Case Blog – State v. Holmes – MN SCt

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STATE OF MINNESOTA

 

IN SUPREME COURT

 

A07-1445

 

 

Court of Appeals	Dietzen, J.
State of Minnesota,
Respondent,
vs.	Filed:  February 25, 2010
	Office of Appellate Courts
Nosakhere Holmes,
Appellant.

 

________________________

 

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

 

Michael O. Freeman, Hennepin
County Attorney, Linda M. Freyer, Assistant Hennepin County Attorney, Minneapolis, Minnesota,
for respondent.

 

Nosakhere Holmes, Bayport, Minnesota,
pro se.

________________________

 

S Y L L A B U S

1.         Under Minn.
Stat. § 609.585 (2008), a conviction of first-degree burglary with assault is
not a bar to a conviction of or sentence for “any other crime” committed during
the course of the burglary.  The phrase
“any other crime” means a crime that requires proof of different statutory
elements than the crime of burglary.

2.         Because third-degree assault requires
proof of different statutory elements than first-degree burglary with assault,
it falls within the meaning of “any other crime” under Minn. Stat. §
609.585.  Under the statute, when there
is a single course of conduct involving one assault, a conviction and sentence
for first-degree burglary with assault is not a bar to a conviction and
sentence for third-degree assault committed during the course of the burglary.

            Affirmed.

            Considered
and decided by the court without oral argument.

O P I N I O N

DIETZEN, Justice.

Appellant
Nosakhere Holmes was convicted of aiding and abetting first-degree burglary
with assault and aiding and abetting third-degree assault and was sentenced for
both offenses.  Holmes challenged the
conviction and sentence for third-degree assault, arguing that Minn. Stat. §
609.582, subd. 1(c) (2008), incorporates assault into this first-degree
burglary offense, and therefore the assault is not “any other crime” within the
meaning of Minn. Stat. § 609.585 (2008). 
The court of appeals affirmed, and we granted review. Because we
conclude that Minn. Stat. § 609.585 permits a defendant to be convicted of and
sentenced for both offenses in these circumstances, we affirm.

I.

Shortly after
midnight on July 29, 2006, police responded to a 911 call from Andre Williams’ residence.  Police interviewed Williams and his daughter,
A.W., regarding a burglary of their home and an assault of Williams.  According to both Williams and A.W.,
appellant Nosakhere Holmes was involved in the burglary and assault.  Williams was taken to the hospital with
injuries, including three missing teeth, cuts on his head that required
stitches, and a hairline jaw fracture. 

Following a police
investigation, the State charged Holmes with aiding and abetting first-degree
burglary with assault, in violation of Minn. Stat. §§ 609.582, subd. 1(c),
and 609.05 (2008), and aiding and abetting third-degree assault, in violation
of Minn. Stat. §§ 609.223, subd. 1 (2008), and 609.05.   

At trial, the
State presented testimony that Williams, his girlfriend Syrita Benson, and A.W.
lived together in an upper-level duplex in July 2006.  On July 28, 2006, Benson “beat up” one of A.W.’s
friends.  In retaliation, A.W.’s friends
“bust[ed] in” the main entrance door to the duplex and “jumped” Benson.  Benson called Williams at work to ask “what
[he’s] going to do about it.” 

Later that night, Williams,
Benson, and A.W. went to a movie.  After
they returned home, Williams and Benson went to their room.  Williams heard a “loud thump” and then saw Benson’s
father and two brothers, one of whom was appellant Holmes, standing in the
bedroom doorway.  Holmes attacked Williams
with a pole, yelling “you jumped my sister.” 

Following the
trial, the jury found Holmes guilty of both counts.  Pursuant to Minn. Stat. § 609.585, which
allows conviction and sentencing for burglary and “any other crime” committed
during the burglary, the trial court convicted and sentenced Holmes for both
offenses.  Specifically, the trial court
sentenced Holmes to 78 months for first-degree burglary with assault and 21
months for third-degree assault, to be served concurrently.[1] 

Holmes appealed,
arguing, among other things, that the trial court erred in convicting and
sentencing him for first-degree burglary with assault and third-degree
assault.  The court of appeals
affirmed.  State v. Holmes, 758 N.W.2d 326, 332 (Minn. App. 2008).  We granted review solely on
whether Minn. Stat. § 609.585 allows for conviction of and sentencing for
first-degree burglary with assault and third-degree assault committed during
the course of the burglary.[2]

II.

This case requires
the interpretation of Minn. Stat. §§ 609.035 (2006), 609.04 (2008), and 609.585,
to determine whether Holmes may be separately convicted of and sentenced for
first-degree burglary with assault and third-degree assault committed during
the course of the burglary when there is only one assault. 

