State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0420

State of Minnesota,
Respondent,

vs.

Daniel Edward Nixon,
Appellant.

Filed March 29, 2021
Reversed
Johnson, Judge

Ramsey County District Court
File No. 62-CR-19-77

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County A ttorney, Alexandra Meyer, Assi stant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Slieter,
Judge.
SYLLABUS
To prove that a defendant is guilty of second-degree burglary pursuant to section
609.582, subdivision 2(a)(4), of the Minnesota Statutes, the state must prove that the
defendant committed burglary while possessing a tool for the purpose of gaining access to
money or property, either when entering the building or while in the building.

2
OPINION
JOHNSON, Judge
A Ramsey County jury found Daniel Edward Nixon guilty of second-degree
burglary of a convenience store. Nixon argue s that the state did not prove beyond a
reasonable doubt that he used a tool to gain access to the property that he stole, which is an
essential element of second-degree burglary. We conclude that the evidence is insufficient
to prove that element. Therefore, we reverse the conviction.
FACTS
The state alleged that, on May 18, 20 18, Nixon burglarized a SuperAmerica
convenience store in the city of St. Paul. An indoor surveillance camera captured images
of a tall glass pane, which is next to a glass door, as the glass pane was shattered and a man
stepped through it, into the store. The indoor surveillance camera also captured images of
the man, who wore red-and-bl ack gloves, as he walked behind the checkout counter,
checked the safe (which was locked), and placed boxes of cigars and cigarettes into a black
plastic garbage bag before l eaving the store. An outdoor surveillance camera captured
images of the man as he walked between the store and a white Chevrolet Impala that was
parked nearby.
One week after the burglary, a police offi cer stopped a white Chevrolet Impala and
identified Nixon as the driver. The officer arrested Nixon. During a subsequent search of
the vehicle, officers found, among other thin gs, a pair of red-and-black gloves and black
plastic garbage bags.

3
In January 2019, the state charged Nixon with second-degree burglary, in violation
of Minn. Stat. § 609.582, subd. 2(a)(4) (2016). The case was tried to a jury on two days in
May 2019. Nixon represented himself with the assistance of advisory counsel. See Minn.
R. Crim. P. 5.04, subd. 2. The state called six witnesses, including the manager of the store
and the police sergeant who investigated the break-in.
During the state’s case, the sergeant testif ied that he had watc hed the surveillance
video-recordings, which he described for the jury. He stated that a white Chevrolet Impala
drove past the store, turned around, and parked. He testified that a person walked from the
car toward the store. He also testified that , shortly thereafter, a man broke the glass pane
beside the front door, stepped through it, walked behind the checkout counter, and placed
boxes of cigars and cigarettes inside a black plastic garbage bag. He testified that the man
left the store and walked toward the white ca r. The district court admitted into evidence
129 photographic images that were taken from the surveillance video-recordings (but not
the video-recording itself) as well as photographs of Nixon and the interior and exterior of
the white car.
On cross-examination, Nixon asked the serg eant what tools the burglar used to gain
access to the store. The sergeant responded, “A small pointed tool, . . . at the initial
cracking of the window, there appeared to be some kind of a smal l item, something as,
maybe, a screwdriver, maybe, a small hammer of some kind or mallet or something to that
effect.” When asked what tool the burglar used while inside the store, the officer responded
that the burglar “didn’t need to use a tool once inside” but that he “used the bags as a tool
to carry the . . . stolen property out of the business.”

4
On re-direct examination, the prosecutor asked the sergeant whether the appearance
of the broken glass was consistent with the use of a fist. The se rgeant answered in the
negative, saying that he did not believe that a person would punch through the glass with a
fist because of the likelihood of pain or injury. The pros ecutor asked the sergeant how a
bag could be used as a tool, and the sergeant responded, “The burglar, specifically, brought
the bag to do one thing, . . . to recover, be able to carry large amounts of stolen property
from the business, which would be the cigarettes, away with him out of the business.” The
prosecutor then asked the sergeant whether the gloves were used as a tool. The sergeant
responded in the affirmative, saying that they protected the burglar from injury when going
through the broken glass pane and that th ey allowed the burgla r to commit the crime
without leaving behind any fingerprints or DNA.
Nixon did not testify and did not introduce any other evidence. In closing argument,
the prosecutor referred to the statute’s requireme nt of a tool by stating: “As you heard
from the sergeant, we’re not quite sure how that window got broken, but it’s unlikely it got
punched through. So ‘probably’ is what wa s used. [sic] But ‘probably’ isn’t good
enough.” The prosecutor then argued to the jury that Nixon used the gloves and the black
plastic garbage bag to collect and remove as much property as possible. Nixon argued to
the jury that the state’s case rested on circumstantial evid ence and that the state had not
proved beyond a reasonable doubt that he was the burglar.
The jury found Nixon guilty. The district court imposed an executed sentence of 90
months of imprisonment. Nixon appeals.

