STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1086

State of Minnesota,

Respondent,

vs.

Theodore Pierre Jerry,

Appellant.

Filed May 26, 2015

Reversed and remanded

Stauber, Judge

Concurring in part and dissenting in part, Schellhas, Judge

Hennepin County District Court

File No. 27CR133541

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate State Public Defender, Rochelle R. Winn, 

Assistant State Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and 

Stauber, Judge. 

S Y L L A B U S

I. When imposing consecutive sentences, the district court must sentence the

offenses in the order in which they occurred.

II. Because the offense of burglary is defined in terms of entry and is complete 

upon entry, it necessarily occurs before a crime committed in the building and, therefore, 

must be sentenced first in compliance with the sentencing guidelines. 
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O P I N I O N

STAUBER, Judge

On appeal from his convictions of and consecutive sentences for first-degree 

burglary and third-degree criminal sexual conduct, appellant argues that the district court 

erred as a matter of law by sentencing him for criminal sexual conduct first and burglary 

second because the burglary offense occurred first. We reverse and remand for 

resentencing. 

FACTS

In February 2013, appellant Theodore Pierre Jerry was charged with first-degree 

burglary and third-degree criminal sexual conduct. Following a bench trial, the district 

court found that in the early morning hours of January 1, 2013, appellant entered S.E.’s 

home without her permission, “grabbed S.E. by her forearms[,] and used force to push 

her up against the bedroom wall,” causing her to feel “afraid and helpless.” The court

also found that appellant then inserted his tongue and his penis into S.E.’s vagina without 

her consent. Thus, the district court found appellant guilty of the charged offenses. 

A presentence investigation report was completed in which the probation agent 

recommended that appellant be sentenced to the “maximum [sentence] allowed by the 

[s]entencing [g]uidelines.” Based on this recommendation, appellant, who has a criminal 

history score of six, would be sentenced consecutively for first-degree burglary first—a 

129-month commit—and for third-degree criminal sexual conduct second—a 57-month 

commit—for a total sentence of 186 months. At sentencing, however, the state argued 

that because the burglary charge was “predicated” on the criminal-sexual-conduct charge, 
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appellant should be sentenced on the criminal-sexual-conduct conviction first, and the

burglary conviction second. Thus, the state requested that appellant receive a 

presumptive 180-month sentence for the criminal-sexual-conduct conviction, and a 

consecutive 57-month sentence for the burglary conviction, for a total sentence of 237 

months. Appellant objected to the state’s request, arguing that he should be sentenced

consistently with the recommendation of the probation agent.

Relying on the state’s sentencing memorandum, the district court found that 

because appellant’s “‘burglary conviction was predicated or conditioned upon his 

completion of the criminal sexual conduct, the later conviction should be sentenced 

first.’” Therefore, the district court sentenced appellant to 180 months for the criminal 

sexual conduct and a consecutive term of 57 months for the burglary, for an aggregate 

sentence of 237 months. This appeal followed. 

ISSUE

Did the district court err by sentencing appellant for criminal sexual conduct first 

and burglary second?

ANALYSIS

This court may review a “sentence imposed or stayed to determine whether the 

sentence is inconsistent with statutory requirements, unreasonable, inappropriate, 

excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the 

district court.” Minn. Stat. § 244.11, subd. 2(b) (2014). “Statutory construction and 

interpretation of the sentencing guidelines are subject to de novo review.” State v. 

Johnson, 770 N.W.2d 564, 565 (Minn. App. 2009).
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Generally, sentences imposed for multiple offenses committed in a single 

behavioral incident are presumptively concurrent. State v. Crocker, 409 N.W.2d 840, 

845 (Minn. 1987). But under section 609.035, subdivision 6, this presumption does not 

apply when, as here, one of the sentences is for criminal sexual conduct involving force 

or violence. See Minn. Stat. § 609.035, subd. 6 (2012); see also Minn. Stat. § 609.585 

(2012) (“Notwithstanding section 609.04, a prosecution for or conviction of the crime of 

burglary is not a bar to conviction of or punishment for any other crime committed on 

entering or while in the building entered.”). And the sentencing guidelines are consistent 

with this statute, providing that consecutive sentences are always permissive when 

sentencing for “Criminal Sexual Conduct in the First through Fourth Degrees with force 

or violence.” Minn. Sent. Guidelines 2.F.2.a(2)(iii) (2012). The sentencing guidelines 

further provide that “[w]hen the court imposes consecutive sentences, the court must 

sentence the offenses in the order in which they occurred.” Id. 2.F. (2012); State v.

Williams, 771 N.W.2d 514, 522 (Minn. 2009) (stating that multiple offenses are 

sentenced in the order in which they occurred). 

The parties here do not dispute that consecutive sentencing was permissive and not 

erroneous. But appellant argues that the district court “erred as a matter of law by 

sentencing [him] for criminal sexual conduct first and burglary second” when the 

burglary occurred prior to the criminal sexual conduct. We agree. 

Appellant was charged with first-degree burglary under Minn. Stat. § 609.582, 

subd. 1 (2012). This statute provides:
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Whoever enters a building without consent and with 

intent to commit a crime, or enters a building without consent 

and commits a crime while in the building, either directly or 

as an accomplice, commits burglary in the first degree and 

may be sentenced to imprisonment for not more than 20 years 

or to payment of a fine of not more than $35,000, or both, if:

. . . .

