Co-owners Do Battle Over Burglary Statute’s Meaning of “Lawful Possession.”

State v. Spence, Minn.S.Ct., 7/17/2009.  Mr. Spence and his girlfriend, A. S., owned a house together.  When the couple – who were never married – split up they agreed to pay the mortgage equally although A.S. and the children continued to live in the house.  A.S. did not change the locks.  A jury convicted Mr. Spence of first degree burglary for entering the residence and assaulting A.S.  (At the time of the burglary, there was no order for protection in force.)  During jury deliberations, the jury sent out this note, to which the court responded:

Note:  “Does a ‘house title’ owner have the right to enter a dwelling occupied by someone else ([example] renter) at any time without permission? Lawful Possession.”

Response:  “Yes, unless the joint owner has been divested of the right to lawful possession of the property by an Order for Protection, or by an agreement made with the joint owner.”

On appeal, Mr. Spence argued successfully to the Court of Appeals that because he was a co-owner of the residence he could not commit a burglary unless a court order had divested him of lawful possession.  The Minnesota Supreme Court reverses, but with two dissenting votes.

To constitute burglary, the entry must be “without the consent of the person in lawful possession.”  The state wanted “lawful possession” to mean actual physical control of the building; Mr. Spence wanted the phrase to mean legal ownership, which could be divested only by a court order or a written agreement with other owners.  The appellate court rejects the state’s proposal because it would encompass a trespasser who maintains possession simply by being there.  (Squatters, not being in “lawful possession” apparently can’t be the victim of a burglary.)  The court didn’t like Mr. Spence’s proposal any better; it ignored the ordinary meaning of “possession,” which is to exercise control over the object.  So, what to do?

Uphold the trial court, in large part because Mr. Spence did not object to the court’s response to the jury’s note.  The trial court’s response, which allowed for implied agreements for divestment of lawful possession, was not “plain error.”  The court does leave the door slightly ajar on the question of an implied agreement because it does not address the question whether an agreement made with the joint owner must be in writing to be enforceable under the statute of frauds.  See Minn.Stat. 513.01 (1); Mr. Spence did not raise this issue in the trial court or the in the court of appeals.  As a result, that question awaits another day.

Justice Page, dissenting, did not think that the record supported an agreement by Mr. Spence to divest himself of the right to enter the residence.  All that the record established was that one co-owner – Mr. Spence – allowed the other co-owner – A.S. – to be the sole occupant.  This fact, and nothing more, does not establish an implied agreement that Mr. Spence divested himself of the right of entry.