This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Eric Wayne Wahlstrom,


Filed March 31, 1998


Randall, Judge

Dakota County District Court

File No. K7-96-2349

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

James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant Dakota County Attorney, Brent D. Wartner, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Appellant challenges his first-degree burglary conviction, arguing that an assault cannot serve as both the underlying crime committed during the burglary and as the aggravating circumstance resulting in first-degree burglary. We affirm.


Appellant Eric Wahlstrom dated April Seleski for approximately two and one-half years, and their relationship ended in the summer of 1994. On the evening of October 6, 1996, Seleski; her roommate, Michelle Ellis; Seleski's boyfriend, Thomas Meyers; and two other friends, Jeremy Nauman and Erik McBeath, were all at Seleski and Ellis's apartment. During the evening, McBeath answered two telephone calls from Wahlstrom, who asked to speak with Seleski. McBeath informed Wahlstrom that Seleski did not wish to speak to him. During their second conversation, Wahlstrom told McBeath that he was coming over to the apartment. McBeath left the apartment immediately after the telephone conversation.

A few minutes later, Wahlstrom knocked on the apartment door. Nauman opened the door and asked Wahlstrom, "What's up?" Wahlstrom did not respond, but pushed or moved Nauman aside and walked into the apartment. Ellis told him to leave, and he ignored her request. Wahlstrom opened the bathroom door and found Seleski and Meyers bathing together. Wahlstrom grabbed Meyers by the throat and slapped him. Seleski asked Wahlstrom to leave, and he responded by threatening to "kick all of [their] asses." Seleski left the bathroom, and Wahlstrom backhanded her in the face, causing her head to hit the wall. When Seleski said she was calling the police, Wahlstrom stated, "That's the last phone call you will ever make." Wahlstrom left the apartment, and Seleski called the police.

Wahlstrom was charged with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (1996). Following a jury trial, the jury found Wahlstrom guilty of first-degree burglary and fifth-degree assault. The district court sentenced appellant to five years, eight months, but stayed execution of that sentence and placed Wahlstrom on probation for five years. The court also ordered Wahlstrom to serve 300 days in the Dakota County jail and to pay a $6,000 fine and a $1,225 surcharge.


Statutory interpretation is a legal question reviewed de novo by this court. State v. Zacher, 504 N.W.2d 468, 470 (Minn. 1993). If a statute is unambiguous, its plain meaning is applied. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996). A statute is unambiguous if it is not "reasonably susceptible to more than one interpretation." Id. If there is clear manifestation of the legislature's intent, through the statute's "'plain and unambiguous language,'" statutory construction is not necessary nor is it permitted. Id. (quoting Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn. 1995)); see also Minn. Stat. § 645.16 (1996) (stating if a law is unambiguous, "the letter of the law shall not be disregarded under the pretext of pursuing the spirit").

We recognize appellant's argument that penal statutes must be strictly construed and any reasonable doubts about legislative intent must be resolved in the defendant's favor. State v. Olson, 325 N.W.2d 13, 19 (Minn. 1982). Further, a penal statute must

"define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."

State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983)).

Now, to this case.

First-degree burglary is committed whenever a person

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, * * * if:

the building is a dwelling and another person, not an accomplice,

is present in it when the burglar enters or at any time while the burglar is in the building;

(b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or

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

Minn. Stat. § 609.582, subd. 1 (1996).

Wahlstrom argues that the assault he committed should not be used to fulfill both the "crime" element and the "assault" element of first-degree burglary under Minn. Stat. § 609.582, subd. 1(c). He insists that if the same assault may be used to aggravate the already completed offense, there would be no reason for the statute to include clause (c), which makes a burglary first-degree if an assault is committed during the burglary. Minn. Stat. § 609.582, subd. 1(c). Wahlstrom also argues that the district court's interpretation "effectively repeals" the fourth-degree burglary statute, which requires entry into a building without consent and the intent to commit, or commission of, a misdemeanor other than stealing. Minn. Stat. § 609.582, subd. 4 (1996). He explains that it would be unreasonable and illogical for both first-degree and fourth-degree burglary to require exactly the same evidence.

Wahlstrom argues that the district court's construction is not practical and that it is an inconvenience. He insists the legislature intended the "crime" in this statute to consist of any crime except misdemeanor assault. He argues that construing it as the "crime" results in an inconvenience to Wahlstrom and the public at large. See Peterson v. Joint Indep. Consol. Sch. Dist. No. 116, 239 Minn. 233, 237, 58 N.W.2d 465, 468 (Minn. 1953) (noting statute construction resulting in an inconvenience should be avoided if there is another reasonable construction). Wahlstrom insists that assault cannot act as the underlying crime for first-degree burglary because it would produce "an absurd and unreasonable result, not contemplated by the legislature." Thus, he asks this court to reverse his conviction for first-degree burglary and remand to the district court for sentencing on the lesser-included offense of fourth-degree burglary.

Despite Wahlstrom's arguments, the commission of an assault can fulfill both parts of the first-degree burglary statute. The statute does not require an individual to commit two crimes if one of them is an assault. Rather, the statute simply makes a burglary first degree if the crime committed during the burglary is an assault.

"Crime" is defined as "conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine." Minn. Stat. § 609.02, subd. 1 (1996). Assault falls within this definition, and the legislature made no attempt to exclude assault from the element of first-degree burglary requiring the intent to commit, or the commission of, a crime. Thus, assault may fulfill this element.

The fact that Wahlstrom committed only a misdemeanor assault does not change our analysis. In State v. Olson, this court concluded that even a misdemeanor could satisfy the element of first-degree burglary requiring the intent to commit, or the commission of, a crime. 382 N.W.2d 279, 282 (Minn. App. 1986). This court additionally established that the aggravating assault in a first-degree burglary may be a misdemeanor assault. Id.

We note that although Wahlstrom was properly charged and convicted of first-degree burglary under Minn. Stat. § 609.582, subd. 1(c), he could also have been properly charged with first-degree burglary under Minn. Stat. § 609.582, subd. 1(a). Under Minn. Stat. § 609.582, subd. 1(a), first-degree burglary is committed when an individual enters a dwelling without consent when another is present, and intends to commit, or commits, a crime while in the dwelling. Here, Wahlstrom entered Seleski's apartment without consent while she and her friends were present, and he committed a crime by assaulting Seleski and Meyers.

We hold that the district court did not err in convicting Wahlstrom of first-degree burglary.