                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-0982

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                 Ian Christopher Mitchell,
                                        Appellant.

                                   Filed May 31, 2016
                             Affirmed in part and remanded
                                    Schellhas, Judge

                              Hennepin County District Court
                                File No. 27-CR-03-085208

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Stauber,

Judge.

                                     SYLLABUS

         Minnesota Statutes section 609.585 (2002), which provides that “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,” does not authorize a

district court to enter convictions or impose sentences on multiple counts of burglary

arising from a single course of conduct.
                                      OPINION

SCHELLHAS, Judge

       Appellant argues that the district court abused its discretion by denying his mistrial

motion and seeks a new trial on charges of first-degree burglary. He also makes pro se

arguments, including that the district court erred by entering convictions and imposing

sentences on multiple counts of burglary arising from a single course of conduct. We affirm

in part and remand.

                                          FACTS

       Appellant Ian Christopher Mitchell began a dating relationship with K.K. in October

2003, which K.K. ended on November 29 in part because of conflicts about sex.1 Around

2 a.m. on November 30, Mitchell entered K.K.’s residence without her permission; when

K.K. confronted Mitchell, he physically assaulted her and fled, leaving lacerations on her

scalp and abrasions on her shoulder and knee. Within the hour, police arrested Mitchell as

he started to drive away from his residence. He had a knife in his vehicle.

       Respondent State of Minnesota charged Mitchell with one count of first-degree

burglary (assault) and one count of first-degree burglary (dangerous weapon). Mitchell’s

trial resulted in a hung jury. At his second trial on both counts of first-degree burglary,

Mitchell moved for a mistrial during a break in the state’s direct examination of K.K. He

argued that K.K.’s nonresponsive answer to a question by the prosecutor resulted in




1
 K.K. testified that Mitchell did not respect her expressed preferences against “spanking,”
“vulgar” talk, and “being physically handled in a rough manner” during sex.

                                             2
irreparable prejudice to him. The district court denied the mistrial motion, and the jury

found Mitchell guilty as charged.

       Mitchell failed to appear for sentencing in January 2005, and sentencing was

delayed for more than ten years. Mitchell appeared for sentencing in March 2015, and the

district court entered convictions on both counts of first-degree burglary and sentenced

Mitchell to 52 months’ imprisonment for each count of first-degree burglary, to be served

concurrently.

       This appeal follows.

                                           ISSUES

       I.       Did the district court abuse its discretion by denying Mitchell’s motion for a

mistrial?

       II.      Did the district court err by entering convictions and imposing sentences on

multiple counts of burglary arising from a single course of conduct?

       III.     Do Mitchell’s pro se arguments have merit?

                                         ANALYSIS

I.     Mistrial motion

       “A mistrial should not be granted unless there is a reasonable probability that the

outcome of the trial would be different if the event that prompted the motion had not

occurred.” State v. Mahkuk, 736 N.W.2d 675, 689 (Minn. 2007) (quotation omitted).

“[Appellate courts] review the denial of a motion for a mistrial for an abuse of discretion

because the district court is in the best position to evaluate the prejudicial impact, if any,




                                               3
of an event occurring during the trial.” State v. Bahtuoh, 840 N.W.2d 804, 819 (Minn.

2013).

         Mitchell’s mistrial motion was based on the following testimonial exchange:

               PROSECUTOR: Now, your relationship [with Mitchell] to
               [November 21, 2003,] had involved sexual relations?
               K.K.: Yes, it had.
               PROSECUTOR: And you were okay with that?
               K.K.: Okay with what?
               PROSECUTOR: You were agreeable in the course of your
               relationship to have sexual relations?
               K.K.: We might want to discuss this before I answer that.
               PROSECUTOR: Did you have sexual relationships—
               K.K.: Yes.
               PROSECUTOR: —with Mr. Mitchell prior to [November 21,
               2003]?
               K.K.: Yes.