Statutory
construction presents a question of law that we review de novo.  State
v. Loge, 608 N.W.2d 152, 155 (Minn. 2000);
State v. Stevenson, 656 N.W.2d 235,
238 (Minn.
2003).  The goal of all statutory
construction is to “ascertain and effectuate the intention of the
legislature.”  Minn. Stat. § 645.16 (2008).  When interpreting a statute, we must first
determine whether the statute’s language is clear and unambiguous.  See State v. Bluhm, 676 N.W.2d 649, 651 (Minn. 2004).  If it is not ambiguous, we must apply its
plain meaning.  Id.; State v. Maurstad, 733 N.W.2d 141, 148 (Minn. 2007). 
A statute is ambiguous if the language is susceptible to more than one
reasonable interpretation.  Am. Family Ins. Group v. Schroedl, 616
N.W.2d 273, 277 (Minn.
2000).  When a criminal statute is
ambiguous, we construe the statute narrowly in favor of lenity.  Maurstad,
733 N.W.2d at 148. 

Minnesota law generally prohibits a person
from being punished twice for conduct that is part of the same behavioral
incident, with certain exceptions.  “Except
as provided in . . . section[] . . . 609.585 . . . if a person’s conduct
constitutes more than one offense under the laws of this state, a person may be
punished for only one of the offenses.”  Minn.
Stat. § 609.035, subd. 1.  Minnesota Statutes
§ 609.585, in turn, states that “a prosecution for or conviction of the crime
of burglary is not a bar to conviction of or punishment for any other crime
committed on entering or while in the building entered.”

We observe that Minn. Stat. § 609.585 was first published in 1886 as
section 393 of Minnesota’s
Penal Code.  See Act of March 9, 1885, ch. 240, § 1, 1885 Minn. Laws 311, 311
(authorizing the secretary of state to publish a penal code).  Section 393 was renumbered several times
between 1886 and 1961, but the wording remained essentially the same.  See Penal
Code § 393 (“A person who, having entered a building under such
circumstances as to constitute burglary in any degree, commits any crime
therein, is punishable therefor, as well as for the burglary; and may be
prosecuted for each crime, separately.”). 
When the statute was codified as Minn. Stat. § 609.585 in 1963, the
language was changed, and then amended to its current version in 1993.  The 1993 version provided that “[n]otwithstanding section 609.04, a
prosecution for or conviction of the crime of burglary is not a bar to
conviction or punishment for any
other crime committed on entering or while in the building entered.”  Act of May 20, 1993, ch. 326, art. 4, § 16, 1993
Minn. Laws 1974, 2031 (emphasis added; italicized language indicates the 1993
amendments). 

In State v. Alexander, we concluded that
Minn. Stat. § 609.035 allows for separate convictions and sentences for
burglary and crimes committed during the burglary, and that multiple
punishments for a single behavioral incident involving burglary “will not
unduly exaggerate the culpability of a defendant’s conduct.”  290 N.W.2d 745, 750 (Minn. 1980). 
Thus, Minn. Stat. § 609.035 allows for separate convictions and
sentences for first-degree burglary with assault and “any other crime”
committed inside the building during the burglary.

Minnesota Statutes
§ 609.04 prohibits a conviction for both the crime charged and an included
offense.  Minn. Stat. § 609.04, subd. 1
(“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.”).  This statute “generally forbids two
convictions of the same offense or of one offense and a lesser included offense
on the basis of the same conduct.”  State v. Haase, 341 N.W.2d 879, 881 (Minn. 1984).  An included offense includes “[a] crime
necessarily proved if the crime charged were proved.”  Minn. Stat. § 609.04, subd. 1(4).  But Minn. Stat. § 609.585 specifically provides
that section 609.04’s prohibition against multiple convictions for included
offenses does not apply to a conviction for burglary and any crime committed
during the burglary.  Minn. Stat. §
609.585 (“Notwithstanding section 609.04, a prosecution for or conviction of
the crime of burglary is not a bar to conviction of or punishment for any other
crime committed on entering or while in the building entered.”). 

Consequently, we
must determine whether third-degree assault is “any other crime” within the
meaning of Minn. Stat. § 609.585 when a defendant is convicted of burglary
with an assault based on a single course of conduct involving one assault.  If third-degree assault is “any other crime,”
Holmes may be convicted and sentenced for both the burglary with assault and
the third-degree assault.  If it is not
“any other crime,” Minn. Stat. § 609.585 may not be used to allow multiple
convictions and sentences based on the same conduct.

A person may
commit first-degree burglary in several ways. 
See Minn. Stat. § 609.582,
subd. 1.  The building entered may be an
occupied dwelling, id., subd. 1(a);
the burglar may possess a dangerous weapon, id.,
subd. 1(b); or the burglar may “assault a person within the building or on the
building’s appurtenant property.”  Id.,
subd. 1(c).  Holmes was convicted of and sentenced
for violating Minn. Stat. § 609.582, subd. 1(c), first-degree burglary with
assault.

