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This opinion will be unpublished and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
A19-1871

State of Minnesota,
Respondent,

vs.

Lavelle Darnell Owens,
Appellant.

Filed September 8, 2020
Affirmed in part, reversed in part, and remanded
Bryan, Judge

Blue Earth County District Court
File No. 07-CR-17-2727

Keith Ellison, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan , Presiding Judge; Johnson, Judge; and Reilly ,
Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
After a trial by stipulated evidence, appellant challenges the district court’s denial
of his motions to suppress the results of a search warrant and the district court’s decision

2
to convict and sentence him for both possession of a revolver and possession of shotgun
shells. We affirm the district court’s decisions to deny the suppression motions. The
district court had a substantial basis to conclude that probable cause existed and the district
court did not clearly err in concluding that the warrant did not contain misrepresentations.
In addition, we affirm the separate convictions for the two possession offenses, but we
reverse appellant’s two sentences and remand for the district court to vacate one of the two
sentences.
FACTS
On July 20, 2017, law enforcement officers working as part of the Minnesota River
Valley Drug Task Force (MRVDTF) attempted a controlled purchase of a handgun using
a confidential reliable informant (the informant). After the transaction, Commander Jeffrey
Wersal applied for, obtained, and executed a warrant to search the residence of appellant
Lavelle Darnell Owens. Among the items seized from Owens’s residence, officers
recovered a loaded Smith & Wesson .38 c aliber revolver from the bedroom and four 12 -
gauge shotgun shells from the kitchen. 1 Respondent State of Minnesota charged Owens
with the following three crimes: (1) being an ineligible person in possession of a firearm
in violation of Minnesota Statutes, section 624.713, subdivision 1(2) (2016); (2) being an
ineligible person in possession of ammunition, also in violation of se ction 624.713,
subdivision 1(2); and (3) being an ineligible person in possession of ammunition in
violation of Minnesota Statues, section 609.165, subdivision lb(a) (2016).

1 Officers also recovered a Sig Sauer handgun magazine in the kitchen, but the appeal does
not concern the magazine.

3
A. Challenges to the Search Warrant
Owens contested the basis and validity of the search warrant. First, he made a
motion to suppress the results of the search warrant, arguing that the supporting affidavit
lacked probable cause. Second, he questioned the validity of the search warrant, arguing
that the affidavit contained material misrepresentations of fact.
The application for the search warrant of Owens’s residence on Broad Street listed
the following four items that the affiant (Wersal) believed would be located inside the
residence: firearms, ammunition, prerecorded MRVDTF funds, and Owens himself, from
whose body Wersal hoped to obtain a DNA sample. According to Wersal’s affidavit, the
following facts justified a search of Owens’s residence on Broad Street. In July 2017, an
informant told law enforcement officers that he could help them purchase a handgun from
B.R. Specifically, “[the informant] advised that [B.R.] would be getting the handgun from
a [B]lack male who [the informant] believed to live on Broad Street.” Law enforcement
officers had the informant contact B.R., who agreed to sell the informant a gun for $300.
Law enforcement officers provided the informant with $300 in pre recorded funds. At the
agreed-upon location and at the agreed-upon time, B.R. met with the informant, took $200
as an initial payment, and left to get the gun. Law enforcement officers followed B.R.
directly to Owens’s residence on Broad Street, where B.R. met with Owens. Tog ether,
they went for a walk before getting into B.R.’s vehicle and driving to Neubert Lane, in
LeHillier, Minnesota. Law enforcement officers conducting surveillance on B.R. and
Owens lost sight of them for approximately five minutes at this point. After this five-
minute period, law enforcement officers followed B.R. and Owens as they travelled back

