                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0993

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                 Joel Asiago Nyansikera,
                                        Appellant.

                                 Filed March 30, 2015
                            Affirmed in part and remanded
                                      Kirk, Judge

                               Mower County District Court
                                File No. 50-CR-13-2437


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

Kristen Nelsen, Mower County Attorney, Megan Burroughs, Assistant County Attorney,
Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


       Considered and decided by Kirk, Presiding Judge; Ross, Judge; and Reilly, Judge.

                         UNPUBLISHED OPINION

KIRK, Judge

       On appeal from his convictions of first-degree burglary and second-degree assault,

appellant argues that (1) the evidence is insufficient to support his convictions and (2) the
district court erred by convicting him of two counts of first-degree burglary for the same

criminal act. Appellant also raises several arguments in a pro se supplemental brief. We

affirm appellant’s convictions but remand to the district court to correct the warrant of

commitment to reflect only one conviction of first-degree burglary.

                                          FACTS

       In October 2013, respondent State of Minnesota charged appellant Joel Asiago

Nyansikera with two counts of first-degree burglary and one count of second-degree

assault. The complaint alleged that appellant broke down the door of N.D.’s apartment,

entered her apartment, and struck N.D. with a three-foot-long section of banister railing.

       Following a bench trial, the district court found appellant guilty of all three counts.

The district court did not formally enter any convictions on the record, but sentenced

appellant to 48 months in prison for one count of first-degree burglary and 21 months for

the count of second-degree assault, to be served concurrently. The district court stated on

the warrant of commitment that appellant was convicted of all three counts. This appeal

follows.

                                      DECISION

I.     The evidence is sufficient to support appellant’s convictions.

       “We review criminal bench trials the same as jury trials when determining whether

the evidence is sufficient to sustain convictions.” State v. Hough, 585 N.W.2d 393, 396

(Minn. 1998). In assessing whether the evidence was sufficient to support a finding of

guilt, this court “determine[s] whether the legitimate inferences drawn from the facts in

the record would reasonably support the [factfinder’s] conclusion that the defendant was


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

We assume that the factfinder believed the state’s witnesses and disbelieved contrary

evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the

finding of guilt if the factfinder, acting with due regard for the presumption of innocence

and the requirement of proof beyond a reasonable doubt, could reasonably conclude the

defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-

77 (Minn. 2004).

       Appellant argues that the evidence is insufficient to support his convictions of

first-degree burglary and second-degree assault because the state failed to prove beyond a

reasonable doubt that the railing was a dangerous weapon. Under Minn. Stat. § 609.582,

subd. 1(b) (2012), an individual is guilty of first-degree burglary if he “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” and “possesses, when entering or at any time

while in the building, any of the following: a dangerous weapon, any article used or

fashioned in a manner to lead the victim to reasonably believe it to be a dangerous

weapon, or an explosive.” A person commits second-degree assault if he “assaults

another with a dangerous weapon.”         Minn. Stat. § 609.222, subd. 1 (2012).        The

definition of a “dangerous weapon” includes “any combustible or flammable liquid or

other device or instrumentality that, in the manner it is used or intended to be used, is

calculated or likely to produce death or great bodily harm.” Minn. Stat. § 609.02, subd. 6

(2012).




                                             3
      “When determining whether an object . . . is a dangerous weapon, the court must

examine not only the nature of the object itself, but also the manner in which it was

used.” State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997). “Some things that are not

ordinarily thought of as dangerous weapons become dangerous weapons if so used.”

State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983). Minnesota appellate courts have

found that numerous ordinary objects were dangerous weapons because of the way that

the defendant used them, including a three-foot-long board used to beat a victim, a pool

cue swung like a baseball bat, cowboy boots used to kick a victim’s head and chest, and a

beer bottle thrown at a victim’s head. See id. (board); State v. Upton, 306 N.W.2d 117,

117-18 (Minn. 1981) (pool cue); State v. Mings, 289 N.W.2d 497, 497-98 (Minn. 1980)

(cowboy boots); State v. Cepeda, 588 N.W.2d 747, 749 (Minn. App. 1999) (beer bottle).

      Here, the record establishes that appellant used a hand railing in a way that was

calculated or likely to produce death or great bodily harm. N.D.’s son, S.A., testified

about appellant’s persistent search in his own apartment and in front of N.D.’s apartment

building for something to use as a weapon and that he heard appellant say, “I need to grab

a weapon,” before attempting to pull off a table leg. When that was unsuccessful, S.A.

testified that appellant searched for a weapon in the bedroom before he went outside the

apartment building and, after several attempts, successfully tore off a railing and then

held it “like a baseball bat.” S.A., N.D., and another witness, J.M., all testified that

appellant was very drunk and they observed appellant swing the railing at N.D. and

others multiple times, hitting N.D. in the hand. All three witnesses testified that N.D.’s

hand was injured as a result of being hit by the railing, and the state introduced into


                                            4
evidence a photo of N.D.’s injured hand that was taken by the police officers who

responded to the 911 call. Finally, although appellant denied breaking off the railing or

hitting N.D. with it, he acknowledged that the railing could cause bodily harm or kill

someone.

       Appellant contends that N.D.’s injury does not support the conclusion that the

railing was a dangerous weapon because her injury was not severe. A court may consider

the victim’s injuries in determining whether an object constitutes a dangerous weapon,

but that determination does not turn on the nature or severity of the victim’s injury.

