This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,


John Nesenson,


Filed August 5, 2003


Wright, Judge


Meeker County District Court

File No. KX0237



John Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 Sibley Avenue North, Litchfield, MN  55355 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Wright, Judge, and Forsberg*, Judge.




U N P U B L I S H E D  O P I N I O N




In this appeal from his convictions of first-degree burglary and gross-misdemeanor obstructing legal process, appellant argues that (1) obstructing legal process cannot satisfy the independent-crime element of first-degree burglary because it is not a crime committed against the dwelling or its inhabitants, (2) the district court abused its discretion in declining to instruct the jury on the lesser-included offense of trespass,      (3) the district court abused its discretion when it did not instruct the jury that obstructing legal process requires conduct that physically obstructs or interferes with a police officer, and (4) the district court abused its discretion by excessively departing upward from the presumptive sentence.  We affirm.



On January 8, 2002, three law enforcement officers arrived at the home of appellant John Nesenson’s cousin in Watkins, where they believed they would find Nesenson and execute an arrest warrant.  After the officers knocked on the door, Nesenson answered and an officer announced to Nesenson that he was under arrest.  Affecting a boxing stance, Nesenson challenged the officer to box him.  When the officer declined, Nesenson slammed the door shut.  The officers called for backup and attempted to force the door open.  The officers heard a crash from the rear of the home.  Nesenson had escaped through a window and was running away.  An officer ordered Nesenson to stop.  Nesenson taunted the officers and refused to comply with the order.  The officers pursued Nesenson on foot, but they were unable to catch him.   

            Meanwhile, Kristy Schindler, who lived about 100 yards away, was at home with her son.  She heard the side door to her home open, followed by the sound of someone going downstairs to the basement.  When she realized that the sounds had not been made by her husband, Schindler frantically called 911 and reported that someone was in her house. 

            Having heard the dispatch, the officers arrived at Schindler’s residence and escorted Schindler and her son to a safe location.  The officers then entered Schindler’s home and found Nesenson hiding in the basement.  With weapons drawn, the officers ordered Nesenson to lie on the ground.  Once on the ground, Nesenson swore at the officers, struggled with them, and resisted their attempts to handcuff him.  Nesenson was charged with first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(a) (2000), and gross-misdemeanor obstruction of legal process, in violation of Minn. Stat.   § 609.50 subd. 1(1) (2000).  Following a jury trial, Nesenson was convicted of both offenses.  This appeal followed.




Nesenson contends that, because misdemeanor obstruction of legal process is not an offense directed against the dwelling, its occupants or their property, the offense cannot satisfy the independent-crime element of first-degree burglary.  Construction of a criminal statute is a question of law, which we review de novo.  State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002).  “A statute must be construed according to its plain language.”  Id. (citing Minn. Stat. § 645.16 (2000)).  The object of statutory interpretation is to determine and give effect to the intent of the legislature.  Minn. Stat. § 645.16 (2000).  “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”  Id.  Penal statutes must be construed strictly with any reasonable doubt resolved in favor of the defendant.  State v. Olson, 325 N.W.2d 13, 19 (Minn. 1982) (citing State v. Haas, 280 Minn. 197, 200-01, 159 N.W.2d 118, 121 (1968)).  “The rule of strict construction of criminal statutes is essential to guard against the creation of criminal offenses outside the contemplation of the legislature, under the guise of ‘judicial construction.’”  State v. Soto, 378 N.W.2d 625, 628 (Minn. 1985) (quotation omitted).

Minn. Stat. § 609.582, subd. 1 (2000), provides 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 in the first degree      * * * .”  Nesenson argues that, while first-degree burglary requires an unlawful entry “with intent to commit a crime,” this independent-crime element can only be satisfied with a crime committed against the dwelling, its occupants, or their property.  Nesenson’s interpretation of section 609.582, subdivision 1, however, does not comport with the plain language of the statute.  While the state must prove that a defendant intended to commit a crime independent of the illegal-entry element of burglary, Colvin, 645 N.W.2d at 454 (holding that violation of a no-entry provision of an order for protection does not satisfy the independent-crime element); State v. Larson, 358 N.W.2d 668, 670 (Minn. 1984) (holding that trespass does not satisfy the independent-crime element), the statute does not specify that the independent crime must be a crime against the dwelling or its inhabitants.  The language of Minn. Stat. § 609.582, subd. 1, is clear and unambiguous.  Nothing in that language can be read to add to the independent-crime element for first-degree burglary a requirement that the independent crime must be against the dwelling or its inhabitants.  Because we may not disregard the letter of the law with the intention of pursuing its spirit, we are guided by the statute’s plain meaning, which permits obstruction of legal process, a crime committed against neither the dwelling nor its inhabitants, to meet the independent-crime element of first-degree burglary.  Minn. Stat. § 645.16 (2000). 