4
to Owens’s residence, where Owens exited the vehicle. B.R. then contacted the informant
and arranged to meet for the exchange. At the agreed -upon location, B.R. gave the
informant a shoebox containing 13 live rounds of .38 caliber ammunition and a Daisy BB
gun. The informant gave B.R. the remaining $100. Based on these facts in Wersal’s
affidavit, the district court signed the requested search warrant for Owens’s residence.
In his motion to suppress the results of the search warrant, Owens argued that
because of the gap in surveillance and because B.R. and Owens drove to LeHillier,
Wersal’s affidavit did not establish probable cause to believe that evidence of a crime
would be found in Owens’s residence. After hearing arguments, the district court denied
the motion. The district court concluded that despite the five -minute period when the
surveillance officers lost sight of Owens and B.R., and despite the i ntervening drive from
Owens’s residence to Neubert Lane, the facts in Wersals’ affidavit established a sufficient
nexus between the transaction with the informant and Owens’s residence to believe that
evidence of a crime would be found in Owens’s residence.
Owens subsequently requested a Franks hearing, arguing that the warrant was
invalid because Wersal’s affidavit contained intentional or reckless misrepresentations of
fact. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978) (requiring
suppression of “ the fruits of the search” when police “knowingly or recklessly disregard
the truth” in procuring a search warrant ). To support his motion, Owens submitted an
affidavit from B.R. contesting the informant’s representations, as attribute d to the
informant by Wersal in the affidavit. The district court conducted an evidentiary hearing
on the motion, admitting testimony from both B.R. and Wersal.

5
B.R. denied telling the informant that the gun would come from a B lack male who
lived on Broad Street, denied driving directly to Owens’s residence after the first meeting
with the informant, denied going for a walk with Owens, denied driving with Owens to
LeHillier, and denied ever getting in the car with Owens. B.R. testified that although he
did see Owens at Owens’s residence during the transaction, Owens did not provide him
with a firearm, did not provide him with ammunition, and had nothing to do with the
transaction. On cross-examination, the state impeached B.R.’s testimony by showing him
photographs that conflicted with his statements. B.R. also admitted that Owens is a close
friend and B.R. did not want Owens to get in trouble.
The state then introduced the testimony of Wersal, who testified that, in a briefing
before the transaction, “[t he informant] said he thought that [B.R.] would get the firearm
from a [B]lack male who lives somewhere on Broad Street.” Wersal testified to what he
and other officers observed regarding what B.R. and Owens did and where they went
during the transaction. The testimony was consistent with the facts in Wersal’s affidavit.
Wersal also testified that several of B.R.’s statements conflicted with Wersal’s own
observations. Wersal also explained that B.R.’s statements regarding Owens could not be
reconciled with the photographs of B.R. and Owens taken by law enforcement officers
during the transaction.
The district court found that Wersal’s testimony and the photographs contradicted
B.R.’s testimony. Ultimately, the district court credited the state’s evidenc e, concluded
that “ there were no material misstatements in the affidavit, ” and denied the motion to
suppress the results of the search warrant.

6
B. Stipulated Evidence Trial and Sentencing Order
After the district court’s decision denying Owens’s challenge pursuant to Franks,
the case proceeded to trial. Before trial was to begin, however, the parties agreed to obtain
review of the pretrial rulings pursuant to rule 26.01, subdivision 4, of the Minnesota Rules
of Criminal Procedure. Accordingly, Owens waived a jury trial, and the parties submitted
the case by stipulating to the state’s evidence. T he district court received the state’s
evidence and found Owens guilty on all three counts.
Regarding count one, the district court determined that Owens knowingly possessed
a firearm in his bedroom. Regarding count two, the district court determined that Owens
knowingly possessed 12 -gauge shotgun shells in his kitchen. Regarding count three, the
district court restated its earlier finding that Owens knowingly pos sessed a firearm in his
bedroom.2 For each of the three counts, the district court also found that Owens had
previously been convicted of a crime of violence. At sentencing, the district court did not
enter a conviction for count three, 3 and imposed two, concurrent 60-month sentences for
counts one and two. This appeal followed.

2 We note that, although the district court found that Owens was guilty of count three for
possessing the firearm from the bedroom, c ount three charged Owens with possession of
ammunition. The findings in support of count three do not mention ammunition at all.
3 The war rant of commitment reflects the district court’s decision to “set aside” the
conviction for count three. We conclude that this term means no conviction was entered.