Basting, 572 N.W.2d at 285. Here, the record establishes that N.D.’s injury on her hand

was not severe. But appellant’s repeated swinging of the railing “like a baseball bat” at

N.D. and several others was likely to cause serious harm if he successfully made contact

with one of the individuals. See Upton, 306 N.W.2d at 117-18 (concluding that evidence

that the defendant’s action of swinging a pool cue “like a baseball bat” and hitting the

victim in the head, causing a severe cut, was sufficient to support his conviction of

assault with a dangerous weapon). The manner in which appellant used the railing

rendered it a dangerous weapon, whether or not he succeeded in causing severe harm.

       Therefore, the evidence is sufficient to support appellant’s convictions.

II.    The district court convicted appellant of one count of first-degree burglary.

       Appellant argues that the district court improperly convicted him of two counts of

first-degree burglary for the same criminal act. The state responds that the district court

properly convicted appellant of only one count of first-degree burglary, but mistakenly

stated on the warrant of commitment that appellant was convicted of both counts of first-


                                             5
degree burglary. Thus, the state argues that this case should be remanded to the district

court to allow it to correct the error in the warrant of commitment.

       Under Minn. Stat. § 609.04, subd. 1 (2012), a defendant cannot be convicted of the

same offense twice for the same act or course of conduct. See State v. Hodges, 386

N.W.2d 709, 710 (Minn. 1986). In Hodges, the Minnesota Supreme Court specifically

held that “the burglarious entry of one dwelling should justify only one burglary

conviction.” Id. at 711; see State v. Beane, 840 N.W.2d 848, 853 (Minn. App. 2013)

(reversing the defendant’s second first-degree burglary conviction and remanding for

resentencing based on Hodges), review denied (Minn. Mar. 18, 2014). Appellate courts

“typically look to the official judgment of conviction . . . as conclusive evidence of

whether an offense has been formally adjudicated.” State v. Pflepsen, 590 N.W.2d 759,

767 (Minn. 1999).

       Here, the district court found appellant guilty of two counts of first-degree

burglary in violation of Minn. Stat. § 609.582, subd. 1(b), (c) (2012). At the sentencing

hearing, the district court did not formally enter any convictions. Instead, the district

court stated, “I believe I’m only going to sentence on one count, one behavioral

incident,” and then imposed a sentence for one count of first-degree burglary and one

count of second-degree assault. The fact that the district court only imposed a sentence

for one count of first-degree burglary indicates that it did not intend to enter convictions

for both counts of first-degree burglary. But because the district court stated on the

warrant of commitment that appellant was convicted of both counts of first-degree




                                             6
burglary, we remand to the district court to correct the warrant of commitment to reflect

that appellant was convicted of only one count of first-degree burglary. See id.

III.   Appellant’s pro se arguments lack merit.

       In his pro se supplemental brief, appellant argues that the evidence is insufficient

to establish that he committed first-degree burglary. He contends that it is impossible for

him to burglarize a building that he lived in with his girlfriend and children. He also

argues that he was invited to N.D.’s apartment.

       The testimony of J.M., N.D., and S.A. establishes that, although appellant was

invited to be in N.D.’s apartment earlier in the day, N.D. withdrew her consent for him to

be in the apartment. N.D. testified that appellant was invited to attend a party at her

apartment but that she asked him to leave the apartment after he became disruptive. J.M.

testified that N.D. closed and locked her apartment door after appellant left the apartment.

None of the witnesses actually saw appellant kick down the door, but S.A. testified that

he observed appellant run at the door several times and then heard a crack and something

hit the floor. And both J.M. and N.D. testified that they heard loud bangs on the door

before the door fell into the apartment and appellant was on the other side of the door as

it fell. They both testified that they did not invite appellant into the apartment after N.D.

told him to leave.

       Further, we are not persuaded by appellant’s argument that he could not have

burglarized N.D.’s apartment because he lived in the apartment building. The fact that

appellant lived in another apartment in the building does not give him the right to enter

any of the individual apartments without permission. “That an individual apartment


                                             7
within an apartment building may be considered a ‘building’ under the burglary statute is

well-established.” Beane, 840 N.W.2d at 852. Because the record shows that appellant

did not have permission to enter N.D.’s apartment, the evidence is sufficient to establish

that appellant committed first-degree burglary when he entered N.D.’s apartment while in

possession of a dangerous weapon. See Minn. Stat. § 609.582, subd. 1(b), (c).

         Finally, appellant argues that the district court failed to take into consideration the

involvement of N.D.’s nephew in the incident.            But appellant’s counsel thoroughly

questioned the witnesses during cross-examination about N.D.’s nephew’s actions on the

day of the incident. In addition, appellant testified at trial and explained his version of

the events, including that N.D.’s nephew fought with him. The district court’s guilty

verdict indicates that it did not believe appellant’s version of the events, and we defer to

the district court’s credibility determinations. See State v. Kramer, 668 N.W.2d 32, 38

(Minn. App. 2003) (“It is the province of the fact-finder to determine the weight and

credibility to be afforded the testimony of each witness.”), review denied (Minn. Nov. 18,

2003).

         Affirmed in part and remanded.




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