Holmes argues that
third-degree assault is included in the crime of first-degree burglary with
assault, and therefore is not “any other crime” committed during the burglary
under Minn. Stat. § 609.585. 
Specifically, Holmes argues that Minn. Stat. § 609.582,
subd. 1(c), incorporates assault into the first-degree burglary offense,
and therefore third-degree assault is the same offense as the burglary, and not
“any other crime.” 

Generally, 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.  See State v. Bertsch, 707 N.W.2d 660, 664
(Minn. 2006) (in determining if an offense is a lesser-included offense under
Minn. Stat. § 609.04, “a court examines the elements of the offense
instead of the facts of the particular case”); Blockburger v. United States, 284 U.S. 299, 304 (1932) (concluding
that for purposes of the Double Jeopardy Clause’s prohibition on multiple
prosecutions for the same crime, a court must determine whether the two
offenses require proof of different statutory elements).  We chose to apply this principle to determine
whether a crime committed during a burglary is “any other crime” within the
meaning of the statute.  Holmes’ proposed
interpretation focuses on the “type” of crime, such as assault, and not on
whether the statutory elements are different. 
Moreover, Holmes would require us to add words to the statute to limit
its application to crimes other than assault. 

We conclude that under
Minn. Stat. § 609.585, a conviction of first-degree burglary with assault is
not a bar to a conviction of or sentence for “any other crime” committed during
the course of the burglary.  We read the
statute to allow a conviction of another crime committed in the same course of
conduct as the burglary, provided that the statutory elements of that crime are
different than the crime of burglary.  The
phrase “any other crime” means a crime that requires proof of different
statutory elements than the crime of burglary. 
Thus, the court must examine whether the crimes of first-degree burglary
and third-degree assault require proof of different statutory elements.

First-degree
burglary with assault prohibits a person from (1) “enter[ing] a building
without consent and with intent to commit a crime, or enter[ing] a building
without consent and commit a crime while in the building,” and (2) “assault[ing]
a person within the building or on the building’s appurtenant property.”  Minn. Stat. § 609.582, subd. 1(c).  An assault is “an act done with intent to
cause fear in another of immediate bodily harm or death; or . . . the
intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (2008).

Third-degree
assault prohibits a person from (1) “assault[ing] another” and (2) “inflict[ing]
substantial bodily harm” on them.  Minn.
Stat. § 609.223, subd. 1.  Substantial
bodily harm is “bodily injury which involves a temporary but substantial
disfigurement, or which causes a permanent or protracted loss or impairment of
the function of any bodily member or organ, which causes a fracture of any
bodily member.”  Minn. Stat. § 609.02,
subd. 7a (2008).   

Thus, third-degree
assault requires as an element the infliction of “substantial bodily harm” upon
the victim, but first-degree burglary with assault does not.  Because third-degree assault requires proof
of different statutory elements than first-degree burglary with assault, it
falls within the meaning of “any other crime” under Minn. Stat. § 609.585.  Under the statute, when there is a single
course of conduct involving one assault, a conviction and sentence for
first-degree burglary with assault is not a bar to a conviction and sentence
for third-degree assault committed during the course of the burglary.

Previous cases
decided by this court support our conclusion. 
See State v. Mullen, 577
N.W.2d 505, 506, 511 (Minn. 1998) (concluding that first-degree burglary with
assault and fifth-degree assault convictions and sentences were allowed by
Minn. Stat. § 609.585); State v.
Gant, 305 N.W.2d 790, 791, 793 (Minn. 1981) (concluding that burglary with
assault and first-degree criminal sexual conduct were not the same offense under
Minn. Stat. § 609.585 because “proof of rape was not a necessary element of the
proof of burglary of a dwelling accompanied by an assault; only a proof of some
sort of an assault was needed”); Alexander,
290 N.W.2d at 748, 750 (concluding that “[a] burglary and the crime committed
after entering the building are not the same offense,” and that Minn. Stat. § 609.585
“authorizes serialized prosecutions for burglary and related offenses”).

Finally, Holmes argues
that the punishment for assault is “already taken into account by the
first-degree burglary with assault . . . punishment.”  Holmes correctly points out that first-degree
burglary of an occupied dwelling carries a presumptive sentence of 39 months,
and first-degree burglary with assault carries a presumptive sentence of 78
months.[3]  See Minn. Sent. Guidelines
IV, V.

            The
Sentencing Guidelines, however, are not the basis upon which we should
determine the meaning of “any other crime” under Minn. Stat. § 609.585.  Rather, we are guided by our rules of statutory
construction and case law, both of which lead to the conclusion that when there
is a single course of conduct involving one assault, third-degree assault is
“any other crime” committed during the course of first-degree burglary with
assault.  It is the prerogative of the
legislature to define crimes and determine the punishment for those
crimes.  See Minn. Stat. § 609.095 (2008) (“The legislature has the exclusive authority
to define crimes and offenses and the range of the sentences or punishments for
their violation.”); State v. Misquadace,
644 N.W.2d 65, 68 (Minn.
2002).

            Affirmed.

 

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