This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Bobby Louis Mosley,
Filed January 15, 2002
Hennepin County District Court
File No. 52177
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant Public Defender, Minnesota Building, Suite 1042, 46 East Fourth Street, St. Paul, MN 55105 (for appellant)
Considered and decided by Willis, Presiding Judge, Anderson, Judge, and Foley, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant Bobby Louis Mosley challenges his conviction of two counts of first-degree burglary, arguing that the district court erred by (1) instructing the jury on fifth-degree assault and (2) refusing to submit the lesser-included offense of fourth-degree burglary. Mosley also contends that the district court erred by imposing consecutive sentences because his offenses were part of a single behavioral incident. Because we find no error by the district court, we affirm.
Mosley’s former girlfriend, Linda Hill, who had obtained a restraining order against Mosley, testified that in the early morning hours of May 21, 2000, Mosley went to her house several times and, on two separate occasions, entered the house and beat her.
Hill testified that in the first incident, Mosley broke one of her windows and damaged her garage door. Based on Hill’s call to 911, the state estimated that this occurred about 1:35 a.m. Mosley was not charged in the complaint with any offense related to this incident.
Mosley returned at about 3:30 a.m. Hill testified that Mosley broke down the kitchen door, entered the house, and hit her. The complaint charged Mosley with first-degree burglary for this entry.
Mosley returned a third time at about 5:40 a.m. Hill testified that he entered through the doorway with the damaged door and again punched Hill inside the house. The complaint charged Mosley with first-degree burglary for this second entry.
At the conclusion of the trial, defense counsel asked the court to submit instructions on fourth-degree burglary and fifth-degree assault as lesser-included offenses of the two counts of first-degree burglary. The trial court declined but decided to submit a fifth-degree assault instruction covering the 1:30 a.m. incident, during which, according to Mosley’s testimony, he struck Hill. The jury, therefore, was instructed on three offenses: first-degree burglary occurring at 3:30 a.m., first-degree burglary occurring at 5:40 a.m., and fifth-degree assault occurring at 1:30 a.m.
The jury found Mosley guilty of both counts of first-degree burglary but not guilty of fifth-degree assault. The court imposed consecutive sentences of 58 months for the first count of first-degree burglary and 48 months for the second count. This appeal follows.
Mosley argues that the district court abused its discretion in instructing the jury on fifth-degree assault as a lesser-included offense. We agree but find the error to be harmless.
The determination of whether a jury should be instructed on a lesser-included offense is within the district court’s discretion. Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986). But in order to be a lesser-included offense, an offense must be based on the same criminal act as the greater offense. See State v. Gayles, 327 N.W.2d 1, 3 (Minn. 1982). The fifth-degree assault on which the jury was instructed was explicitly limited to the first incident, occurring at about 1:30 a.m., for which an instruction on no greater offense was given to the jury. Thus, fifth-degree assault was not a lesser-included offense. Moreover, as Mosley argues, fifth-degree assault was a new offense on which the jury should not have been instructed because the complaint charged no crime arising from the 1:30 a.m. incident. See generally State v. Guerra, 562 N.W.2d 10, 13 (Minn. App. 1997).
Despite the court’s error here in instructing on fifth-degree assault, an error may be cured by a verdict of acquittal. See State v. Byman, 410 N.W.2d 921, 922-23 (Minn. App. 1987) (holding that any error in admission of evidence cured by acquittal on count to which that evidence related). The jury acquitted Mosley of fifth-degree assault. It thereby removed any claim of reversible error. Cf. State v. Gisege, 561 N.W.2d 152, 159 Minn. 1997) (holding that it is fundamental error to convict defendant of crime for which he was not charged). Although Mosley claims that the fifth-degree-assault instruction undermined his theory of defense, he has not supported that claim, and we note that Mosley admitted to the assault during his testimony, so his defense was already forced to accommodate that admission. Mosley has made no showing that the instruction on fifth-degree assault influenced the jury’s verdicts of guilty of the two counts of first-degree burglary.
Mosley’s claim that the district court should have instructed the jury on fourth-degree burglary as a lesser offense is without merit. Mosley did not raise in the district court the theory he now presents--that the jury could have found that Mosley committed fourth-degree burglary because he committed misdemeanor contempt in Hill’s residence. Therefore, he has waived that issue. State v. Bates, 507 N.W.2d 847, 853 (Minn. App. 1993), review denied (Minn. Dec. 27, 1993). Moreover, burglary in the fourth degree with a predicate crime of misdemeanor contempt is not a crime necessarily proved when first-degree burglary (assault) is proved. Therefore, it is not a lesser-included offense, and no instruction on it was required.
Mosley also argues that the district court erred by imposing multiple sentences because his offenses were part of a single behavioral incident. If a defendant commits multiple crimes against the same person during a single behavioral incident, the defendant may be sentenced for only one of those offenses. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). In determining whether two convictions arose from a single behavioral incident, the court considers whether the offenses were motivated by a desire to obtain a single criminal objective and whether the offenses were related in time and place. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). Because the question of whether two offenses were part of a single behavioral incident involves a fact determination, this court will reverse a district court’s findings on this issue only when they are clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).
The district court found that Mosley had time to “cool down” between the two burglaries and that his state of mind shifted from attempting to avoid capture to a “new motivation to commit another offense.” The court concluded that the two burglaries were not committed as part of a single behavioral incident. These findings are not clearly erroneous. Mosley broke into Hill’s home and assaulted her in the second incident because he was angry that she would not let him inside. He assaulted Hill in the third incident because he was angry that she had called the police. Mosley committed each offense with a different criminal objective. Moreover, the crimes, although committed at the same place, were committed two hours apart, a significant interval given the substantial intrusion accomplished by each of the burglarious entries.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.