One Unlawful Entry Supports Only One Burglary Charge, Even When There are Multiple Assaults

State v. Beane, Minn.Ct.App., 12/30/2013.  Don’t look a gift horse in the mouth.  F.E. and Mr. Beane returned after a party to F.E.’s apartment, 202.  One surmises that an amorous evening may have been anticipated, but things didn’t turn out that way.  Instead, Mr. Beane assaulted F.E. She fled to a neighbor’s apartment, # 204.  Mr. Beane broke into that neighbor’s apartment and continued the assault on F.E., and threatened to kill one of the other occupants of # 204, J.S.  F.E. fled the neighbor’s apartment and returned to her own place.  Mr. Beane pursued her there as well and renewed the attack one last time (and threatened to kill everyone as well.)

Now, follow this.  The state charged Mr. Beane with two counts of first degree burglary, with the assaults of F.E. and J.S. as the underlying crimes.  That is, the state focused on Mr. Beane’s behavior over in apartment 204.  (There was an additional domestic assault charge of F.E., over in her apartment, 202, but no matter.) 

The state did not charge Mr. Beane with a separate burglary of F.E.’s place, when he pursued F.E. from apartment 204 back to apartment 202 and renewed his assault on her. 

The jury convicted him of both burglaries on the state’s theory of one entrance followed by two assaults supports two burglaries.  Now, for sure, Mr. Beane could be charged with and convicted of first degree burglary and the underlying assaults.  Minn.Stat. 609.035; State v. Holmes, 778 N.W.2d 336 (Minn. 2010).  But, this does not mean that Mr. Beane could be convicted of two burglaries just because he assaulted two people.  Chief Judge Cleary says that the supreme court said just that back in 1986, State v. Hodges, 386 N.W.2d 709 (Minn. 1986):

[T]he burglarious entry of one dwelling should justify only one burglary conviction. Under this approach, the commission of other crimes, such as assault or robbery, against the occupants of a dwelling after entry is made may be additionally punished with convictions and sentences on the basis of one extra conviction and sentence per victim of the other crimes, but only one burglary conviction would be allowed.

Back to the gift horse.  There’s this ominous footnote:

We observe that under Hodges, Beane could have been charged with an additional count of assault for each individual he assaulted in K.B.’s apartment. We also note that the multiple-victim exception may have supported additional assault charges for each of the victims he attacked or threatened while in F.E.’s apartment, and that those assaults were apparently aggravated by the presence of children.  Additionally, Beane’s pursuit of F.E. back into her own apartment could potentially have supported a first –degree -burglary charge because this second entry was undoubtedly made without F.E.’s consent, and because the facts support the conclusion that Beane committed additional crimes against additional victims after this unconsented entry.

Now, on remand, Mr. Beane can’t receive an aggregate sentence more onerous than the original aggregate sentence.  But it’s not all that clear whether the state can go back and pick up all those other potential charges so nicely delineated in that footnote that have never been lodged against Mr. Beane.