This opinion will be unpublished and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

A05-487

 

 

State of Minnesota,

Respondent,

 

vs.

 

Brian Schoonover,

Appellant.

 

 

Filed May 30, 2006

Affirmed

Toussaint, Chief Judge

 

Goodhue County District Court

File No. K6-04-1124

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066-2475 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Brian Schoonover appeals his conviction of first-degree burglary, a violation of Minn. Stat. § 609.582, subd. 1(b) (2004).  Because the record supports the jury’s verdict that appellant’s conduct was within the statutory definition of the offense, we affirm.

FACTS

            Police, responding to a citizen’s call reporting suspicious behavior, approached a house beside the highway where they saw a broken window indicating a possible burglary.  They then saw a man, later identified as appellant, standing by the house.  A search of the house revealed that the house had been ransacked, with drawers opened, jewelry boxes searched and left open, and items strewn about.  A number of items had been collected in the kitchen, including a long black gun case containing two .22-caliber rifles.  The residents of the house testified that the items collected in the kitchen had not been there in the morning when they left the house.  The gun case was kept in an upstairs bedroom closet.

            The jury found appellant guilty of both first- and second-degree burglary.  He was sentenced on the first-degree burglary count to 111 months, the presumptive sentence.

D E C I S I O N

            Appellant argues that merely finding and retrieving firearms within a house following unlawful entry does not constitute first-degree burglary.  The proper construction of a statute is a question of law that this court reviews de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

            The relevant portion of 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, . . . commits burglary in the first degree . . ., if:  . . . (b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon . . . .

 

Minn. Stat. § 609.582, subd. 1(b) (2004) (emphasis added).  Appellant argues that the statutory requirement of possession of a dangerous weapon should be construed strictly to require that the offender have “immediate and ready access to the weapon.”  In construing a penal statute, all reasonable doubt concerning legislative intent should be resolved in favor of the defendant.  State v. Olson, 325 N.W.2d 13, 19 (Minn. 1982).  But this rule of strict construction does not require the court to adopt the narrowest possible interpretation.  State v. Zacher, 504 N.W.2d 468, 473 (Minn. 1993).

            This court has held that the firearm-enhancement statute, which requires possession (or use) of a firearm “at the time of the offense” may be applied “to a burglar who comes into possession of firearms once inside the building.”  State v. Herbert, 601 N.W.2d 210, 211 (Minn. App. 1999) (construing Minn. Stat. § 609.11, subd. 5(a) (1998)).  The court in Herbert focused on the element of time of possession of the firearm (“at the time of the offense”), not the element of possession itself.  The court noted that an “elements-based interpretation” might indicate that the crime of burglary was complete upon entry into the dwelling, and, therefore, firearms possessed after entry did not satisfy the statute.  Id. at 212.  But the court concluded that a broader interpretation was more consistent with the purpose of the statute, which is to reduce the risk of violence arising from burglaries, and that this purpose supported application of the statute “when [the firearms] are obtained during the course of a burglary.”  Id.

            Appellant argues that Herbert is distinguishable because the language of the first-degree burglary statute differs from the language of the firearm-enhancement statute construed in Herbert.  The first-degree burglary statute requires only that the weapons be “possessed” when entering “or at any time while in the building.”  Minn. Stat. § 609.582, subd. 1(b) (2004).  The evidence established that appellant was in the building, and the guns had been moved from an upstairs closet to the downstairs kitchen.  Therefore, the circumstantial evidence established that appellant took possession of the guns while he was in the building.

            Appellant argues that the statutory element of possession should be strictly construed to apply only to “immediate and ready access.”  The general rule, however, is that a statute is to be construed according to its plain language.  State v. Estrella, 700 N.W.2d 496, 500 (Minn. App. 2005).  If a statute’s language is not ambiguous, the court does not engage in further construction of its meaning.  See State v. Wukawitz, 662 N.W.2d 517, 525 (Minn. 2003), review denied (Minn. Nov. 15, 2005).  The court may not “disregard the letter of the law under the pretext of pursuing the spirit of the law.”  Id.  (citations omitted).  Appellant’s argument, however, relies on policy arguments and lacks any basis in the language of the statute.

            Although appellant concedes that the first-degree-burglary statute uses the term “possesses,” rather than “armed,” he argues that “immediate and ready access” to the weapon should be required.  He cites an Arizona decision holding that the theft of a weapon during a burglary does not make the burglar “armed.”  See State v. Williams, 742 P.2d 1352, 1354 (Ariz. 1987), superseded by statute, 1988 Ariz. Sess. Laws ch. 241, § 1 (eliminating “armed with” and replacing with “knowingly possess”).  But the Arizona statute construed in Williams required that the burglar be “armed,” see id., and Williams has no bearing on whether a burglar who finds a weapon during the burglary “possesses” that weapon. 

            The term “possession” has long been extended to include constructive possession, even when possession of weapons rather than drugs is at issue.  See State v. Olson, 326 N.W.2d 661, 663 (Minn. 1982) (applying constructive-possession doctrine to charge of felon-in-possession-of-a-firearm and holding evidence that defendant “consciously exercised his dominion or control” over weapon was sufficient).  Appellant was in actual possession of the rifles in the gun case when he moved them from the closet downstairs to the kitchen.  He also “exercised his dominion or control” over them thereafter, at least for as long as he remained in the house.

            Appellant argues that the “possession” element in the first-degree burglary statute should require a greater degree of possession because only burglars with ready access to a weapon pose an increased risk of violence.  We disagree.  If appellant had been inside the house when the burglary was discovered and had heard the residents, or police, approaching the house, he could have quickly armed himself with one of the guns in the case, thereby greatly increasing the risk of violence.

            We conclude that appellant’s conduct fits within the statutory definition of first-degree burglary.

            Affirmed.