State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0427

State of Minnesota,
Respondent,

vs.

Michael Matthew Harms,
Appellant.

Filed December 17, 2018
Affirmed
Smith, Tracy M., Judge

Wabasha County District Court
File No. 79-CR-17-417

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Karrie Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judg e ; a n d S m i t h ,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal, appellant Michael Harms argues that the district court erred by
entering convictions for both fi rst-degree burglary and theft. Because theft is not an

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included offense of first-degree burglary, and because a person can be convicted of both
burglary and any other crime committed during the burglary, we affirm.
FACTS
In May 2017, M.P., a 12-year-old girl, was staying at her grandmother’s house while
her mother was in Florida. On Ma y 12, the grandmother drove M.P . back to her home in
Wabasha so that M.P. could feed her pet bunnies. Once inside he r house, M.P. noticed a
bedsheet in the middle of the din ing room floor that was “bundl ed up” with belongings
from the house. M.P. and her grandmother then noticed that the door in the kitchen leading
to the garage was cracked open and, upon looking inside, saw a person standing in the
garage.
M.P. recognized the person to be Harms, the son of her mother’s friend. M.P. had
met Harms on multiple occasions when her mother invited him over to their house. When
he saw them, Harms asked M.P. how she was doing and asked if her mom was home. When
M.P. said no, Harms said he was just using the Wi-Fi, although, as far as M.P. knew, he
did not have the password. M.P. said goodbye, and Harms left the house through the service
door. After he left, M.P. and he r grandmother went upstairs to check if the safe was still
there and found that it was gone. M.P. also noticed that both o f the bedrooms looked as
though somebody had gone through their possessions.
The grandmother called the police. The state charged Harms with first-degree
burglary of an occupied dwelling under Minn. Stat. § 609.582, subd. 1(a) (2016) and theft
under Minn. Stat. § 609.52, subd. 2(a)(1) (2016). A jury found Harms guilty of both charges
and found that the value of the items taken did not exceed $500. The district court entered

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convictions on both counts and imposed a 57-month prison senten ce for the burglary
offense and a concurrent, 90-day jail sentence for the theft offense.
D E C I S I O N
Harms argues that his theft conviction must be reversed because it is an included
offense of burglary. Statutory c onstruction is a question of la w, which appellate courts
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 inc luded offense. Minn. Stat.
§ 609.04, subd. 1 (2016) (“Upon prosecution for a crime, the ac tor may be convicted of
either the crime charged or an included offense, but not both.”). An included offense under
this statute includes “[a] crime necessarily proved if the crime charged were proved.” Id.,
subd. 1(4).
In determining whether a crime is necessarily proved by proof of another crime, “a
court examines the elements of the offense instead of the facts of the particular case.” State
v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006); see also State v. Matilla, 339 N.W.2d 54,
55 (Minn. 1983) (“In determining whether a lesser offense is a necessarily included
offense, we look at the statutory definitions rather than the f acts in a particular case to
determine if a lesser offense is necessarily included.”). “An o ffense is ‘necessarily
included’ in a greater offense if it is impossible to commit th e greater offense without
committing the lesser offense.” Bertsch, 707 N.W.2d at 664. We apply that test to the
offenses here.
First-degree burglary occurs when a person “enters a building without consent and
with intent to commit a crime, o r enters a building without con sent and commits a crime

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while in the building,” if the building is a dwe lling and anoth er person, who is not an
accomplice, is present. Minn. Stat. § 609.582, subd. 1(a). Thef t occurs when a person
“intentionally and without claim of right takes, uses, transfer s, conceals or retains
possession of movable property of another without the other’s c onsent and with intent to
deprive the owner permanently of possession of the property.” M inn. Stat. § 609.52,
subd. 2(a)(1). First-degree burglary does not require the commission of a theft; it requires
the commission of or the intent to commit a crime. It is possible to commit first-degree
burglary, by entering a dwelling without consent and committing a crime, without
committing a theft. Theft is thus not an included offense of first-degree burglary. See State
v. Minton, 149 N.W.2d 384, 386 (Minn. 1967) (“Theft is neither a lesser degree of burglary
nor a crime necessarily proved upon proof of burglary.”).
Appellant argues that, because the district court instructed t he jury on first-degree
burglary specifically with respect to theft, the theft crime was necessarily proved by proof
of first-degree burglary. The district court instructed the jury on the fourth element of first-
degree burglary as follows: “Four th, the defendant committed th e crime of theft while in
the building.” But the district court referred to theft only be cause this case happened to
involve theft. Again, the statut ory elements—not the facts of a particular case—are what
matters in determining whether an offense is an included offense, see Bertsch, 770 N.W.2d
at 664, and the elements of first-degree burglary do not require the commission of a theft,
Minn. Stat. § 609.582, subd. 1(a).
Appellant also argues that his theft conviction must be vacate d because the theft and
the burglary were based on the s ame criminal act. But Minn. Sta t. § 609.585 (2016)

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provides that, “[n]otwithstandi ng 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.” In State v. Holmes, the Minnesota Supreme
Court held that section 609.585 “allow[s] 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.” 778 N.W.2d 336, 341 (Minn. 2010). Because theft
requires proof of different statutory elements than burglary, t he theft underlying the first-
degree burglary offense is an “other crime” that may be the basis for a separate conviction
and separate punishment under section 609.585.
The district court did not err by entering convictions on both the burglary and theft
crimes.
Affirmed.