State v. Rogers
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State v. Rogers
Dissenting Opinion
I join in the dissent of Justice Thissen.
Opinion of the Court
*2Minnesota Statutes section 609.582, subdivision 1(b) (2018) elevates burglary to a first-degree offense if "the burglar possesses, when entering or at any time while in the building, ... any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon." This case asks us to determine whether the victim must be physically present during the burglary for a conviction under subdivision 1(b). Because we conclude that the victim must be physically present under this subdivision, we reverse the decision of the court of appeals and remand to the district court for resentencing consistent with this opinion.
FACTS
On June 14, 2016, appellant Deronti Rogers Jr. burglarized J.T.'s house while J.T. and her children were away from home. A neighbor looking out of her window saw Rogers break open the back door of J.T.'s house and go inside. The neighbor called 911 and watched as Rogers made three trips in and out of the house, leaving with a television or other items each time.
When the police arrived, they found Rogers walking through an alley behind the house. The two responding officers parked their squad car on the street near the end of the alley and walked toward Rogers. As the officers approached, Rogers dropped an item that one of the officers believed was a gun. The officers yelled at Rogers to get on the ground and arrested him. After the arrest, the officers discovered that the dropped item was a .177-caliber Daisy BB gun. The BB gun had no orange cap or other feature to distinguish it from a real firearm.
The State subsequently charged Rogers with one count of first-degree burglary under
Only the first-degree burglary conviction is at issue on appeal. A person commits first-degree burglary under
Rogers appealed his first-degree conviction, arguing that subdivision 1(b) requires that the victim be present and reasonably believe the item is a dangerous weapon. See State v. Rogers ,
We granted Rogers's petition for review.
ANALYSIS
In this appeal, the parties disagree over the interpretation of the first-degree burglary statute, in particular,
In determining a statute's plain meaning, "words and phrases are construed according to rules of grammar and according to their common and approved usage."
Minnesota's first-degree burglary statute provides:
Whoever ... enters a building without consent and commits a crime while in the building ... commits burglary in the first degree ... if:
...
(b) 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, or an explosive ....
Minn. Stat § 609.582, subd. 1 (2018). Rogers was convicted under subdivision 1(b) for possessing an item "fashioned
The parties agree that subdivision 1(b) is unambiguous but argue that the plain meaning of the subdivision supports their respective interpretations.
The State, on the other hand, claims that the language merely describes the nature of the article that the burglar must possess. To support its interpretation, the State points to the word "possesses" and the dictionary definition of "fashioned." First, the State argues that the actus reus, that is, the wrongful deed, of the subdivision is possession. Second, the State asserts that "fashioned" means "to give shape or form" or to "make." The American Heritage Dictionary of the English Language 641 (5th ed. 2011). Because an item becomes "fashioned" at the moment it is formed or altered, the State argues that a burglar has violated subdivision 1(b) at the moment the burglar possesses the already-fashioned item in the building. Following this logic, the State concludes-as did the district court and the court of appeals-that the rest of the provision refers to the nature of the article, requiring it to be such that "a burglary victim would reasonably believe it was a dangerous weapon."
We agree with Rogers that the plain language of Minn. Stat § 609.582, subd. 1(b), requires the victim to be present. Subdivision 1(b) requires that the item be "fashioned in a manner to lead the victim," not a victim, to reasonably believe the item is a dangerous weapon. (Emphasis added). "The" is a limitation word that refers to a specific person or thing. State v. Hohenwald ,
Despite the plain meaning of "the victim," the State argues that the statute cannot be interpreted to require that the victim be present because the statute uses the words "to lead." Specifically, the State asserts that "to lead" is an infinitive verb and that such verbs represent "intentions, desires, or expectations." According to the State, if the Legislature had intended to require the victim to be present and subjectively believe the article is a dangerous weapon, it would have used a progressive verb like "leading" or "causing." We are not persuaded because the context of the statute makes clear that the victim must be present.
