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State v. Rogers

Court of Appeals of Minnesota

April 30, 2018

State of Minnesota Respondent,
v.
Deronti Rogers, Jr., Appellant.

          Stearns County District Court File No. 73-CR-16-5606

          Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, and Janelle Kendall, Stearns County Attorney, (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public Defender, (for appellant)

          Considered and decided by Florey, Presiding Judge; Larkin, Judge; and Bratvold, Judge.

         SYLLABUS

         The plain language of Minn. Stat. § 609.582, subd. 1(b) (2014), requiring possession of "any article . . . fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, " does not require a burglary victim to be present, observe the article, and subjectively conclude that it is a dangerous weapon. It is sufficient that the article's appearance supports an objective belief that it is a dangerous weapon.

          OPINION

          LARKIN, JUDGE.

         Appellant challenges his conviction of first-degree burglary under Minn. Stat. § 609.582, subd. 1(b), arguing that the evidence is insufficient to sustain the conviction. Specifically, appellant argues that the evidence is insufficient to show that he possessed, when entering or while in the burglarized building, an article fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon. We affirm.

         FACTS

         On June 14, 2016, appellant Deronti Rogers entered J.T.'s house, without her consent, several times during a 30-minute time span and stole several items, including two flat-screen televisions. J.T. was not home at the time. Rogers first entered J.T.'s house around 7:30 p.m. J.T.'s neighbor, G.B., saw Rogers kick the back door of J.T.'s house open. G.B. told her husband, D.B., what she had seen, and D.B. told G.B. to call the police and report the break-in. Several minutes later, G.B. saw Rogers leave J.T.'s house and carry a flat-screen television down the alley. Approximately five minutes later, G.B. saw Rogers walk back down the alley towards J.T.'s house accompanied by a juvenile who was wearing red shorts. Rogers entered J.T.'s house while the juvenile waited outside. Rogers came out of the house several minutes later and carried a second television away. Several minutes later, Rogers and the juvenile returned. D.B. saw Rogers enter and exit J.T.'s house one last time.

         Shortly after Rogers left J.T.'s house for the third time, police arrived at the scene. Officer Tracy Boulton saw two males who matched a description that G.B. had provided walking northbound away from J.T.'s house. Boulton got out of her squad car and saw Rogers drop what she thought was a gun. She alerted her partner, Officer Bryce Turner, and she drew her Taser. The officers commanded Rogers and the juvenile to get on the ground. Rogers dropped a plastic bag filled with stolen property. The officers arrested Rogers and the juvenile.

         Turner searched Rogers incident to arrest and found two television remote controls. The officers also recovered the item that Officer Boulton saw Rogers drop. It turned out to be an unloaded Daisy PowerLine Model 340 BB gun. G.B. and D.B. each identified Rogers, during separate show-up identifications, as the individual who had entered J.T.'s house. The officers transported Rogers to the Stearns County Jail. During the drive, Rogers told the officers that the gun that he dropped "was a plastic BB gun but it didn't have any BBs in it."

         Later that night, J.T. learned of the burglary and returned home. The lock on her back door had been broken, and many of the rooms in her house were in disarray. J.T. told Officer Rachel Johnson that she was missing two flat-screen televisions, as well as several other items.

         The on-call investigator, Officer Dwayne Bergsnev, received information that Rogers had gone to a nearby house before reentering J.T.'s house during the course of the burglary. Bergsnev obtained a warrant to search that house. A resident of the house told Bergsnev that Rogers was staying in the basement. During the search, Bergsnev found several items in the basement that J.T. had reported as stolen, including the two flat-screen televisions.

         The state charged Rogers with one count of first-degree burglary and one count of second-degree burglary. Before trial, Rogers conceded that he had committed second-degree burglary, but he maintained that he was not guilty of first-degree burglary because he did not possess either a dangerous weapon or an article fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon as required under the charging statute. Rogers waived his right to a jury trial, and the case was tried to the court.

         The district court found Rogers guilty of first- and second-degree burglary. The district court concluded that Rogers possessed the BB gun when entering or while in J.T.'s house but that it was not a dangerous weapon. However, the district court concluded that the BB gun was an article fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon because it looked like a real gun and did not have any of the identifying markers of a BB gun, such as an orange cap.

         The district court entered judgments of conviction on both the first- and second-degree burglary counts[1] and sentenced Rogers on the first-degree burglary offense. Rogers moved for a dispositional and durational departure. The district court denied Rogers's request for a dispositional departure but granted his request for a durational departure, finding that "there [were] substantial and compelling reasons that this [crime was] less serious than typical." The district court sentenced Rogers to serve 36 months in prison, instead of 50-69 months, which was the presumptive sentencing range. Rogers appeals.

         ISSUES

         I. To sustain a conviction of first-degree burglary under Minn. Stat. § 609.582, subd. 1(b), based on the burglar's possession of an article fashioned in a manner to lead the burglary victim to reasonably believe it to be a dangerous weapon, must the state prove that the victim observed the article and subjectively concluded that it was a dangerous weapon?

         II. Was the circumstantial evidence sufficient to prove that Rogers possessed an article fashioned in a manner to lead the burglary victim to reasonably believe it to be a dangerous weapon when ...


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