5
ISSUE
Is the evidence sufficient to prove beyond a reasonable doubt that Nixon, either
when entering the store or while in the store, possessed a tool to ga in access to money or
property, as required for a conviction of second-degree burglary pursuant to section
609.582, subdivision 2(a)(4), of the Minnesota Statutes?
ANALYSIS
Nixon argues that the state’s evidence is insufficient to support his conviction of
second-degree burglary. Specifically, he argues that th e evidence is insu fficient because
the state did not prove that he possessed a tool to gain access to the stolen property. He
does not argue that the eviden ce is insufficient to prove his identity as the burglar.
Accordingly, we will assume that he committed the burglary and will focus on whether the
state proved that he possessed a tool to gain access to money or property.
A.
We begin by summarizing the four forms of burglary. A person commits the least-
serious form, fourth-degree burglary, if he or she “enters a buildin g without consent and
with intent to commit a misd emeanor other than to steal, or enters a building without
consent and commits a misdemeanor other than to steal while in the building.” Minn. Stat.
§ 609.582, subd. 4 (2020). A person who co mmits that offense is guilty of a gross
misdemeanor and “may be sentenced to impris onment for not more th an one year or to
payment of a fine of not more than $3,000, or both.” Id.; see also Minn. Stat. § 609.02,
subd. 4 (2020).

6
A person commits third-degree burglary if he or she “enters a building without
consent and with intent to st eal or commit any felony or gr oss misdemeanor while in the
building, or enters a building without consen t and steals or comm its a felony or gross
misdemeanor while in the building.” Minn. Stat. § 609.582, subd. 3. A person who
commits that offense is guilty of a felony and “may be sentenced to imprisonment for not
more than five years or to payment of a fi ne of not more than $10,000, or both.” Id.; see
also Minn. Stat. § 609.02, subd. 2 (2020).
A person commits second-degree burglary if he or she “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,” and, in addition:
(1) the building is a dwelling;

(2) the portion of the buil ding entered contains a
banking business or other busine ss of receiving securities or
other valuable papers for deposit or safekeeping and the entry
is with force or threat of force;

(3) the portion of the buil ding entered contains a
pharmacy or other lawful business or practice in which
controlled substances are routinely held or stored, and the entry
is forcible; or

(4) when entering or while in the building, the
burglar possesses a tool to gain access to money or property.

Minn. Stat. § 609.582, subd. 2( a) (emphasis added). In add ition (though not relevant in
this case), a person may commit second-deg ree burglary by entering a government
building, religious establishment, historic property, or school building. Id., subd. 2(b). A
person who commits second-degree burglary is guilty of a felony and “may be sentenced

7
to imprisonment for not more than ten years or to payment of a fine of not more than
$20,000, or both.” Id.; see also Minn. Stat. § 609.02, subd. 2.
A person commits the most-serious form, firs t-degree burglary, if he or she “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 build ing,” and, in addition, the building is an
occupied dwelling, the burglar possesses a da ngerous weapon, or the burglar assaults a
person in or near the building. Minn. Stat . § 609.582, subd. 1. A person who commits
first-degree burglary is guilty of a felony 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.” Id.; see
also Minn. Stat. § 609.02, subd. 2.
B.
In this case, the state charged Nixon with only one offense: second-degree burglary.
The complaint specifically refere nced paragraph (4) of subdiv ision 2(a) of the burglary
statute. That statute provides that a pe rson commits second-degree burglary if, “when
entering or while in the building, the burglar possesses a tool to gain access to money or
property.” Minn. Stat. § 609. 582, subd. 2(a)(4). The use of the phrase “to gain,” which
modifies the verb “possesses,” requires the state to prove that a burglar possessed a tool for
the purpose of gaining access to money or property. See State v. Townsend, 941 N.W.2d
108, 111 (Minn. 2020) (holding th at infinitive phrase in robber y statute “functions as an
adverb that describes the purpose for using force”). The meaning of the word “access,”
which is used as a noun in the statute, is “[t]he means, place, or way by which a thing may

8
be approached” or a “passageway.” Webster’s New International Dictionary 14 (2d ed.
1946).
Nixon argues that the state did not prove beyond a reasonable doubt that he
possessed a tool to gain access to money or property, either when entering the store or
while inside the store. Nixon contends that there is no evidence of any tool that was used
to enter the store and that the gloves and black plastic garbage bag that he possessed while
inside the store were not possessed for the purpose of “gain[ing] access to money or
property.” See Minn. Stat. § 609.582, subd. 2(a)(4).
In analyzing an argument that the eviden ce is insufficient to support a conviction,
this court undertakes “a painstaking analysis of the record to determine whether the
evidence, when viewed in the light most favorable to the conviction, was sufficient.” State
v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quo tation omitted). We assume that “the
jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v.
Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We “carefully examine
the record to determine whether the facts a nd the legitimate inferences drawn from them
would permit the factfinder to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.” State v. Waiters, 929 N.W.2d
895, 900 (Minn. 2019) (quotation omitted).
We will separately consider two issues: first, whether Nixon possessed a tool “when
entering” the store and, second, whether he possessed a tool “while in” the store. See Minn.
Stat. § 609.582, subd. 2(a)(4).

