State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1592

State of Minnesota,
Respondent,

vs.

Jesus Gonzalez Sotelo,
Appellant.

Filed August 6, 2018
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Dakota County District Court
File No. 19HA-CR-15-2359

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

James C. Backstrom, Dakota County Attorney, Elizabeth Swank, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Bratvold, Judge; and
Kalitowski, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant Jesus Gonzalez Sotelo was convicted of first-degree burglary, violation
of a domestic-abuse no-contact order (DANCO), and two counts of domestic assault. In
this direct appeal, he raises two issues. First, Sotelo argues that the district court erred by
imposing convictions of and sentences for burglary, violation of a DANCO, and domestic
assault–harm. Second, Sotelo contends that the district court erroneously formally
adjudicated a conviction of domestic assault–fear.
Because the district court did not err by convicting and sentencing Sotelo for first-
degree burglary, violation of a DANCO, and domestic assault–harm, we affirm in part. But
because the district court erred in formally adjudicating Sotelo as convicted of both
domestic assault–harm and domestic assault– fear, we reverse and remand to the district
court with instructions to vacate the formal adjudicated conviction of domestic assault–
fear, but to leave the finding of guilt in place.
FACTS
Sotelo and D.F. were previously in a romantic relationship and have one child
together, L.G. In 2014, Sotelo, D.F., and three children, M.N., V.N., and L.G., lived
together in an apartment in Burnsville, Minnesota. In December 2014, a district court
issued a criminal DANCO against Sotelo, prohibiting him from having contact with child
L.G., “wherever [she] resides,” except by police escort.
In February 2015, D.F. and the three children moved into a new apartment, also in
Burnsville. Although Sotelo is listed as a “resident” on the lease of the new apartment, D.F.
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testified that Sotelo did not live with them and did not have a key to the apartment, and that
she and Sotelo were no longer in a romantic relationship.
On July 14, 2015, D.F., the three children, and one of her children’s friends were at
the new apartment. D.F. and M.N., D.F.’s 11 -year-old son, were in the living room. L.G.,
V.N., and V.N.’s friend were in their bedrooms. At approximately 10:00 p.m., Sotelo came
to D.F.’s new apartment and demanded that D.F. let him in. D.F. refused and told Sotelo
to leave. Sotelo banged and kicked the door for five minutes until he broke it open. D.F.
told Sotelo that she was going to contact the police; when she tried to make the 911 call,
Sotelo pushed her and took her phone. D.F. told M.N. to call the police, which he did.
Sotelo pushed M.N. down against a wall. M.N. suffered lower back pain and had a red
mark on his back. Sotelo left before the police arrived.
Officer Ainslie responded to the 911 call and searched the apartment complex, but
did not find Sotelo. Ainslie spoke to D.F. and M.N. Ainslie testified that M.N. looked “kind
of dazed” and said that Sotelo had shoved him against the wall. M.N. showed Ainslie his
“upper, middle part of his back” and described his pain. D.F. and M.N. told Ainslie that
Sotelo “was intoxicated” and had shoved them both. Ainslie testified that the door was
broken, “the dead bolt [popped] completely out,” wood framing of the door was completely
splintered,” and there were “wood chips along the floor” of the apartment.
The state charged Sotelo with nine counts stemming from the July 14 incident; the
initial complaint was filed in July 2015 and amended before trial. The four counts relevant
to the issues on appeal are: (1) first-degree burglary with assault under Minn. Stat.
§ 609.582, subd. 1(c) (2014); (2) violation of a DANCO under Minn. Stat. § 629.75,
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subd. 2(b) (2014); (3) domestic assault (intentionally inflicting or attempting to inflict
bodily harm upon a family or household member) (domestic assault–harm) (victim was
M.N.) under Minn. Stat. § 609.2242, subd. 1(2) (2014); (4) domestic assault (causing fear
of immediate bodily harm or death in a family or household member) (domestic assault–
fear) (victim was M.N.) under Minn. Stat. § 609.2242, subd. 1(1) (2014).1
Sotelo waived his right to a jury trial, and the district court conducted a bench trial
on March 28, 2017. The state’s three witnesses, D.F., M.N., and Ainslie, testified to the
facts summarized above. Sotelo testified that he did not live at D.F.’s new apartment and
that he had never been there. He acknowledged that the DANCO prevented him from
having contact with L.G. Sotelo asserted an alibi defense, and testified that he was
“nowhere near” D.F.’s new apartment because he was working at a commercial building
in Willmar, Minnesota at the time of the incident.
On April 4, 2017, the district court issued findings of fact, found Sotelo guilty of
first-degree burglary with assault, violation of a DANCO, domestic assault–harm (victim
was M.N.), and domestic assault–fear (victim was M.N.), and acquitted Sotelo of the five
other counts. Because Sotelo could not provide a name of the company he worked for or
an address for the commercial building, the district court did not find his alibi testimony
credible.

