State v. NelsonState v. Nelson
- Reporters:
- , ,
- Before:
- Thoreen
OPINION
THOREEN, Judge.Appellant Peter James Nelson challenges his conviction for first degree burglary, on the ground that no one was present in the dwelling at the time of his entry. Nelson also argues his waiver of counsel was invalid. We reverse Nelson’s first degree burglary conviction and remand for entry of judgment on the second degree burglary conviction alternatively imposed.
FACTS
On June 18, 1993, Perry and Karen Brown returned to their home in Otter Tail County and encountered appellant descending the stairs from the bedrooms. Nelson said that he was looking for a friend whom he thought lived in the residence and explained that his friend had told him he should enter if no one was home. After Nelson left, the Browns, who had noted his license plate number, discovered that $30 was missing, and called the police. At 1:30 a.m. on June 19, Nelson’s car was stopped and he was arrested. Nelson was charged with second degree burglary on June 21, 1993. A public defender was appointed to represent him. Nelson entered a plea of not guilty on July 19, 1993. He apparently was not satisfied with his attorney. His request to proceed pro se was
ISSUES
1. Is the evidence sufficient to support the conviction for first degree burglary?
2. Was appellant’s waiver of counsel valid without written waiver or waiver under oath?
ANALYSIS
1. When the sufficiency of the evidence of a conviction is appealed, this court considers whether the jury could reasonably have found the defendant guilty beyond a reasonable doubt, viewing the evidence and reasonable inferences in the light most favorable to the state. State v. Boitnott, 443 N.W.2d 527, 531 (Minn.1989). A question of statutory interpretation, however, is subject to de novo review. See State v. Poole, 489 N.W.2d 537, 541 (Minn.App.1992), aff‘d 499 N.W.2d 31 (Minn.1993). “Penal statutes must be strictly construed.” Poole, 489 N.W.2d at 541.
Whoever 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, commits burglary in the first degree ⅜ ⅜ * if:
(a) the building is a dwelling and another person not an accomplice is present in it.
(b) to enter a building by using artifice, trick, or misrepresentation to obtain consent to enter from the person in lawful possession; or
(e) to remain within a budding without the consent of the person in lawful possession.
Nelson argues that his conviction for first degree burglary under
The parties cite several cases from foreign jurisdictions. In State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973), the defendant, who entered a house and raped á woman upon her return, argued that he should not have been convicted of aggravated burglary because the victim was not present when he entered the house. The applicable statute provided:
Aggravated burglary is knowingly and without authority entering into or remaining within any building * * * in which there is some human being, with intent to commit a felony or theft therein.
Id.
515 P.2d at 1095 (quoting
In State v. Seddens, 770 S.W.2d 381 (Mo. Ct.App.1989), the inhabitant returned to encounter the defendant stealing items and the defendant fled. The defendant argued that under the following statute, entry and presence had to coincide:
A person commits the crime of burglary in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building * * * for the purpose of committing a crime therein, and when in effecting entry or while in the building * * * [t]here is present in the structure another person who is not a participant in the crime.
Id.
at 382 (quoting
Finally, in State v. Simons, 65 N.C.App. 164, 308 S.E.2d 502 (1983), the inhabitants returned home, went to sleep, and awoke to find a burglar present. The North Carolina Court of Appeals analyzed the state’s burglary statute and concluded:
If the burglarized dwelling is occupied, the crime is burglary in the first degree; but if it is unoccupied, however momentarily, and whether known to the intruder or not, the crime is burglary in the second degree.
Id. 308 S.E.2d at 503. The court held that because there was no direct evidence as to when the defendant entered the home, the trial court had prejudicially erred in failing to instruct the jury on second degree burglary.
The Missouri statute is more explicit than
The state cites
Johnson v. Commonwealth,
444 S.E.2d 559 (Va.App.1994), in which the statutory language “break and enter a dwelling house
while said dwelling is occupied”
was interpreted under the state’s aggravated burglary statute.
Id.
at 561 (quoting
A strict construction of
2. Nelson argues that his waiver of counsel was not valid in the absence of
a
thorough inquiry and without written waiver or waiver under oath.
Where counsel is waived by a defendant, the waiver shall in all instances be made in writing, signed by the defendant, except that in such situation if the defendant refuses to sign the written waiver, then the court shall make a record evidencing such refusal of counsel.
The state, however, cites several eases involving oral waivers of counsel on the record, in which the absence of a written waiver apparently was not an issue. State v. Krejci, 458 N.W.2d 407, 412 (Minn.1990); State v. Savior, 480 N.W.2d 693 (Minn.App.1992).
In the only reported case citing
A finding that a defendant waived his right to trial counsel will not be reversed unless clearly erroneous.
State v. Richards,
456 N.W.2d 260, 264 (Minn.1990). A defendant’s request to proceed pro se must be both: 1) “clear, unequivocal, and timely” and 2) knowing and intelligent.
Id.
at 263. While a defendant may have the right to court-appointed counsel, he does not have the right to court-appointed counsel of his own choice.
State v. Gassler,
505 N.W.2d 62, 70 (Minn.1993). The record indicates that Nelson’s request to proceed pro se was made at his third appearance in this matter and reaffirmed at two subsequent appearances. Nelson indicated that he wished to conduct his own independent investigation and defense. The trial court reiterated Nelson’s right to
DECISION
Because “another person” was not present at the time of appellant’s entry, we must vacate his first degree burglary conviction. We remand for entry of judgment on appellant’s second degree burglary conviction and on the concomitant 61-month sentence alternatively imposed. Appellant’s waiver of counsel was not invalid.
Reversed and remanded.
Notes
. The state also attempts to incorporate the “by artifice [or] trick” provision of clause (b) into clause (c) to emphasize that “appellant remained by using trick and misrepresentation,” but this further construction is clearly strained beyond the meaning of the statute.