Burglary is one of the oldest, and most elemental, of crimes. Sometimes known as breaking-and-entering, it consists of unauthorized entry to premises to commit a crime therein.
A half dozen recent rulings of the Minnesota Court of Appeals addressed different facets of that offense. Two of the cases concurrently decided from the Hennepin and Ramsey County District Courts, respectively, shared some similarities. Both involved the sufficiency of evidence to prove the crime and both were affirmed by the appellate court.
The others involved a variety of different issues of crime and punishment.
Evidence regarding the prior relationship between the offender and the victim before a break-in provided the foundation for sustaining a conviction for third degree burglary, coupled with second degree assault inState v. Darrell, Minn. App. LEXIS 195 (Minn. Ct. App. March 2, 2015) (unpublished). A Hennepin County District Court jury found the defendant guilty of both offenses after he grabbed a woman with whom he had had a prior relationship outside of her apartment, pushed her into it, when she was about to enter it, and then threatened her with a knife in the unit before she managed to escape.
The defendant challenged admission of evidence of his prior assault of the victim as well as a number of threatening text messages and voice mail messages he sent to her in the months prior to the incident and a week afterwards. The appellate court affirmed, holding that this type of relationship evidence was properly admitted at trial. It was relevant because the strained relationship between the parties led to the burglary and assault. In order to establish an essential element of burglary, the prosecution had to prove that the defendant had entered her premises with intent to commit a crime. The pattern of making angry, threatening statements, which included reference to acts of violence were probative because they may have helped the jury to determine whether [the] defendant intended to make [the victim] fearful and, therefore, intended to commit a crime inside her apartment building. Presented with this history of abuse, a jury might be more likely to find that the defendant had an improper “intent and motive.
The relationship evidence also was admissible because it may have been helpful to the jury in light of the defendant’s challenge to the victim’s credibility. The text messages may have corroborated her testimony, thus helping the jury assess her credibility. The contention that the text messages and voice mail messages were too prejudicial because they were very graphic or contained profanity was rejected because the tone of the messages may be relevant to show the degree of [the] anger and determination to press fear of harm by the defendant. Although the messages were inflammatory, the trial court had properly determined that their probative value was not substantially outweighed by the danger of unfair prejudice, consistent with Minn. Stat. § 634.20, the Domestic Abuse Law. The trial court also gave a curative instruction limiting the jury to consider the evidence for the sole purpose of determining defendant’s alleged conduct, which did lessen the probability of undue weight being given to those communications.
Finally, a reference to the defendant being in jail after the offense did not constitute grounds for a mistrial. The remark was made by the victim in response to a question asked by defense counsel that appears to have no meaningful purpose. It was not prejudicial because it was not as damaging as the reference to a prior incarceration that was unrelated to the trial. The failure of the trial judge to give a curative instruction after this testimony was not improper because the defendant did not request a curative instruction [and] … the case law does not require one in this situation.
Therefore, the conviction for both the burglary and improperly entering the apartment without authorization and for committing assault in it were upheld.
Although acquitted of an offense of stealing a motor vehicle, the defendant was convicted of a burglary or a theft tool that facilitated taking the automobile in State v. Brown, 2015 Minn. App. LEXIS 205 (Minn. Ct. App. March 2, 2015)(unpublished). The search of a man exiting from a stolen vehicle yielded a flathead screwdriver, and an ensuing search of the vehicle by police officers found no keys in the ignition, but damage to the steering column, in such a way that the vehicle could be started without a key by using a flat object like the screwdriver, which officers testified are frequently used to steal vehicles after damaging the steering column.
A Ramsey County District Court jury acquitted the defendant of theft of motor vehicle, but found him guilty of possession of burglary or theft tools, in violation of Minn. Stat. § 69.59, which makes a felony to possess any device with intent to use [it] … to commit burglary or theft. The defendant challenged the conviction on grounds that his acquittal on the vehicle theft charge showed that he could not, beyond a reasonable doubt, have possessed a burglary tool with intent to commit a crime for which he was acquitted.
