State of Minnesota v. Theodore Pierre Jerry , 864 N.W.2d 365 ( 2015 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1086
State of Minnesota,
Respondent,
vs.
Theodore Pierre Jerry,
Appellant.
Filed May 26, 2015
Reversed and remanded
Stauber, Judge
Concurring in part and dissenting in part, Schellhas, Judge
Hennepin County District Court
File No. 27CR133541
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate State Public Defender, Rochelle R. Winn,
Assistant State Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and
Stauber, Judge.
SYLLABUS
I. When imposing consecutive sentences, the district court must sentence the
offenses in the order in which they occurred.
II. Because the offense of burglary is defined in terms of entry and is complete
upon entry, it necessarily occurs before a crime committed in the building and, therefore,
must be sentenced first in compliance with the sentencing guidelines.
OPINION
STAUBER, Judge
On appeal from his convictions of and consecutive sentences for first-degree
burglary and third-degree criminal sexual conduct, appellant argues that the district court
erred as a matter of law by sentencing him for criminal sexual conduct first and burglary
second because the burglary offense occurred first. We reverse and remand for
resentencing.
FACTS
In February 2013, appellant Theodore Pierre Jerry was charged with first-degree
burglary and third-degree criminal sexual conduct. Following a bench trial, the district
court found that in the early morning hours of January 1, 2013, appellant entered S.E.’s
home without her permission, “grabbed S.E. by her forearms[,] and used force to push
her up against the bedroom wall,” causing her to feel “afraid and helpless.” The court
also found that appellant then inserted his tongue and his penis into S.E.’s vagina without
her consent. Thus, the district court found appellant guilty of the charged offenses.
A presentence investigation report was completed in which the probation agent
recommended that appellant be sentenced to the “maximum [sentence] allowed by the
[s]entencing [g]uidelines.” Based on this recommendation, appellant, who has a criminal
history score of six, would be sentenced consecutively for first-degree burglary first—a
129-month commit—and for third-degree criminal sexual conduct second—a 57-month
commit—for a total sentence of 186 months. At sentencing, however, the state argued
that because the burglary charge was “predicated” on the criminal-sexual-conduct charge,
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appellant should be sentenced on the criminal-sexual-conduct conviction first, and the
burglary conviction second. Thus, the state requested that appellant receive a
presumptive 180-month sentence for the criminal-sexual-conduct conviction, and a
consecutive 57-month sentence for the burglary conviction, for a total sentence of 237
months. Appellant objected to the state’s request, arguing that he should be sentenced
consistently with the recommendation of the probation agent.
Relying on the state’s sentencing memorandum, the district court found that
because appellant’s “‘burglary conviction was predicated or conditioned upon his
completion of the criminal sexual conduct, the later conviction should be sentenced
first.’” Therefore, the district court sentenced appellant to 180 months for the criminal
sexual conduct and a consecutive term of 57 months for the burglary, for an aggregate
sentence of 237 months. This appeal followed.
ISSUE
Did the district court err by sentencing appellant for criminal sexual conduct first
and burglary second?
ANALYSIS
This court may review a “sentence imposed or stayed to determine whether the
sentence is inconsistent with statutory requirements, unreasonable, inappropriate,
excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the
district court.” Minn. Stat. § 244.11, subd. 2(b) (2014). “Statutory construction and
interpretation of the sentencing guidelines are subject to de novo review.” State v.
Johnson, 770 N.W.2d 564, 565 (Minn. App. 2009).
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Generally, sentences imposed for multiple offenses committed in a single
behavioral incident are presumptively concurrent. State v. Crocker, 409 N.W.2d 840,
845 (Minn. 1987). But under section 609.035, subdivision 6, this presumption does not
apply when, as here, one of the sentences is for criminal sexual conduct involving force
or violence. See Minn. Stat. § 609.035, subd. 6 (2012); see also Minn. Stat. § 609.585
(2012) (“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.”). And the sentencing guidelines are consistent
with this statute, providing that consecutive sentences are always permissive when
sentencing for “Criminal Sexual Conduct in the First through Fourth Degrees with force
or violence.” Minn. Sent. Guidelines 2.F.2.a(2)(iii) (2012). The sentencing guidelines
further provide that “[w]hen the court imposes consecutive sentences, the court must
sentence the offenses in the order in which they occurred.” Id. 2.F. (2012); State v.