Mitchell argues that irreparable prejudice resulted from K.K.’s nonresponsive answer to

the prosecutor’s question whether K.K. was “agreeable in the course of [her] relationship

to have sexual relations” with Mitchell. Mitchell contends that the nonresponsive answer

“left the jury with a clear impression that the sexual encounters [between K.K. and

Mitchell] were not always consensual.” He also claims that “there was no way to minimize

the impact this had on the jury.”

         But as noted by the state, a juror would not necessarily infer from K.K.’s

nonresponsive answer that Mitchell sexually assaulted K.K. during the course of their

relationship. “Agreeable” may mean “[r]eady to consent or submit,” but it may also mean

“[t]o one’s liking” or “pleasing.” The American Heritage Dictionary of the English

Language 35 (4th ed. 2006) [hereinafter American Heritage Dictionary]. Moments after

giving her nonresponsive answer, K.K. testified that sex with Mitchell included activities


                                             4
that she found disagreeable. In this context, the nonresponsive answer appears to have been

innocuous. Even if we accept Mitchell’s argument that K.K.’s nonresponsive answer

created a risk that the jury improperly considered an implied prior bad act by Mitchell, such

a risk is not grounds for a mistrial unless it is tantamount to “a reasonable probability that

the outcome of the trial would be different” in the absence of the question and answer.

Mahkuk, 736 N.W.2d at 689 (quotation omitted).

       The state did not pursue a theory that Mitchell entered K.K.’s residence with an

intent to sexually assault her. Instead, the prosecutor asserted that Mitchell was “angry,

frustrated, [and] bitter” about the breakup and hypothesized that Mitchell’s motive was to

“confront,” “scare,” “threaten,” or “assault” K.K. At trial, K.K. testified that on

November 29, 2003, she ended her dating relationship with Mitchell in “a very escalated,

argumentative, accusatory conversation that ended pretty poorly.” After falling asleep that

night, K.K. awoke to see Mitchell standing in her bedroom doorway. Mitchell did not have

K.K.’s permission to enter her residence. K.K. confronted Mitchell, first verbally and then

by following him when he walked away. Mitchell then “started to come after [K.K.],”

grabbed her arm, knocked her to the ground, and hit her on the head three or four times

before fleeing. K.K. did not know whether Mitchell used an object to hit her. When the

police arrested Mitchell a short time later, they found a knife in his vehicle. The knife

belonged to K.K.’s father, with whom K.K. resided; just hours before the burglary, the

knife was in K.K.’s kitchen, and it was not in K.K.’s kitchen following the burglary. The

knife had a small smear of Mitchell’s blood on or near the handle. A sharp object consistent

with the knife caused the lacerations to K.K.’s head.


                                              5
       In light of the state’s theory of the crime and the ample evidence of Mitchell’s guilt,

we conclude that no reasonable probability exists that Mitchell would have been acquitted

absent the prosecutor’s question and K.K.’s nonresponsive answer. We defer to the district

court’s evaluation of prejudicial impact, Bahtuoh, 840 N.W.2d at 819, and conclude that

the district court did not abuse its discretion by denying Mitchell’s motion for a mistrial.

II.    Multiple convictions and sentences

       In his pro se supplemental brief, Mitchell argues that his convictions violate section

609.04 (2002) because first-degree burglary (dangerous weapon) is an included offense of

first-degree burglary (assault). He also argues that the district court violated section

609.035 (2002) by imposing a sentence for each conviction because each conviction arose

from a single course of conduct. Although Mitchell did not argue against his multiple

convictions and sentences in district court, we address his arguments here. See Spann v.

State, 740 N.W.2d 570, 573 (Minn. 2007) (“[The supreme court] ha[s] held that an

appellant does not waive claims of multiple convictions or sentences by failing to raise the

issue at the time of sentencing.” (citing Ture v. State, 353 N.W.2d 518, 523 (Minn. 1984))).

       “Upon prosecution for a crime, the actor may be convicted of either the crime

charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1. “A crime

necessarily proved if the crime charged were proved” is an “included offense.” Id. “To

determine whether an offense is an included offense falling under [section 609.04], a court

examines the elements of the offense instead of the facts of the particular case.” State v.

Bertsch, 707 N.W.2d 660, 664 (Minn. 2006).




