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This opinion will be unpublished and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
A18-2161

State of Minnesota,
Respondent,

vs.

Samuel James Mosenden,
Appellant.

Filed December 16, 2019
Affirmed
Smith, John, Judge*

Cottonwood County District Court
File No. 17-CR-17-408

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Nicholas A. Anderson, Cottonwood County Attorney, Windom, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Florey, Judge; and Smith,
John, 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
SMITH, JOHN, Judge
We affirm appellant Samuel James Mosenden’s conviction of first-degree burglary
because the evidence was sufficient to prove beyond a reasonable doubt that Mosenden
lacked consent to enter the apartment before committing an assault.
FACTS
In the early morni ng hours of September 4, 2017, S.F. woke up when an
acquaintance, M.G., knocked on his door and said she needed a place to stay. After S.F.
said she could stay with him , M.G. went to h er apartment to pick up some things. When
M.G. arrived at her apartment, she found Mosenden sleeping there. They got int o an
argument and she kicked Mosenden out of the apartment . M.G. gathered her things and
left.
When M.G. returned to S.F.’s, she knocked on his door and he let her in. S.F. tol d
her that Mosenden had been there, but he told him to go away and did not let him in. At
this point, M.G. realized she could not find her phone and became frantic. After looking
in the apartment for her phone, M.G. decided to go outside to see if she dropped it on her
way in.
When M.G. opened the door, Mosenden was standing there. Neither S.F. nor M.G.
invited Mosenden into the apartment. Mosenden pu shed his way into the apartment and
immediately punched S.F. in the eye. The two of them got into a “wrestling match” and
Mosenden bit S.F.’s finger, pushed him to the ground, and kicked him “three or four times

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in the face.” While this was happening, M.G. stood in the apartment “crying” and “freaking
out.” Mosenden then got up and left the apartment, and S.F. called the police.
Mosenden was charged with first -degree burglary, assault of a person, in violation
of Minn. Stat. §609.582, subd. 1(c) (2016). At the jury trial, M.G. testified that she stepped
back when she opened the door, but that she d id not invite Mosenden into the apartment.
S.F. testified that he did not invite Mosenden in and that Mosenden pushed his way into
the apartment. Mosenden testified in his own defense. He did not deny that he assaulted
S.F., but testified that he though t he had permission to enter the apartment. He testified
that when M.G. stepped back as she opened the door, he thought she was inviting him into
S.F.’s apartment.
The jury found Mosenden guilty of first -degree burglary, and the court sentenced
him to 58 months in prison. This direct appeal follows.
D E C I S I O N
When addressing a sufficiency -of-the-evidence challenge, this court’s review “is
limited to a painstaking analysis of the record to determine whether the evidence, when
viewed in a light most favorable to the conviction, was sufficient to permit the jurors to
reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This
court assumes that “the jury believed the state’s witnesses and disbelieved any evidence to
the contrary.” State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989). This court will not
reverse a conviction for insufficient evidence if th e jury, acting with due regard for the
presumption of innocence and the necessity of proof beyond a reasonable doubt, could

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reasonably conclude that the defendant was guilty of the offense. Bernhardt v. State, 684
N.W.2d 465, 476-77 (Minn. 2004).
Burglary in the first degree occurs when one “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 . . . [if] the burglar assaults a person within the building . . .” Minn.
Stat. § 609.582, subd. 1(c). Mosenden admits that he assaulted S.F., but argues that he
should be guilt y only of misdemeanor assault because he thought he had permission to
enter the apartment. He argues that because trespass is a lesser -included off ense of
burglary, the state must prove that he knew he did not have permission to enter S.F.’s
apartment. And he contends that the evidence at trial was insufficient to prove that he
knew he lacked consent to enter the apartment when he assaulted S.F.
To support this claim, Mosenden relies on this court’s prior holding that trespass is
a lesser-included offense of burglary because “[a]bsent an intent to commit a crime in the
building, the same conduct constitutes an included misdemeanor offense of trespass.” State
v. Roberts , 350 N.W.2d 448, 451 (Minn. App. 1984). This court has frequently cited
Roberts for the premise that , although the burglary statute does not contain express
language requiring the defendant to know he lacked consent to enter the premises, because
trespass is a lesser-included offense he still must know that he lacks consent. See State v.
Givens, No. A15-0685, 2016 WL 1396686, *3 (Minn. App. Apr. 11, 2016).
However, recently, in State v. Jones , this court held that trespass is not a lesser-
included offense to burglary. 921 N.W.2d 774, 781 (Minn. App. 2018), review denied
(Minn. Feb. 27, 2019). In Jones, the court analyzed whether or not the first-degree burglary

