                                   STATE OF MINNESOTA
                                   IN COURT OF APPEALS
                                         A13-1971

                                      State of Minnesota,
                                          Respondent,

                                               vs.

                                   Claude Riley Crockson, Jr.,
                                           Appellant

                               Filed September 22, 2014
                   Affirmed in part, reversed in part, and remanded
                                     Worke, Judge

                               Ramsey County District Court
                                 File No. 62-CR-13-1922

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

John J. Choi, Ramsey County Attorney, Andrew R.K. Johnson, Assistant County
Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, David W. Merchant, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and Harten,

Judge.*

                                       SYLLABUS

       A person who enters or remains in an apartment, after being asked to leave by a

person who has been granted lawful possession of the apartment by the legal occupant, is

guilty of first-degree burglary.


*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                                      OPINION

WORKE, Judge

       Appellant challenges his convictions of two counts of aiding and abetting first-

degree burglary and two counts of second-degree assault involving multiple victims,

arguing that: (1) the evidence was insufficient to support the burglary convictions; (2) the

district court erred by making formal adjudications of guilt on both burglary convictions;

and (3) the evidence was insufficient to support imposition of a mandatory minimum

sentence on the assault convictions. In a pro se brief, appellant also challenges the

district court’s authority to permit amendment of the criminal complaint to include a

mandatory minimum sentencing provision. While the evidence was sufficient to support

the burglary convictions, the district court erred by adjudicating guilt on both convictions

when they arose from the same course of criminal conduct. Therefore, we affirm in part,

reverse in part, and remand. Moreover, we also reverse appellant’s assault sentences

because the evidence was insufficient to support imposition of mandatory minimum

sentences, and remand for resentencing on those convictions. Finally, we determine that

the challenge to the court’s authority to permit amendment of the complaint is moot.

                                         FACTS

       T.C., who suffers from Parkinson’s disease and is confined to a wheelchair, was

inside her St. Paul apartment on March 8, 2013, when she heard a knock on the door. At

the time, C.C. and D.H. were also living at the apartment. C.C. answered the door, and

appellant Claud Riley Crockson, Jr. entered the apartment with three juveniles.




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       An argument ensued between C.C. and Crockson because Crockson insisted that

C.C. had not given him the correct personal identification number (PIN) for a cell phone

C.C. sold to Crockson the previous day. Eventually, C.C. ordered Crockson and the

juveniles to leave, but Crockson refused. One of the juveniles pulled out a revolver and

handed it to Crockson, who held it to C.C.’s head and ordered the three apartment

residents to sit on a couch.

       Continuing to demand the PIN from C.C., Crockson directed the juveniles to

assault D.H. They punched and kicked D.H. and held a razor to his neck, and Crockson

hit D.H. in the head repeatedly with the revolver. Crockson told T.C. that they would not

harm her, and the juveniles placed her in a bedroom. Crockson and the juveniles then

ordered C.C. and D.H. to go into the bathroom one at a time, where Crockson said that he

was going to kill them. C.C. broke free and ran into the bedroom, but the juveniles

kicked in the door. When C.C. began to overpower the juveniles, Crockson announced

that it was time to leave. Crockson was charged with two counts of aiding and abetting

first-degree burglary and three counts of second-degree assault.

       Near the end of the jury trial, due to a mistake in the criminal complaint, the

district court permitted the complaint to be amended to correct the statutory citation to a

mandatory minimum sentencing provision.          The complaint originally alleged that

Crockson should be subject to an enhanced sentence for the assaults under Minn. Stat.

§ 609.11, subd. 5(b) (2012) (sentencing provision for crime of felon in possession of a

firearm), rather than Minn. Stat. § 609.11, subd. 5(a) (2012) (sentencing provision for




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second or subsequent offense involving a firearm). Because Crockson has a prior assault

conviction that involved a firearm, the latter statute was applicable.

