This opinion will be unpublished and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
Filed May 30, 2006
Toussaint, Chief Judge
Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066-2475 (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Collins, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Brian Schoonover appeals his conviction of first-degree burglary, a violation of Minn. Stat. § 609.582, subd. 1(b) (2004). Because the record supports the jury’s verdict that appellant’s conduct was within the statutory definition of the offense, we affirm.
Police, responding to a citizen’s call reporting suspicious behavior, approached a house beside the highway where they saw a broken window indicating a possible burglary. They then saw a man, later identified as appellant, standing by the house. A search of the house revealed that the house had been ransacked, with drawers opened, jewelry boxes searched and left open, and items strewn about. A number of items had been collected in the kitchen, including a long black gun case containing two .22-caliber rifles. The residents of the house testified that the items collected in the kitchen had not been there in the morning when they left the house. The gun case was kept in an upstairs bedroom closet.
The jury found appellant guilty of both first- and second-degree burglary. He was sentenced on the first-degree burglary count to 111 months, the presumptive sentence.
argues that merely finding and retrieving firearms within a house following
unlawful entry does not constitute first-degree burglary. The proper construction of a statute is a
question of law that this court reviews de novo. State
v. Murphy, 545 N.W.2d 909, 914 (
The relevant portion of the first-degree burglary statute provides:
Whoever 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 . . ., if: . . . (b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon . . . .
Minn. Stat. § 609.582, subd.
1(b) (2004) (emphasis added). Appellant
argues that the statutory requirement of possession of a dangerous weapon
should be construed strictly to require that the offender have “immediate and
ready access to the weapon.” In
construing a penal statute, all reasonable doubt concerning legislative intent
should be resolved in favor of the defendant.
State v. Olson, 325 N.W.2d 13,
court has held that the firearm-enhancement statute, which requires possession
(or use) of a firearm “at the time of the offense” may be applied “to a burglar
who comes into possession of firearms once inside the building.” State
v. Herbert, 601 N.W.2d 210, 211 (Minn. App. 1999) (construing Minn. Stat. § 609.11,
subd. 5(a) (1998)). The court in Herbert focused on the element of time of possession of the firearm (“at
the time of the offense”), not the element of possession itself. The court noted that an “elements-based
interpretation” might indicate that the crime of burglary was complete upon
entry into the dwelling, and, therefore, firearms possessed after entry did not
satisfy the statute.
argues that Herbert is distinguishable
because the language of the first-degree burglary statute differs from the
language of the firearm-enhancement statute construed in Herbert. The first-degree
burglary statute requires only that the weapons be “possessed” when entering
“or at any time while in the building.”
argues that the statutory element of possession should be strictly construed to
apply only to “immediate and ready access.”
The general rule, however, is that a statute is to be construed
according to its plain language. State v. Estrella, 700 N.W.2d 496, 500 (
appellant concedes that the first-degree-burglary statute uses the term
“possesses,” rather than “armed,” he argues that “immediate and ready access”
to the weapon should be required. He
term “possession” has long been extended to include constructive possession,
even when possession of weapons rather than drugs is at issue. See
State v. Olson, 326 N.W.2d 661, 663 (
Appellant argues that the “possession” element in the first-degree burglary statute should require a greater degree of possession because only burglars with ready access to a weapon pose an increased risk of violence. We disagree. If appellant had been inside the house when the burglary was discovered and had heard the residents, or police, approaching the house, he could have quickly armed himself with one of the guns in the case, thereby greatly increasing the risk of violence.
We conclude that appellant’s conduct fits within the statutory definition of first-degree burglary.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.