A17-1841

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1840
A17-1841

State of Minnesota,
Respondent,

vs.

David James Jones,
Appellant.

Filed December 10, 2018
Affirmed
Rodenberg, Judge

Cass County District Court
File Nos. 11-CR-17-493, 11-CR-16-1817

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

Benjamin T. Lindstrom, Cass County Attorney, Walker, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, M i n n e s o t a ( f o r
appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ro denberg, Judge;
and Reilly, Judge.
S Y L L A B U S
In a first-degree burglary prosec ution, the state is not requir ed to prove that the
defendant entered the building without a claim of right under Minn. Stat. § 609.582, subd.
1(b) (2016); therefore, misdemeanor trespass under Minn. Stat. § 609.605, subd. 1(b)(4)
(2016), is not a lesser-included offense of first-degree burglary. The continuing offense of

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possession of a firearm by an ineligible person committed insid e of the building is a
sufficient independent crime to support a first-degree burglary conviction.
O P I N I O N
RODENBERG, Judge
In these consolidated appeals, appellant David Jones appeals f rom the district
court’s order denying his motion to withdraw his guilty pleas b efore sentencing in two
different cases. He argues that (1) his guilty plea to first-d egree burglary was not
constitutionally valid because the factual basis offered in support of it negated an essential
element of the charge and failed to establish a second element, and (2) the district court
abused its discretion in denying his motion to withdraw his guilty pleas under the fair-and-
just standard. We affirm.
FACTS
On October 5, 2016, at approximate ly 7:54 a.m., law enforcement officers
responded to a report of a possible trespass at a tribal house in Cass Lake.1 The house was
boarded up, but one board was pulled away from the back window and it appeared to
officers that people were in the house. A housing employee rem oved a board from the
front door and unlocked the door, enabling police to enter. Officers located appellant lying
on a cot in the northeast bedroom. There was a yellow-gripped black revolver on the floor
next to the head of the cot. Appellant was handcuffed and sear ched. Officers found a
needle and money in appellant’s front left pants pocket. Durin g the search of the house,

1 The house is owned by Leech Lake Housing Authority of the Leech Lake Band of Ojibwe
and is referred to in the record as a “tribal house.”

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an officer noticed appellant moving around and one officer saw appellant ingest several
small bindles of a substance that appellant claimed to be heroi n. On the floor next to
appellant, there were more bindles that field-tested positive for heroin. Officers determined
the revolver to be a .22 caliber pistol, and found it was loade d with nine .22 long-rifle
cartridges. Appellant was trans ported to a hospital where he w as medically cleared. He
was then transported to jail.
Appellant had multiple prior convi ctions that made him ineligib le to possess a
firearm as of October 5, 2016. Appellant was charged with firs t-degree burglary, among
other crimes.2 While in custody on these charges, the district court granted appellant a
furlough for part of March 1, 2017, to attend a funeral. On Ma rch 1, appellant signed a
furlough agreement that specifically noted, “I will be subject to ESCAPE Charges if I do
not return at the stated date and time, unless changes are appr oved.” Appellant did not
report back to the Cass County Detention Center as scheduled at the end of his furlough.
On March 19, 2017, a Leech Lake Tribal Police Officer was on p atrol in Cass
County when he stopped a car that he observed cross the centerline. While speaking with
the driver, the officer observed a male passenger in the back s eat of the car who did not
make eye contact when the officer asked him a question. Anothe r officer asked the
passenger for his name, which he said was “[C.B.].” The officer knew C.B., and knew that

2 Appellant was charged with Count I: First Degree Burglary – P ossess Firearm (Minn.
Stat. § 609.582, subd. 1(b)); Count II: Fifth Degree Controlle d Substance – Subsequent
(Minn. Stat. § 152.025, subd. 2(1) (2016)); Count III: First D egree Burglary – Possess
Firearm (Minn. Stat. § 609.582, subd. 1(b)); and Count IV: Certain Persons Not to Possess
Firearms (Minn. Stat. § 624.713, subd. 1(2) (2016).

