*1 Minnesota, Appellant, STATE SPENCE, Respondent. P.
Paul A06-1541.
No. Minnesota. Court of Supreme July
OPINION
DIETZEN, Justice.
Respondent Spence Paul P. was convict- ed of two of first-degree counts 609.582, § 1(a), under Minn.Stat. subds. 1(c) (2008), one gross count of misde- meanor domestic assault under Minn.Stat. (2008), subd. entering for residence occupied the victim A.S. and assaulting her. The imposed district court the presumptive sentence of 48 months for first-degree burglary charge under 1(c). MinmStat. No sen- imposed tences were on the other counts. appeals The court of the bur- reversed glary convictions but affirmed domes- conviction, tic assault holding was a Spence co-owner of the residence he commit could not burglary of the building unless a court order had divested him of possession. granted review of the court of appeals reversing decision burglary convictions. We reverse. A.S. met in 1993 South Lakeville, Dakota and later moved to They together, Minnesota. rented a house they ultimately purchased in 1997. They and A.S. co-own the Swanson, General, house. Attorney Lori Kelly together, they had three children but Moller, nev- Attorney O’Neill Assistant Gener- er married. A.S. had two children from a al, Paul, MN; O’Connor, St. and Robert relationship. previous Jackson, MN, County Attorney, Jackson appellant. for In the relationship deteriorated. April Hammerling, Lawrence On A.S. obtained order Appellate Chief (OFP) Butler, protection against Defender, Benjamin Spence. for Sub- Public J. As- Defender, Paul, sequently separated, MN, Public sistant St. for moved out house respondent. apart- and into away. ment about a block Richards, Elizabeth J. Minnesota Coali- and the children remained in the house. Women, Paul, MN; tion Battered St. change did not locks to house. Fuller, Rana SA Legal Battered Women’s A.S. later the court to asked withdraw Advocacy Project, MN; Minneapolis, OFP, and on Sep- the order dismissed Frederick, Loretta Battered Jus- Women’s tember Project, Minneapolis, MN, tice for amicus curiae In Minnesota Coalition for Battered refi- November and A.S. house, mortgage Women. nanced the on result- recognized Spence’s monthly intruder and that she mortgage in a ing reduction during house voice the assault. equity from the payment They existing also pay debt. they used to he and A.S. Spence testified when *3 responsibility for future the discussed in house November refinanced the A.S., According to mortgage payments. payment the they agreed split mortgage primarily responsible to be Spence agreed make the in half. A.S. did not When agreed mortgage, and she paying for the Spence told her payment, December much could the as she to contribute her from the he wanted to remove name monthly payments. argu- He had an agreed title. but Spence January explained ment on January after On her request pay over the from a was A.S. brought one of children back visit, monthly payment. After she argument. an share the he and A.S. had refused, saying you he “I will see her and admitted Spence told A.S. he wanted court,” that A.S. stating denied get out of the house “or but the children out of the house. early morning hours of Jan- needed move else.” In the by a noise in uary A.S. was awakened the According Spence, he worked got out the house. She of bed walked until a.m. and night January 1:30 grabbed door. was toward the front She January 2:00 arrived home around a.m. on by her hair shoved the from behind Spence’s neighbor apartment 14. pressed floor. her face hard While was Spence that he testified heard floor, the told her against the intruder “not driveway into at 2:03 a.m. pulling dark, Although f* *k him.” it was with morning, Spence opening that he heard it was Spence certain she it was apartment, the door to and that intruder recognized his voice. The held ar- until a.m. when the officer quiet 3:00 minutes, then A.S. down for several re- rived. son leased her and fled. The toddler conclusion, At the trial’s the district A.S., Spence who was awakened instruc gave jury court the standard incident, said noise and witnessed the first-degree burglary, pro which tion “my naughty.” daddy is vides, things, an element among other at police, A.S. called the who arrived entering first-degree investigat- shortly scene thereafter. The dwelling per of the “without consent ing a mark on A.S.’s officer observed Dist. possession.” son in lawful 10A Minn. Spence cheek. told the officer that Ass’n, Jury Judges Minnesota Practice - had her. assaulted The officer testified Guides, Criminal, Instruction CRIMJIG any sign that he did observe forced (5th delibera During 17.01 ed. its entry. any later Spence denied involve- tions, the note to the jury submitted a ment in incident. He was arrested title’ owner asking: court “Does ‘house charged with two of first-de- counts