The jury determined that Nesenson’s independent crime was obstruction of legal process, which includes intentionally (1) obstructing, hindering, or preventing the lawful execution of any criminal legal process or (2) obstructing, resisting, or interfering with a peace officer while the officer is engaged in the performance of official duties.  Minn. Stat. § 609.50, subd. 1(1), (2) (2000).  The obstruction-of-legal-process statute is directed at “words and acts that have the effect of physically obstructing or interfering with a police officer.”  State v. Ihle, 640 N.W.2d 910, 915 (Minn. 2002) (discussing State v. Krawsky, 426 N.W.2d 875, 877 (Minn. 1988)).  Physical obstruction is defined as “substantially frustrating or hindering the officer in the performance of his duties.” Krawsky, 426 N.W.2d at 877. 

Nesenson argues that, because the obstruction of legal process was completed when he slammed the door of his cousin’s residence on the officers, he did not have the requisite intent to commit a crime upon entering Schindler’s home.  The record, however, does not support Nesenson’s argument.  Nesenson’s obstruction of legal process continued after he slammed the door.  He escaped through a window and ran from the police.  While the officers searched for Nesenson, he hid in Schindler’s home to avoid arrest.  Nesenson’s actions physically interfered with the officers’ attempt to execute the arrest warrant, thereby physically obstructing the officers in the performance of their official duties.  Because the state proved that Nesenson intended to commit obstruction of legal process when he entered Schindler’s home, the independent-crime element of first-degree burglary was met.


Nesenson also contends that the district court erred when instructing the jury on obstruction of legal process because the jury was not instructed that this offense applies only to acts of the defendant that physically obstruct and interfere with a peace officer.  Arguing that the jury could have found him guilty of first-degree burglary without the requisite finding that he intended to obstruct legal process physically when he entered Schindler’s home, Nesenson urges reversal.  

Nesenson failed to object to the jury instructions at trial, which generally waives the right to raise the issue on appeal.  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).  We may, however, “consider a plain error not previously brought to the attention of the district court if the error affects substantial rights.”  Ihle, 640 N.W.2d at 916.  To prevail, Nesenson must show that the district court (1) committed error, (2) the error was plain, and (3) the error affected Nesenson’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted).

Confronted with a similar issue in Ihle, the Minnesota Supreme Court conducted a plain-error analysis and concluded that the district court erred by failing to instruct the jury that obstructing legal process prohibits only intentional physical acts and “fighting words.”  Ihle, 640 N.W.2d at 916-17.  The error was plain because the district court instructed the jury on the elements of obstruction of legal process without including the requirement of intentional physical acts or words that physically obstruct legal process as established in State v. Krawsky, 426 N.W.2d 875 (Minn. 1988), 13 years earlier.  Ihle, 640 N.W.2dat 917.  The Ihle court, however, determined that the erroneous instruction did not have a significant effect on the jury’s verdict because, in its response to the special-verdict question, the jury found that the defendant’s act was accompanied by force or the threat of force.  Id.  Moreover, the jury was instructed that “if [the defendant’s] conduct consisted only of offensive, obscene, or abusive language, the words used must have been fighting words.”  Id.  Because a more accurate instruction would not have changed the outcome, the Ihle court held that the erroneous instruction did not affect the defendant’s substantial rights.  Id.

Here, as in Ihle, any language limiting criminal conduct to physical obstruction or “fighting words” was omitted from the jury instruction, and this omission constitutes plain error.  Id.  The error, however, did not affect Nesenson’s substantial rights or change the outcome of the case because the jury indicated in its answer to the special-verdict question that Nesenson’s act was accompanied by force or the threat of force and the record supports this conclusion.  Evading arrest by slamming the door, fleeing the police, and hiding in Schindler’s home all support the finding that Nesenson intended to obstruct legal process physically when he entered Schindler’s home.  Nesenson’s argument that the jury could have convicted him for swearing at the officers—conduct that does not constitute obstructing legal process—is contrary to the jury’s special-verdict response and the evidence on which the response was based.  Accordingly, we conclude that proper jury instructions would not have changed the outcome of this case. 