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the passenger was not C.B. The passenger was later identified as appellant, and he was
again arrested and searched. Officers found a total of seven h ypodermic needles on
appellant’s person. Appellant com plained that his stomach hurt and admitted to having
swallowed a bindle of methamphetamine. Appellant was charged w ith escape from
custody (for not having returned after the March 1 furlough), p roviding a false name to a
peace officer, and possession of hypodermic needles.3
A plea agreement was reached in both cases. Appellant appeared in court on
March 27, 2017, and pleaded guilty in the first case to first-d egree burglary while
possessing a firearm and being an ineligible person in possessi on of a firearm. Appellant
also pleaded guilty to the escape charge in the second case. T he agreement provided that
appellant would be released on el ectronic home monitoring and t hat, if he abided by his
conditions of release and appeared at sentencing, appellant wou ld serve a 90-month
sentence on the first-degree bur glary charge and a 60-month con current sentence on the
charge for possession of a firearm by an ineligible person, and the escape charge would be
dismissed at sentencing. If appellant failed to appear as sche duled or violated the
conditions of his release, he would serve 117 months as a guidelines sentence on the first-
degree burglary (the first case), a concurrent 60-month sentenc e on the possession of a
firearm charge, and a consecutive year and a day on the escape charge (the second case).

3 Count I: Escape from Custody (Minn. Stat. § 609.485, subd. 2(1) (2016)); Count II: False
Name to a Peace Officer (Minn. Stat. § 609.506, subd. 1 (2016)); and Count III: Possession
of Hypodermic Needles (Minn. Stat. § 151.40, subd. 1 (2016)).

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After appellant entered guilty pleas in both files, he was released on electronic home
monitoring under the plea agreement. Appellant cut off his ele ctric-home-monitoring
bracelet within a matter of hours because he was having withdrawal symptoms and needed
to find drugs. Appellant was later arrested and moved to withdraw his guilty pleas before
sentencing, claiming that he had been under the influence of na rcotics when he pleaded
guilty, that his waivers of rights were not knowing and intelli gent, and that he was not
competent or lacked the capacity to testify regarding the facts of the offenses. The district
court denied appellant’s motion to withdraw his guilty pleas. It found that appellant’s
testimony that he was under the influence of narcotics at the time he entered the pleas was
not credible. The district court sentenced appellant as the parties had agreed.
This appeal followed.
ISSUES
I. Was appellant’s guilty plea to first-degree burglary constit utionally valid?
II. Did the district court abuse its discretion by denying appe llant’s
presentencing motion to withdraw his guilty pleas?
ANALYSIS
I. Appellant’s guilty plea to fi rst-degree burglary was valid.
Appellant first argues that his guilty plea to the first-degre e burglary was inaccurate
and therefore not valid. Appella nt bears the burden of showing that his plea was invalid,
but the validity of a plea is a question of law reviewed de nov o. State v. Raleigh , 778
N.W.2d 90, 94 (Minn. 2010).

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A manifest injustice, necessitating plea withdrawal, occurs whe never a guilty plea
is not valid. Id. “To be constitutionally valid, a guilty plea must be accurate , voluntary,
and intelligent.” Id. For a guilty plea to be accurate, a factual basis must be est ablished
showing that the defendant’s con duct meets all elements of the offense to which he is
pleading guilty. State v. Iverson, 664 N.W.2d 346, 349-50 (Minn. 2003). If the defendant’s
plea colloquy negates an essentia l element of the charged crime , the factual basis is
inadequate. Id. at 50.
Because appellant challenges the accuracy of his guilty plea to the first-degree
burglary charge, we must first ascertain the essential elements of first-degree burglary. See
State v. Vasko , 889 N.W.2d 551, 556 (Minn. 2017) (stating that, when evaluati ng the
sufficiency of the evidence to convict, “it is often necessary to interpret a criminal statute”).
A defendant is guilty of first-degree burglary if he
enters a building without consen t 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
. . . if:
. . . .
(b) the burglar possesses, when entering or at any time
while in the building, . . . a dangerous weapon.

Minn. Stat. § 609.582, subd. 1(b).
Appellant admits that he possessed a firearm while in the build ing, but argues that
his plea testimony negated the element of entering the building “without consent” and
argues that the plea colloquy fails to demonstrate that he “com mitted a crime while in the
building.”