D E C I S I O N
I. Probable Cause Supporting the Search Warrant
On appeal, Owens argues there was insufficient probable cause to issue the search
warrant because the affidavit failed to establish a sufficient nexus between the transaction
with the informant and Owens’s residence. Owens argues that the nexus is insuffi cient
because the surveillance officers lost sight of B.R. and Owens for five minutes in LeHillier,
Minnesota, and because B.R. travelled to Owens’s residence on Broad Street and to
Neubert Lane in LeHillier, Minnesota. We are not persuaded that the five -minute
surveillance lapse and the intervening drive to LeHillier during the transaction defeat or
negate the connection between the transaction and Owens’s residence. Because the district
court had a substantial basis to conclude that there was a fair probability that evidence of a
crime would be found in Owens’s residence , we affirm the district court’s denial of
Owens’s suppression motion.
The United States and Minnesota Constitutions require that warrants be supported
by probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. When determining
whether a search warrant is supported by probable cause, we consider whether the issuing
judge had a substantial basis for concluding that probable cause existed. State v. Rochefort,
631 N.W.2d 802, 804 (Minn. 2001). A search warrant is supported by probable cause, if,
considering the totality of the circumstances, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. State v. Fort, 768 N.W.2d 335, 342
(Minn. 2009). “A sufficient ‘nexus’ must be established between the evidence sought and
the place to be searched.” State v. Yarbrough , 841 N.W.2d 619, 622 (Minn. 2014).

8
“[D]irect observation of evidence of a crime at the place to be sea rched is not required.”
Id. “A nexus may be inferred from the totality of the circumstances.” Id. A number of
circumstances inform a judge’s determination of whether such a nexus exists, including the
type of crime, the nature of the items sought, the extent of a person’s opportunity for
concealment, and normal inferences about where someone might usually keep the relevant
items. State v. Pierce, 358 N.W.2d 672, 673 (Minn. 1984). For instance, the Minnesota
Supreme Court has previously recognized that a normal person would keep ammunition at
his or her residence. Yarbrough, 841 N.W.2d at 622 (citing Pierce, 358 N.W.2d at 674).
Observations of the trafficking of contraband can also support probable cause for the
issuance of a search warrant for a susp ect’s residence. See State v. Ruoho , 685 N.W.2d
451, 457 (Minn. App. 2004) (holding that observations of suspected drug trafficking three
days prior warranted the search of a suspect’s residence), review denied (Minn. Nov. 16,
2004). Courts interpret applications for search warrants “in a common -sense and realistic
manner” when determining whether they “contain information which would warrant a
person of reasonable caution to believe that the articles sought are located at the place to
be searched.” State v. Gail, 713 N.W.2d 851, 858 (Minn. 2006) (quotation omitted).
We review the district court’s factual findings for clear error and the district court’s
legal determinations de novo. State v. Jenkins, 782 N.W.2d 211, 223 (Minn. 2010) (citing
State v. Buckingham , 772 N.W.2d 64, 70 (Minn. 2009)). In addition, “[w] e afford great
deference to the issuing judge’s determination on probable cause.” State v. Jones , 678
N.W.2d 1, 11 (Minn. 2004). We do not want “the w arrant requirement [to] become so
burdensome as to discourage the police from seeking review by” a judge. State v. Harris,

9
589 N.W.2d 782, 791 (Minn. 1999). Accordingly, “the resolution of doubtful or marginal
cases . . . should be largely determined by the preference to be accorded to warrants.” Gail,
713 N.W.2d at 858 (quoting Massachusetts v. Upton, 466 U.S. 727, 734, 104 S. Ct. 2085,
2089 (1984)).
In this case, Owens argues that during the five minutes that the agents lost sight of
B.R., he could hav e retrieved the gun and ammunition from his own home or from some
other location or person. This is a possibility. Nevertheless, the affidavit also included
information to support a belief that evidence of a crime would exist at Owens’s residence.
Specifically, the evidence that Wersal hoped to recover from Owens’s residence inc luded
firearms, ammunition, prerecorded MRVDTF funds, and a DNA sample from Owens. The
informant explained that he not only could purchase a gun from B.R., but also that B.R.
would get it from someone who lived on Broad Street. In addition, the affidavit stated that
the first place that B.R. went after taking the up-front portion of the purchase price was the
residence on Broad Street. It was also the last place that B.R. vis ited before completing
the transaction. Finally, the affidavit made clear that Owens himself could be located in
the residence. Given our deferential standard of review, we conclude that —even with the
lapse in surveillance and the intervening drive to LeHillier—the statements in the affidavit
provide a sufficient basis for “a person of reasonable caution” to believe tha t firearms,
ammunition, the pre recorded MRVDTF funds, and Owens would be located at Owens’s
residence on Broad Street. See id.