Subdivision 1(b) includes both items that are "used " and items that are "fashioned ." The parties agree that the victim has to be present for the "used" portion of the statute. We agree as well. One dictionary defines "used" as "put into action or service." Webster's Third New International Dictionary 2523 (2002). If "the victim" is not present, the weapon cannot be put into action against that person. The same must be true for items that are "fashioned" because the statute attaches "used or fashioned" to the same requirement-the victim's reasonable belief that the item is a dangerous weapon. In other words, the context of the statute confirms that the meaning of the phrase "in a manner to lead the victim to reasonably believe it to be a dangerous weapon" does not change depending on which verb (used or fashioned) is applied. See Henderson ,
But, the State argues, requiring the victim's presence both when the weapon is "used" and when the weapon is "fashioned" renders "fashioned" superfluous. We disagree. There are certainly circumstances where a weapon could be used against the victim and fashioned at the same time; but there are also circumstances where a weapon could be fashioned in such a way that the victim reasonably believes it is a dangerous weapon, but that weapon is not used on the victim.
In sum, if subdivision 1(b) was intended to require only that the article's appearance "supports an objective belief that it is a dangerous weapon"-as the court of appeals determined, Rogers ,
Because it is undisputed that the victim was not physically present during the burglary, we hold that the evidence is not sufficient to support Rogers's conviction of first-degree burglary.
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and remand to the district court with directions to vacate the conviction and sentence for first-degree burglary, enter a judgment of acquittal on the first-degree burglary charge, and sentence Rogers on the second-degree burglary conviction.
Reversed and remanded
At the court of appeals, Rogers argued that there was insufficient evidence to prove that he possessed the BB gun while entering or inside the house. See State v. Rogers ,
The dissent faults us for relying on what it terms "grammatical conventions." But the Legislature itself has instructed that we are to follow the rules of grammar.
The State does not argue that Rogers "used" the BB gun, only that it was "fashioned" as a dangerous weapon. The decisions of the district court and the court of appeals were similarly rooted. See Rogers ,
The dissent contends that the statute is ambiguous but does not offer an interpretation of the statute that gives effect to all of the words the Legislature included. See Henderson ,
The dissent also focuses on the subdivision's use of "possesses" to support its interpretation. But, as discussed above, this interpretation would require us to rewrite the statute. Accordingly, the query from Sesame Street that the dissent posits is misplaced.
In terms of the requirement that someone other than the burglar be present, this clause of subdivision 1(b) is consistent with the other paragraphs in subdivision 1; both paragraphs (a) and (c) of subdivision 1 require that another be present during the commission of the burglary. See
The dissent argues that the Legislature simply imported a phrase from the criminal-sexual-conduct statute into the burglary statute and that we should interpret the phrase the same way in both statutes. Even if the dissent were correct and we were permitted to look to the criminal-sexual-conduct statute in interpreting the burglary statute, the result is the same. This is so because the phrase from the criminal-sexual-conduct statute that the dissent contends the Legislature imported into the burglary statute also requires that the victim (the "complainant" in the criminal-sexual-conduct statute, see
Dissenting Opinion
DISSENT
Our job when interpreting a statute is to ascertain and implement the intent of the Legislature. State v. Henderson ,
Our focus in this case is
Whoever ... enters a building without consent and commits a crime while in the building ... commits burglary in the first degree ... if: ...
(b) 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, or an explosive[.]
The majority concludes that the language of subdivision 1(b) plainly and unambiguously means that when a burglary is committed with "an article used or fashioned *7in a manner to lead the victim to reasonably believe it to be a dangerous weapon," a victim must be present in the building. The majority reaches this conclusion by leaning heavily on a few words-"the victim" and "used"-plucked out of the operative descriptive phrase.
Even if one accepts that the majority's reading is reasonable, it certainly is not the only-or even the most-reasonable interpretation of the statutory language. In assessing whether language is ambiguous, the phrase "an article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon" should not be read in isolation. We have said that "it is an unsafe way of construing a statute to divide it by a process of etymological dissection into separate words, then apply to each thus separated from its context some particular definition given by lexicographers, and then reconstruct the instrument upon the basis of these definitions." In re Raynolds' Estate ,
The focus of subdivision 1(b) is possession of certain items during the burglary. If "the burglar possesses" one of the items described in the statute, he is guilty of first-degree burglary rather than a lesser degree of burglary.
This reading of the statute is supported when one considers that the possession focus of subdivision 1(b) contrasts sharply with the other two circumstances under which a burglary is elevated to first degree. Under subdivision 1(a), first-degree burglary occurs when the burglary takes place in "a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building."
Because
*9Two categories of items-a dangerous weapon and an explosive-have been part of subdivision 1(b) since the Legislature enacted the current burglary statute in 1983. See Act of June 14, 1983, ch. 321, § 2,
The Legislature, however, changed subdivision 1(b) in 1988. Act of May 4, 1988, ch. 712, § 9,
At the time, Minnesota's first-degree criminal-sexual-conduct statute defined that offense (among other definitions) as engaging
in sexual penetration with another person ... if ... the actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit.
