A Defendant May Be Convicted & Sentenced Both For Burglary with Assault and Assault 3.

State v. Holmes, Minn.S.Ct., 2/25/2010.  Andre Williams reported to the police that Mr. Holmes had broken into his home and assaulted him.  Mr. Williams’ daughter was also in the home.  The state charged Mr. Holmes with first degree burglary with assault and with third degree assault.  The jury convicted Mr. Holmes of both courts; the trial court sentenced him to 78 months on the burglary and a concurrent 21 month sentence on the assault.

Mr. Holmes complained that the trial court court not convict and sentence him for both the burglary and the assault.  Minn.Stat. 609.585 says, however, that “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.”  The appellate court applies an “elements” test by which to determine whether the third degree assault is “any other crime” or not.  Third degree assault requires proof of different statutory elements than does burglary, specifically, “substantial bodily harm.”  That means that assault in the third degree is one of those “any other crime[s]” for which a burglary may be convicted and sentenced in addition to the burglary.