Williams, 771 N.W.2d 514, 522 (Minn. 2009) (stating that multiple offenses are
sentenced in the order in which they occurred).
The parties here do not dispute that consecutive sentencing was permissive and not
erroneous. But appellant argues that the district court “erred as a matter of law by
sentencing [him] for criminal sexual conduct first and burglary second” when the
burglary occurred prior to the criminal sexual conduct. We agree.
Appellant was charged with first-degree burglary under Minn. Stat. § 609.582,
subd. 1 (2012). This statute provides:
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Whoever enters a building without consent and with
intent to commit a crime, or enters a building without consent
and commits a crime while in the building, either directly or
as an accomplice, commits burglary in the first degree and
may be sentenced to imprisonment for not more than 20 years
or to payment of a fine of not more than $35,000, or both, if:
....
(c) the burglar assaults a person within the building or
on the building’s appurtenant property.
Id.
The state argues that because appellant was convicted of first-degree burglary
under section 609.582, subdivision 1(c), “the appropriate order of sentencing was to
sentence the third-degree criminal sexual conduct first and then sentence on the first-
degree burglary.” The state reasons that “the burglary charge in this case was predicated
on the criminal sexual conduct charge so . . . in the charging clause . . . the burglary
required the Court to find that an assault had occurred, and the only assault that was
alleged in connection with the case was the criminal sexual conduct charge.”
The state’s argument is founded on a misinterpretation of the statute. Generally,
“the crime of burglary is defined in terms of entry, and is complete upon entry.” State v.
Hendrickson, 528 N.W.2d 263, 266 (Minn. App. 1995), review denied (Minn. Apr. 27,
1995). This is consistent with the plain language of the statute, which states that
“[w]hoever enters a building without consent and with intent to commit a crime, or enters
a building without consent and commits a crime while in the building . . . commits
burglary . . . .” Minn. Stat. § 609.582, subd. 1 (emphasis added). This language defines
the offense of burglary. The remaining language of the statute, including subdivision
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1(c), which requires that an assault be committed, determines the sentence. See id.,
subd.1(c). Thus, the burglary was complete as soon as appellant entered S.E.’s apartment
with intent to commit the sexual assault. See State v. Nelson, 363 N.W.2d 81, 83 (Minn.
App. 1985) (holding that merely stepping through a window onto a desk and then exiting
upon hearing an alarm was sufficient to sustain a burglary conviction because the
burglary offense was complete upon non-consensual entry of the defendant’s body into
the premises with intent to commit a crime). The fact that appellant committed a sexual
assault in the building allows him to be “sentenced to imprisonment for not more than 20
years or to a payment of a fine of not more than $35,000, or both.” See Minn. Stat.
§ 609.582, subd. 1. Therefore, a burglary was completed before the sexual assault
occurred, and appellant should have been sentenced for the burglary first and the third-
degree criminal sexual conduct second.
Moreover, even if the burglary offense was not completed until an assault was
committed, we note that the unique circumstances of this case, where the district court
specifically found facts that support a conclusion that an assault was committed before
the sexual assault occurred, require us to hold that the burglary was complete before the
sexual assault was complete. The burglary offense under which appellant was convicted
requires that an assault occur, not a sexual assault. See Minn. Stat. § 609.582, subd. 1(c).
And it is immaterial whether an assault was charged; only that facts were specifically
found, and supported by the record, that an assault occurred. See Minn. Stat. § 244.11,
subd. 2(b) (stating that his court may review a sentence imposed to determine whether the
sentence is “not warranted by the findings of fact issued by the district court”).
