This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Rico Roman Kirk,



Filed February 14, 2006


Kalitowski, Judge


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.



            Appellant 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 (Minn. 2005).  But where the evidence warrants a requested lesser-included offense instruction, the district court must give it.  Id.  The evidence warrants an instruction when “1) the lesser offense is included in the charged offense; 2) the evidence provides a rational basis for acquitting the defendant of the offense charged; and 3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense.”  State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2005) (citing Dahlin, 695 N.W.2d at 595).

            In evaluating the evidence, the district court must look at the evidence in the light most favorable to the party requesting the lesser-included offense instruction.  Id. at 510.  “[W]hen evidence exists to support the giving of the instruction, it is an abuse of discretion for a trial court judge to weigh the evidence or discredit witnesses and thereby deny an instruction.”  Id. at 510 (quoting Dahlin, 695 N.W.2d at 598).  But the lesser instruction is not required when “no evidence is adduced to support acquitting of the greater charge and convicting of the lesser.”  Id. at 511.

            We begin our analysis by first considering whether the lesser offense is included in the charged offense.  Id. at 509.  A defendant “may be convicted of either the crime charged or an included offense, but not both.”  Minn. Stat. § 609.04, subd. 1 (2002).  A lesser offense is “necessarily included” if a defendant cannot possibly commit the greater offense without also committing the lesser offense.  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986); see also Minn. Stat. § 609.04, subd. 1(4) (“An included offense may be . . . [a] crime necessarily proved if the crime charged were proved[.]”).

            We 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 Minn. Stat. § 609.582, subd. 1(c), with Minn. Stat. § 609.605, subd. (1)(b)(4) (2002).  Thus, based on the undisputed facts here, appellant could not break down the locked door of his victim’s apartment and assault his victim unless he also trespassed.  See Minn. Stat. § 609.605, subd. 1(b)(4).

            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.