This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Dwayne Mario Robinson,


Filed August 17, 1999


Kalitowski, Judge

Polk County District Court

File No. K0980464

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Wayne H. Swanson, Polk County Attorney, 101 Crookston Professional Center, 223 East 7th Street, Crookston, MN 56716-1498 (for respondent)

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

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.



Appellant Dwayne Mario Robinson challenges his convictions for second- and fifth-degree assault, first-degree burglary, and terroristic threats. Appellant contends: (1) he did not validly waive his right to a jury trial; (2) the evidence was insufficient to support a conviction for first-degree burglary; and (3) appellant's convictions for terroristic threats and fifth-degree assault are based on the same conduct underlying his second-degree assault and burglary convictions. We affirm.



Citing federal cases, appellant contends a defendant cannot validly waive his right to a jury trial without being advised that a jury is composed of 12 members, that the defendant may participate in the selection of the jurors, and that the verdict must be unanimous. See United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981). But Minnesota has explicitly rejected this bright line rule. See State v. Ross, 472 N.W.2d 651, 654 (Minn. 1991) (Delgado approach commendable but "the nature and extent of the inquiry may vary with the circumstances of a particular case"). Instead, Minn. R. Crim. P. 26.01, subd. 1(2)(a) allows defendants to waive their right to a jury trial "after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel." The district court has discretion to accept or not accept the waiver, and should satisfy itself that the waiver is informed and voluntary. State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn. 1979).

Here, appellant's attorney requested a court trial one week before his jury trial and stated in his letter to the court that appellant "understood" he was giving up his right to a jury trial. The trial judge also asked appellant on the record whether appellant wanted to waive his right to a jury trial, and appellant responded in the affirmative. Although the court did not specifically ask whether appellant had discussed his right to a jury trial with his attorney, appellant had the opportunity to do so. Moreover, appellant has a prior conviction and is therefore familiar with the criminal justice system. See Ross, 472 N.W.2d at 654 (waiver of right to jury trial valid in part because defendant had prior convictions and thus was familiar with the judicial system). We conclude that on these facts appellant validly waived his right to a jury trial.


The construction of a statute is a question of law and is subject to de novo review. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). Where a statute is unambiguous when construed according to ordinary rules of grammar, this court engages in no further statutory construction and applies its plain meaning. State v. Bragg, 577 N.W.2d 516, 519 (Minn. App. 1998).

Minn. Stat. § 609.582, subd. 1 (1998), states:

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:

* * * *

(c) the burglar assaults a person within the building or on the building's appurtenant property.

Appellant contends that an assault cannot both: (1) make an unconsented entry a burglary; and (2) make the burglary first degree. We disagree.

The statute provides that a person who enters a dwelling without consent and commits a crime, or intends to commit a crime, is guilty of burglary. Because assault is a crime, see Minn. Stat. § 609.221.224, appellant's actions constituted burglary. Moreover, the statute states that if an assault is committed during the burglary, the burglary is in the first degree. Because the language of the statute is unambiguous, we do not reach the issue of legislative intent. We conclude that on the facts as found by the district court, appellant was validly convicted of first-degree burglary.

Appellant also contends that the district court erred by accepting the testimony of state witnesses and rejecting appellant's contradictory testimony. But the fact-finder is generally permitted to believe a witness even when there is reason to question the witness's honesty. See State v. Triplett, 435 N.W.2d 38, 44-45 (Minn. 1989) (jury was not precluded from believing testimony of a witness even when evidence introduced at trial showed that witness had used drugs, lied to police, and forged checks); State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977) (even where jury believes that a witness has knowingly and willfully testified falsely to a material fact, jury may still believe or disbelieve witness's testimony as to other facts). Moreover, it is not the role of this court to second-guess credibility determinations of the fact-finder. State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990).


When multiple convictions are based on the same act, "the defendant is entitled to have all but one conviction vacated." State v. Gayles, 327 N.W.2d 1, 3 (Minn. 1982). The purpose of this prohibition is to protect against "exaggerating the criminality of a person's conduct and to make both punishment and prosecution commensurate with culpability." State v. Alexander, 290 N.W.2d 745, 749 (Minn. 1980) (quoting State v. Krech, 312 Minn. 461, 465, 252 N.W.2d 269, 272 (1977)). Appellant argues that because his fifth-degree assault conviction was based on the conduct underlying his first-degree burglary conviction, and his conviction for terroristic threats was based on the conduct underlying his second-degree assault convictions, the convictions are invalid. We disagree.

Ms. Schulz testified that appellant hit her. This testimony is sufficient to support the fifth-degree assault conviction. See Minn. Stat. § 609.224 (1998) (defining fifth-degree assault). Ms. Schulz also testified that appellant left the room after hitting her but he subsequently broke the door down and hit her again. This testimony is sufficient to support appellant's conviction for first-degree burglary. See Minn. Stat. § 609.582, subd. 1 (defining first-degree burglary).

The record indicates that appellant also committed assaults against Bradley Dominick, Thomas Anderson, and Spencer Stiller. In addition, there is evidence in the record that appellant threatened others: Ms. Schulz testified that she felt threatened by appellant when he had knives; Bradley Dominick testified that appellant "took a swing at [him]" and pushed Dominick down the hall; Thomas Anderson testified that appellant told Spencer Stiller that he was going to do the same thing to Stiller that he had done to Ms. Schulz. We conclude that the evidence in the record adequately supports appellant's convictions and that the convictions do not exaggerate the criminality of appellant's conduct.