State v. Lopez

897 N.W.2d 295, 2017 WL 1436052, 2017 Minn. App. LEXIS 54
CourtCourt of Appeals of Minnesota
DecidedApril 24, 2017
DocketA16-0947
StatusPublished
Cited by2 cases

This text of 897 N.W.2d 295 (State v. Lopez) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lopez, 897 N.W.2d 295, 2017 WL 1436052, 2017 Minn. App. LEXIS 54 (Mich. Ct. App. 2017).

Opinions

OPINION

RODENBERG, Judge

Appellant was convicted of theft and first-degree burglary after he entered a motel room and took a cellular phone and wallet. He was staying in a different room in the motel that evening, and argues that he did not enter a “building” without consent, and that he is therefore not guilty of first-degree burglary. Because we hold that a motel room constitutes a structure suitable for providing shelter to human beings, and is therefore a “building” under the statutory definition, we affirm,1

FACTS

On November 21, 2015, Z.D. and a coworker rented a motel room at a motel in Willmar, Minnesota. Appellant Lionel Lopez, who was also staying in the motel, entered Z.D.’s motel room (which was apparently not locked) while Z.D. was in the shower and the coworker was not present. Appellant took Z.D.’s cellular phone and wallet (which contained $42) and returned to his own motel room.

Appellant was charged with theft and first-degree burglary in connection with this incident. He waived his right to a jury trial, and the case was tried to the court. The district court found appellant guilty of both counts, and sentenced him to serve 61 months in prison for the burglary and 365 days in jail for the theft, to be served concurrently. Appellant appeals his first-degree burglary conviction,2 arguing that he did not enter a building without consent, because he had consent to enter the , motel and Z.D.’s separate motel room is not a “building.”

ISSUE

Does entry of a motel room without consent constitute entry of a “building” under the burglary statute?

ANALYSIS

This case comes down to the statutory definition of one word: building. The statute defining the crime of first-degree burglary provides:

Whoever enters a building without consent ... and commits a crime while in the building, .,. commits burglary in the first degree ... if ... the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters....

Minn. Stat. § 609.582, subd. 1. Appellant does not dispute on appeal that he entered Z.D.’s motel room without consent, that he committed the crime of theft while within the motel room, that the motel room was being “used as a permanent or temporary residence,”3 or that Z.D. was present in the motel room at the time. Appellant’s only argument is whether, in the course of his theft, he entered a “building” without consent. Because the parties also agree that appellant had consent to enter the motel itself, because he had rented a different room, his conviction rests on whether Z.D.’s motel room is a “building.”

The statute defines the term “building” as “a structure suitable for af[297]*297fording shelter for human beings, including any appurtenant or connected structure.” Minn. Stat. § 609.581, subd. 2 (2014). “[A] burglary conviction can be sustained only if the building involved is within the statutory definition.” State v. Shore, 289 Minn. 302, 307, 183 N.W.2d 776, 780 (1971). We therefore consider whether the statutory definition of “building” includes a motel room, which is a subunit of a larger building, “The scope of the conduct forbidden by a statute presents an issue of statutory construction, which this court considers de novo.” State v. Pederson, 840 N.W.2d 433, 436 (Minn. App. 2013).

Appellant argues that, had the legisla^ ture intended the definition of “building” to include a subunit of a building, it would have included an express provision in the statutory definition to that effect. By way of example, appellant points to the definition of “building” applicable to arson, which states, “If a building consists of two or more units separately secured or occupied, each unit shall be deemed a separate building.” Minn. Stat. § 609.556, subds. 1, 3 (2014). Appellant argues that the history of the burglary statutes supports the significance of the absence of such an express provision. Until 1983, the definition of “building” for purposes of burglary expressly included “portions of such structure as are separately occupied.” See Minn. Stat. § 609.58, subd. 1(2) (1982) (defining “building”), repealed’by 1983 Minn. Laws, ch. 321, § 4, at 2060, He argues that the removal of this provision supports his argument. Appellant also argues that holding that an individual motel room is a “building” under the burglary statute would be to insert a definitional term that the legislature discarded decades ago.

The state argues that three cases have already analyzed the statute and have held that subunits of buildings can themselves be buildings for the purposes of the burglary statute. On careful examination, none of the cases proffered by the state addresses the statutory analysis on which appellant relies.

In State v. McDonald, the Minnesota Supreme Court affirmed a burglary conviction for an entry into a subunit of a building without consent, after an initial consensual entry of the building. 346 N.W.2d 351, 352 (Minn. 1984). Under the since-repealed 1982 statute, the statutory definition of “building” expressly included “portions of such structure as are separately occupied.” Minn. Stat. § 609.58, subd. 1(2). Moreover, McDonald did not specifically address the definition of “building” when it considered the scope of Consent within a building open to the general public. McDonald therefore does not answer the question here.

In State v. Johnson, the second case cited by the state, we determined that instructions to leave a bedroom within an apartment did not amount to withdrawal of consent to be in a “building” because the bedroom “was neither separately rented out nor a self-contained unit.” 679 N.W.2d 378, 386 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004). In so holding, we considered analyses from states with statutes expressly defining subunits as separate buildings for the purposes of burglary. Id.4, The issue in Johnson was not the [298]*298definition of “building.” The issue was one of consent, and we held that, where a person was told only to leave the bedroom, permission to be in the apartment as a whole was not withdrawn, and therefore the person did not remain “within a building without consent.” 679 N.W.2d at 386.

The state also cites State v. Beane, where we affirmed a burglary conviction for entering an apartment and committing an assault. Without detailed statutory analysis of the definition of a “building,” we stated that it is “well-established” that “an individual apartment within an apartment building may be considered a ‘building’ under the burglary statute.” 840 N.W.2d 848 at 852 (Minn. App. 2013) (citing McDonald, 346 N.W.2d at 352; Johnson, 679 N.W.2d at 386; and State v. Edwards, 589 N.W.2d 807, 810-11 (Minn. App. 1999) (affirming a conviction for burglarizing an apartment), review denied (Minn. May 18,1999)). But the issue in

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Cite This Page — Counsel Stack

Bluebook (online)
897 N.W.2d 295, 2017 WL 1436052, 2017 Minn. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lopez-minnctapp-2017.