dwelling occupied have the to enter a gree burglary and one count of domestic renter) any ([example] someone else assault. Posses permission? time without Lawful omitted.) trial, Following At (Emphasis A.S. testified about her relation- sion.” counsel, ship ownership trial the district Spence, discussions with house, “Yes, unless Spence responded jury: incident with on Janu- court ary joint and the assault that occurred owner has been divested January 14, early morning hours of Protection, by an indicated that was the an Order for She joint agreement made owner.” divest of lawful possession through himself object co-owner, did to this supplemental agreement with a and the instruction. jury record supports finding divested himself of jury guilty The returned verdicts on all through with A.S. counts, three and the district court entered judgment and sentenced to a 48- Spence contends that the district court month sentence one of incarceration for misstated the law when it instructed the count of first-degree under Minn. relinquish that an owner could 1(c), Stat. prohibits possession. Spence of lawful con- *4 person entering a an occupied from dwell- he object cedes that failed to jury ing, without in person the consent of the instructions before the district court and possession, lawful and committing an as- the issue of lawful possession was 4(a) 609.581, § sault. See Minn.Stat. subd. presented for the first on appeal. time (2008) (defining “to enter a with- building Because to raise failed this statute). out burglary consent” under the trial, issue at our limited review is plain The court appeals Spence’s of reversed Anderson, v. error. State 733 N.W.2d first-degree burglary conviction re- and (Minn.2007). plain-error analy Under resentencing manded for on the domestic sis, (1) we consider whether there was: assault conviction. State Spence, v. error; plain; is and whether (Minn.App.2007). It con- rights. error affects substantial State cluded that because was a co-own- Griller, (Minn.1998) v. 583 N.W.2d house, er of the he did not con- need the States, (citing Johnson United 520 U.S. and, sent of A.S. to enter the house 461, 466-67, 117 S.Ct. 137 L.Ed.2d therefore, could not be bur- convicted of (1997)). glary. Id. at 205-06. The court ex- give district We courts considera plained that Spence had never dis- been in ble selecting language latitude of possessed of his lawful enter instructions, jury and an instruction is not person house and that a could not “be “materially “erroneous” unless it mis charged of a home in which Baird, law.” State v. state[s] he had the of lawful possession, (Minn.2002). Thus, when no court order divested him that of plain-error question analysis threshold right.” granted Id. at 206. We in this is whether materially case the court petition State’s for review on the reversal the law when it misstated instructed the of the burglary convictions. jury that an owner can himself divest of possession property through real
I. with a To co-owner. answer case, In this we are called to deter- question, begin this we by construing the phrase mine the meaning “person possession” term “lawful as used as used in the first- burglary statute. degree burglary statute. The ar- gues appeals the court of goal statutory interpretation erred in Our is to concluding could con- legislature. not be effectuate intent of § victed of he first-degree interpret Minn.Stat. 645.16 possession had the to lawful of a according the words statute to their house. It prop- plain ordinary contends district court meaning. and (2008) (“[WJords 645.08(1) erly § phrases instructed the that an owner can and who main according encompass trespassers, ... their com- it would construed are simply physical usage.”); possession Am. tain virtue Family approved mon Schroedl, right. no control but under claim of More Group v. 616 N.W.2d Ins. (“[W]e over, if read the statute consistent with (Minn.2000) we are to construe word position, the State’s “lawful” plain their phrases according words statute, superfluous would be meaning.”). ordinary statutory whenever con possible avoid subd. Minnesota Statutes superfluous. render structions that words “enterpng] a person prohibits Eagan, e.g., County ILHC LLC intent building consent and with without Dakota, crime, enterpng] a building commit committing] a crime consent without that lawful counters directly building, in the either while synonymous ownership. He Under MinmStat. accomplice.” co-owner, contends that as a he has the 4(a), to building enter a legal right means: “to enter build- without consent *5 divested that cannot be of absent person consent the in ing without the of a court or a order written possession.”1 lawful Spence’s posses- “lawful definition of Generally, control “possession” means of ignores sion” is too broad.4 He the also