10
II. Asserted Misrepresentations in the Affidavit

Owens next argues that the affidavit in support of the search warrant contained
material misrepresentations. After an evidentiary hearing, the district court disagreed and
found that Wersal did not make any misrepresentations in his affidavit. We conclude that
based on the testimony admitted, the district court did not clearly err.
A search warrant “must be voided and the fruits of the search excluded” when
police, in procuring a search warrant, knowingly or recklessly disregard the truth by
including a material misrepresentation that is necessary to establish probable cause.
Franks, 438 U.S. at 155-56. Following Franks, courts require the defendant to bear the
burden of proving both parts of the following two -prong t est: (1) that the affiant
“deliberately made a statement that was false or in reckless disregard of the truth,” and
(2) that “the statement was material to the probable cause determination.” State v.
Andersen, 784 N.W.2d 320, 327 (Minn. 2010) (quoting State v. McDonough, 631 N.W.2d
373, 390 (Minn. 2001)). If a defendant makes such a showing, the “search warrant is void,
and the fruits of the search must be excluded.” State v. Moore, 438 N.W.2d 101, 105 (Minn.
1989). This principle applies to material o missions only; i nnocent or negligent
misrepresentations will not invalidate a warrant. Id.; State v. Causey , 257 N.W.2d 288,
292 (Minn. 1977). A misrepresentation or omission is material if probable cause to issue
the search warrant no longer exists once the misrepresentation is omitted or the omission
is supplied. Andersen, 784 N.W.2d at 327.
This court reviews for clear error the district court’s findings on whether there was
a statement or omission that was false or in reckless disregard of the truth. Id. In doing

11
so, this court gives due regard to the opportunity of the district court to judge the credibility
of the witnesses. State v. Fisler, 374 N.W.2d 566, 569 (Minn. App. 1985), review denied
(Minn. Nov. 18, 1985). Findings are clearly erroneous only if the reviewing court is “left
with the definite and firm conviction that a mistake has been made.” State v. Roberts, 876
N.W.2d 863, 868 (Minn. 2016) (quotations omitted). This court conducts a de novo review
of the district court’s ruling on whether the alleged misrepresentations or omissions were
material to the probable cause determination. Andersen, 784 N.W.2d at 327.
In this case, Owens asserts that the affidavit contained material omissions on the
basis of B.R.’s statements. Here, B.R. testified at the Franks hearing and denied telling
the informant that the gun would come from a Black male on Broad Street, denied driving
directly to Owens’s residence after meeting with the informant, denied going for a walk
with Owens, and denied ever getting in the car with Owens. B.R. also testified that Owens
did not provide him with a firearm or ammunition and had nothing to do with the
transaction. On cross-examination, the state impeached B.R.’s testimony by showing him
photographs that conflicted with his statements. In addition, the state introduced the
testimony of Wersal, who stated that several statements in B.R.’s testimony were not
accurate, conflicted with Wersal’s own observations, and could not be true given what was
depicted in the photographs. On this record, we are not left with the “d efinite and firm
conviction that a mistake has been made .” Owens did not establish that the affidavit
contained any statements that were false or made in reckless disregard of the truth. Because
we conclude that the district court did not clearly err in this finding, we need not address
the second part of the Franks two-prong test.

12
III. Entry of Multiple Convictions and Imposition of Multiple Sentences

Owens argues that the district court erroneously applied the firearms exception in
Minnesota Statutes 609.035, subdivision 3 (2016). In response, the state argues that the
general prohibition against multiple sentences and convictions does not apply to this case,
and, if it does, then the firearms exception to the general rules also applies. First, we
address whether the general rule in Minnesota Statutes section 609.04, subdivision 1
(2016), prohibits the entry of multiple convictions and whether the general rule in
Minnesota Statutes section 609.035, subdivision 1 (2016) , prohibits the imposition of
multiple sentences in this case. Second, we address whether the firearms exception applies.
We conclude that the district court properly entered convictions for both offenses, but erred
by imposing separate sentences for both offenses. We reverse and remand for the district
court to vacate one of the two sentences.
A. Application of the General Prohibitions in Sections 609.035 and 609.04
Generally, Minnesota law prohibits district courts from imposing multiple sentences
for offenses committed as part of a single behavioral incident. Minn. Stat. § 609.035,
subd. 1. Additionally, appellate courts have interpreted the provisions of Minnesota
Statutes, section 609.04 (2016), to prohibit district courts from entering multiple
convictions for a single act.4 See e.g., State v. LaTourelle, 343 N.W.2d 277, 283-84 (Minn.
1984) (holding that “only one conviction can be sustained” because section 609.04
prohibits multiple convictions “for a single criminal act”); State v. Saxton , 331 N.W.2d