         However, while Crockson stipulated to having a prior assault conviction, the state

established only that the prior assault conviction involved a “dangerous weapon” and did

not offer proof that it involved a “firearm.” A jury found Crockson guilty of the two

burglary charges and two of the three assault charges.

         The district court adjudicated Crockson guilty of both burglary offenses and

imposed a sentence of 95 months only on the first count because the burglary offenses

involved the same course of criminal conduct. The district court also imposed 60-month

concurrent sentences on the assault convictions, to be served consecutively to the

burglary sentence. This appeal followed.

                                          ISSUES

         1.    Was the evidence sufficient to prove that C.C. was in lawful possession of

T.C.’s apartment at the time of the burglaries?

         2.    Did the district court’s formal adjudication of guilt on both burglary

offenses violate Minn. Stat. § 609.04, subd. 1 (2012)?

         3.    Should the mandatory minimum sentences on the assault convictions be

vacated because the state failed to prove that Crockson’s prior assault conviction

involved a firearm?

         4.    Did the district court err by permitting amendment of the complaint during

trial?




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                                        ANALYSIS

       In reviewing a sufficiency-of-evidence claim, this court thoroughly examines the

record to determine whether the evidence, when viewed in the light most favorable to the

conviction, is sufficient to allow the jurors to reach the verdict they did. State v. Ortega,

813 N.W.2d 86, 100 (Minn. 2012). This court determines whether legitimate inferences

drawn from the record would permit the jury to conclude that the defendant was guilty

beyond a reasonable doubt. State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012). We

“assume that the jury believed all of the state’s witnesses and disbelieved any evidence to

the contrary.” State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999). We will not alter

a 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. Bernhardt v. State, 684 N.W.2d 465, 476-

77 (Minn. 2004). “Reversal is proper if facts proving an essential element of the offense

are left more to conjecture and speculation than to reasonable inference . . . .” State v.

DeRosier, 695 N.W.2d 97, 108 (Minn. 2005).

Burglary convictions and sentences

       A person commits first-degree burglary when he or she “enters a building without

consent and with intent to commit a crime . . . [and] possesses . . . in the building . . . a

dangerous weapon” or “assaults a person within the building . . . .”            Minn. Stat.

§ 609.582, subd. 1(b), (c) (2012).       “[W]ithout consent” means either entering or

remaining in a building “without the consent of the person in lawful possession.” Minn.

Stat. § 609.581, subd. 4(a), (c) (2012); see State v. Totimeh, 433 N.W.2d 921, 924 (Minn.


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App. 1988) (ruling that “failure to comply when told to leave several times” was

violation of burglary statute), review denied (Minn. Feb. 22, 1989).

       Crockson argues that the evidence is insufficient to establish that C.C., who both

permitted Crockson and the juveniles to enter T.C.’s apartment and later ordered them to

leave, had authority to give or revoke consent because she was not in “lawful possession”

of the apartment. “Lawful possession” is not defined in the burglary statute, but State v.

Spence defines it to mean “a person who has a legal right to exercise control over the

building in question[,] [which] . . . necessarily includes the right to consent to the entry

of others into that building.” 768 N.W.2d 104, 109 (Minn. 2009). The definition in

Spence does not require an ownership interest in the building but does require more than

mere presence in the building, which would include a trespasser. Id. at 108. The court in

Spence notes that the definition it applies to “lawful possession” “is consistent with other

jurisdictions that hold it is not title to property, but the occupancy or possession of

property at the time the offense was committed[] that determines whether one can be

liable for burglary.” Id. at 110 n.5.