Nesenson next urges us to conclude that the district court erred by failing to give a jury instruction on the lesser-included offense of trespass.  A lesser-included offense may be “[a] crime necessarily proved if the crime charged were proved.”  Minn. Stat.              § 609.04, subd. 1(4) (2000); State v. Bahri, 514 N.W.2d 580, 583 (Minn. App. 1994) (“An offense is a lesser-included offense if one cannot commit the greater offense without also committing the lesser.”  (citation omitted)), review denied (Minn. June 15, 1994).  We examine the statutory elements of the relevant offenses rather than the particular facts of the case to determine whether an offense is a lesser-included offense.  State v. Roden, 384 N.W.2d 456, 457 (Minn. 1986).  The decision to submit instructions for a lesser-included offense lies within the sound discretion of the district court, “but where the evidence warrants an instruction, the trial court must give it.”  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citation omitted).  An instruction on a lesser-included offense is warranted if the offense in question is an included offense, and a rational basis exists for the jury to convict the accused of the lesser offense and acquit the accused of the greater crime.  Stiles v. State, 664 N.W.2d 315, 319 (Minn. 2003) (citing Bellcourt, 390 N.W.2d at 273 (other citation omitted)).  Failing to instruct the jury on a lesser-included offense is grounds for reversal only if the defendant is prejudiced by the faulty instruction.  Bellcourt, 390 N.W.2d at 273. 

            For our analysis, the relevant elements of first-degree burglary are (1) entry into an occupied dwelling without consent of the person in lawful possession and (2) effecting such entry with intent to commit a crime.  Minn. Stat. § 609.582, subd. 1 (2000).  The relevant elements of trespass are (1) intentional entry of the dwelling of another and (2) effecting such entry without the consent of the owner.  Minn. Stat. § 609.605, subd. 1(b)(4) (2000).  When comparing the statutory elements of each offense, we conclude that trespass is necessarily proven if first-degree burglary is proven.  Minn. Stat.              § 609.04, subd. 1(4).  Because one cannot commit first-degree burglary without also committing trespass, trespass is a lesser-included offense of first-degree burglary.  State v. Roberts, 350 N.W.2d 448, 450-51 (Minn. App. 1984).

            We must next determine whether the evidence supports a rational basis for an acquittal of the first-degree burglary offense and a conviction of the trespass offense.  Chambers, 589 N.W.2d at 478.  The jury could reasonably infer from the evidence that, when Nesenson fled the police and hid in Schindler’s home, he intended to evade capture and physically hinder the officers’ efforts to apprehend him.  See State v. Crosby, 277 Minn. 22, 25, 151 N.W.2d 297, 300 (1967) (“[I]ntent to commit a crime in connection with proof of burglary is always one that must rest on a permissible inference from the facts proved.”); see also State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997) (stating that the fact-finder “may infer that a person intends the natural and probable consequences of his actions and a defendant’s statements as to his intentions are not binding on the jury if his acts demonstrate a contrary intent”).  Because our review of the evidence establishes that Nesenson had no apparent purpose to enter Schindler’s home other than to evade capture and obstruct legal process, no rational basis exists to acquit Nesenson of first-degree burglary and convict him of trespass.  We, therefore, conclude that the district court did not abuse its discretion in declining to instruct the jury on the lesser-included offense of trespass.


Nesenson also argues that the district court abused its discretion by departing upwardly from the applicable guideline range of 55 to 59 months’ imprisonment and imposing a sentence of 78 months’ imprisonment.  We review departures from the sentencing guidelines for an abuse of discretion.  State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002).  When departing from the presumptive sentence, the district court must provide “substantial and compelling” reasons to justify the departure.  Id. at 69.  

The district court sentenced Nesenson under Minnesota’s career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2000), which “targets offenders whose primary occupation is committing crimes or whose lifestyle is one of criminality.”  State v. Flemino, 529 N.W.2d 501, 503 (Minn. App. 1995), review denied (Minn. May 31, 1995).  When imposing an executed felony sentence where the applicable sentencing guidelines provide for a presumptive commitment to prison,

the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct. 


Minn. Stat. § 609.1095, subd. 4. 

Here, the district court determined that Nesenson has six prior felony convictions and his current charge is “part of a very similar pattern of conduct that he has demonstrated over the years.”  Finding that “Mr. Nesenson has repeatedly tried to avoid the consequences of his criminal behavior, and has consistently chosen to commit criminal acts to avoid dealing with his legal difficulties and criminal behavior,” the district court listed four prior offenses in which Nesenson either fled from police officers, escaped from custody, or obstructed legal process.  Nesenson does not dispute these findings.  Rather, he contends that the sentence is excessive in light of his offense.  We disagree.  Because the sentence is well within the 20-year statutory maximum sentence authorized by Minn. Stat. § 609.1095, subd. 4, and the record establishes that the district court complied with the requirements of this statute, the district court did not abuse its discretion in imposing a sentence of 78 months’ imprisonment.





*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.