under certain circumstances. Compare Minn. Stat. § 152.025,
subd. 2 (2014), with 2016 Minn. Laws ch. 160, § 7, at 583 (codified at Minn. Stat.
§ 152.025, subds. 2, 4 (2016)). The DSRA provides that fifth-degree controlled-substance
possession is a gross misdemeanor when a person with no previous controlled-substance
convictions possesses less than “0.25 grams or one dosage unit” of a non-heroin controlled
substance. Minn. Stat. § 152.025, subds. 2, 4. And the DSRA provides that fifth-degree
controlled-substance possession is a felony when a person possesses amounts equal to
or greater than 0.25 grams or one dosage unit. See id. The DSRA also amended the
presumptive sentence s for controlled-substance convictions under the Minnesota
Sentencing Guidelines. 2016 Minn. Laws ch. 160, § 18, at 591.
In State v. Otto, the supreme court held that the DSRA amendments to weight
thresholds only apply to controlled-substance offenses committed “on or after” the
effective date of the amendments —August 1, 2016. 899 N.W.2d 501, 503 (Minn. 2017)
(citing 2016 Minn. Laws ch. 160, §§ 3-4, at 577-81). In State v. Kirby, the supreme court
held that the DSRA amendments to the presumptive sentences for controlled-substance
convictions applied to “defendants with non-final convictions” as of the DSRA’s effective
date. 899 N.W.2d at 490, 496; see also 2016 Minn. Laws, ch. 160, § 18, at 591; Minn. Sent.
Guidelines 4.C (2016).
Recognizing Kirby and Otto, Braunig concedes “that the DSRA is not retroactive”
and that he does not qualify for resentencing or modification of his 2012 felony conviction,
which received final judgment well before the DSRA became effective. Braunig instead
contends that the predicate offense supporting a felon-in-possession conviction must be a
6
“crime of violence” at the time of the felon-in-possession offense. Braunig asserts that this
is a question of first impression for Minnesota courts.
Braunig’s argument fails for two reasons. First, Braunig assumes that his 2012
felony conviction involved possession of a controlled substance that was within the
DSRA’s weight threshold for a gross misdemeanor—under 0.25 grams or one dosage unit
of a non-heroin controlled substance. But nothing in the record supports this assumption. 1
Braunig claims that the state conceded during his sentencing hearing that his 2012 felony
conviction “would be a gross misdemeanor if charged today because the legislature
determined the conduct of first-time possession of a trace amount is no longer a felony.”
(Emphasis added).
But the state did not concede that Braunig’s 2012 felony conviction involved a
“trace amount” of a controlled substance . During Braunig’s 2018 sentencing hearing, the
prosecutor stated, for criminal-history-score purposes, that it had “no grounds to object” to
Braunig’s assertion that his 2012 felony conviction would be a gross misdemeanor if
committed in 2018. Criminal-history scores are based on “current Minnesota offense
definitions.” Minn. Sent. Guidelines 2.B.7.a (2018). And the “state has the burden of proof
in establishing a defendant’s criminal history [score] for Sentencing Guidelines purposes.”
State v. Edmison, 379 N.W.2d 85, 87 n.1 (Minn. 1985). Because the state could not prove

1 Braunig’s warrant of commitment for fifth-degree controlled-substance possession
does not state the amount he possessed. The warrant of commitment cites Minn. Stat.
§ 152.025, subd. 2(a)(1) and includes the description “Drugs —5th Degree— Possess
Schedule 1,2,3,4—Not Small Amount Marijuana.” Braunig offered no other evidence
regarding his 2012 felony conviction.
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at Braunig’s 2018 sentencing hearing that his 2012 conviction involved an amount equal
to or greater than 0.25 grams or one dosage unit, the state conceded Braunig’s position on
his criminal-history score. Still, there is no record evidence that the amount of drugs
Braunig possessed for his 2012 conviction was less than 0.25 grams or one dosage unit. As
the appellant, it is Braunig’s burden to provide an adequate record on appeal. State v.
Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986). Braunig has failed to meet this
burden.
