                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1829

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                   Keith Dawson,
                                    Appellant.

                              Filed September 2, 2014
                                     Affirmed
                                  Schellhas, Judge

                            Ramsey County District Court
                              File No. 62-CR-13-954

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
Brian P. Taylor (certified student attorney), St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and

Huspeni, Judge.*




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                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant argues that the evidence is insufficient to support his conviction of first-

degree burglary because the state failed to prove that he burglarized an occupied

dwelling. We affirm.

                                         FACTS

      Three men jimmied open the front doors of a St. Paul apartment complex, took an

elevator to the parking garage, broke windows of three vehicles, removed a car stereo,

and fled the building when a vehicle entered the garage. The apartment complex’s video

surveillance camera captured the incident, and law enforcement believed that appellant

Keith Dawson was one of the burglars. Respondent State of Minnesota charged Dawson

with first-degree burglary under Minn. Stat. § 609.582, subd. 1(a) (2012). A jury found

Dawson guilty, and the district court sentenced him to 45 months’ imprisonment.

      This appeal follows.

                                    DECISION

      Dawson does not dispute that he entered a building without consent; he disputes

that he entered an occupied dwelling. The state argues that Dawson waived this argument

because he moved for judgment of acquittal based only on alleged insufficient evidence

of his identity. But “a conviction based upon anything less than ‘proof beyond a

reasonable doubt of every fact necessary to constitute the crime’ violates the Due Process

Clause of the Fifth Amendment, and amounts to plain error affecting a defendant’s

substantial rights.” State v. Clow, 600 N.W.2d 724, 726 (Minn. App. 1999) (quoting In re


                                            2
Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)), review denied (Minn. Oct. 21,

1999). We conclude that the interests of justice require us to address Dawson’s

insufficiency-of-the-evidence argument. See Minn. R. Civ. App. P. 103.04 (permitting

appellate courts to “review any . . . matter as the interest of justice may require”). We

therefore address the merits of Dawson’s argument.

       Appellate courts reviewing a claim of insufficient evidence “view the evidence in

the light most favorable to the verdict and assume that the fact finder believed the state’s

witnesses and disbelieved any contrary evidence” and determine “whether the fact-finder

could have reasonably concluded that the defendant was guilty beyond a reasonable

doubt.” Gulbertson v. State, 843 N.W.2d 240, 244–45 (Minn. 2014) (quotation omitted).

The state can prove first-degree burglary if it offers sufficient evidence to prove that

Dawson entered a “building” which “is a dwelling.” Minn. Stat. § 609.582, subd. 1(a).

The other elements of first-degree burglary are not at issue in this case.

       Dawson concedes that the apartment complex is a building and that the parking

garage is part of the apartment complex, but he argues that the apartment complex is not

a dwelling, maintaining that only each individual apartment unit is a dwelling. A

“building” is “a structure suitable for affording shelter for human beings including any

appurtenant or connected structure.” Minn. Stat. § 609.581, subd. 2 (2012). A “dwelling”

is “a building used as a permanent or temporary residence.” Id., subd. 3 (2012). A

“dwelling” therefore includes appurtenant structures. State v. Hendrickson, 528 N.W.2d

263, 265–66 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995). Citing State v.

Johnson, 679 N.W.2d 378, 386 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004),


                                              3
Dawson argues that, because each apartment unit has locks to keep out intruders, each

apartment is a dwelling under the statutory definition of dwelling. Appellate courts

review questions of statutory interpretation de novo and, when interpreting a statute,

“give words and phrases their plain and ordinary meaning.” State v. Nelson, 842 N.W.2d

433, 436 (Minn. 2014) (quotation omitted).

       Dawson correctly notes that an individual apartment unit can be a separate

building under the burglary statute. See State v. Beane, 840 N.W.2d 848, 852 (Minn.

App. 2013) (“That an individual apartment within an apartment building may be

considered a ‘building’ under the burglary statute is well-established.”), review denied

(Minn. Mar. 18, 2014); see also State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995)

(stating that, under burglary statute, “appellant entered the victim’s dwelling by leaping

onto the victim’s balcony” and then entering her apartment); cf. State v. McDonald, 346

N.W.2d 351, 352 (Minn. 1984) (concluding that burglary committed when defendant

walked through part of store open to public, then entered area not open to public in effort

to steal drugs). The apartment units in this case are separate buildings because they are

“self-contained.” Beane, 840 N.W.2d at 852; see also Johnson, 679 N.W.2d at 386

(“[W]hether a rented room is a separate building turns on, among other things, physical

access, whether the unit is self-contained.” (quotation omitted)). But this does not end our

inquiry, because a dwelling includes appurtenant structures. Hendrickson, 528 N.W.2d at

265–66.

       Here, each apartment resident in the complex is provided with one parking space

in the garage. The garage can be accessed by elevator from the complex, by stairwell


                                             4
from the complex, by pedestrian exit door, or by vehicle access door. We must consider

whether the common hallway, elevator, and parking garage within the apartment complex

are appurtenant to the individual apartment unit “buildings.” Dawson cites this court’s

unpublished decision in State v. Devens, No. A12-2065 (Minn. App. Dec. 9, 2013), for

the proposition that the area outside of an apartment unit is not part of the dwelling. The

Minnesota Supreme Court affirmed this court in Devens, noting that the definition of

“dwelling” under Minn. Stat. § 609.581, subd. 3, “is broad enough to include an

apartment hallway” but concluding that “the apartment hallway was not Devens’ castle

for the purpose of self-defense.” ___ N.W.2d ___, ___, 2014 WL 4087217, at *1, *4

(Minn. Aug. 20, 2014) (emphasis added). Devens does not support Dawson’s argument

that the area outside of an apartment unit is not part of the dwelling for purposes of the

burglary committed in this case.

       The evidence proved that Dawson broke into the main entrance of the apartment

complex, walked through a common hallway to a common elevator, and took the elevator

to the apartment residents’ locked garage. We conclude that Dawson fails to show that

the evidence is not sufficient to support his conviction of first-degree burglary. Cf. State

v. Maykoski, 583 N.W.2d 587, 588–89 (Minn. 1998) (concluding that a basement “clearly

was a part of the occupied dwelling” while noting that the basement was “built as part of

the dwelling house”); State v. Schotl, 289 Minn. 175, 179–80, 182 N.W.2d 878, 880–81

(1971) (concluding that entry into a store attached to a residence constitutes entry of a

dwelling because “the breaking and entering of any part of the structure was a breaking

and entering of a dwelling which was habitually used and occupied by the owner’s


                                             5
family”). Accordingly, we conclude that the common hallway, elevator, and parking

garage were appurtenant structures to the apartment units and therefore were part of a

dwelling. The evidence is sufficient to support Dawson’s conviction of burglary of a

dwelling.

      Affirmed.




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