This opinion will be unpublished and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

A05-1050

 

State of Minnesota,

Respondent,

 

vs.

 

Gilbert Kilimi Moliga,

Appellant.

 

Filed June 27, 2006

Affirmed in part and reversed in part

Dietzen, Judge

 

Stearns County District Court

File No. K0-03-2161

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Janelle P. Kendall, Stearns County Attorney, Shan C. Wang, Assistant County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN 56303 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Michael W. Kunkel, Assistant State Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

Appellant challenges his convictions of two counts of burglary, arguing the sufficiency of the evidence, and that the two convictions were for the same offense.  Because we conclude that the evidence, viewed in the light most favorable to the jury’s verdict, is sufficient to convict appellant of both counts, but that the two convictions are for the same offense, we affirm in part and reverse in part.

FACTS

In the late evening of July 3, 2001, appellant Gilbert Kilimi Moliga entered a three-story house located near St. Cloud State University that was occupied by nine college students.  On that evening, the residents of the house had 15-20 people over for a party, which was held in the backyard.  When one of the residents, Joseph Kramer, went upstairs to use the bathroom, he encountered appellant at the end of the hall.  Kramer asked appellant, “[W]hat the f-ck are you doing here?”  Appellant then “got in” Kramer’s face, pushed him backward, and placed him in a headlock.  During a brief struggle, another resident, Aaron Murphy, came up the stairs. Appellant then ran down the hallway, was chased out of the house, and fled in his wife’s minivan.

            The next day, the residents discovered that a DVD player, a remote control, and some DVDs were missing from the bedroom of Michael Schwintek and Bradley Lein.  The residents also discovered that an existing hole in the bedroom door had been expanded so that it was large enough for a person to reach in and unlock the door.  The police were called, the incident was reported, and appellant was identified as the person who fled the house the previous evening. 

A few days later, the missing items were found in a stairwell at the house.  Appellant later informed Lein that the police were questioning him about certain items missing from their house and stated, “Hey, if there is any way I could, you know, make this go away, let me know.”  When Lein told him a remote was missing, appellant offered to pay for the missing remote because “[he] didn’t want to be in trouble.”  Subsequently, appellant was charged with two counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (burglary of an occupied dwelling) (count I), and subd. 1(c) (burglary with an assault) (count II) (2000). 

At trial, four of the nine residents, Kramer, Murphy, Schwintek, and Lein, testified.  Lein stated that two weeks before the party, appellant, a cable company employee, installed cable television at the house.  During the installation, appellant testified that Lein and Schwintek told him that they had parties on weekends and extended an invitation to him to attend future parties, and invited him to a party over the Fourth of July.[1]  But neither Lein or Schwintek remembered having any discussions with appellant about a party, and both stated that only friends of the residents attended the party.  Lein testified that only their “close friends” were invited to the party.  Schwintek testified that he did not know who installed the cable because he was not present during the installation.

            Appellant testified that he “drank and drank and drank” at a local bar the evening of July 3 and then drove to the house party.  At the party he asked “two guys” if he could use the bathroom and was directed to the upstairs bathroom.  Appellant denied attempting to steal anything from the house. 

On cross-examination, appellant admitted that he had changed his testimony several times regarding his whereabouts that evening.  Initially, appellant stated that he was home with his wife and did not go to the party.  In response to an investigator, appellant stated that he could not remember anything that evening because he was drunk.  At trial, appellant admitted that he lied to the investigator and that he did recall the events at the house that night. 

The jury found appellant guilty of both counts of burglary.  At sentencing, the district court sentenced appellant to a stayed sentence of 21 months on count I and to a concurrent executed 44-month sentence on count II, which is the presumptive sentence for burglary with an assault with a zero criminal-history score.  This appeal follows.

D E C I S I O N

I.

Appellant raises two issues on appeal.  First, appellant contends that the evidence was insufficient to support the convictions of two counts of first-degree burglary.  The crux of appellant’s argument is that he had consent to enter the house, and, therefore, did not commit burglary.  On a claim of insufficiency of the evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  On appeal, we must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The jury determines the credibility of witnesses and weight of their testimony.  State v. Travica, 398 N.W.2d 666, 670 (Minn. App. 1987).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

Lack of consent to enter a building is an element of both burglary convictions.  Minn. Stat. § 609.582, subd. 1 (2000).  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, either directly or as an accomplice, commits burglary in the first degree . . . .”  Id. “‘Enters a building without consent’ means: [] to enter a building without the consent of the person in lawful possession[.]”  Minn. Stat. § 609.581, subd. 4(a) (2000).  A person is deemed to be in “lawful possession” when he or she “owns the building or has been given the right to control or occupy the building by the owner.”  10A Minnesota Practice, CRIMJIG 17.15 (1999). 

In essence, appellant argues that each of the nine residents of the house had the authority to give consent to appellant to enter the house, and, therefore, each resident was required to testify that appellant was not given consent to enter the building.    Respondent disagrees, and further argues that appellant lacked consent to enter the bedroom of Lein and Schwintek. 

Under the first-degree-burglary statute, an unlawful entry into a building occurs when a person exceeds the scope of the consent given him and other members of the public by entering an area off-limits to the public.  See State v. McDonald, 346 N.W.2d 351, 352 (Minn. 1984) (holding that the burglary of a drugstore was complete once the defendant exceeded the scope of consent given to him by entering a storage room that was off-limits to the general public).

Based on the evidence, the jury could have concluded that (1) appellant was not invited to the party; (2) the bedroom in question was locked and off-limits to the public; (3) when appellant was confronted in the upstairs hallway, he assaulted Kramer and fled the house; and (4) following discovery of the missing items and the police interview of appellant, appellant told Lein that he was willing to do whatever was necessary with the house residents to “make this go away . . . .” 

And a reasonable jury could have disbelieved appellant’s testimony.  We note that appellant gave different and contradictory versions as to his whereabouts that evening.  Viewing the evidence in the light most favorable to the jury verdict, the evidence was sufficient to convict appellant of both counts of burglary.

II.

Second, appellant contends that the district court erred by convicting and sentencing him on two counts of burglary because only one unlawful entry could have been made during the single incident.  Minn. Stat. § 609.04 (2004) provides that “[u]pon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.”  “Thus, the statute bars more than one conviction for the same offense by a defendant against the same victim on the basis of the same act.”  State v. Reese, 692 N.W.2d 736, 743 (Minn. 2005).

Here, the state concedes that appellant’s two burglary convictions were part of the same act and does not oppose vacating appellant’s conviction for count I, first-degree burglary of an occupied dwelling.  The convictions here were against the same victims and part of the same act.  Accordingly, we vacate appellant’s conviction on count I.

The state argues that this court need not remand for re-sentencing because appellant’s effective sentence remains the same even without the count I conviction.  The district court sentenced appellant to 44 months, which is the presumptive guidelines sentence for first-degree burglary with an assault with a zero criminal-history score.  Minn. Sent. Guidelines IV, V.  Thus, count I was not taken into account in sentencing on count II, and appellant’s conviction of count II remains even after our vacation of count I.  By affirming appellant’s sentence for count II, appellant will not receive a “more severe penalty” following his appeal.  See State v. Wallace, 327 N.W.2d 85, 88 (Minn. 1982) (holding that where “a sentence is set aside as a result of an appeal by a defendant, the [district] court on resentencing may not impose a more severe penalty than the sentence which it previously imposed”).  Therefore, it is unnecessary for this court to remand for resentencing on the remaining count II.

            Affirmed in part and reversed in part.