Second, even assuming that Braunig’s 2012 felony conviction would be a gross
misdemeanor if committed in 2018, Minnesota caselaw does not support Braunig’s claim
that “prior conviction classifications” that are used “as a predicate felony . . . should be
determined based on current statutory definitions.” Braunig relies on two primary cases,
which we consider in turn.
In State v. Moon, the district court convicted appellant of felony theft and stayed his
sentence for five years. 463 N.W.2d 517, 518-19 (Minn. 1990). The district court
discharged appellant from probation two years later, “deemed Moon’s offense to be for a
misdemeanor” under Minn. Stat. § 609.13 (1990), and included a firearms restriction
because Moon had been convicted of a “crime of violence.” Id. at 519. Appellant moved
to strike the firearms restriction, but the district court denied the motion. Id. at 517. We
reversed because misdemeanor theft was not a “crime of violence” under the relevant
statute. Id. at 518. The supreme court reversed, holding that “the definitions of the offenses
listed as crimes of violence in section 624.712, subdivision 5, relate to the elements of the
8
offense for which the defendant was originally convicted rather than the disposition
subsequently imposed by the trial judge.” Id. at 521.
Moon held only that the reduction of a felony to a misdemeanor under Minn. Stat.
§ 609.13 did not alter the elements of the conviction offense, which in Moon’s case
satisfied the def inition of a “crime of violence” and supported the firearms restriction.
See id. Moon does not support Braunig’s argument because the district court did not deem
Braunig’s 2012 felony conviction to be a gross misdemeanor under Minn. Stat. § 609.13.
And Braunig’s argument is based on a change in the law, which is an issue that Moon did
not address.
In State v. Strobel, appellant argued that the district court miscalculated his
criminal-history score because it failed to apply the current, post-DSRA classification of
his prior offense in determining the score. 932 N.W.2d 303, 306 (Minn. 2019). We agreed
with appellant and reversed. Id. The supreme court affirmed, holding that when calculating
a criminal-history score, the sentencing guidelines provide that “classification of a prior
offense as a petty misdemeanor, misdemeanor, gross misdemeanor, or felony is determined
by current Minnesota offense definitions . . . and sentencing policies.” Id. at 307 (quoting
Minn. Sent. Guidelines 2.B.7.a (emphasis added)).
Unlike the appellant in Strobel, Braunig is not challen ging his criminal-history
score. Also, Strobel’s holding turned on the “plain language” of the sentencing guidelines,
which are not at issue here. Thus, we conclude that Strobel does not support Braunig’s
position that courts should apply “current statutory definitions” to a prior offense that is
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later used as a predicate offense for another crime. 2 See id. at 309-10 (holding “offense
definitions” for calculating criminal-history scores under the sentencing guidelines refers
to “element-based definitions of crimes”).
Because Minnesota caselaw is clear that the DSRA’s weight-threshold amendments
under section 152.025 apply to offenses committed “on or after” August 1, 2016, and no
caselaw supports Braunig’s claim that a predicate felony is determined by current statutory
definitions, we conclude that the district court did not err. When Braunig committed his
2012 conviction offense, it was a felony. Thus, Braunig’s 2012 felony conviction is a
predicate “crime of violence” for his felon-in-possession conviction.
B. Braunig is not “similarly situated” with post-DSRA defendants.
Braunig argues that he is similarly situated with persons convicted of fifth-degree
controlled-substance-possession crimes after the DSRA was enacted . Relying on this
premise, Braunig argues that because a person convicted today of fi fth-degree
controlled-substance possession would not have committed a predicate “crime of violence
offense,” his 2018 conviction for being a fel on in possession “treats similarly situated
persons differently” under the Equal Protection Clause.

2 Braunig also cites State v. Scovel , which held that, when calculating a defendant’s
criminal-history score under the sentencing guidelines, courts must apply the “Minnesota
offense definitions and sentencing policies in effect when the defendant committed the
current crime.” 916 N.W.2d 550, 559 (Minn. 2018) (citing Minn. Sent. Guidelines 2.B.7.a
(2015)). Scovel based its holding on the meaning of “current” under the guidelines, which
it determined was ambiguous, and resolved this ambiguity by relying on legislative history.
