may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
George Glagbo Tompoe, III,
Filed August 25, 1998
Blue Earth County District Court
File No. K697701
Ross E. Arneson, Blue Earth County Attorney, Government Center, 410 South 5th Street, Mankato, MN 56002 (for respondent)
Phyllis J. Kirwin, Special Assistant State Public Defender, 6401 University Avenue N.E., #201, Fridley, MN 55432 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Norton, Judge.
Appellant George Tompoe was convicted of first-degree burglary and trespassing in violation of Minn. Stat. §§ 609.582, subd. 1(a), 609.605, subd. 1(b)(4) (1996). Because we conclude the evidence is sufficient to support the convictions and multiple sentencing does not constitute double jeopardy, we affirm.
In assessing appellant's pro se challenge to the sufficiency of the evidence, this court's standard of review is limited to analyzing the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to permit the factfinder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The state presented evidence that appellant was arrested in one of the burglarized apartments, that three credit cards issued to persons whose apartments were burglarized were found on appellant's person, and that several of the victims identified appellant as the man who entered their apartment. The state's evidence was amply sufficient to support the convictions.
Appellant challenges the credibility of the state's witnesses. But this court must assume the factfinder believed the state's witnesses and disbelieved contrary evidence. State v. Sullivan, 360 N.W.2d 418, 421 (Minn. App. 1985), review denied (Minn. Apr. 12, 1985).
In his pro se brief, appellant relies on facts outside the record and argues that the state's witnesses received improper payments. The state has moved to strike the second paragraph of appellant's pro se brief. Because the paragraph refers to facts that are not part of the record, we grant the state's motion to strike. See State v. Saunders, 542 N.W.2d 67, 71 (Minn. App. 1996) (striking material that was not part of trial court record).
Appellant was sentenced to 30 months, with execution stayed, for the first-degree burglary, and 90 days for the trespassing conviction. Appellant contends that the imposition of sentences for both convictions violates the Double Jeopardy Clause. This court reviews de novo a question of constitutional law. State v. Stallman, 519 N.W.2d 903, 906 (Minn. App. 1994). Although the state argues that Tompoe has waived the multiple sentencing issue by failing to raise it in the trial court, the protection against multiple punishment cannot be waived. See State v. White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (1974) (holding that statutory protection against multiple punishment cannot be waived).
The state appears to concede that, as charged here, the offense of trespassing is a lesser-included offense of first-degree burglary. Under the Blockburger test, if the same conduct violates two statutory provisions, the two offenses are the same for purposes of the Double Jeopardy Clause unless each provision requires proof of a fact not required by the other. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). The U.S. Supreme Court, however, has held that the government may impose multiple punishments under different statutes for the same conduct, even if the statutes meet the Blockburger "same elements" test, as long as the legislature clearly intended multiple punishment. Garrett v. United States, 471 U.S. 773, 778-79, 105 S. Ct. 2407, 2411-12 (1985). The Blockburger "same elements" test is merely "a rule of statutory construction to help determine legislative intent." Id. at 778-79, 105 S. Ct. at 2411. Although Garrett involved multiple punishments imposed in successive prosecutions, the same principle applies to multiple punishments in a single proceeding, as occurred here. Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678 (1983).
If there is a "clear indication of contrary legislative intent," multiple punishment is permitted even for offenses that are the "same offense" under Blockburger: Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.
Id. at 368-69, 103 S. Ct. at 679.
The legislature has clearly provided for multiple sentencing for burglary and crimes committed during the burglary: Notwithstanding section 609.04, a prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.
Minn. Stat. § 609.585 (1996). This statute is a "clear indication" of legislative intent to allow multiple punishment against offenders like appellant who commit burglary and other offenses in the course of the burglary.
Appellant's argument that the holding in Hunter, that Blockburger merely states a presumption of statutory construction, has been overruled by United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849 (1993), is without merit. The majority opinion in Dixon does not mention the Hunter decision. Moreover, since Dixon was decided the Court has cited Hunter with approval. See Rutledge v. United States, 517 U.S. 292, 297, 116 S. Ct. 1241, 1245 (1996) (citing Hunter for the proposition that courts may not prescribe greater punishment than the legislature intended). The Dixon Court did hold that the Blockburger "same offense" test is the same in the multiple prosecution context as in the multiple punishment context. Dixon, 509 U.S. at 696, 113 S. Ct. at 2855. But it does not follow that the Court was overruling Hunter and broadening the double jeopardy protection against multiple punishments. The Court could also have been narrowing the double jeopardy protection against multiple prosecutions, conforming it to the statutory presumption rule of Hunter and Garrett.
The most logical reading of Dixon is that, rather than expanding double jeopardy protection by implicitly overruling Hunter, the Court was narrowing that protection by giving
the go-ahead to government attorneys to cumulate prosecutions or penalties against offenders for the same course of conduct, as long as the legislature had approved.
Nancy J. King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. Pa. L. Rev. 101, 118 (1995) (footnote omitted).
Appellant's separate sentences for burglary and trespassing, which are authorized by Minn. Stat. § 609.585, do not violate the Double Jeopardy Clause.
Affirmed; motion to strike granted.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.