thing possessed,2 the “lawful” means possession, which plain meaning of is to forbidden, by the or not law.3 permitted, building. exercise control over Conse- the possession that argues The State State’s, quently, reject the means control of the build- physical actual Spence’s, proposed definitions. the crime ing at time was committed. person But the State’s definition is broader than conclude a “law indicates; plain language possession” ful statute under Minn.Stat. (4th 2006) ("[ajctual burglary traditionally holding 1. The crime of has been 1370 ed. or oc- habitation, against recognized cupancy a crime rightful ownership”). with or without Nunn, ownership. generally v. See State 297 752, (Minn. 1980) (noting N.W.2d 754 See, (8th Dictionary e.g., 3. Law 902 Black’s ed. burglary dwelling a not be of should deemed 2004) ("[n]ot law; contrary permitted by offense, purely property a carries law”); Dictionary Legal Usage A Modem of possibility with it the of and risk violence (2d 1995) ("established, permitted, 515 ed. or personal safety "special that it a such creates law”); Heritage not forbidden American life”); danger to State v. human accord Lem (4th 2006) ("[b]eing Dictionary ed. 993 within ieux, (Minn.2007); 726 N.W.2d 789-90 law; law”). allowed Myers, v. State that, 2001) facts, (observing depending on the reject Spence’s 4. We on v. also reliance "person can be considered a of Simion, interprets possession which within opposed a "property fense” as offense” for property theft of context of movable purpose calculating of sentences under posses include actual both constructive and (cita Guidelines) Sentencing the Minnesota usually sion: “Constructive 'is said omitted). tion to mean the ” possession.’ follows title without actual See, from (8th e.g., Dictionary Black’s Law (Minn.2008) (quoting 745 N.W.2d 841-42 2004) ("the holding having prop- ed. fact of or Corp., Penn-O-Tex Oil Minn. erty power; in one’s the exercise of dominion Baehr (1960)). 104 N.W.2d But property”); Dictionary over A Modem Le- (2d 1995) ("the does Usage theft statute not contain term gal ed. fact of and, therefore, having holding "lawful property power distin in one’s ... controls; something person guishable that a from this case. See owns Minn.Stat. property”); Heritage Dictionary § American 609.52 4(a), Second, a who person principles means of landlord and snbd. tenant to exercise over legal right clearly distinguish has a control law possessory between legal right interests, The building question. interests and ownership and rec- a building over neces- ognize exercise control proper- landlord-owners of real right to sarily includes the consent to ty may legal right surrender their to exer- entry building. of others into cise control over the their 4(a), requires a e.g., Gallagher Moffet, tenants. determination of whether the defendant Minn.
received enter the (“An consent to unlawful detainer merely action de- a a person legal right give who had present possession termines Ordinarily, ques- this presents consent. a adjudicate does the ultimate legal tion of fact fact finder. for the rights or equitable ownership possessed Braun, parties.”); Neilan v. case, In was a this defendant (“A 859 (Minn.App.1984) valid single- co-owner of the and the lease provides lessee with a family residence. When a defendant possession superior lessor.”); to that charged legally recog has (First) accord Restatement of Property the building question, nizable interest in § 10 (indicating posses- cmt. it is necessary to determine whether generally sors have a range narrower right of posses interest includes the owners). rights than sion under The court the statute. district joint instructed the owner has a Finally, general principles contract *6 right to enter a residence without consent parties law to into an agree allow enter occupant joint “unless the has owner by implication. e.g., ment Webb Bus. right posses been divested of the to lawful Promotions, Entm’t, Inc. v. Am. Elecs. & of an Pro sion the Order for (Minn.2000) 67, 617 (stating N.W.2d 75-76 tection, agreement an the made with agreements can implied be “cir joint owner.” clearly cumstances that unequivocally Spence argues that as a he co-owner parties indicate the intention of the to legal cannot divest to himself contract”) (citing enter into a Shema v. through exercise the property control over Bros., 459, 465, Thorpe 240 Minn. 62 an implied agreement with But (1953)). example, 90 For land any authority fails to to present lords divest of lawful pos can themselves support argument. his Our real through agreement session an with a ten supports proposition law a co- the nothing ant of more that consists than owner can agree to divest himself or her- permission occupy to property. the See possessory rights. of self 610, 612, Herberger, Gates v. 202 279 Minn.