In its 1988 amendment to the first-degree burglary statute (as well as the aggravated robbery statute), the Legislature simply lifted the descriptive language from the criminal-sexual-conduct statute and inserted it nearly verbatim into the burglary statute. See chapter 712, § 9, 1988 Minn. Laws at 1654 (changing only the word "complainant" in
There is no evidence whatsoever that, in taking the descriptive phrase from the criminal-sexual-conduct statute and importing it into the burglary statute, the Legislature intended to change the essential nature of subdivision 1(b) from a provision where mere possession of a listed item was sufficient to support a first-degree burglary conviction. Rogers asks us to transform subdivision 1(b) into a more complicated provision where mere possession remains sufficient for two of the items (a dangerous weapon or an explosive) but an additional element of proof-that a person also be present in the building-is necessary for the third category of item possessed, namely, a fake weapon. Cf. County of Dakota v. Cameron ,
Admittedly, the Legislature's drafting technique of grabbing language from one statute and inserting it with a minor change into a different statute may have been inartful. But the majority is using the inartful drafting to impose a new element to the crime of first-degree burglary that the Legislature, by any commonsense assessment of the language and history of the statute, never intended. Subdivision 1(b) of section 609.582 makes simple possession of a dangerous weapon, an item that appears to be a dangerous weapon, or an explosive while burglarizing a building a first-degree crime. Rogers had a fake weapon with him while burglarizing J.T.'s house. Consequently, I would affirm the decision of the court of appeals and the district court and uphold Rogers's first-degree burglary conviction.
Viewers of Sesame Street would often be quizzed with the song "One of These Things":
One of these things is not like the others;one of these things just doesn't belong.Can you tell which thing is not like the othersBy the time I finish my song?
See Michael Davis, Street Gang: The Complete History of Sesame Street 162 (2008) (quoting Bruce Hart & Joe Raposo, One of These Things (Instructional Children's Music, Inc. 1970)).
In footnote 6, the majority acknowledges that we should look for interpretive guidance to the entire first-degree-burglary provision. It concludes, however, that the fact that subdivision 1(a) and 1(c) require the presence of another supports its position that one item identified in subdivision 1(b) may also require the presence of another, even if the other two items in subdivision 1(b) do not. This logic is odd. Subdivision 1(b) is about what "the burglar possesses," and no one disputes that possession of two of the three items described in subdivision 1(b) does not also require the presence of another person. Yet the majority's contextual analysis ignores those clues from the specific subdivision in which the language we are interpreting is found and instead looks to other subsections in subdivision 1 that have different purposes.
The principle that courts must always start statutory interpretation by formalistically categorizing a statute as "unambiguous" or "ambiguous," e.g. , State v. Struzyk ,
It is also problematic that judicial adherence to an algebraic process of applying hierarchical rules of interpretation like the pre-ambiguity/post-ambiguity wall that sets certain interpretative tools above others prevents courts from using often very useful materials like legislative history to do our job, which is to ascertain and implement legislative intent. See, e.g. , Robert A. Katzmann, Judging Statutes 52-53 (2014). Indeed, we have said that "the attention of the legislature should always be followed wherever it can be discovered, although the construction seems contrary to the letter of the statute." Barker v. Kelderhouse ,
Contemporary news reports and editorials highlighted this public concern. See, e.g. , Jeanne Landkamer, Editorial, Gun Legislation , White Bear Press, Dec. 9, 1987, at 4a; Brian Bonner, Foley Set to Ask for Tough Toy Gun Law , St. Paul Pioneer Press Dispatch, Dec. 4, 1987, at 1C; Joe Kimball, Tom Foley Takes Aim at Realistic Toy Guns , Star Trib., Dec. 4, 1987, at 1B. In addition to concerns about protecting crime victims, the proponents of the legislation were concerned that use of fake guns created confusion for police officers who respond to a crime and may use harmful force unnecessarily. See, e.g. , Kimball, supra .
Occam's razor is the principle (attributed to William of Occam) that when there are two competing theories that make exactly the same predictions, the simpler one is the better. The American Heritage Dictionary of the English Language 1219 (5th ed. 2011).
Reference
- Full Case Name
- STATE of Minnesota v. Deronti ROGERS, Jr.
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