Toe Bo, petitioner, Appellant,

This opinion will be unpublished and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
A20-0497

Toe Bo, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 26, 2020
Affirmed
Connolly, Judge

Lyon County District Court
File No. 42-CR-17-1332

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

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

Richard R. Maes, Lyon County Attorney, Marshall, Minnesota (for respondent)

Considered and decided by Smith, Tracy M. , Presiding Judge; Worke, Judge; and
Connolly, Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the denial of his petition for postconviction relief, arguing that
there was insufficient evidence to convict him of unlawful possession of a firearm under
Minn. Stat. § 624.713, subd. 1(2) (2017). S pecifically, he argues that the state failed to
prove beyond a reasonable doubt that appellant knew he was ineligible to possess a firearm.
Because knowledge of ineligibility is not an element of the offense, we affirm.
FACTS
On June 28, 2016, appellant Toe Bo pleaded guilty to felony third-degree assault.
He received a stay of execution of a prison sentence and was placed on probation for five
years. As a condition of his probation, appellant was prohibited from possessing a firearm.
Appellant “signed written agre ements” that acknowledged “a condition of his probation
was that he could not possess firearms, ammunition, or explosives.”
On December 9, 2017, Lyon County law enforcement received multiple 9 11 calls
from an area in which they later found appellant and his girlfriend, A.S. Appellant admitted
to placing the 911 calls, and both individuals were taken into custody.
Appellant told officers that on the previous day he had found a broken firearm in a
garbage can near his residence, taken it apart, and repair ed it. Appellant stated that the
firearm was now at A.S.’s home. With the consent of A.S., officers entered and retrieved
a .40 caliber pistol from her home.
Appellant was charged with one count of unlawful possession of a firearm in
violation of Minn. Stat. § 624.713, subd. 1(2). To establish that appellant was ineligible to

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possess a firearm, the state introduced evidence of the 2016 felony assault conviction, the
paperwork signed by appellant acknowledging his ineligibility to possess a firearm, and
testimony from appellant’s probation officer.
At trial, appellant “testified and admitted that he found the firearm in a garbage can.”
Appellant also testified that he did not understand the provisions of his probation agreement
when his probation officer, P.O., explained them, because he did not have interpreter
services. This testimony was directly contradicted by his P.O. who stated that she had not
used interpreter services with appellant because “the first time [she] met with [appellant]
[she] asked him if he needed an interpreter present and he said that he did not.” The P.O.
also stated that appellant “did not” indicate at any time that he did not understand his
conditions. Rather, “he would ask questions [in English] regarding his conditions” and the
P.O. was able to understand what he was asking. In addition, appellant testified that he
communicated with A.S. in English and spoke English while attending school.
Using the standard jury instruction, the district court instructed the jury that the
elements of the offense of ineligible possession of a firearm were:
First, the D efendant knowingly posse ssed a firearm or
consciously exercised dominion and contr ol over it. The
second is, the D efendant’s been convicted of committing a
crime of violence in the State of Minnesota [and that] Assault
in the Third Degree is a crime of violence. And the third i s,
that the act took place on December 8th or 9th, 2017, in the city
of Marshall.

The defense did not o bject to this instruction . The jury found appellant guilty of the
charged offense, and the district court sentenced him to 60 months in prison.

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In a petition for postconviction relief, appellant argued that “[t]he State failed to
prove beyond a reasonable doubt that [he] violated [Minn. Stat. § 624.713, subd. 1(2)]
because the State did not establish that [he] knew he was ineligible from possessing a
firearm.” Appellant relies on Rehaif v. United States, which concluded that knowledge of
ineligibility is required for a conviction for unlawful possession under the federal statute
18 U.S.C. § 922(g) (2019). 139 S. Ct. 2191 , 2194 (2019). The postconviction court
determined that “because the plain language of the state and federal statutes differ to this
extent regarding mens rea” it was “unwilling to extend the Rehaif holding to the case at
hand.”
D E C I S I O N
This court “review[s] the denial of a p etition for postconviction relief for an abuse
of discretion.” Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017). A postconviction
court abuses its discretion “when it [acts] in an arbitrary or capricious manner, base[s] its
ruling on an erroneous view of the law, or ma[kes] clearly erroneous factual findings.” Id.
On appeal, “[l]egal issues are reviewed de novo [and] review of factual issues is limited to
whether there is sufficient evidence . . . to sustain the court’s findings. Id.
Here, the facts surrounding the possession of t he firearm are not in dispute. Thus,
the only issue is whether the state was required to prove beyon d a reasonable doubt that
appellant knew he was ineligible to possess a firearm. “Because the meaning of a criminal
statute is intertwined with the issue of whether the State proved beyond a reasonable doubt
that the defendant violated the statute, it is often necessary to interpret a criminal statute

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when evaluating an insuf ficiency-of-the-evidence claim…. We review issues of statutory
interpretation de novo.” State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017).
Minn. Stat. § 624.713 states in relevant part:

Subdivision 1. Ineligible persons. The following persons shall
not be entitled to possess ammunition or a pistol or
semiautomatic military -style assault weapon [or] any other
firearm:
. . . .
(2) . . . a person who has been convicted of . . . in this
state or elsewhere, a crime of violence …

Thus, the state must prove knowledge only of possession of a firearm, not knowledge of
ineligibility. As previously stated, knowledge of possession was established beyond a
reasonable doubt by the state at appellant’s jury trial. The state statute does not include a
specific mens rea requirement.
Appellant urges us to apply the holding in Rehaif, which concluded that in a
prosecution for unlawful possession of a firearm under 18 U.S.C. § 922(g), the government
must prove that the defendant knowingly possessed a firearm and knowingly belonged to
a category of individuals prohibited fr om possession of a firearm. 139 S. Ct. at 2195.
Appellant argues that, because the state statute is silent regarding mens rea and the federal
statute requires it, state courts should follow the federal rule. But the Minnesota Supreme
Court has addressed the issue in State v. Wenthe, holding that, when a state statute does not
include a mens rea requirement, the court will not supply one. 865 N.W.2d 293, 305 (Minn.
2015). We follow the supreme court’s binding precedent in Wenthe.
Furthermore the state statute can logically be interpreted to dispense with such a
requirement because it also states that “ [t]he failure of t he court to provide [information

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regarding ineligibility] to a defendant does not affect the applicability of the . . . possession
prohibition or the felony penalty… .” Minn. Stat. § 624.713, subd. 3(a) (2017). If the
legislature intended to require knowledge of ineligibility, it would not have explicitly stated
that a failure to inform a defendant of ineligibility does not ne gate the rule or the
punishment.
Because the district court did not abuse its discretion in denying appellant’s petition
for postconviction relief, we affirm. See Pearson, 891 N.W.2d at 597.
Affirmed.