State v. Van Meveren, 49650.

• Citation: 290 NW 2d 631
• Decision Date: 21 March 1980
• Docket Number: No. 49650.,49650.
• Parties: STATE of Minnesota, Respondent, v. Gary Lee VAN MEVEREN, Appellant.
• Court: Supreme Court of Minnesota (US)

290 N.W.2d 631 (1980)

STATE of Minnesota, Respondent, v. Gary Lee VAN MEVEREN, Appellant.

No. 49650.

Supreme Court of Minnesota.

March 21, 1980.

C. Paul Jones, Public Defender, and Mollie G. Raskind, Deputy Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen. and Gary Hansen, Sp. Asst. Atty. Gen., St. Paul, Wayne Farnberg, County Atty., Redwood Falls, for respondent.

Considered and decided by the court en banc without oral argument.

PER CURIAM.

Defendant was tried in district court on charges of burglary, Minn.Stat. § 609.58, subd. 2(1)(b) (1978) (assault upon a person present within a dwelling where actor has remained without consent and with intent to commit a crime), assault, Minn.Stat. § 609.22 (1978) (simple assault), and criminal sexual conduct in the first degree, Minn. Stat. § 609.342(c) (1978) (nonconsensual sexual penetration accomplished because of complainant's reasonable fear of imminent great bodily harm). The jury, after deliberating 9 hours, found defendant guilty of the first two charges but was unable to reach a unanimous verdict on the third count. The trial court terminated the deliberations and declared a mistrial as to the third count. The trial court sentenced defendant to a limited maximum term of 10 (instead of 20) years for the burglary; the trial court did not sentence defendant for the assault. On this appeal from judgment of conviction defendant challenges the legal sufficiency of the evidence supporting his convictions and contends alternatively that the interests of justice require reversal of his burglary conviction. We affirm.

The evidence adduced at trial by the state showed that defendant, who had formerly been a neighbor of the complainant, went to the complainant's house at night when her husband was working out of town and, claiming he needed to use the bathroom, gained entrance to the house. Immediately after gaining entrance, defendant began the assaultive conduct. Defendant's contention that the evidence was legally insufficient to support the guilty verdicts is meritless. His main contention is not that the evidence was insufficient but that the conviction for burglary is unjust under the facts of this case in that what basically was assaultive conduct has, by creative charging, been converted into a burglary. Minn.Stat. § 609.585 (1978) specifically provides that, notwithstanding Minn. Stat. § 609.035 (1978) — which generally prohibits multiple...