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A. Appellant’s testimony provide d a sufficient factual basis to establish that
appellant entered a building without consent.

Minnesota law defines “enters a building without consent” for purposes of burglary
offenses as entry into a building “without the consent of the person in lawful possession.”
Minn. Stat. § 609.581, subd. 4(a ) (2016). A “person ‘in lawful possession’ under Minn.
Stat. § 609.581, subd. 4(a),” is defined as a “person who has a legal right to exercise control
over the building in question.” State v. Spence , 768 N.W.2d 104, 108-09 (Minn. 2009).
Therefore, to determine whether the record here is adequate to demonstrate this element,
we must determine whether appellant had consent to enter the building from a person who
had a legal right to exercise control over the building. Minn. Stat. §§ 609.581, subd. 4(a),
.582 (2016).
During the plea colloquy, appellant testified that his incarcerated cousin had been a
tenant of the tribal house and gave appellant permission to be there. Appellant further
testified that, as of the time of his plea, he knew that Leech Lake Housing Authority owned
the tribal house at the time he entered it, and neither the Housing Authority nor anyone in
lawful possession had consented to appellant’s entry into the t ribal house. Appellant
testified that, after he was arrested, he and his attorney revi ewed the lease agreement that
his cousin had signed with Leech Lake Housing Authority, and it became clear to appellant
that he had no legal authority to be in the building. Appellan t’s cousin was not in lawful
possession of the tribal house when appellant entered it. Cons equently, appellant did not
have consent to be in the building, and he so testified.

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Appellant argues on appeal that hi s testimony at the plea heari ng negated the
element of entering without consent, because he believed he had his cousin’s permission
to be there at the time he entered, and therefore had a claim o f right to enter. Appellant
argues that the first-degree burglary statute requires proof th at he entered the building
without a claim of right, because trespass is a lesser-included offense of burglary.
“In determining whether an offense is a necessarily included offense, we must look
at the elements of the offense rather than the facts of the par ticular case.” State v. Roden,
384 N.W.2d 456, 457 (Minn. 1986) (citation omitted). If it is impossible to commit first-
degree burglary without committi ng trespass, then trespass is a lesser-included offense.
See id. (“A lesser offense is necessarily included in a greater offens e if it is impossible to
commit the latter without also committing the former.”).
In support of this argument, appellant cites State v. Roberts, where this court stated,
“[a]bsent an intent to commit a crime in the building, the same conduct constitutes an
included misdemeanor offense of trespass.” 4 350 N.W.2d 448, 451 (Minn. App. 1984);
see Minn. Stat. § 609.04, subd. 1(4) (2016) (an included offense may be a crime necessarily
proved if the crime charged were proved). The Minnesota Supreme Court has held that an
element of criminal trespass is that the defendant had no legal claim of right to be on the

4 In Roberts, this court was construing Minn. Stat. § 609.58, subd. 2 (1982), which provided
that “[w]hoever enters a buildin g without the consent of the pe rson in lawful possession
. . . with intent to commit a crime in it . . . commits burglar y.” 350 N.W.2d at 451. That
statute was repealed and replaced, and the current statute provides that a person is guilty of
burglary if the person enters without consent of the person in lawful possession, with intent
to commit a crime, or enters without consent of the person in lawful possession and
commits a crime in the building. Minn. Stat. § 609.582, subd. 1.

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premises where the trespass is alleged to have occurred. State v. Brechon , 352 N.W.2d
745, 750 (Minn. 1984). As such, appellant contends that the fi rst-degree burglary statute
requires that the defendant enter the building without consent or a claim of right. “Statutory
interpretation is a matter of law that we review de novo.” Iverson, 664 N.W.2d at 350.5
“[A] person is guilty of a misdemeanor [trespass] if the person intentionally . . .
occupies or enters the dwelling or locked or posted building of another, without claim of
right or consent of the owner or the consent of the one who has the right to give consent,
except in an emergency situation.”6 Minn. Stat. § 609.605, subd. 1(b)(4). In Brechon, the
Minnesota Supreme Court noted that the legislature inserted the claim-of-right language in
the trespass statute to protect a n innocent trespasser from cri minal prosecution because
“[i]f the defendant has a claim of right, he lacks the criminal intent which is the gravamen
of the offense.” 352 N.W.2d at 749. The supreme court constru ed the claim-of-right
language to be an element of trespass because “[t]here is no pu nishable act of trespass if
the state cannot show [the] defendant was on the premises without a claim of right.” Id.