First, (“Any words that may one N.W. co-owners contract with intention tenancy. another in all show an of the lessor divest including matters Constans, possession, 82 Minn. 85 himself of the and confer it Schmidt (1901); another, N.W. 174-75 see also but of course subordina O’Con 248-49, title, v. Delaney, nor Minn. 54 tion own [to to his is sufficient create (internal may N.W. lease relationship].”) “One landlord-tenant other,” omitted); moiety parties quotation and the 1 Herbert T. accord Jones, then of a rights obligations Tiffany Tiffany Prop. assume the & Basil Real Schmidt, (“[TJenancy may merely landlord and tenant. at exist Minn. of taking N.W. as a result the posses- himself of lawful ‘permissive posses- divested by permission, land called, any through agreement without sion an sion,’ may be the duration of the understanding as to sufficiency did not raise Though possession”). argument respect evidence the at the court of burglary convictions law allows co-owner our case argument appeals, we conclude that himself herself divest Spence’s framing was raised in implicitly agree possession and Essentially, Spence issue. ar- right.5 We co-owner maintains other gued lawfully that under these facts he read do not possessed and therefore 4(a), limit of a co-owner to do burglary. could not be convicted of implied Whether or agreement. so implied constitutes an owner’s conduct sufficiency of On review for pos- himself of agreement divest evidence, analyze we the record “to deter session, provides that such re- evidence, mine whether the when viewed co-owner, question ais mains with the conviction, in a most light favorable to jury. Accordingly, we conclude permit jurors reach sufficient jury that an court’s instruction the district the verdict which did.” State v. of lawful posses- can divest himself owner (Minn.1989). Webb, through with a co-own- sion that the believed the assume wit materially misstate the law and er did testimony supports nesses whose ver therefore was not error.6 dict and disbelieved witnesses whose testi support mony does not the verdict. State II. Pendleton, Finally, consider whether support was sufficient evidence It moved undisputed out jury’s guilty first-degree verdict on into particularly apartment occupied his own charge, *7 ju burglary 5. consistent with other could be convicted of Our conclusion is defendant for property, breaking title risdictions hold it is not into residence co-owned his that possession estranged spouse occupancy property where defendant had but the or sur- committed, possessory at the time rendered his interest in the offense resi- Schneider, 237, dence); Wash.App. can be v. 36 determines whether one liable for bur 200, Gill, (1983) (holding 203 glary. e.g., People v. Cal. 673 P.2d 159 149, 850, entry is App.4th Cal.Rptr.3d owner’s “unlawful” if the owner was 867 70 "licensed, invited, privi- right not or otherwise (observing possessory protected that the leged” property). enter the "right the California statute is the property exert exclu over control Spence any agreement sion others” and that defendant had sur claims that relin- by leaving right right quishing marital his must be rendered property request writing his wife’s and surrender to be enforceable under statute of Hollenbeck, her); 513.01(1) (2008) keys ing People v. 944 frauds. See Minn.Stat. 537, (Colo.Ct.App.1996) (holding any agreements performa- (requiring P.2d 539 writing spouses year that if the have ble must in order evidence shows in one be in for lie). separately, spouse Spence decided But to live but one action to failed raise property, maintains in the in the district or at the residence marital this issue court court spouse we appeals, the other can be convicted of decline to consider for Allen, though of the even time here. State v. marital owner first See 40, State, unsettled); (Minn.2005); ship Roby of the v. remains Peo N.W.2d Glanda, 354, (Minn.1996) ple (declining 5 A.D.3d 774 N.Y.S.2d 547 N.W.2d below). (concluding appeal (N.Y.App.Div.2004) to hear on issues not raised
HI for approximate- Cannady, as his domicile apartment N.W.2d 2007). burglary. ly nine months before not think that she did he had