4 This section also prohibits convictions for both a greater and an included offense.

13
240, 242-43 (Minn. 1983) (holding that section 609.04 permits only one conviction when
the same act resulted in four separate convictions); State v. Spears, 560 N.W.2d 723, 726-
27 (Minn. App. 1997) (vacating three duplicative convictions because section 609.04 “bars
a court from entering two convictions for one act simply because a defendant’ s single act
violated multiple provisions of a statute”), review denied (Minn. May 28, 1997).
Although b oth rules govern dispositions for multiple offenses, they have two
important differences. First, section 609.035 con cerns multiple sentences, while section
609.04 concerns multiple convictions. See, e.g., Munt v. State , 920 N.W.2d 410, 415
(Minn. 2018) (concluding that, unlike claims pu rsuant to section 609.035, post conviction
claims based on section 609.04 are not properly brought under rule 27.03 of the Minnesota
Rules of Criminal Procedure because section 609.04 relates to convictions, not sentences);
Spears, 560 N.W.2d at 726-27 (conducting a separate analysis of sentences under section
609.035 and convictions under 609.04); State v. Papadakis, 643 N.W.2d 349, 358 (Minn.
App. 2002) (affirming district court’s decision to enter multiple convictions under s ection
609.04 and affirming district court’s decision to impose only a single sentence under
section 609.035). Second, while section 609.035 focuses on whether the record involves a
single behavioral incident, section 609.04 concerns whether the record involves a single
act:5

5 Occasionally, our criminal statutes define a crime as including multiple acts, such as
multiple acts of sexual penetration, Minn. Stat. § 609. 342, subd . 1(h)(iii ) (2018), and
multiple acts of sexual contact, Minn. Stat. § 609. 343, subd . 1(h)(iii ) (2018). Section
609.04 necessarily applies to a group of acts when the crime itself includes multiple acts.
In addition, appellate courts have, at times, used the phrase “single behavioral incident”
when applying section 609.04, even though the case involves a s ingle act. E.g., State v.

14
Under Minnesota law there is a distinction between
sentencing on multiple convictions that a rose from a single
behavioral incident and convictions of more than one offense
arising from the same act.

. . . .

Minn. Stat. § 609.035 . . . prohibits multiple sentences
for conduct that is part of a single behavioral incident. We
agree with the state that appellant’s conduct was “single
behavior” rather than “single act.”

. . . The district court rejected appellant’s contention that
his convictions were a Minn. Stat. § 609.04 “single criminal
act” . . . . We affirm the district court’s analysis that appellant’s
criminal actions were not part of a single criminal act, but
rather were parts of a single behavioral incident.

Papadakis, 643 N.W.2d at 357-58.
It is well established that separate acts can support multiple convictions under
section 609.04, but if the acts are part of an overarching single behavioral incident, then
the district court can impose a sentence for only one of the convictions under section
609.035. E.g., id. at 358 (“We conclude that appellant’s conviction arose not from a single
act, but from a single behavioral incident, which allows multiple convictions but not
multiple sentences.”); see also, e.g., State v. Jones, 848 N.W.2d 528, 532-34 (Minn. 2014)
(pursuant to section 609.035, vacating one of the two imposed sentences for stalking and
violating an order for protection because the conduct underlying the offenses arose out of

Jackson, 363 N.W.2d 758, 760 (Minn. 1985) (“[S]ection 609.04 bars multiple convictions
under different sections of a criminal statute for acts committed during a single behavioral
incident.”). As noted above, when applying section 609.04, it is more accurate to focus on
whether multiple convictions stem from “the same act or transaction” as opposed to a series
of acts or overarching conduct, unless the statute at issue includes multiple acts.

