This opinion will be unpublished and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
State of Minnesota,
Antoine Laverne Jones,
Filed October 19, 2004
Affirmed as modified
Benton County District Court
File No. K1-03-2
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Robert Raupp, Benton County Attorney, Karl Schmidt, Assistant County Attorney, Courts Facility, P.O. Box 189, Foley, MN 56329 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*
Appellant challenges his conviction of and sentence for two counts of first-degree burglary, arguing that (1) his conviction must be reversed because he did not properly waive his right to a jury trial and (2) he could not be convicted and sentenced separately on two counts of burglary where there was only one unlawful entry. In his pro se supplemental brief, appellant also challenges the sufficiency of the evidence to sustain his conviction. Because we conclude that appellant’s jury-trial waiver was voluntary, knowing, and intelligent, we affirm on that issue. We also reject appellant’s sufficiency-of-the-evidence challenge. Finally, we vacate appellant’s burglary conviction on count I because it is a lesser-included offense of count II, but we affirm appellant’s 111-month sentence.
On December 31, 2002, at approximately 6:00 p.m., J.R.J. called 911 and reported that appellant Antoine Laverne Jones had entered her home, without permission, and assaulted her. St. Cloud police responded to the scene, where officers observed a small cut on the left bridge of J.R.J.’s nose, a tear in the neck of her t-shirt, and blood on her hands and in various areas of her kitchen.
J.R.J. told police that at approximately 5:30 p.m., she was in the lower level of her home doing laundry when she heard a male voice upstairs. When she went upstairs, she found that appellant had entered her home and was talking to her 8-year-old son about an incident that had occurred between her son and appellant’s daughter. J.R.J. told appellant to leave several times, and the two exchanged profanities. Appellant then grabbed J.R.J., with one hand around her throat, and shoved her against a wall. As J.R.J. tried pulling away, she fell to the floor and appellant began choking her with both hands. When appellant finally desisted, J.R.J. opened the door and screamed at him to get out of her house. Appellant then “head-butted” J.R.J., splitting her nose and causing her to bleed profusely. Police also obtained a statement from J.R.J.’s son, who stated that appellant had entered the home, without knocking or obtaining permission, and had assaulted his mother as described above.
Appellant was subsequently charged with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (2002) (count I); first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (2002) (count II); fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(1) (2002) (count III); and fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(2) (2002) (count IV). After appellant waived his right to a jury trial during a pretrial hearing, the matter was tried to the district court.
The district court found appellant guilty of two counts of first-degree burglary in violation of Minn. Stat. § 609.582, subds. 1(a), (c). Count III was dismissed by the state, and the court determined that count IV was a lesser-included offense of count II. Appellant was sentenced to 60 months’ imprisonment for count I and 111 months’ imprisonment for count II, with the two sentences running concurrently. This appeal follows.
Appellant first argues that his convictions must be vacated because he did not properly waive his constitutional right to a jury trial. The Minnesota Rules of Criminal Procedure set forth the procedure for a jury-trial waiver:
The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.
Minn. R. Crim. P. 26.01, subd. 1(2)(a). Interpreting the rules of criminal procedure is a question of law, which we review de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).
Although waiver of the right to a jury trial must be knowing, intelligent, and voluntary, State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991), the district court is not obligated to make a searching inquiry as to why a defendant is waiving this right. In re Welfare of M.E.M., 674 N.W.2d 208, 213 (Minn. App. 2004). In fact, the supreme court has cautioned against such inquiry, as matters of trial tactics are left to the defendant and his attorney. Ross, 472 N.W.2d at 654. Nonetheless, the district court “must be satisfied that the defendant was informed of his rights and that the waiver was voluntary.” Id. at 653 (quotation omitted).
Here, defense counsel sent a letter to court administration stating that “[a]fter due consideration [appellant] has decided to waive his right to a jury trial and proceed with a court trial . . . .” Although this waiver is not alone sufficient, the following exchange also took place between appellant and his counsel during the pretrial hearing:
MR. HERMES: . . . The other thing I’d like to put on the record is with Mr. Jones. Antoine, you and I have discussed in the past – we made a decision last week to move this matter from a court – or from a jury trial rather to a court trial. I just want to make sure and put on the record that that is still your decision; correct?
THE DEFENDANT: Yes, it is still my decision.
MR. HERMES: And you understand you could have a jury trial, but instead you’re going to have a court trial for reasons we have discussed privately, right?
THE DEFENDANT: Yes, sir.