5 At oral argument, the state did not expressly argue that secti on 609.582, subdivision
(1)(b), does not require proof that appellant knew he did not h ave consent at the time of
entry. Instead, it focused its analysis on the fact that appellant should have known that he
had no consent to enter the triba l house because he had to pull boards off of the house in
order to get in, and because appellant’s cousin was only a tena nt. Notwithstanding any
arguments made or not made by the parties, we construe the statute de novo. It appears to
us that appellant’s trial counsel correctly understood the requirements of section 609.582,
subdivision 1(b), by focusing du ring the plea colloquy on the f act that appellant did not
have consent to enter the tribal house from one who was in lawful possession.

6 In Roberts, the relevant trespass statute provided that one who “[o]ccupi es or enters the
dwelling of another, without claim of right or consent of the o wner” is guilty of a
misdemeanor. 350 N.W.2d at 451. The statute has since been am ended but the relevant
“without claim of right or consent” language has remained the same.

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There is no corresponding claim-of-right language in Minn. Stat . § 609.582, subd.
1, and there is no need or occasion to judicially impose such language to protect an innocent
person, because a burglary charge requires proof of either a crime committed while in the
building or the intent to commit a crime while therein. See State v. Wenthe, 865 N.W.2d
293, 302 (Minn. 2015) (“[W]e have generally declined to imply mens rea when the statute
does not otherwise result in strict liability.”). Therefore, d espite language to the contrary
in this court’s Roberts opinion, misdemeanor trespass is not a lesser-included offense of
first-degree burglary. Minn. Stat. § 609.582, subd. 1, does no t require the state to prove
that appellant entered a building without a claim of right. An d appellant testified during
the plea colloquy that he entered the building without consent of the legal possessor of it.
That testimony satisfied the entry-without-consent element.
Appellant also argues that the f actual basis provided by his pl e a t e s t i m o n y w a s
insufficient to demonstrate that he entered the building without consent, because appellant
did not realize that he did not have consent to enter the building until he reviewed the lease
agreement between his cousin and Leech Lake Housing Authority. In other words,
appellant did not realize the absence of consent to his entry i nto the tribal house at the
moment of entry. Appellant relies on State v. Mikulak, where the defendant pleaded guilty
to knowingly violating the predatory-offender-registration statute and was convicted. 903
N.W.2d 600 (Minn. 2017). In reversing the defendant’s conviction, the supreme court held
that the factual basis for the guilty plea was inaccurate because the defendant stated that he
did not know that he violated the statute until the plea hearing. Id. at 605. But the point at
which appellant in this case became aware that he did not have consent to enter the building

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in this case is immaterial. Knowledge of the law at the time of the violation was an element
of the offense of knowingly violating the predatory-offender-registration statute at issue in
Mikulak; there is no similar requirement in Minn. Stat. § 609.582, subd. 1(b). Cf. State v.
Benniefield, 678 N.W.2d 42, 49 (Minn. 2004) (concluding that the crime of possession of
a controlled substance in a sc hool zone did not require the sta te to prove the defendant
knew he was in a school zone). Appellant’s testimony provided a sufficient factual basis
to establish that he entered the building without consent within the meaning of Minn. Stat.
§ 609.582, subd. 1(b).
B. Appellant’s testimony provide d a sufficient factual basis to establish that
appellant committed a crime while in the building.

Appellant argues that he did not commit a crime while in the bu ilding. He posits
that, because he had already committed the crime of being a felon in possession of a firearm
before entering the building, h is possession of a firearm in th e building is insufficient to
satisfy that element of first-degree burglary. Appellant relie s on two cases in support of
this proposition.
In State v. Larson, the Minnesota Supreme Court held that trespass cannot serve as
the independent-crime element of burglary. 358 N.W.2d 668, 670 (Minn. 1984). In State
v. Colvin, the supreme court held that a violation of a no-entry provisi on of an order for
protection (OFP) is “excluded fro m the crimes that can be the b ases for the independent
crime element of burglary.” 7 645 N.W.2d 449, 454 (Minn. 2002). There, the supreme

7 The supreme court stated that “a court adjudicating a burglary charge based on a violation
of an OFP must determine that the OFP violation constituted som ething more than mere
entry into the home in order to support the burglary charge.” Colvin, 645 N.W.2d at 454.

