                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1086

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                  Theodore Pierre Jerry,
                                       Appellant.

                                Filed May 26, 2015
                             Reversed and remanded
                                  Stauber, Judge
             Concurring in part and dissenting in part, Schellhas, Judge

                             Hennepin County District Court
                                 File No. 27CR133541

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate State Public Defender, Rochelle R. Winn,
Assistant State Public Defender, St. Paul, Minnesota (for appellant)

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

Stauber, Judge.

                                    SYLLABUS

       I.     When imposing consecutive sentences, the district court must sentence the

offenses in the order in which they occurred.

       II.    Because the offense of burglary is defined in terms of entry and is complete

upon entry, it necessarily occurs before a crime committed in the building and, therefore,

must be sentenced first in compliance with the sentencing guidelines.
                                      OPINION

STAUBER, Judge

       On appeal from his convictions of and consecutive sentences for first-degree

burglary and third-degree criminal sexual conduct, appellant argues that the district court

erred as a matter of law by sentencing him for criminal sexual conduct first and burglary

second because the burglary offense occurred first. We reverse and remand for

resentencing.

                                         FACTS

       In February 2013, appellant Theodore Pierre Jerry was charged with first-degree

burglary and third-degree criminal sexual conduct. Following a bench trial, the district

court found that in the early morning hours of January 1, 2013, appellant entered S.E.’s

home without her permission, “grabbed S.E. by her forearms[,] and used force to push

her up against the bedroom wall,” causing her to feel “afraid and helpless.” The court

also found that appellant then inserted his tongue and his penis into S.E.’s vagina without

her consent. Thus, the district court found appellant guilty of the charged offenses.

       A presentence investigation report was completed in which the probation agent

recommended that appellant be sentenced to the “maximum [sentence] allowed by the

[s]entencing [g]uidelines.” Based on this recommendation, appellant, who has a criminal

history score of six, would be sentenced consecutively for first-degree burglary first—a

129-month commit—and for third-degree criminal sexual conduct second—a 57-month

commit—for a total sentence of 186 months. At sentencing, however, the state argued

that because the burglary charge was “predicated” on the criminal-sexual-conduct charge,


                                             2
appellant should be sentenced on the criminal-sexual-conduct conviction first, and the

burglary conviction second. Thus, the state requested that appellant receive a

presumptive 180-month sentence for the criminal-sexual-conduct conviction, and a

consecutive 57-month sentence for the burglary conviction, for a total sentence of 237

months. Appellant objected to the state’s request, arguing that he should be sentenced

consistently with the recommendation of the probation agent.

       Relying on the state’s sentencing memorandum, the district court found that

because appellant’s “‘burglary conviction was predicated or conditioned upon his

completion of the criminal sexual conduct, the later conviction should be sentenced

first.’” Therefore, the district court sentenced appellant to 180 months for the criminal

sexual conduct and a consecutive term of 57 months for the burglary, for an aggregate

sentence of 237 months. This appeal followed.

                                          ISSUE

       Did the district court err by sentencing appellant for criminal sexual conduct first

and burglary second?

                                       ANALYSIS

       This court may review a “sentence imposed or stayed to determine whether the

sentence is inconsistent with statutory requirements, unreasonable, inappropriate,

excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the

district court.” Minn. Stat. § 244.11, subd. 2(b) (2014). “Statutory construction and

interpretation of the sentencing guidelines are subject to de novo review.” State v.

Johnson, 770 N.W.2d 564, 565 (Minn. App. 2009).


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       Generally, sentences imposed for multiple offenses committed in a single

behavioral incident are presumptively concurrent. State v. Crocker, 409 N.W.2d 840,

845 (Minn. 1987). But under section 609.035, subdivision 6, this presumption does not

apply when, as here, one of the sentences is for criminal sexual conduct involving force

or violence. See Minn. Stat. § 609.035, subd. 6 (2012); see also Minn. Stat. § 609.585

(2012) (“Notwithstanding section 609.04, 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.”). And the sentencing guidelines are consistent

with this statute, providing that consecutive sentences are always permissive when

sentencing for “Criminal Sexual Conduct in the First through Fourth Degrees with force

or violence.” Minn. Sent. Guidelines 2.F.2.a(2)(iii) (2012). The sentencing guidelines

further provide that “[w]hen the court imposes consecutive sentences, the court must

sentence the offenses in the order in which they occurred.” Id. 2.F. (2012); State v.

