This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-97-1752

State of Minnesota,

Respondent,

vs.

Patrick Thomas Maykoski,

Appellant.

Filed July 7, 1998

Reversed and Remanded

Kalitowski, JudgeKalitowski, Judge

Dissenting, Schumacher, Judge

File No. K797310

Ramsey County District Court

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center-West, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Patrick Maykoski challenges his conviction of burglary in the first degree, contending the district court erred by refusing to instruct the jury on the lesser offense of fourth-degree burglary. We reverse and remand.

D E C I S I O N

"The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court." Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986). The failure to give instructions on lesser offenses is reversible error when it prejudices the defendant. Id. The court must give the requested instruction when it is warranted by the evidence. State v. Lee, 282 N.W.2d 896, 899 (Minn. 1979). The instruction is warranted if

the evidence would reasonably support a conviction of the lesser degree and at the same time is such that a finding of not guilty of the greater offense would be justified.

State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975). "[P]roof of the elements which differentiate the two crimes must be sufficiently in dispute" so the jurors can make a distinction. State v. Adams, 295 N.W.2d 527, 532 (Minn. 1980).

Appellant was convicted of first-degree burglary, which is the unlawful entry into an occupied dwelling with the intent to commit a crime. Minn. Stat. 609.582, subd. 1 (1996). The undisputed facts indicate that, while fleeing from the police, appellant entered the basement of an occupied residence that was accessible only through an outside entrance and unreachable from the dwelling itself. According to the homeowner, the basement's exterior entrance had "the only usable stairs," making passage from within the home impossible. Appellant therefore contends he was entitled to a jury instruction on the lesser offense of fourth-degree burglary:

Whoever enters a building without consent and with intent to commit a misdemeanor other than to steal, or enters a building without consent and commits a misdemeanor other than to steal while in the building, commits burglary in the fourth degree and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

Minn. Stat. 609.582, subd. 4 (1996).

The supreme court has addressed the scope of the term "dwelling" for the purposes of first-degree burglary. In State v. Schotl, 289 Minn. 175, 179-80, 182 N.W.2d 878, 880-81 (1971), a store was considered a dwelling because it was connected to the business owner's home through a hall door. The court emphasized the proximity of the residential portion of the building in its decision. Id.

Here, the jury could have decided that the basement was not part of the occupied dwelling because the occupant had to exit his home to access the basement. Thus, appellant presented evidence establishing at least a reasonable basis for a jury to conclude his conduct warranted a fourth-degree burglary conviction rather than a conviction for first-degree burglary. Further, because appellant's act of hiding from the police in a basement inaccessible to the occupied upstairs of a dwelling is not a typical burglary of an occupied dwelling, the jury should have the option of convicting appellant of a lesser offense. We therefore conclude the failure to give the requested jury instruction for fourth-degree burglary was reversible error, and we reverse and remand for a new trial.

Reversed and remanded.

SCHUMACHER, Judge (dissenting)

I respectfully dissent. It is undisputed that appellant in this case entered into the basement of this single family dwelling through an unlocked outside "bulkhead" door. The dwelling, located at 1160 East Minnehaha Avenue in St. Paul, had been occupied by the homeowner and his family for 13 years. The basement is located directly beneath the dwelling, as most basements are. It was being used at the time for general storage purposes. Ingress to and egress from the basement is by means of an interior staircase, which goes from the basement to an interior closet in the home. The homeowner testified that the interior stairs were "kind of broken," and only "half there," so that at the time of the burglary he was using the exterior entrance.

The trial court's denial of the request for an instruction on fourth-degree burglary was based on its determination that the basement in question clearly fit the legal definition of a dwelling. Under the statutory definition of a dwelling and pertinent case law, the trial court was clearly correct in this determination.

The jury was instructed on the elements of first-degree burglary, which included a definition of "a dwelling." Appellant's counsel argued to the jury that this element had not been proved. In other words, the jury was permitted to decide if the basement in question was, in fact, a dwelling.

I find no error in the trial court's refusal to give an instruction on the lesser included offense of burglary in the fourth degree. Under the circumstances of this case, this was clearly correct and not an abuse of discretion. I would affirm.