9
1.
With respect to when Nix on entered the store, the state argues that Nixon “entered
the building . . . either by breaking the window ’s glass with an unidentified hand tool or
with his hand protected by the black and red glove.”
The first part of this argument is without merit. The state did not introduce evidence
that Nixon possessed any particul ar tool or type of tool fo r the purpose of breaking the
glass pane. The state’s contention that Nixon used “an unidentified hand tool” to break the
glass indicates that the state does not know whether Nixon actually used a tool to break the
glass. There are other ways in which Nixon could have broken the glass, such as by kicking
it or throwing a large rock at it. But the state’s investiga tion did not reveal that any
particular tool was used to break the glass. The investigating sergeant testified that the
burglar may have used either a “small pointed tool”; “maybe, a screwdriver”; “maybe, a
small hammer of some kind”; or a “mallet or something to that effect.” This testimony
consists of mere speculation. The sergeant did not testify that he saw any of those tools on
the surveillance video-recordings. The photographic exhibits do not show th e burglar in
possession of any of the tools mentioned by the sergeant. The sergeant did not explain
why the physical evidence indicated the use of a ny of the tools mentioned. In the state’s
closing argument, the prosecutor admitted that “we’re not quite sure how that window got
broken,” asserted that an unidentified tool “probably” was used , but conceded that
“‘probably’ isn’t good enough.” He then transitioned to an argument about the use of tools
inside the store, without attempting to convince the jury that Nixon used a tool to break the

10
glass. We agree with the prosecutor that the state’s evidence is inconclusive as to whether
Nixon used a tool to break the glass.
The second part of the state’s argument ab out Nixon’s entry into the store—that he
broke the glass using gloved ha nds—also is unpersuasive. We assume without deciding
that a pair of gloves may be considered a “tool ” as that word is used in section 609.582,
subdivision 2(a)(4). Regardless, the state did not introduce any evidence that Nixon broke
the glass with a gloved hand. In fact, the serg eant testified to the contrary. He testified
that he “can’t imagine somebody punching through a window with their fists.” He did not
qualify his testimony by making a distinction between a bare fi st and a gloved fist. The
photographic exhibits do not indicate that the burglar broke the glass with a gloved fist.
Thus, the evidence is insuffi cient to prove that, when Nixon entered the store, he
possessed and used a tool to gain access to money or property.
2.
With respect to when Nixon was inside the store, the state argues that Nixon “used
the gloves or the black garbage bag to he lp him obtain and carry away the stolen
merchandise.” The state contends that the gloves allowed Nixon to avoid leaving forensic
evidence such as fingerprints and DNA. The state also contends that the black plastic
garbage bag “allowed him to carry away more than an armful of stolen goods” and thereby
“make more profit from the burglary.”
The state’s argument is without merit because it does not conform to the
requirements of section 609.582, subdivision 2(a)(4). Assuming again that a pair of gloves
or a black plastic garbage bag may be considered a “tool,” mere possession is insufficient;

11
the tool must be possessed “to gain access to money or property.” Minn. Stat. § 609.582,
subd. 2(a)(4) (emphasis added). In other words, the tool must have been used for the
purpose of gaining access to money or property, that is, for the pur pose of gaining a
“means,” “way,” or “passagewa y” to money or property. See Townsend, 941 N.W.2d at
111; Webster’s New International Dictionary 14. After Nixon was inside the store, he had
full access to the property that he stole. There were no obstacles in the pathway from the
broken glass pane to the cigars and cigarett es, and there was no cover on the display of
tobacco products. As Nixon co ntends in his reply brief, po ssession of a tool to facilitate
the carrying away of property or to prevent detection after the fact is possession for a
purpose other than the purpose specified in section 609.582, subdivision 2(a)(4). The state
does not attempt to argue that the purposes it has identified are within the meaning of the
phrase “to gain access to money or property.”
Thus, the evidence is insufficient to prove that, while Nixon was inside the store, he
possessed a pair of gloves or a black plastic bag for the purpose of gaining access to money
or property.
DECISION
The state’s evidence is insu fficient to prove beyond a reasonable doubt that Nixon
committed burglary while possessing a tool to gain access to property or money, as required
by section 609.582, subdivision 2(a)(4), of th e Minnesota Statutes. In light of that
conclusion, we need not consider Nixon’s alternative argument that the district court erred
by giving the jury a supplemental instruction.
Reversed.