testified “Lawful includes not only key to and that he the house “shouldn’t actual possession right but to pos also previously have had” one. had law, sess. At common tenants common the property through excluded from been unity enjoy possession; possession posses- an OFP and never re-established one tenant regarded cominon “is expired. after never sion the OFP cotenants, possession by all the aas to enter house gave permission Johnson, disseisin.” Adams v. 271 Minn. Finally, expiration after OFP. (1965). Ac entry surreptitious into the house Spence’s A cording to Dictionary Legal Modem night suggests in the middle of the he Usage, “ownership is a legal status: not have understood he did aggregate rights that give person the enter the house without the consent of A.S. power enjoy, destroy, fullest dispose facts, From these a reasonable could of a one of thing; rights possess these is to had relinquished determine (2d thing.” ed. “[E]ach control to exercise over has at all cotenant times the to enter conclude, therefore, house. We that suffi- enjoy every part of the common supports jury’s cient evidence determi- Zontelli, Petraborg estate.” 217 Minn. nation that divested himself of law- 536, 540, 15 174, 177 house. ful each co-tenant has a to possess the common cotenant unless one has Accordingly, ap- we reverse the court of been of that right voluntarily, by divested Spence’s peals and reinstate conviction for way agreement, of contract or other first-degree burglary. involuntarily, by way of a order. court See Reversed. Constans, Schmidt v. 82 Minn. (stating 174-75 N.W. co- can contract with another in tenants one DISSENT matters, tenancy); including all State v. PAGE, (dissenting). Justice Evenson, 412 (Minn.App. 1996) (an order protection divests a because, I respectfully I do so dissent. possess”), his or “right cotenant of her notwithstanding Spence’s despicable act of (Minn. 29,1996). rev. denied Oct. A.S., against violence should be slow to *8 agreement an real property divest owner of The court holds that an right possess property. possess A divest person oneself building implied “enters a without jointly-owned building who consent” can be may fact burglary. be convicted of the mere that one cotenant allows person occupant A another to be subd. cotenant the sole “[e]n- a building jointly-owned building. holding, ters without consent” That when however, law, building contrary “enter a without the consent of is to established person possession.” provides one co- Minn. 4(a) (2008). regarded all Stat. As tenant is prove has the and that all have the burden elements cotenants cotenants doubt, beyond an offense at all times. a reasonable to enter Adams, 271 Minn. State must demonstrate that did See at 81; Petraborg have at possession.” “lawful See State 217 Minn. I agree while at 177. In the Matter of REVIEW OF the may voluntarily that cotenants the court AD- 2005 ANNUAL AUTOMATIC possess of their themselves divest ALL OF CHARGES FOR JUSTMENT implied or express an here, AND ELECTRIC GAS UTILITIES. occupancy on the record agreement, support finding is insufficient by itself No. A07-653. voluntarily divested himself Court of Supreme Minnesota. every enjoy right to enter he owned of the house part July that, case record in this indicates The occupy building, Spence did
while there- an owner he was nonetheless in the and had fore a cotenant including the legal right possess, entry right to and consent to control Spence’s name was on building. into the mortgage mortgage pay- he made nothing in the record ments. There divested, indicating Spence had been voluntarily involuntarily, of his either possess property. There right to was contract or other between no divesting him of that place nor there a court order in right, doing as an owner of and Spence, so. had property,
cotenant enjoy the full possess ownership of his interest. Because extent contract, no express there was facts that agreement, support implied would divesting Spence right, court order I was a “person conclude that entry at the time of Therefore, property. into the conviction must be reversed. (dis- BARRY,
ANDERSON, G. Justice senting). join
I in the of Justice Page. dissent