15
a single behavioral incident, but not vacating the convictions for both offenses); State v.
Mullen, 577 N.W.2d 505, 511-12 (Minn. 1998) (pursuant to section 609.035, vacating one
of the two imposed sentences for criminal damage to property and exhibiting a pattern of
harassing conduct because these offenses arose out of a single behavioral incident, but not
vacating the convictions for these offenses); State v. Herberg, 324 N.W.2d 346, 348 -49
(Minn. 1982) (pursuant to section 609.035, vacating three of the four imposed sentences
because “there was an underlying unity to the various acts of assault, penetration , and
degradation,” but not vacating the convictions for the four offenses); Spears, 560 N.W.2d
at 726-27 (vacating three out of the six total convictions because the case involved only
three acts, not six, and then vacating two of the three remaining sentences because all three
separate acts occurred as part of a single behavioral incident).
With this context in mind, we first address the prohibition against multiple
convictions in section 609.04. Whether section 609.04 precludes multiple convictions,
presents a legal question that we review de novo. State v. Cox , 820 N.W.2d 540, 552
(Minn. 2012). We have previously determined that possessing two different items in
different places constitutes two, separate acts. Papadakis, 643 N.W.2d at 353, 57 -58
(affirming conclusion that act of possessing cocaine i n a lock box inside a garage was a
separate act from the act of po ssessing steroids in a bedroom) . We have also held that
possessing a single loaded gun constitutes a single act, and section 609.04 precludes
convictions for possessing both the firearm and the ammunition contained inside. State v.
Nowels, 941 N.W.2d 430, 442 n.8 (Minn. App. 2020), review denied (Minn. June 16, 2020)
In this case, the parties do not dispute that the two counts of conviction relate to separate

16
items located in different places: the revolver recovered from the bedroom and the shotgun
shells recovered from the kitchen. Following Papadakis, we conclude that each offense
constituted a separate act. Therefore, section 609.04 does not bar two separate convictions.
We next address the applicability of the general prohibition against multiple
sentences in section 609.035. To determine whether the facts show a “single behavioral
incident” for purposes of applying the general prohibition against multiple sen tences in
section 609.035, we consider whether the facts show a unity in time, place, and purpose.
E.g., Munt, 920 N.W.2d at 416 -17 (“[A]cts that lack a unity of time and place or are
motivated by different criminal objectives do not constitute a single b ehavioral incident,
and therefore, are not ‘conduct,’ for purposes of section 609.035 .” (citing State v. Bauer,
792 N.W.2d 825, 827 -30 (Minn. 2011) )). “The State bears the burden of proving, by a
preponderance of the evidence, that a defendant’s offenses were not part of a single
behavioral incident.” State v. Bakken , 883 N.W.2d 264, 270 (Minn. 2016). “The
determination of whether offenses arise from a single behavioral incident is dependent
upon the particular facts and circumstances of each case. ” State v. Jackson, 615 N.W.2d
391, 394 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000). “The single-behavioral-
incident analysis presents a mixed question of law and fact.” State v. Kendell, 723 N.W.2d
597, 607 (Minn. App. 2006). “We review the district court’s finding of fact under a clearly
erroneous standard, and its application of the law to those facts de novo.” State v.
Barthman, 938 N.W.2d 257, 265 (Minn. 2020).
In this case, because the state conceded that the two offenses were part of the sa me
behavioral incident, it chose not to develop the sentencing record necessary to carry its

17
burden of proof. On appeal, the state argues that, pursuant to State v. Grunig , we can
determine whether the conduc t in this case shares a unity of time, place, and purpose.
660 N.W.2d 134, 137 (Minn. 2003) (allowing consideration of the state ’s alternative
arguments on appeal). While Grunig could apply in some instances, it does not permit the
alternative argument raised in this case. Grunig requires a fully developed record to
support the alternative argument. Id. The record in this case, however, does not contain
sufficient information for this court to determine the “particular facts and circumstances”
surrounding the possible times, places, and purposes of Owens’s continuing possession of
the revolver and the shotgun shells. Without a more developed record, we cannot consider
whether the two offenses arose out of separate, distinct behavioral incidents. We, therefore,
conclude that the general prohibition in section 609.035 applies to the sentences at issue in
this case.
B. Application of the Firearms Exception
The parties’ primary arguments relate to the applicability of the firearms exception
to the prohibitions against multiple convictions and sentences. We agree with Owens that
the firearms exception does not apply to the possession offenses.
The legislature created various exceptions to the genera l prohibitions in sections
609.035 and 609.04, including an exception for firearms offenses: “Notwithstanding
section 609.04, a prosecution for or conviction of a violation of section 609.165 or 624.713,
subdivision 1, clause (2), is not a bar to convictio n of or punishment for any other crime
committed by the defendant as part of the same conduct.” Minn. Stat. § 609.035, subd. 3.
Even though it is found in a subdivision of section 609.035, this exception applies to both