                                              6
       The elements of first-degree burglary (dangerous weapon) are (1) entry of a building

without consent; (2) entry with intent to commit a crime, or commission of a crime while

in the building; and (3) possession of a dangerous weapon “when entering or at any time

while in the building.” Minn. Stat. § 609.582, subd. 1 (2002). The elements of first-degree

burglary (assault) are (1) entry of a building without consent; (2) entry with intent to

commit a crime, or commission of a crime while in the building; and (3) assault of a person

“within the building or on the building’s appurtenant property.” Id. Since each crime

requires proof of an element that the other does not, neither crime necessarily is proved

when the other is proved. First-degree burglary (dangerous weapon) is not a lesser-included

offense of first-degree burglary (assault).

       But section 609.04 does more than preclude conviction of both an offense and an

included offense. “[S]ection 609.04 bars multiple convictions under different sections of a

criminal statute for acts committed during a single behavioral incident.”2 State v.

Chavarria-Cruz, 839 N.W.2d 515, 523 (Minn. 2013) (quotation omitted). And unless a

statutory exception applies, “if a person’s conduct constitutes more than one offense under

the laws of this state, the person may be punished for only one of the offenses.” Minn. Stat.

§ 609.035, subd. 1. “[D]eciding whether the district court’s imposition of two sentences

was barred by section 609.035, subdivision 1, requires [an appellate court] to determine

first whether the conduct underlying the offenses involved a single course of conduct.”


2
  “Legal authorities use the terms ‘single course of conduct’ and ‘single behavioral
incident’ interchangeably.” State v. Drljic, 876 N.W.2d 350, 353 n.1 (Minn. App. 2016)
(quotation omitted).


                                              7
State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014). “If so, [the appellate court] then

consider[s] whether an exception to section 609.035, subdivision 1, applies.” Id.

       Here, one of Mitchell’s burglary convictions was based on Minn. Stat. § 609.582,

subd. 1(b) (dangerous weapon), and the other burglary conviction was based on Minn. Stat.

§ 609.582, subd. 1(c) (assault). The state does not contest that both convictions arose from

a single course of conduct, arguing instead that a statutory exception to the general rule

permits Mitchell’s multiple convictions and sentences. That exception provides that “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 (emphasis added). The state reads section 609.585 to mean that

conviction and punishment on one count of burglary does not preclude conviction or

punishment on another count of burglary arising from the same course of conduct, so long

as the two counts of burglary involve different statutory elements, i.e., each is an “other

crime.”

       But the state offers little to support its reading of the statute, and we have found no

Minnesota authority that directly answers the question whether “any other crime,” as used

in section 609.585, includes another burglary crime. Existing caselaw that is not directly

on point seems to contradict the state’s reading of section 609.585. See, e.g., State v.

Holmes, 778 N.W.2d 336, 341 (Minn. 2010) (“The phrase ‘any other crime’ means a crime

that requires proof of different statutory elements than the crime of burglary.” (quoting

section 609.585)); State v. Jackson, 749 N.W.2d 353, 358 (Minn. 2008) (“Burglary is a

serious crime, and punishment is allowed for both the burglary and the crime committed in


                                              8
the dwelling.” (citing section 609.585)); State v. Hartfield, 459 N.W.2d 668, 670 (Minn.

1990) (stating that section 609.585 “contains an exception allowing sentencing for both a

burglary and one of the offenses committed during a burglary even if it could otherwise be

said that they were both committed as part of a single behavioral incident”).

       In one published opinion, we affirmed multiple convictions of and sentences for

single-course-of-conduct first-degree burglary (occupied dwelling) and first-degree

burglary (assault). State v. Hodges, 384 N.W.2d 175, 178 n.1, 182–83 (Minn. App. 1986),

aff’d as modified, 386 N.W.2d 709 (Minn. 1986). We affirmed the multiple convictions

based on the multiple-victims exception to section 609.04. Id. at 182. And we affirmed the

multiple sentences without analysis, merely stating that “defendant is not entitled to

vacation of [the] sentences because burglary under section 609.585 is expressly exempted

from the provisions of section 609.035.” Id. at 183. On review, the supreme court vacated

one of the convictions, reasoning that “the [multiple-victims] exception does not allow