Williams, 771 N.W.2d 514, 522 (Minn. 2009) (stating that multiple offenses are

sentenced in the order in which they occurred).

       The parties here do not dispute that consecutive sentencing was permissive and not

erroneous. But appellant argues that the district court “erred as a matter of law by

sentencing [him] for criminal sexual conduct first and burglary second” when the

burglary occurred prior to the criminal sexual conduct. We agree.

       Appellant was charged with first-degree burglary under Minn. Stat. § 609.582,

subd. 1 (2012). This statute provides:




                                             4
                      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 and
              may be sentenced to imprisonment for not more than 20 years
              or to payment of a fine of not more than $35,000, or both, if:

                     ....

                     (c) the burglar assaults a person within the building or
              on the building’s appurtenant property.

Id.

       The state argues that because appellant was convicted of first-degree burglary

under section 609.582, subdivision 1(c), “the appropriate order of sentencing was to

sentence the third-degree criminal sexual conduct first and then sentence on the first-

degree burglary.” The state reasons that “the burglary charge in this case was predicated

on the criminal sexual conduct charge so . . . in the charging clause . . . the burglary

required the Court to find that an assault had occurred, and the only assault that was

alleged in connection with the case was the criminal sexual conduct charge.”

       The state’s argument is founded on a misinterpretation of the statute. Generally,

“the crime of burglary is defined in terms of entry, and is complete upon entry.” State v.

Hendrickson, 528 N.W.2d 263, 266 (Minn. App. 1995), review denied (Minn. Apr. 27,

1995). This is consistent with the plain language of the statute, which states that

“[w]hoever 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 . . . commits

burglary . . . .” Minn. Stat. § 609.582, subd. 1 (emphasis added). This language defines

the offense of burglary. The remaining language of the statute, including subdivision


                                              5
1(c), which requires that an assault be committed, determines the sentence. See id.,

subd.1(c). Thus, the burglary was complete as soon as appellant entered S.E.’s apartment

with intent to commit the sexual assault. See State v. Nelson, 363 N.W.2d 81, 83 (Minn.

App. 1985) (holding that merely stepping through a window onto a desk and then exiting

upon hearing an alarm was sufficient to sustain a burglary conviction because the

burglary offense was complete upon non-consensual entry of the defendant’s body into

the premises with intent to commit a crime). The fact that appellant committed a sexual

assault in the building allows him to be “sentenced to imprisonment for not more than 20

years or to a payment of a fine of not more than $35,000, or both.” See Minn. Stat.

§ 609.582, subd. 1. Therefore, a burglary was completed before the sexual assault

occurred, and appellant should have been sentenced for the burglary first and the third-

degree criminal sexual conduct second.

       Moreover, even if the burglary offense was not completed until an assault was

committed, we note that the unique circumstances of this case, where the district court

specifically found facts that support a conclusion that an assault was committed before

the sexual assault occurred, require us to hold that the burglary was complete before the

sexual assault was complete. The burglary offense under which appellant was convicted

requires that an assault occur, not a sexual assault. See Minn. Stat. § 609.582, subd. 1(c).

And it is immaterial whether an assault was charged; only that facts were specifically

found, and supported by the record, that an assault occurred. See Minn. Stat. § 244.11,

subd. 2(b) (stating that his court may review a sentence imposed to determine whether the

sentence is “not warranted by the findings of fact issued by the district court”).


