This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-03-106

 

In the Matter of the Welfare of:  B.L.M., Juvenile.

 

Filed August 12, 2003

Affirmed in part and Remanded

Kalitowski, Judge

 

Redwood County District Court

File No. J50250317

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant B.L.M.)

 

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

 

Michelle A. Dietrich, Redwood County Attorney, P.O. Box 130, Redwood Falls, MN 56283 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant B.L.M, a juvenile, challenges his adjudication for two counts of burglary in the first degree, arguing that the evidence was not sufficient as a matter of law.  Appellant also contends that because both counts of burglary arose from the same behavioral incident and involved the same crime, one of the adjudications for burglary in the first degree must be vacated.  We affirm in part but remand to the district court to vacate one of the adjudications.

D E C I S I O N

 

I.

When reviewing a sufficiency-of-the-evidence challenge, this court carefully reviews whether the record and any legitimate inferences drawn from it reasonably support the fact-finder’s conclusion that the defendant committed the offense charged.  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981); see also In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997) (applying same standard to juvenile cases).  The sufficiency of the evidence is viewed in a light most favorable to the state.  In re Welfare of G.L.M., 347 N.W.2d 84, 85 (Minn. App. 1984).  This court assumes the trier of fact believed the state’s witnesses and disbelieved any contradictory evidence. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  Accordingly, an appellant has the burden of showing that the trier of fact could not reasonably find the appellant committed the charged acts.  In re Welfare of T.M.V., 368 N.W.2d 421, 423 (Minn. App. 1985).

Appellant contends that the state did not produce sufficient evidence to establish that appellant was the intruder who entered the victim’s home without consent on the night of October 27, 2002, and assaulted the victim.  We disagree.  When viewing the evidence in a light most favorable to the state, sufficient evidence exists to establish that appellant was the intruder.

            First, the victim told the police that appellant committed the burglary.  While the victim may not have seen the intruder’s face, the victim recognized the voice of the intruder.  The victim knew appellant and had spoken with appellant a dozen times over the past year.  Therefore, it is reasonable that when the intruder told the victim that he was going to kill him, the victim accurately recognized the voice as that of appellant B.L.M.

In addition, other evidence gathered during the investigation sufficiently established that appellant committed the burglary:  (1) the victim testified that the intruder was wearing a hooded sweatshirt; (2) two town residents testified that they saw appellant wearing a hooded sweatshirt on the night of the burglary; (3) a dark hooded sweatshirt was found inside appellant’s house; and (4) the victim identified that sweatshirt as the sweatshirt worn by the intruder. 

            Further, although appellant denies being at the victim’s residence on the night in question, an investigating officer found bicycle tracks outside the victim’s residence.  No other bike tracks were in the area, and the tracks continued without interruption to appellant’s residence where the tracks stopped at the grass in appellant’s yard.  And in appellant’s yard there was a bicycle, which appellant admitted he often rode, not far from where the tracks ended.

            Finally, despite appellant’s claim to the contrary, the time line established at the adjudicatory hearing shows that there was sufficient time for appellant to commit the burglary.  The victim’s home is close to appellant’s.  Even though appellant was visiting a friend at 10:00 on the night of the burglary, appellant’s sister testified that it only took her two minutes to walk from her home to that friend’s house.  Therefore, since appellant’s friend testified that appellant left his house at 10:00 and returned at approximately 10:45, there was sufficient time for appellant to commit the burglary. 

            We conclude that the evidence presented is sufficient as a matter of law to support appellant’s adjudications of burglary in the first degree.

II.

Appellant was charged and adjudicated of two counts of first-degree burglary.  Appellant was adjudicated for entering a dwelling without consent when another person was inside, in violation of Minn. Stat. § 609.582, subd. 1(a) (2002).  And appellant was also adjudicated for entering a dwelling without consent and assaulting the person inside the dwelling, in violation of Minn. Stat. § 609.582, subd. 1(c) (2002). 

But Minn. Stat. § 609.04  (2002) prohibits a defendant from being convicted twice for the same offense against the same victim on the basis of the same act.  State v. Goodridge, 352 N.W.2d 384, 389 (Minn. 1984).  Appellant argues that because both counts of first-degree burglary arose from the same behavioral incident and involved the same crime, one of the adjudications for burglary in the first degree must be vacated.  We agree.

In State v. Hodges, 386 N.W.2d 709, 710 (Minn. 1986), a defendant was charged and convicted of two counts of first-degree burglary, one count for burglary of an occupied dwelling and another count for burglary with assault.  The supreme court stated that for the purpose of Minn. Stat. § 609.04, the burglarious entry of one dwelling should justify only one burglary conviction.  Id.  We thus conclude the district court here erroneously adjudicated appellant for two counts of first-degree burglary.  See also Walker v. State, 394 N.W.2d 192, 198 (Minn. App. 1986) (vacating two burglary convictions when defendant had three adjudicated convictions for first-degree burglary), review denied (Minn. Nov. 26, 1986).

The state contends that because appellant is raising this issue for the first time on appeal, the issue has been waived.  See In re Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn. 1982) (arguments made for the first time on appeal will not be considered).  We disagree.

In State v. Kemp, 305 N.W.2d 322, 326 (Minn. 1981), the supreme court expressly reserved the option not to decide an issue such as this in future appeals if the issue were not first raised in the district court.  But in a number of subsequent appeals in which it was necessary to decide other issues raised by the appellant, reviewing courts have decided issues involving Minn. Stat. § 609.04 that were not raised in the district court.  See, e.g., State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989) (supreme court stated that the appellate court properly addressed the application of Minn. Stat. § 609.04 even though the issue had not been raised in the district court); State v. Frank, 416 N.W.2d 744, 750 (Minn. App. 1987)(noting that the protection of Minn. Stat. § 609.04 from multiple convictions for the same conduct is not waived through lack of previous presentation), review denied (Minn. Feb. 8, 1988).  Therefore, we conclude the issue is not waived.

In conclusion, while the evidence was sufficient to sustain the adjudications, one of the adjudications must be vacated by the district court pursuant to Minn. Stat. § 609.04.  We therefore remand the matter to the district court to vacate one of appellant’s adjudications.

Affirmed in part and remanded.