1 Sotelo was also charged with five other counts: interference with an emergency call;
domestic assault–harm (victim was D.F. ); domestic assault–fear (victim was D.F.); first-
degree burglary (occupied dwelling); and second-degree burglary.
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At a hearing o n July 13, 2017, the district court sentenced Sotelo to 41 months in
prison for first-degree burglary, 90 days for violation of a DANCO, and 90 days for
domestic assault– harm. During the hearing, the district court stated that it would not
formally adjudicate Sotelo as convicted of domestic assault–fear because the offense was
“in the same behavioral course of conduct.” On that same day, however, the district court
issued a warrant of commitment that included a conviction of domestic assault–fear along
with the other three convictions. This appeal followed.
D E C I S I O N
I. The district court did not err by convicting and sentencing Sotelo for first-
degree burglary, violation of a DANCO, and domestic assault–harm.

The district court adjudicated separate convictions of and imposed separate
sentences for first-degree burglary, violation of a DANCO, and domestic assault–harm. On
appeal, Sotelo argues that all three offenses occurred as part of a single behavioral incident
and, under Minn. Stat. § 609.585 (2014), a district court may impose a conviction and
sentence for burglary and only one other offense. Sotelo asks this court to vacate the
conviction and sentence for domestic assault–harm. This issue requires us to interpret and
apply Minn. Stat. § 609.585, which raises a question of law that we review de novo. State
v. Koenig, 666 N.W.2d 366, 372 (Minn. 2003).
Generally, Minnesota law prohibits a conviction of both the crime charged and an
included offense. Minn. Stat. § 609.04, subd. 1 (2014) (“Upon prosecution for a crime, the
actor may be convicted of either the crime charged or an included offense, but not both.”).
An included offense includes “[a] crime necessarily proved if the crime charged were
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proved.” Id., subd. 1(4). Minnesota law also provides that “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. S tat. § 609.035, subd. 1 (2014). This second prohibition is
usually called the single-behavioral-incident rule. See generally State v. Holmes, 778
N.W.2d 336, 339-40 (Minn. 2010).
Minnesota law, however, provides a relevant exception for burglary, stating that
“[n]otwithstanding 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.” Minn. Stat. § 609.585. This statute “allows for separate
convictions and sentences for burglary and crimes committed during the burglary ” and
explicitly provides that section 609.04’s prohibition against multiple convictions for
included offenses does not apply to a conviction for burglary and any crime committed
during the burglary. Holmes, 778 N.W.2d at 340 (citing Minn. Stat. § 609.585).
In Sotelo’s case, the parties agree with the district court’s conclusion that the
burglary, violation of a DANCO, and domestic assault–harm occurred as part of a single
behavioral incident. Although the parties agree on this legal question, we conduct an
independent inquiry . See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990)
(noting that it is the responsibility of appellate courts to decide cases in accordance with
the law, regardless of whether counsel chooses to contest an issue). In determining whether
a course of conduct consists of a single behavioral incident, this court considers time, place,
and “whether the segment of conduct involved was motivated by an effort to obtain a single
criminal objective.” State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000) (quotation
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omitted). According to the testimony at trial, these three offenses all occurred in the same
place, D.F.’s apartment, lasted no longer than ten minutes, and were motivated by the same
criminal objective. We agree with the parties that these offenses were part of the same
behavioral incident.
Sotelo argues that, under the “basic principles of statutory construction,” the phrase
“any other crime” in section 609.585 refers to “‘crime’ in the singular.” Thus, Sotelo argues
that the court may impose only one conviction and sentence in addition to the conviction
and sentence for burglary. The state argues that the plain language of section 609.585
permits “more than one additional crime to be adjudicated in connection to a burglary
conviction.” The state argues that, “the ordinary use of the term crime—written in singular
form as opposed to plural (‘crimes’)” can refer to “illegal acts in general.”
Minnesota precedent governs our analysis of the issue. In Holmes, the supreme court
interpreted section 609.585 and held:
We read the statute to allow a conviction of another crime
committed in the same course of conduct as the burglary ,
provided that the statutory elements of that crime are different
than the crime of burglary. The phrase “any other crime”
means a crime that requires proof of different statutory
elements than the crime of burglary.