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An individual commits an assault if he: (1) commits an act with intent to cause
fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts
to inflict bodily harm upon another.” Minn. Stat. § 609.224, subd. 1 (2012). Here, the
district court specifically found that after appellant entered S.E.’s house, but before he
penetrated S.E.’s vagina, appellant “grabbed S.E. by her forearms and used force to push
her up against the bedroom wall” causing S.E. to feel “afraid and helpless.” By using
force, which caused S.E. to feel afraid, appellant committed an assault. See Minn. Stat.
§ 609.224, subd. 1. Thus, consistent with the district court’s findings, once appellant
entered S.E.’s house and committed the assault, the burglary offense was complete
because appellant satisfied the elements of the first-degree burglary offense under section
609.582, subdivision 1(c). See State v. McDonald, 346 N.W.2d 351, 352 (Minn. 1984)
(upholding defendant’s burglary conviction “on the ground that the burglary was
complete once [the] defendant exceeded the scope of the consent given him and other
members of the public and entered the storage room with intent to gain access to the
locked pharmacy from there.” (Emphasis added.)); see also Nelson, 363 N.W.2d at 83.
Our decision is also supported by State v. Anderson, 345 N.W.2d 764 (Minn.
1984). In that case, the defendant pleaded guilty to burglary and criminal damage to
property, and the district court sentenced him consecutively, first for the criminal damage
to property and second for the burglary. Id. at 765-66. On appeal, the defendant argued
that the offenses should be sentenced “in the order the offenses occurred.” Id. at 766.
The defendant then argued that burglary should be sentenced first because “the burglary
occurred first since the burglary charge in this case was based on a claim of illegally
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entering (not unlawfully remaining in) the building and that this offense necessarily
occurred and was completed before defendant did the damage that formed the basis of the
conviction of criminal damage to property.” Id. The supreme court agreed and modified
the defendant’s sentence. Id.
We conclude that, consistent with Anderson, the burglary offense occurred before
the third-degree criminal-sexual conduct offense because, before appellant sexually
assaulted S.E., he committed first-degree burglary under section 609.582, subdivision
1(c), by entering S.E.’s house and committing an assault. Accordingly, the district court
erred by sentencing appellant on the criminal sexual conduct offense before the burglary
offense, and we remand for proceedings not inconsistent with this opinion.
DECISION
Because burglary is defined in terms of entry and is complete upon entry,
appellant committed the offense of first-degree burglary under Minn. Stat. § 609.582,
subd. 1(c), before the third-degree criminal-sexual-conduct offense. Therefore, appellant
should have been sentenced for first-degree burglary first and third-degree criminal
sexual conduct second.
Reversed and remanded.
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SCHELLHAS, Judge (concurring in part, dissenting in part)
I concur with the majority’s syllabus point that, when imposing consecutive
sentences, the district court must sentence the offenses in the order in which they
occurred. I respectfully disagree that the district court erred by sentencing appellant for
criminal sexual conduct first and first-degree burglary second.
“An offense is defined by its elements.” State v. Patterson, 796 N.W.2d 516, 532
(Minn. App. 2011), aff’d, 812 N.W.2d 106 (Minn. 2012). The state charged appellant
with first-degree burglary under Minn. Stat. § 609.582, subd. 1(c) (2012). The elements
of that offense are that the defendant (1) entered a building without consent, and
(2) committed an assault while in the building. See Minn. Stat. § 609.582, subd. 1(c). The
defendant “[e]nters a building without consent” by “enter[ing] a building without the
consent of the person in lawful possession,” or by “remain[ing] within a building without
the consent of the person in lawful possession.” Minn. Stat. § 609.581, subds. 4(a), 4(c)
(2012); see also State v. Crockson, 854 N.W.2d 244, 247 (Minn. App. 2014) (citing
Minn. Stat. § 609.581, subd. 4(a), (c), and noting that “‘[w]ithout consent’ means either
entering or remaining in a building ‘without the consent of the person in lawful
possession’”), review denied (Minn. Dec. 16, 2014); State v. Totimeh, 433 N.W.2d 921,
924 (Minn. App. 1988) (concluding that state met its burden to prove that appellant
entered house without consent when he failed to comply when told to leave, thereby
violating section 609.581, subdivision 4(c)), review denied (Minn. Feb. 22, 1989).
