This opinion will be unpublished and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
Gilbert Kilimi Moliga,
Filed June 27, 2006
Affirmed in part and reversed in part
Stearns County District Court
File No. K0-03-2161
Mike Hatch, Attorney General, 1800
Janelle P. Kendall, Stearns County Attorney, Shan C. Wang, Assistant County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN 56303 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett,
Michael W. Kunkel, Assistant State Public Defenders,
Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Dietzen, Judge.
Appellant challenges his convictions of two counts of burglary, arguing the sufficiency of the evidence, and that the two convictions were for the same offense. Because we conclude that the evidence, viewed in the light most favorable to the jury’s verdict, is sufficient to convict appellant of both counts, but that the two convictions are for the same offense, we affirm in part and reverse in part.
In the late
evening of July 3, 2001, appellant Gilbert Kilimi Moliga entered a three-story
house located near
The next day, the residents discovered that a DVD player, a remote control, and some DVDs were missing from the bedroom of Michael Schwintek and Bradley Lein. The residents also discovered that an existing hole in the bedroom door had been expanded so that it was large enough for a person to reach in and unlock the door. The police were called, the incident was reported, and appellant was identified as the person who fled the house the previous evening.
A few days later, the missing items were found in a stairwell at the house. Appellant later informed Lein that the police were questioning him about certain items missing from their house and stated, “Hey, if there is any way I could, you know, make this go away, let me know.” When Lein told him a remote was missing, appellant offered to pay for the missing remote because “[he] didn’t want to be in trouble.” Subsequently, appellant was charged with two counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (burglary of an occupied dwelling) (count I), and subd. 1(c) (burglary with an assault) (count II) (2000).
At trial, four of the nine residents, Kramer, Murphy, Schwintek, and Lein, testified. Lein stated that two weeks before the party, appellant, a cable company employee, installed cable television at the house. During the installation, appellant testified that Lein and Schwintek told him that they had parties on weekends and extended an invitation to him to attend future parties, and invited him to a party over the Fourth of July. But neither Lein or Schwintek remembered having any discussions with appellant about a party, and both stated that only friends of the residents attended the party. Lein testified that only their “close friends” were invited to the party. Schwintek testified that he did not know who installed the cable because he was not present during the installation.
Appellant testified that he “drank and drank and drank” at a local bar the evening of July 3 and then drove to the house party. At the party he asked “two guys” if he could use the bathroom and was directed to the upstairs bathroom. Appellant denied attempting to steal anything from the house.
On cross-examination, appellant admitted that he had changed his testimony several times regarding his whereabouts that evening. Initially, appellant stated that he was home with his wife and did not go to the party. In response to an investigator, appellant stated that he could not remember anything that evening because he was drunk. At trial, appellant admitted that he lied to the investigator and that he did recall the events at the house that night.
The jury found appellant guilty of both counts of burglary. At sentencing, the district court sentenced appellant to a stayed sentence of 21 months on count I and to a concurrent executed 44-month sentence on count II, which is the presumptive sentence for burglary with an assault with a zero criminal-history score. This appeal follows.
D E C I S I O N
two issues on appeal. First, appellant contends
that the evidence was insufficient to support the convictions of two counts of
first-degree burglary. The crux of
appellant’s argument is that he had consent to enter the house, and, therefore,
did not commit burglary. On a claim of insufficiency
of the evidence, this court’s review is limited to a painstaking analysis of
the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient to allow the jury to reach its
verdict. State v. Webb, 440
N.W.2d 426, 430 (
consent to enter a building is an element of both burglary convictions. Minn. Stat. § 609.582, subd. 1 (2000). 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, either
directly or as an accomplice, commits burglary in the first degree . . . .”
In essence, appellant argues that each of the nine residents of the house had the authority to give consent to appellant to enter the house, and, therefore, each resident was required to testify that appellant was not given consent to enter the building. Respondent disagrees, and further argues that appellant lacked consent to enter the bedroom of Lein and Schwintek.
the first-degree-burglary statute, an unlawful entry into a building occurs
when a person exceeds the scope of the consent given him and other members of
the public by entering an area off-limits to the public. See
State v. McDonald, 346 N.W.2d 351, 352 (
Based on the evidence, the jury could have concluded that (1) appellant was not invited to the party; (2) the bedroom in question was locked and off-limits to the public; (3) when appellant was confronted in the upstairs hallway, he assaulted Kramer and fled the house; and (4) following discovery of the missing items and the police interview of appellant, appellant told Lein that he was willing to do whatever was necessary with the house residents to “make this go away . . . .”
And a reasonable jury could have disbelieved appellant’s testimony. We note that appellant gave different and contradictory versions as to his whereabouts that evening. Viewing the evidence in the light most favorable to the jury verdict, the evidence was sufficient to convict appellant of both counts of burglary.
contends that the district court erred by convicting and sentencing him on two
counts of burglary because only one unlawful entry could have been made during
the single incident. Minn. Stat. § 609.04 (2004)
provides that “[u]pon prosecution for a crime, the actor may be convicted of
either the crime charged or an included offense, but not both.” “Thus, the statute bars more than one
conviction for the same offense by a defendant against the same victim on the
basis of the same act.” State v. Reese, 692 N.W.2d 736, 743 (
Here, the state concedes that appellant’s two burglary convictions were part of the same act and does not oppose vacating appellant’s conviction for count I, first-degree burglary of an occupied dwelling. The convictions here were against the same victims and part of the same act. Accordingly, we vacate appellant’s conviction on count I.
The state argues that this
court need not remand for re-sentencing because appellant’s effective sentence
remains the same even without the count I conviction. The district court sentenced appellant to 44 months,
which is the presumptive guidelines sentence for first-degree burglary with an
assault with a zero criminal-history score.
Affirmed in part and reversed in part.
 Appellant testified he was invited to a Fourth of July party, but the party actually commenced on the evening of July 3.