18
of the general rules in sections 609.035 and 609.04. State v. Watson, 829 N.W.2d 626, 633
(Minn. App. 2013) (“We conclude that section 609.035, subdivision 3, is unambiguous in
stating that neither the single -behavioral-incident rule nor section 609.04 is ‘a bar to
conviction of or punishment for any other crime committed by the defendant as part of the
same conduct.’”), review denied (Minn. June 26, 2013).
To determine whether the exception applies, our analysis centers on the meaning of
the phrase “any other crime.” State v. Holmes , 778 N.W.2d 336, 341 (Minn. 2010)
(interpreting the burglary exception and stating that “we must determine whether third -
degree assault is ‘any other crime’”); Nowels, 941 N.W.2d at 441 (“The issue before us is
whether the ‘any other crime’ language removes th e bar against multiple convictions and
sentences . . . .”). We compare the “statutory elements” of the offenses at issue, without
regard to the facts of a particular case, to determine whether the offenses are different or
not. Holmes, 778 N.W.2d at 340 (“when considering whether multiple convictions are
prohibited, the court compares the statutory elements of both crimes and determines
whether the elements of the crimes are different”). We recently held that the statutory
elements for being an ineligibl e person in possession of a firearm are the same as the
statutory elements for being an ineligible person in possession of ammunition:
Here, Nowels was also charged with two counts of the same
crime—unlawful possession —but each count is a different
means t o commit the crime —possessing a firearm and
possessing ammunition.

[T]he two possession crimes charged require proof of
the same elements: (1) that Nowels was prohibited from
possessing a firearm or ammunition based on a conviction for

19
a crime of violenc e and (2) that he pos sessed a firearm or
ammunition.

Nowels, 941 N.W.2d at 442 -43. This court’s holding in Nowels controls our analysis of
the statutory elements of the possession offenses at issue in this case. Therefore, the
firearms exception does not apply because possessing the revolver is not an “other crime”
from possessing the shotgun shells. We remand to the district court to vacate one of the
two sentences imposed.
IV. Conviction and Sentence for Count Three
Owens also argues that the district cou rt erred by setting aside the conviction on
count three instead of entering a conviction on count three and choosing not to enter the
convictions on counts one and two. Although the resulting sentence would not change,
Owens asserts that this distinction matters because a violation of Minnesota Statutes
section 609.165, as charged in count three, would bar convictions and sentences for counts
one and two, reducing his criminal -history score in the future. We do not agree for two
reasons.
First, in light of our decision regarding the applicability of the general rule in section
609.04 and the inapplicability of the firearms exception, the issue regarding Owens’s
criminal history score in the future is moot. After remand, Owens’s criminal history score
will only reflect a single offense. State v. McAdoo , 330 N.W.2d 104, 107 (Minn. 1983)
(concluding that a defendant generally may not receive criminal -history points for more
than one offense arising out of a single behavioral incident); Minn. Sent. Guidelines 2.B.1
(2016) (permitting inclusion of only prior felony convictions that resulted in a “stayed o r

20
imposed” sentence). Moreover, both section 624.713 and section 609.165 offenses
correspond to the same severity level. Minn. Sent. Guidelines 5.A (2016 ) (both sections
correspond to severity level 6); see also Minn. Sent. Guidelines cmt. 2.B.107 (2016 ) (“In
cases of multiple offenses occurring in a single course of conduct in which state law
prohibits the offender from being sentenced on more than one offens e, only the offense at
the highest severity level should be considered.”). Second, Owens does not present any
legal authority requiring district courts to prioritize a section 609.165 offense over a section
624.713 offense. Without support for this argum ent, we decline to establish a new legal
rule requiring prioritization or sequencing of these offenses. See State v. Butcher , 563
N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). Therefore, we
affirm the district court’s decision not to enter a conviction on count three.
Affirmed in part, reversed in part, and remanded.