Here, at sentencing, the district court noted that appellant did not leave S.E.’s
home until after he committed criminal sexual conduct against her while he remained
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within her home without her consent. Applying a de novo standard of review, the
majority concludes that the district court erred as a matter of law by sentencing appellant
for the predicate offense of criminal sexual conduct first and first-degree burglary second.
The majority reasons that “the burglary was complete as soon as appellant entered S.E.’s
apartment with intent to commit the sexual assault” and therefore the burglary was
completed before the sexual assault occurred.
At sentencing, the district court incorporated by reference language from the
state’s sentencing memorandum, stating as follows:
Since [appellant]’s burglary conviction was predicated
or conditioned upon his completion of the criminal sexual
conduct, the later conviction should be sentenced first. The
elements of the criminal sexual conduct offense simply
require a defendant to non-consensually sexually penetrate a
victim through force or coercion.
The [appellant] met every element of the criminal
sexual conduct charge after he sexually penetrated the victim.
However, the [appellant] did not meet every element of the
burglary charge until after the criminal sexual conduct
elements were met. This is because the burglary in the first
degree is conditioned on a defendant’s commission of another
crime while inside a victim’s home without that person’s
consent.
....
While both offenses were, in essence, simultaneous, it
is important to understand that the conduct here underlying
the [appellant]’s criminal sexual conduct conviction was
completed before and as a necessary part of the elements of
this burglary conviction. The current iteration of the
Minnesota Sentencing Guidelines does not address the order
in which to sentence simultaneous offenses, when the
completion of one offense depends upon the completion of
another predicate offense; hence we have State law and cases
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that—or cases that describe how the Court is—what direction
the Court should take in situations like this.
(Emphasis added.) The district court noted that “[appellant] didn’t leave the house until
after he was done. He’s still in her premises without her permission.”
I would apply an abuse-of-discretion standard in reviewing the district court’s
sentence. See State v. Soto, 855 N.W.2d 303, 307−08 (Minn. 2014) (“We afford the trial
court great discretion in the imposition of sentences and reverse sentencing decisions
only for an abuse of that discretion.” (quotation omitted)). I agree with the district court
that appellant did not complete the commission of first-degree burglary until he
committed the charged predicate offense of criminal sexual conduct.
The majority states that
even if the burglary offense was not completed until an assault
was committed, we note that the unique circumstances of this
case, where the district court specifically found facts that
support a conclusion that an assault was committed before the
sexual assault occurred, require us to hold that the burglary
was complete before the sexual assault was complete.
I disagree. First, the state did not charge appellant with the assault that the district court
found occurred when appellant grabbed S.E.’s forearms and pushed her up against the
bedroom wall. Second, the state did not designate the assault as the predicate offense for
the first-degree burglary charge. Third, even if appellant committed first-degree burglary
when he physically assaulted S.E., the state predicated the first-degree burglary charge on
appellant’s commission of criminal sexual conduct. Fourth, when appellant sexually
assaulted S.E., he remained in her home without her consent and therefore continued to
commit burglary during his commission of the predicate offense.
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I disagree with the majority’s reliance on State v. Anderson, 345 N.W.2d 764
(Minn. 1984). The Anderson court did not address the complete definition of “enters a
building without consent” under section 609.581, subdivision 4. Rather, the supreme
court agreed with the defendant that “the burglary charged in th[e] case was based on a
claim of illegally entering (not unlawfully remaining in) the building.” Anderson, 345
N.W.2d at 766. In this case, I would conclude that the district court did not abuse its
broad discretion in sentencing appellant for criminal sexual conduct first and for first-
degree burglary second. I would affirm appellant’s sentence.
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