[multiple] burglary convictions simply because [multiple] people were present in the house

when it was burglarized.” 386 N.W.2d at 711. The supreme court did not address our

multiple-sentences decision or consider whether the multiple convictions or sentences

could be affirmed under section 609.585. Similarly, in State v. Crockson, we held that “the

district court erred by adjudicating guilt on both [counts of first-degree burglary] when they

arose from the same course of criminal conduct,” pointing to section 609.04’s bar against

multiple convictions but making no mention of section 609.585’s burglary exception. 854

N.W.2d 244, 246, 248 (Minn. App. 2014), review denied (Minn. Dec. 16, 2014).




                                              9
       Focusing on the language “any other crime” in section 609.585, our independent

statutory interpretation confirms what the caselaw suggests. In interpreting a statute, “[t]he

first step is to examine the language of the statute to determine if it is ambiguous. Statutory

language is ambiguous only if, as applied to the facts of the particular case, it is susceptible

to more than one reasonable interpretation.” Dupey v. State, 868 N.W.2d 36, 39 (Minn.

2015) (citation omitted). “Other” may mean “[d]ifferent from that or those implied or

specified.” American Heritage Dictionary, supra, at 1246. Here, burglary is the crime

specified. We conclude that the only reasonable interpretation of “any other crime” is a

crime different from burglary. We therefore enforce the plain language of the statute and

remand for the district court to vacate Mitchell’s conviction and sentence as to one of the

two counts of first-degree burglary. See Dupey, 868 N.W.2d at 39 (“If the statutory

language is unambiguous, [the court] must enforce the plain meaning of the statute and not

explore the spirit or purpose of the law.”).

III.   Other pro se arguments

       Mitchell argues that the district court judge “impermissibly injected his personal

opinion as to what the evidence showed” by speculating that K.K.’s nonresponsive answer

indicated that “maybe she was confused about . . . whether she had ever consented to

spanking or rough talk or something like that” and by stating that “that’s how I took the

testimony.” Mitchell does not appear to argue that the judge’s statement indicated bias;

rather, his argument is that the judge improperly “expressed [his] personal opinion to the

jury as to what [K.K.] was thinking” when she gave the nonresponsive answer. But the




                                               10
record shows that the judge’s comments were made outside the presence of the jury, and

Mitchell’s complaint about the judge therefore is meritless.

       Mitchell also appears to argue that the constitutional prohibition against double

jeopardy is violated by statutory exceptions to the general rule against multiple convictions

and sentences, that prosecutorial misconduct requires reversal of his convictions, and that

insufficient evidence supports his conviction of first-degree burglary (dangerous weapon).

Mitchell’s double-jeopardy and prosecutorial-misconduct arguments are forfeited as

wholly unsupported by briefing. See State v. Sontoya, 788 N.W.2d 868, 876 (Minn. 2010)

(declining to consider pro se argument where appellant cited neither record nor legal

support of argument). Any sufficiency-of-the-evidence argument is based on Mitchell’s

attempt to deny the existence of record evidence that he possessed a knife during the

burglary. But the state presented evidence that Mitchell possessed a knife when he was

arrested shortly after the burglary. The evidence also showed that the knife belonged to

K.K.’s father, with whom K.K. resided; it was in K.K.’s kitchen just hours before the

burglary, and it was not in K.K.’s kitchen after the burglary. We assume that the jury

believed the state’s evidence and view the evidence in the light most favorable to the guilty

verdict. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014.) So viewed, the circumstantial

evidence is sufficient to prove that Mitchell possessed the knife at some point during the

burglary, because “the circumstances proved are consistent with guilt and inconsistent with

any rational hypothesis except that of guilt.” Id. (quotations omitted).




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                                    DECISION

      Because “any other crime,” as used in section 609.585, does not include another

burglary crime, the district court erred by entering convictions and imposing sentences on

multiple counts of burglary arising from a single course of conduct.

      Affirmed in part and remanded.




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