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statute requires proof that the defendant entered a building without a claim of right and
whether trespass is a necessarily included offense. Id. at 780. This court determined that
because burglary requires proof of either a crime committed while in the building, or the
intent to commit a crime therein, there is no need to require that the defendant knew he
entered without a claim of right. Id. at 781. Therefore, trespass is not a lesser included
offense. The state is not required to prove that a defendant knew he did not have permission
to enter a building so long as he either committed a crime while in the building, or entered
it with the intent to commit a crime. Id.
Mosenden admitted to entering the home and assaulting S.F. Therefore, there is a
sufficient factual basis to establish that Mosenden entered the buildin g and committed a
crime.
Even though the state is not required to prove knowledge, there is s ufficient
circumstantial evidence to support the jury’s inference that Mosenden knew he did not have
permission to enter the apartment. Knowledge is usually proven through circumstantial
evidence. State v. Mauer, 741 N.W.2d 107, 115 (Minn. 2007). This court applies a two -
step analysis when reviewing a conviction based on circumstantial ev idence. State v.
Hanson, 800 N.W.2d. 618, 622 (Minn. 2011). This court first “ identif[ies] the
circumstances proved” and defers to the fact -finder’s acceptance of proof of those
circumstances and rejection of evidence that conflicted with those circumstances. State v.
Silvernail, 831 N.W.2d 594, 598-99 (Minn. 2013). Then this court independently examines
“the reasonableness of all inferences that might be drawn from the circumstances proved”

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to determine whether they are “consistent with guilt and incon sistent with any rational
hypothesis except that of guilt.” Id. at 599 (quotation omitted).
Here, there is abundant evidence that Mosenden knew he did not have permission
to enter S.F.’s apartment. Shortly before the incident, when Mosenden knocked on S.F.’s
door, S.F. told him to go away. When Mosenden returned, neither S.F. nor M.G. explicitly
gave permission for Mosenden to enter. Both of them said so in their initial statements to
police and testified in conformity at trial. While M.G. testified t hat she “stepped back”
when she saw Mosenden at the door, she also stated that she did not give him permission
to enter. Additionally, Mosenden acknowledged that he did not have explicit permission
to enter S.F.’s apartment.
Mosenden argues that stepping back when opening a door can be inferred as consent
to enter a dwelling. To support this assertion Mosenden cites State v. Howard, 373 N.W.2d
596, 599 (Minn. 1985). There, the Minnesota Supreme Court held that the defendant gave
consent to officers to enter his home when he opened the inner door completely, stepped
back to make room for the officers to enter, and had previously given officers a key to
search his house if he were not home. Id. Here, however, M.G. opened the door to find
her cell phone, did not say Mosenden could enter, and she was neither a resident of the
apartment nor an overnight guest. Additionally, this court can assume that the jury rejected
that M.G.’s stepping back gave Mosenden permission to enter when they found him guilty.
Moore, 438 N.W.2d at 108.

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Viewing the evidence in the light most favorable to the verdict, the evidence
presented at the trial and the jury’s verdict are sufficient to support appellant’s conviction.
Affirmed.