       We are satisfied that the state proved that C.C. was in lawful possession of the

apartment when Crockson and the juveniles knocked on T.C.’s apartment door. C.C.

testified that she was living at T.C.’s apartment, and D.H. testified that the apartment

belonged to T.C. but that he and C.C. were “staying there at that time.” T.C. testified

only that C.C., not she, let the intruders enter the apartment, and that she “had no choice”

in C.C.’s decision to invite them in. T.C.’s testimony does not contradict C.C.’s or

D.H.’s testimony about their right to occupy the apartment, and the evidence, viewed in


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the light most favorable to the jury verdict, supports the jury’s determination that C.C.

and D.H. were in lawful possession of the apartment because they had T.C.’s permission

to live there. Thus, C.C. had the authority to both permit Crockson and the juveniles to

enter the apartment and to order them to leave.       On these facts, the evidence was

sufficient to uphold Crockson’s aiding and abetting burglary convictions.

      As to the burglary offenses, Crockson and the state agree that the district court

erred by formally adjudicating Crockson guilty and entering convictions on both burglary

counts because they arose during the same course of criminal conduct. Appellate courts

“have consistently held that [Minn. Stat. §] 609.04 bars multiple convictions under

different sections of a criminal statute for acts committed during a single behavioral

incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985); State v. Spears, 560

N.W.2d 723, 726-27 (Minn. App. 1997), review denied (Minn. May 28, 1997)

(prohibiting multiple convictions for violating multiple provisions of a statute by

commission of a single criminal act). The supreme court has adopted the following

procedure to preserve the jury’s guilty verdict on the non-adjudicated conviction:

                     We hold that the proper procedure to be followed by
             the [district] court when the defendant is convicted on more
             than one charge for the same act is for the court to adjudicate
             formally and impose sentence on one count only. The
             remaining conviction(s) should not be formally adjudicated at
             this time. If the adjudicated conviction is later vacated for a
             reason not relevant to the remaining unadjudicated
             conviction(s), one of the remaining unadjudicated convictions
             can then be formally adjudicated and sentence imposed, with
             credit, of course, given for time already served on the vacated
             sentence.




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State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).            Thus, we remand with

instructions to the district court to vacate the formal adjudication of guilt on one of

Crockson’s burglary convictions and to leave the guilty verdict in place on that

unadjudicated conviction.

Assault convictions

       Crockson next argues that his sentences for the assault convictions should be

vacated and the case should be remanded for resentencing because the district court

imposed a mandatory minimum sentence without adequate proof that his prior assault

conviction was accomplished with a firearm. Minn. Stat. § 609.11, subd. 5(a) states that

“[a]ny defendant convicted of a second or subsequent offense in which the defendant . . .

had in possession or used a firearm shall be committed to the commissioner of

corrections for not less than five years . . . .” The district court asked Crockson whether

he had previously been found guilty “of assault in the second degree with a dangerous

weapon . . . .” No other evidence was offered to show that the “dangerous weapon” was

a “firearm.” As not all dangerous weapons are firearms, see, e.g., State v. Slaughter, 691

N.W.2d 70, 75-76 (Minn. 2005) (concluding that knife-like object is a dangerous

weapon), the record is inadequate to support imposition of the mandatory minimum

sentence under section 609.11, subdivision 5(a). We therefore reverse and remand for

resentencing on the assault convictions.

Amended complaint

       Finally, in his pro se supplemental brief, Crockson appears to argue that the

district court erred by permitting the complaint to be amended at trial to enable Crockson


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to be sentenced under Minn. Stat. § 609.11, subd. 5(a).       Because we have already

concluded that the evidence was insufficient to support imposition of a mandatory

minimum sentence under this provision, this issue is moot. See Obermoller v. Fed. Land

Bank of St. Paul, 409 N.W.2d 229, 230-31 (Minn. App. 1987) (defining an issue as moot

when a determination of the issue “would make no difference in respect of the

controversy on the merits”), review denied (Minn. Sept. 18, 1987).

                                    DECISION

      We affirm Crockson’s burglary convictions but remand for resentencing in

accordance with LaTourelle.      We also reverse and remand for resentencing on

Crockson’s assault convictions for imposition of sentences that exclude the mandatory

minimum sentence provided for under Minn. Stat. § 609.11, subd. 5(a).

      Affirmed in part, reversed in part, and remanded.




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