State v. Garcia-Gutierrez, Minn.Ct.App., 5/20/2013. Mr. Garcia-Gutierrez, along with several others, apparently broke into a home over in Shakopee one evening, stole a bunch of stuff, including a locked safe. The safe just happened to have a handgun locked inside it. Later that same evening the guys were seen outside an apartment in Prior Lake repeatedly smashing a “box” to the ground; one of the guys had a handgun. The state charged each of them with first degree burglary, possession of a dangerous weapon. The guys said, no, no; we never knew that there was a gun in the safe until later when we smashed the safe open over in Prior Lake. The state said, it didn’t matter, you take your safe as you find it, including its contents. The trial judge threw out the charges, saying that none of the guys had knowledge or control of, or immediate access to, the handgun during the commission of the burglary. The state appealed.
And lost The burglary statute says, after talking about entering a building, in pertinent part:
the burglar possesses, when entering or at any time while in the building , any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon
That pretty much says it. The burglar has to possess the handgun, either when entering, or at any time while in, the building. The statute requires that the state prove that a defendant knowingly possessed a gun during the course of a burglary. These particular burglars thought that they were stealing a safe. Hell, once they got it open and discovered not bearer bonds but only the gun, they probably weren’t too happy about it anyway.
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