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court noted that the only identifiable criminal act in both cha rges is the illegal entry, and
both offenses are designed to pro tect the interests that are in vaded by the unauthorized
entry. Id.
The scenario here is markedly different than that in either Larson o r Colvin.
Criminal possession of a firearm by an ineligible person is an offense that is distinct from
the act of the unauthorized entry . Appellant focuses his argum ent on the timing of the
independent crime. While Colvin did note that “both offenses are complete upon entry”
with respect to trespass and viol ation of an OFP, the critical reason that Colvin held that
those crimes could not satisfy the independent-crime requiremen t was that both offenses
related to the unauthorized entry. 645 N.W.2d at 454. The fac t that appellant here may
have committed a crime by possessing a firearm before entry doe s not change the
conclusion—and appellant’s admi ssion—that he also committed tha t crime while in the
building. Possession of a firearm by an ineligible person can serve as the independent
crime for first-degree burglary under the plain meaning of the first-degree burglary statute.
See Weston v. McWilliams & Assocs. , 716 N.W.2d 634, 639 (Minn. 2006) (“We can
disregard a statute’s plain mean ing only in rare cases where th e plain meaning utterly
confounds a clear legislative purpose.” (quotation omitted)). Therefore, appellant’s plea
testimony provided a sufficient basis for concluding that appellant committed a crime while
in the building.

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II. The district court acted with in its discretion in denying a ppellant’s motion to
withdraw his guilty pleas.

Appellant moved the district court, before sentencing, to withd raw his guilty pleas
in both cases. The district court denied the motion.
A district court may allow a defendant to withdraw a guilty ple a before sentencing
“if it is fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2. In applying the fair-and-
just standard, the district court must consider the defendant’s r e a s o n s a s t o w h y t h e
defendant should be allowed to withdraw his or her plea and balance those reasons against
any prejudice the state would suffer. Id. The defendant has the burden to show why plea
withdrawal is fair and just. Raleigh, 778 N.W.2d at 97. The decision whether to permit
withdrawal under the fair-and-just standard is within a district court’s discretion and “will
be reversed only in the rare case in which the appellate court can fairly conclude that the
[district] court abused its discretion.” State v. Kaiser, 469 N.W.2d 316, 320 (Minn. 1991)
(quotation omitted). In other words, the standard for plea withdrawal before sentencing is
less demanding than the standard for plea withdrawal after sent encing, but our review of
denial of a presentence plea-withdrawal motion is deferential t o the district court’s
discretion.
Appellant argues that it would ha ve been fair and just to have allowed him to
withdraw his guilty pleas. Appellant testified that he had used heroin in jail before his plea
hearing and was “fading in and out” during the hearing. He tes tified that he would not
have entered the guilty pleas but for his condition. The district court found that appellant’s
testimony regarding heroin use before his plea hearing was not credible; we defer to such

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credibility determinations. State v. Aviles-Alvarez , 561 N.W.2d 523, 527 (Minn. App.
1997), review denied (Minn. June 11, 1997). The distr ict court is in the best posi tion to
resolve credibility questions such as this. The district court found that there were no other
reasons for appellant to withdraw his guilty pleas and appellan t does not argue any other
basis for withdrawing his guilty pleas. The district court act ed within its discretion in
denying appellant’s motion to withdraw his guilty pleas.
D E C I S I O N
Appellant’s testimony at his plea hearing provided a sufficient factual basis to
establish the elements of firs t-degree burglary under Minn. Sta t. § 609.582, because the
state is not required to prove that appellant did not have a claim of right to be in the building
and because committing the crime of being an ineligible person in possession of a firearm
is a sufficient independent crim e committed inside the building under the plain language
of Minn. Stat. § 609.582. The district court acted within its discretion when it denied
appellant’s presentencing motion to withdraw his guilty pleas.
Affirmed.