But the appellate court rejected that overture, declining to speculate why the jury acquitted him of the theft charge. The acquittal meant only that the state failed to prove at least one of the four elements required to prove vehicle theft beyond a reasonable doubt and the appellate court would not hypothesize why the jury might have found the defendant not guilty of the vehicular offense. Rather, it reviewed the sufficiency evidence regarding the possession claim as though [the defendant] had never been charged with theft of a motor vehicle. Because there was no direct evidence of his intent to commit the theft, the issue was whether the circumstantial evidence was sufficient to support [that] conviction. This necessitated a 2-step analysis, consideration of the circumstances proved, giving due deference to the fact finder, and then deciding whether the proven circumstances are consistent with guilt and inconsistent with any rational hypothesis.
To prove the possession offense, the prosecution need not link the defendant to any specific past or future burglaries. It is sufficient if there is proof of general intent to use the tools. Here, the circumstances were sufficient to establish that the flat head screwdriver in the possession of the defendant could be used to steal the vehicle. The circumstances of the defendant’s possession of the flat head screwdriver as he exited the driver’s side of the vehicle, which had been stolen, and had a damaged steering column, and was running without a key in the ignition, created a strong inference that the defendant’s possession of the tool was with the intent to commit a motor vehicle theft.
It would be mere conjecture to infer any other reason for having a screwdriver on this occasion. Further, the defendant provided no alternative reasonable inference to be drawn from the facts or any reasonably or rationale inferences … other than that the screwdriver was to be used with the intent to commit burglary or theft.
Accordingly, there was sufficient evidence to support conviction of the possessory offense.
The predicates of the offense of burglary were established to the satisfaction of the court in a pair of residential break-ins.
In State v. Rodriguez, 863 N.W.2d 424 (Minn. App. 2015), the defendant, convicted of second-degree burglary in Rice County District Court, claimed that he did not commit the predicate offense of damage to property on the premises because the only harm to property occurred when he stuck his finger in a hole in an outer screen door and enlarged the opening prior to entering the home. But the court rejected that contention because the “damage occurred when at least part of his body was in the building.”
In State v. Hamer, 2015 Minn. App. LEXIS 311(Minn. App. April 6, 2015) (unpublished), a man who pled guilty to third degree burglary in Steele County District Court unsuccessfully challenged his plea on grounds of an insufficient factual basis for the predicate of intent to count an offense on the premises. The appellate court disagreed because he had admitted at the plea hearing that he broke into his former girlfriend’s apartment, damaging two televisions and that he had intended to break some of her items before he entered. His challenge to the award of $500 damage for a third-degree offense also failed, even though the victim waived restitution, because a repair receipt reflected in excess of the statutory minimum to fix the two TV’s.
A couple of cases involved sentencing situations and the appellate court reversed both, one for the prosecution and one for the defense.
In State v. Morris, 2015 Minn. App. LEXIS 410 (Minn. App. May 4, 2015) (unpublished), the state appealed a downward durational departure by the Ramsey County District Court of two charges stemming from a break-in and threatening the occupants, including his ex-girlfriend, with a pistol by a four-time felon ineligible to possess a gun.
The concurrent 60 month sentence was an improper downward disposition for the four reasons cited by the trial court. The burglar’s particular amenability to treatment … is an offender-related factor that is not grounds for departure. The early resolution of the case by a plea has nothing to do with the severity of the offense. The simultaneity of the offenses also has no bearing on the seriousness of either offenses and not grounds for departure. Finally, the defendant’s manifestation of remorse did not render his conduct at the time of the offense(s) any less serious.
But another burglar obtained a rare reversal, although on sentencing grounds only in State v. Jerry, 864 N.W.2d 365 (Minn. App. May 26, 2015). The appellate court directed the Hennepin County District Court to re-sentence a man convicted of burglary and third-degree sexual conduct for breaking into a home and sexually attacking a woman living there.
On de novo appellate review, the consecutive sentences of 237 months aggregated for the two offenses was improper because the sentence should be enjoined in the order of the offenses, the burglary first, then the ensuing assault, which could result in a credit of 51 months under state sentencing guidelines. Because the crime of burglary is complete upon unlawful entry to the premises, that offense transpired before the assault, contrary to the state’s argument that the assault was necessary to establish the burglary crime.
Burglary is an age-old crime. This sextet of cases reflects a number of different facets of the fundamental form of felony.
Common law elements of burglary
- Unauthorized entry into structuring.
- Site used as a residence.
- Intent to commit felony once inside.
- Intrusion takes place at nighttime, when facial features are not readily observable.
*Originaly published in Minnesota Lawyer.