In his reply brief, appellant asserts that this waiver was deficient because the district court did not ensure that he “understood the difference between a jury trial and a court trial or [that] he understood the rights he was waiving.” We disagree. In United States v. Delgado, 635 F.2d 889 (7th Cir. 1981), the Seventh Circuit Court of Appeals held that a defendant should be informed that a jury is composed of 12 members of the community, that the defendant may participate in the selection of jurors, that the verdict of the jury must be unanimous, and that if a jury is waived, a judge will decide guilt or innocence. Id. at 890. But while Delgado provides “helpful guidelines” in ensuring that a defendant’s waiver is voluntary and intelligent, Minnesota courts have expressly declined to make the Delgado inquiry mandatory. See, e.g., Ross, 472 N.W.2d at 654; State v. Johnson, 354 N.W.2d 541, 543 (Minn. App. 1984). Instead, our courts look at the totality of the circumstances to determine whether the waiver was knowing and voluntary. See Ross, 472 N.W.2d at 654 (recognizing that “[t]he nature and extent of the inquiry may vary with the circumstances of a particular case”).
In State v. Pietraszewski, 283 N.W.2d 887 (Minn. 1979), the defendant was asked only if he wished to waive his right to a jury trial, to which the defendant replied, “That’s true, Your Honor.” Id. at 890. The Pietraszewski court held that, although a more thorough inquiry should have been made, reversal was not required. Id. The court then noted that the defendant’s contacts with the district court provided sufficient evidence for the district court to determine the validity of the waiver. Id.
Here, appellant clearly stated on the record that he was willing to waive his right to a jury trial. He and his attorney also advised the court that they had discussed the waiver and had decided to proceed with a bench trial for tactical reasons. Appellant has six prior felony convictions and was, therefore, familiar with the criminal-justice system. Under these circumstances, we conclude that appellant’s waiver was knowing, voluntary, and intelligent.
Minn. Stat. § 609.04 (2002) prohibits a defendant from being convicted twice of 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). Nonetheless, appellant was charged and adjudicated of two counts of first-degree burglary. He was convicted for entering a dwelling without consent when another person was inside, in violation of Minn. Stat. § 609.582, subd. 1(a) (count I), and was also convicted for entering a dwelling without consent and assaulting the person inside the dwelling, in violation of Minn. Stat. § 609.582, subd. 1(c) (count II).
Appellant argues that because both counts of burglary arose from the same behavioral incident and involved the same entry, one of the adjudications for first-degree burglary must be vacated. The state concedes this point, stating that count I should be vacated because count I is a lesser-included offense of count II, leaving appellant with a conviction of count II and the guidelines 111-month sentence for that crime. Appellant, on the other hand, argues that his sentence may not exceed 60 months.
We agree that the district court erroneously convicted appellant of two counts of first-degree burglary. See State v. Hodges, 386 N.W.2d 709, 710 (Minn. 1986) (holding that under Minn. Stat. § 609.04, the burglarious entry of one dwelling should justify only one burglary conviction). Therefore, we vacate appellant’s conviction of count I pursuant to Minn. Stat. § 609.04. See 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).
But we disagree with appellant’s assertion that his sentence may not exceed a term of 60 months’ imprisonment. Count I is a lesser-included offense of count II, and appellant’s conviction of count II remains even after our vacation of count I. In sentencing appellant for count II, the district court followed the recommendation in the presentence-investigation report and issued the presumptive guidelines sentence of 111 months for a level-eight offense with a criminal-history score of seven. This was not erroneous. By affirming appellant’s sentence for count II, appellant will not receive a “more severe penalty” following his appeal. See State v. Wallace, 327 N.W.2d 85, 88 (Minn. 1982) (holding that where “a sentence is set aside as a result of an appeal by a defendant, the [district] court on resentencing may not impose a more severe penalty than the sentence which it previously imposed”). Therefore, we affirm appellant’s 111-month sentence.
In his pro se supplemental brief, appellant essentially argues that the evidence is insufficient to support his burglary conviction. When reviewing a claim of insufficient evidence, we review the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
Here, the district court found that appellant (1) entered J.R.J.’s residence without consent, (2) remained there after J.R.J. repeatedly told him to leave, and (3) assaulted J.R.J. by choking and head-butting her. These findings are amply supported by the testimony of J.R.J. and her son. Although appellant asks this court to re-weigh the evidence and accept his version of the events, we must assume the district court “believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Furthermore, the credibility of individual witnesses is for the fact-finder to determine. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). Therefore, we conclude that the evidence is sufficient to sustain appellant’s conviction of count II.
Affirmed as modified.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Following our nonoral conference, appellant submitted State v. Meyer, No. A03-1860, 2004 WL 2049964 (Minn. App. Sept. 14, 2004), as supplemental authority in support of his argument that he did not waive his right to a jury trial. Unpublished opinions are not of value in deciding an appeal. See Minn. Stat. § 480A.08, subd. 3(c) (2002) (stating that “[u]npublished opinions of the court of appeals are not precedential”); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (recognizing dangers of miscitation and unfairness associated with use of unpublished opinions and that while persuasive at times, “[t]he legislature has unequivocally provided that unpublished opinions are not precedential”). Moreover, Meyer is distinguishable. In Meyer, the defendant was not asked on the record, either at the settlement conference or at trial, whether he waived his right to a jury trial. Meyer, 2004 WL 2049964, at *2. Conversely, here, appellant personally waived his right to a jury trial on the record at the pretrial hearing.