                                              6
       An individual commits an assault if he: (1) commits an act with intent to cause

fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts

to inflict bodily harm upon another.” Minn. Stat. § 609.224, subd. 1 (2012). Here, the

district court specifically found that after appellant entered S.E.’s house, but before he

penetrated S.E.’s vagina, appellant “grabbed S.E. by her forearms and used force to push

her up against the bedroom wall” causing S.E. to feel “afraid and helpless.” By using

force, which caused S.E. to feel afraid, appellant committed an assault. See Minn. Stat.

§ 609.224, subd. 1. Thus, consistent with the district court’s findings, once appellant

entered S.E.’s house and committed the assault, the burglary offense was complete

because appellant satisfied the elements of the first-degree burglary offense under section

609.582, subdivision 1(c). See State v. McDonald, 346 N.W.2d 351, 352 (Minn. 1984)

(upholding defendant’s burglary conviction “on the ground that the burglary was

complete once [the] defendant exceeded the scope of the consent given him and other

members of the public and entered the storage room with intent to gain access to the

locked pharmacy from there.” (Emphasis added.)); see also Nelson, 363 N.W.2d at 83.

       Our decision is also supported by State v. Anderson, 345 N.W.2d 764 (Minn.

1984). In that case, the defendant pleaded guilty to burglary and criminal damage to

property, and the district court sentenced him consecutively, first for the criminal damage

to property and second for the burglary. Id. at 765-66. On appeal, the defendant argued

that the offenses should be sentenced “in the order the offenses occurred.” Id. at 766.

The defendant then argued that burglary should be sentenced first because “the burglary

occurred first since the burglary charge in this case was based on a claim of illegally


                                              7
entering (not unlawfully remaining in) the building and that this offense necessarily

occurred and was completed before defendant did the damage that formed the basis of the

conviction of criminal damage to property.” Id. The supreme court agreed and modified

the defendant’s sentence. Id.

       We conclude that, consistent with Anderson, the burglary offense occurred before

the third-degree criminal-sexual conduct offense because, before appellant sexually

assaulted S.E., he committed first-degree burglary under section 609.582, subdivision

1(c), by entering S.E.’s house and committing an assault. Accordingly, the district court

erred by sentencing appellant on the criminal sexual conduct offense before the burglary

offense, and we remand for proceedings not inconsistent with this opinion.

                                     DECISION

       Because burglary is defined in terms of entry and is complete upon entry,

appellant committed the offense of first-degree burglary under Minn. Stat. § 609.582,

subd. 1(c), before the third-degree criminal-sexual-conduct offense. Therefore, appellant

should have been sentenced for first-degree burglary first and third-degree criminal

sexual conduct second.

       Reversed and remanded.




                                             8
SCHELLHAS, Judge (concurring in part, dissenting in part)

       I concur with the majority’s syllabus point that, when imposing consecutive

sentences, the district court must sentence the offenses in the order in which they

occurred. I respectfully disagree that the district court erred by sentencing appellant for

criminal sexual conduct first and first-degree burglary second.

       “An offense is defined by its elements.” State v. Patterson, 796 N.W.2d 516, 532

(Minn. App. 2011), aff’d, 812 N.W.2d 106 (Minn. 2012). The state charged appellant

with first-degree burglary under Minn. Stat. § 609.582, subd. 1(c) (2012). The elements

of that offense are that the defendant (1) entered a building without consent, and

(2) committed an assault while in the building. See Minn. Stat. § 609.582, subd. 1(c). The

defendant “[e]nters a building without consent” by “enter[ing] a building without the

consent of the person in lawful possession,” or by “remain[ing] within a building without

the consent of the person in lawful possession.” Minn. Stat. § 609.581, subds. 4(a), 4(c)

(2012); see also State v. Crockson, 854 N.W.2d 244, 247 (Minn. App. 2014) (citing

Minn. Stat. § 609.581, subd. 4(a), (c), and noting that “‘[w]ithout consent’ means either

entering or remaining in a building ‘without the consent of the person in lawful

possession’”), review denied (Minn. Dec. 16, 2014); State v. Totimeh, 433 N.W.2d 921,

924 (Minn. App. 1988) (concluding that state met its burden to prove that appellant

entered house without consent when he failed to comply when told to leave, thereby

violating section 609.581, subdivision 4(c)), review denied (Minn. Feb. 22, 1989).