778 N.W.2d at 341. Accordingly, “to determine whether a crime committed during a
burglary is ‘any other crime’ within the meaning of the statute” we must “compare[] the
statutory elements” of the crimes and determine “whether the elements of the crimes are
different.” Id. at 340. In Holmes, the supreme court determined that first-degree burglary
and third-degree assault required proof of different statutory elements and, therefore,
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affirmed the district court’s decision to separately convict and sentence appellant for both
offenses, even though both offenses were based on a single behavioral incident. Id. at 338,
341-42.
Here, we consider whether first-degree burglary, violation of a DANCO, and
domestic assault–harm require proof of different statutory elements. First-degree burglary
with assault prohibits a person from (1) “enter[ing] a building without consent and with
intent to commit a crime, or enter[ing] a building without consent and commit[ing] a crime
while in the building,” and (2) “assault[ing] a person within the building or on the
building’s appurtenant property.” Minn. Stat. § 609.582, subd. 1(c). A DANCO violation
consists of entirely different statutory elements, requiring (1) a DANCO, (2) the defendant
“knows of the existence” of the DANCO, and (3) the defendant violated a term of the
DANCO. Minn. Stat. § 629.75, subd. 2(b). Finally, domestic assault–harm requires that
(1) the defendant intentionally inflicted bodily harm and (2) the victim was a member of
the defendant’s “family or household.” Minn. Stat. § 609.2242, subd. 1(2).
Sotelo appears to concede that violation of a DANCO is comprised of entirely
separate statutory elements and instead challenges only his separate conviction of domestic
assault–harm.2 Sotelo instead argues that “first-degree burglary with an assault already

2 Although not cited by Sotelo, we recognize that in State v. Colvin, the supreme court held
that a defendant’s violation of a no-entry provision of an order f or protection (OFP) was
insufficient to establish the independent crime element of burglary. 645 N.W.2d 449, 453-
54 (Minn. 2002). In other words, in Colvin, the supreme court reversed the defendant’s
burglary conviction because the “same entry [was] insuff icient to satisfy both the illegal
entry element of the burglary statute” and the no-entry provision of the OFP. Id. at 454.
But Colvin does not apply here because t he district court did not rely on the DANCO to
establish the burglary’s illegal-entry element, nor did it need to. Several other facts in the
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encompasses the offense of domestic assault–harm.” We disagree. Domestic assault–harm
requires as an element of the offense that the victim be a member of the defendant’s family
or household, but first-degree burglary with assault as the predicate offense does not.
Despite the supreme court’s decision in Holmes, Sotelo argues that other relevant
caselaw supports his reading of section 609.585. For example, in State v. Hartfield, the
supreme court considered a challenge to the defendant’s criminal history score when two
criminal offenses occurred in the same behavioral incident. 459 N.W.2d 668, 669- 70
(Minn. 1990). The supreme court briefly discussed section 609.585 and described the
statute as “ 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.” Id. at 670 (emphasis added); see also 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 the dwelling.”) (Emphasis added). Sotelo
argues that these decisions authorize district courts to impose a conviction of and sentence
for burglary and only one other offense.
The state responds that, while Hartfield’s language “comport[ s] with [Sotelo’s]
‘singular’ interpretation” of the statute , Hartfield is not dispositive. We agree. The
appellant in Hartfield did not rely on the “any other crime” language in section 609.585;

