This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Rico Roman Kirk,
Filed February 14, 2006
Ramsey County District Court
File No. K2-04-2681
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Rico Roman Kirk challenges his conviction of first-degree burglary, arguing that the district court abused its discretion in refusing to instruct the jury on a lesser-included offense. We affirm.
D E C I S I O N
was convicted of first-degree burglary under Minn. Stat. § 609.582, subd. 1(c)
(2002). At trial, the district court
denied appellant’s request for a jury instruction on misdemeanor trespass as a
lesser-included offense of first-degree burglary. “[W]e
review the denial of a requested lesser-included offense instruction under an
abuse of discretion standard.” State v. Dahlin, 695 N.W.2d 588, 597 (
evaluating the evidence, the district court must look at the evidence in the
light most favorable to the party requesting the lesser-included offense
begin our analysis by first considering whether the lesser offense is included
in the charged offense.
agree with appellant that misdemeanor trespass is a lesser-included offense of
first-degree burglary with assault. In
comparing the statutory elements of each offense, trespass is necessarily
proven once the state proves first-degree burglary. Compare
Next, we consider whether the evidence provides a rational basis for acquitting appellant of first-degree burglary and convicting him of misdemeanor trespass. See Hannon, 703 N.W.2d at 509. Appellant argues that the district court should have provided a lesser-included instruction because he presented evidence that appellant did not assault the victim in the apartment. Although the parties presented conflicting evidence regarding whether appellant physically struck the victim in the apartment, the undisputed facts establish that appellant committed an assault as defined under Minn. Stat. § 609.02, subd. 10(1) (2002). See Minn. Stat. § 609.02, subd. 10(1) (defining assault as “[a]n act done with intent to cause fear in another of immediate bodily harm or death”).
It is undisputed that appellant went to the victim’s apartment after she told him not to come, and that when the victim did not let appellant into the apartment, appellant forced his way through the locked door because he was angry with the victim. Finally, respondent presented police photographs at trial that showed the broken door with the dead bolt on the ground. Even accepting appellant’s claim that he did not physically assault the victim inside the apartment, no evidence suggests that appellant broke into the victim’s apartment without the intent to cause the victim fear of immediate bodily harm. Thus, the evidence does not provide a rational basis for acquitting appellant of first-degree burglary and convicting him of misdemeanor trespass. We therefore conclude that the district court did not abuse its discretion when it denied appellant’s request to instruct the jury on misdemeanor trespass.