Id. at 556-57. Scovel does not apply here because the sentencing guidelines are not at issue.
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At the outset, we observe that Braunig raises an equal-protection argument for the
first time on appeal, and the district court did not address the issue. We generally will not
consider matters not argued to and considered by the district court. See Roby v. State ,
547 N.W.2d 354, 357 (Minn. 1996).3 But appellate courts can “deviate from this rule when
the interests of justice require consideration of such issues and doing so would not unfairly
surprise a party to the appeal.” Id.; see also State v. Benniefield, 678 N.W.2d 42, 45 (Minn.
2004) (considering equal-protection claim “in the interests of justice”); Minn. R. Crim. P.
28.02, subd. 11. Because the state fully briefed Braunig’s equal-protection argument and
had “no objection” at oral argument to this court deciding the issue, we proceed to address
the merits. See Roby, 547 N.W.2d at 357.
The state and federal constitutions guarantee equal protection of the laws to all
persons within their respective jurisdictions. U.S. Const. amend. XIV, § 1; Minn. Const.
art. I, § 2. “ The equal protection clause guarantees that similarly situated individuals
receive equal treatment.” Frazier, 649 N.W.2d at 837. “A statute violates the equal
protection clause when it prescribes different punishments or different degrees of
punishment for the same conduct committed under the same circumstances by persons
similarly situated.” Id. (emphasis added). The threshold question in an equal-protection

3 We understand Braunig to be making an as-applied challenge to the felon-in-possession
statute, because he does not ask this court to strike down the statute . We also note that the
state is a party to this case. Therefore, no notice to the attorney general was required. See
Minn. R. Civ. App. P. 144 (requiring notice to the Minnesota Attorney General in appellate
proceedings where neither the state nor any of its agencies, officers, or employees is a party
in an official capacity”); see also Welsh v. Johnson, 508 N.W.2d 212, 215 n.1 (Minn. App.
1993) (notice to the attorney general not required for as-applied constitutional challenges).
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claim is determining whether two groups are similarly situated “in all relevant respects.”
State v. Holloway, 916 N.W.2d 338, 347 (Minn. 2018).
Braunig’s equal-protection claim fails for three reasons. First, the
felon-in-possession statute does not d ivide “the universe of defendants into two
classes.” Id. The statute applies to “[a]ny 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 or ammunition, commits a felony.” Minn. Stat. § 609.165, subd. 1b(a)
(emphasis added). The fact that, after the DSRA was enacted, some offenses ceased to be
a “crime of violence” did not create two “classes” under the felon-in-possession statute.
The “universe of defendants” is still one: individuals who have “been convicted of a crime
of violence” and who possessed a firearm.
Second, even assuming that the felon-in-possession statute creates two classes of
defendants—pre-DSRA defendants and post-DSRA defendants—they are not “alike in all
relevant respects.” See State v. Cox, 798 N.W.2d 517, 522 (Minn. 2011). Braunig’s “class”
committed controlled-substance offenses before the DSRA became effective, and the other
class committed controlled-substance offenses after the DSRA became effective. Compare
Minn. Stat. § 152.025, subd. 2(a)(1) (2010), with Minn. Stat. § 152.025, subd. 2(1) (2016).
The two classes are not “similarly situated” because the defendants in each respective class
violated different laws at different times—thus, their conduct was not “committed under
the same circumstances.” See generally Frazier, 649 N.W.2d at 837; see also Otto,
899 N.W.2d at 503 (holding that the DSRA’s weight-threshold amendments for
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controlled-substance offenses only apply to crimes committed on or after the effective date
of the amendments).
Third, even assuming that the felon-in-possession statute creates two classes that
are similar in all relevant respects, Braunig cannot show that he is part of the differently
treated class. This is because, for reasons already noted, he cannot show that his 2012
felony conviction involved controlled substances within the weight threshold for a gross
misdemeanor under the DSRA.
Because we conclude that Braunig has not demonstrated that he is treated differently
from persons who are similarly situated, we do not reach Braunig’s arguments regarding
what level of constitutional scrutiny applies to his equal-protection challenge. See
Holloway, 916 N.W.2d at 347.
Affirmed.