       Here, at sentencing, the district court noted that appellant did not leave S.E.’s

home until after he committed criminal sexual conduct against her while he remained

                                          C/D-1
within her home without her consent. Applying a de novo standard of review, the

majority concludes that the district court erred as a matter of law by sentencing appellant

for the predicate offense of criminal sexual conduct first and first-degree burglary second.

The majority reasons that “the burglary was complete as soon as appellant entered S.E.’s

apartment with intent to commit the sexual assault” and therefore the burglary was

completed before the sexual assault occurred.

       At sentencing, the district court incorporated by reference language from the

state’s sentencing memorandum, stating as follows:

                     Since [appellant]’s burglary conviction was predicated
              or conditioned upon his completion of the criminal sexual
              conduct, the later conviction should be sentenced first. The
              elements of the criminal sexual conduct offense simply
              require a defendant to non-consensually sexually penetrate a
              victim through force or coercion.

                     The [appellant] met every element of the criminal
              sexual conduct charge after he sexually penetrated the victim.
              However, the [appellant] did not meet every element of the
              burglary charge until after the criminal sexual conduct
              elements were met. This is because the burglary in the first
              degree is conditioned on a defendant’s commission of another
              crime while inside a victim’s home without that person’s
              consent.

                     ....

                    While both offenses were, in essence, simultaneous, it
              is important to understand that the conduct here underlying
              the [appellant]’s criminal sexual conduct conviction was
              completed before and as a necessary part of the elements of
              this burglary conviction. The current iteration of the
              Minnesota Sentencing Guidelines does not address the order
              in which to sentence simultaneous offenses, when the
              completion of one offense depends upon the completion of
              another predicate offense; hence we have State law and cases

                                          C/D-2
              that—or cases that describe how the Court is—what direction
              the Court should take in situations like this.

(Emphasis added.) The district court noted that “[appellant] didn’t leave the house until

after he was done. He’s still in her premises without her permission.”

       I would apply an abuse-of-discretion standard in reviewing the district court’s

sentence. See State v. Soto, 855 N.W.2d 303, 307−08 (Minn. 2014) (“We afford the trial

court great discretion in the imposition of sentences and reverse sentencing decisions

only for an abuse of that discretion.” (quotation omitted)). I agree with the district court

that appellant did not complete the commission of first-degree burglary until he

committed the charged predicate offense of criminal sexual conduct.

       The majority states that

              even if the burglary offense was not completed until an assault
              was committed, we note that the unique circumstances of this
              case, where the district court specifically found facts that
              support a conclusion that an assault was committed before the
              sexual assault occurred, require us to hold that the burglary
              was complete before the sexual assault was complete.

I disagree. First, the state did not charge appellant with the assault that the district court

found occurred when appellant grabbed S.E.’s forearms and pushed her up against the

bedroom wall. Second, the state did not designate the assault as the predicate offense for

the first-degree burglary charge. Third, even if appellant committed first-degree burglary

when he physically assaulted S.E., the state predicated the first-degree burglary charge on

appellant’s commission of criminal sexual conduct. Fourth, when appellant sexually

assaulted S.E., he remained in her home without her consent and therefore continued to

commit burglary during his commission of the predicate offense.

                                           C/D-3
      I disagree with the majority’s reliance on State v. Anderson, 345 N.W.2d 764

(Minn. 1984). The Anderson court did not address the complete definition of “enters a

building without consent” under section 609.581, subdivision 4. Rather, the supreme

court agreed with the defendant that “the burglary charged in th[e] case was based on a

claim of illegally entering (not unlawfully remaining in) the building.” Anderson, 345

N.W.2d at 766. In this case, I would conclude that the district court did not abuse its

broad discretion in sentencing appellant for criminal sexual conduct first and for first-

degree burglary second. I would affirm appellant’s sentence.




                                         C/D-4
