One Burglary & One Assault Still Equals Two Crimes

State v. Holmes, Mn.Ct.App., 12/9/2008.

A.W. was at home enjoying a quiet evening of arguing with his girlfriend when his girlfriend's Dad and two brothers swooped into the apartment.  Mr. Holmes is one of the brothers.  Mr. Holmes assaulted A.W., possibly with a steel pole, no one is quite sure. 

The state charged Mr. Holmes with first degree burglary and with third degree assault; a jury convicted him and the court sentenced him on both offenses.  On appeal, he argued that because third degree assault is a lesser included offense of the first degree burglary he could not be sentenced on both counts.  In other words, no double dipping.  The Court of Appeals disagrees.

The Court of Appeals accepted the proposition that the third degree assault is a lesser included offense of the first degree burglary.  It also agreed that under Minn.Stat. 609.04, Minnesota's double jeopardy statute, he could not, therefore, be convicted of both offenses.  However, there's another statute in play, 609.585, which states:

Notwithstanding section 609.04, a prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.

Mr. Holmes argued that "any other crime" had to be a crime other than the assault and since there was no other crime he could not be convicted and sentenced on both offenses.  The Court concludes that the third degree assault can serve double duty:  as the assault element of first degree burglary and the assault charge.  It is an "any other crime" under 609.585 notwithstanding its duplicate use.