record establish an illegal entry. For example, Sotelo forcibly entered D.F.’s apartment
without her consent by kicking in the door after she told him to leave; Sotelo admitted he
did not live in the apartment and that he had never been there before. Thus, the district
court correctly convicted Sotelo of and sentenced him for violation of a DANCO as well
as first-degree burglary.
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instead he challenged whether two offenses that arose from a single behavioral incident
may be used to increase his criminal history score for sentencing of the second offense.
Hartfield, 459 N.W.2d at 669-71. The supreme court held no they could not. Id. at 670-71.
Thus, the supreme court did not analyze whether section 609.585 permits the conviction of
and sentence for burglary and more than one additional crime. Id. at 670. We conclude that
Hartfield does not affect our analysis.
Finally, this court has previously discussed section 609.585 and determined that it
permits the conviction of more than one crime committed during a burglary. For example,
in State v. Beane, this court described section 609.585 as allowing the “convict[ion] of
burglary and each of the several offenses committed during the course of the burglary.”
840 N.W.2d 848, 852-53 (Minn. App. 2013) (emphasis added), review denied (Minn. Mar.
18, 2014).
Because domestic assault–harm and violation of a DANCO require proof of
different statutory elements than first-degree burglary with assault, they fall within the
meaning of “any other crime” under Minn. Stat. § 609.585. See Holmes, 778 N.W.2d at
340-41. We conclude that the district court did not err by convicting and sentencing Sotelo
for violation of a DANCO and domestic assault–harm in addition to first-degree burglary-
assault.
II. The district court erred when it entered a judgment of conviction for domestic
assault–fear on the warrant of commitment.

At sentencing, after adjudicating convictions of and imposing sentences for the first
three offenses, the district court stated that it would not adjudicate Sotelo’s conviction of
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domestic assault–fear, because the offense occurred in “the same behavioral course of
conduct.” Even so, the warrant of commitment includes a conviction of domestic assault–
fear. Appellate courts “look to the official judgment of conviction in the district court file
as conclusive evidence of whether an offense has been formally adjudicated.” Spann v.
State, 740 N.W.2d 570, 573 (Minn. 2007) (quotations omitted). On appeal, Sotelo argues
that the judgment of conviction for domestic assault–fear must be vacated. The state
concedes that Sotelo was incorrectly adjudicated on domestic assault–fear. This court must
still conduct an independent inquiry. See Hannuksela, 452 N.W.2d at 673 n.7.
Sotelo and the district court analyzed this issue under the single-behavioral-incident
rule. See Minn. Stat. § 609.035. But that statute prohibits multiple sentences. Id. Section
609.04 is the appropriate analysis for determining if multiple convictions are permitted.
See Minn. Stat. § 609.04, subd. 1 (prohibiting conviction of crime charged and included
offense). Minnesota courts have also 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); see also State
v. Hackler, 532 N.W.2d 559, 559 (Minn. 1995) (“If the lesser offense is a lesser degree . . .
of a multi-tier statutory scheme dealing with a particular subject, then it is an included
offense under section 609.04.”) (Quotation omitted). Application of Minn. Stat. § 609.04
is a question of law, which we review de novo. State v. Chavarria-Cruz, 839 N.W.2d 515,
522 (Minn. 2013).
Sotelo was convicted of domestic assault –harm in violation of Minn. Stat.
§ 609.2242, subd. 1(2) and domestic assault –fear in violation of Minn. Stat. § 609.2242,
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subd. 1(1). Although domestic assault–fear is not a lesser-included offense of domestic
assault–harm, these convictions are part of the same statutory scheme because they appear
in the same criminal statute. See Minn. Stat. § 609.2242, subd. 1. Additionally, these
convictions are “alternative means” of committing the same crime. State v. Dalbec, 789
N.W.2d 508, 512 -13 (Minn. App. 2010), review denied (Minn. Dec. 22, 2010). Because
the domestic-assault counts alleged that Sotelo violated the same criminal statute for an
assault against a single victim, the district court erred by formally adjudicating convictions
of both counts. Jackson, 363 N.W.2d at 760.
Accordingly, we reverse and remand to the district court with instructions to vacate
the formal adjudicated conviction of domestic assault–fear, but to leave the finding of guilt
in place. State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (stating that the proper
procedure “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,” and to leave
the remaining count unadjudicated); State v. Crockson, 854 N.W.2d 244, 248 (Minn. App.
2014), review denied (Minn. Dec. 16, 2014).
Affirmed in part, reversed in part, and remanded.