(c) the burglar assaults a person within the building or 

on the building’s appurtenant property.

Id.

The state argues that because appellant was convicted of first-degree burglary 

under section 609.582, subdivision 1(c), “the appropriate order of sentencing was to 

sentence the third-degree criminal sexual conduct first and then sentence on the firstdegree burglary.” The state reasons that “the burglary charge in this case was predicated 

on the criminal sexual conduct charge so . . . in the charging clause . . . the burglary 

required the Court to find that an assault had occurred, and the only assault that was 

alleged in connection with the case was the criminal sexual conduct charge.”

The state’s argument is founded on a misinterpretation of the statute. Generally, 

“the crime of burglary is defined in terms of entry, and is complete upon entry.” State v. 

Hendrickson, 528 N.W.2d 263, 266 (Minn. App. 1995), review denied (Minn. Apr. 27, 

1995). This is consistent with the plain language of the statute, which states that 

“[w]hoever enters a building without consent and with intent to commit a crime, or enters 

a building without consent and commits a crime while in the building . . . commits 

burglary . . . .” Minn. Stat. § 609.582, subd. 1 (emphasis added). This language defines 

the offense of burglary. The remaining language of the statute, including subdivision 
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1(c), which requires that an assault be committed, determines the sentence. See id., 

subd.1(c). Thus, the burglary was complete as soon as appellant entered S.E.’s apartment 

with intent to commit the sexual assault. See State v. Nelson, 363 N.W.2d 81, 83 (Minn. 

App. 1985) (holding that merely stepping through a window onto a desk and then exiting 

upon hearing an alarm was sufficient to sustain a burglary conviction because the 

burglary offense was complete upon non-consensual entry of the defendant’s body into 

the premises with intent to commit a crime). The fact that appellant committed a sexual 

assault in the building allows him to be “sentenced to imprisonment for not more than 20 

years or to a payment of a fine of not more than $35,000, or both.” See Minn. Stat. 

§ 609.582, subd. 1. Therefore, a burglary was completed before the sexual assault 

occurred, and appellant should have been sentenced for the burglary first and the thirddegree criminal sexual conduct second. 

Moreover, even if the burglary offense was not completed until an assault was 

committed, we note that the unique circumstances of this case, where the district court 

specifically found facts that support a conclusion that an assault was committed before 

the sexual assault occurred, require us to hold that the burglary was complete before the 

sexual assault was complete. The burglary offense under which appellant was convicted 

requires that an assault occur, not a sexual assault. See Minn. Stat. § 609.582, subd. 1(c). 

And it is immaterial whether an assault was charged; only that facts were specifically 

found, and supported by the record, that an assault occurred. See Minn. Stat. § 244.11, 

subd. 2(b) (stating that his court may review a sentence imposed to determine whether the 

sentence is “not warranted by the findings of fact issued by the district court”). 
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An individual commits an assault if he: (1) commits an act with intent to cause 

fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts 

to inflict bodily harm upon another.” Minn. Stat. § 609.224, subd. 1 (2012). Here, the 

district court specifically found that after appellant entered S.E.’s house, but before he 

penetrated S.E.’s vagina, appellant “grabbed S.E. by her forearms and used force to push 

her up against the bedroom wall” causing S.E. to feel “afraid and helpless.” By using

force, which caused S.E. to feel afraid, appellant committed an assault. See Minn. Stat. 

§ 609.224, subd. 1. Thus, consistent with the district court’s findings, once appellant 

entered S.E.’s house and committed the assault, the burglary offense was complete 

because appellant satisfied the elements of the first-degree burglary offense under section 

609.582, subdivision 1(c). See State v. McDonald, 346 N.W.2d 351, 352 (Minn. 1984) 

(upholding defendant’s burglary conviction “on the ground that the burglary was 

complete once [the] defendant exceeded the scope of the consent given him and other 

members of the public and entered the storage room with intent to gain access to the 

locked pharmacy from there.” (Emphasis added.)); see also Nelson, 363 N.W.2d at 83.

Our decision is also supported by State v. Anderson, 345 N.W.2d 764 (Minn. 

1984). In that case, the defendant pleaded guilty to burglary and criminal damage to 

property, and the district court sentenced him consecutively, first for the criminal damage 

to property and second for the burglary. Id. at 765-66. On appeal, the defendant argued 

that the offenses should be sentenced “in the order the offenses occurred.” Id. at 766.

The defendant then argued that burglary should be sentenced first because “the burglary 

occurred first since the burglary charge in this case was based on a claim of illegally 
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entering (not unlawfully remaining in) the building and that this offense necessarily 

occurred and was completed before defendant did the damage that formed the basis of the 

conviction of criminal damage to property.” Id. The supreme court agreed and modified 

the defendant’s sentence. Id.

We conclude that, consistent with Anderson, the burglary offense occurred before 

the third-degree criminal-sexual conduct offense because, before appellant sexually 

assaulted S.E., he committed first-degree burglary under section 609.582, subdivision 

1(c), by entering S.E.’s house and committing an assault. Accordingly, the district court 

erred by sentencing appellant on the criminal sexual conduct offense before the burglary 

offense, and we remand for proceedings not inconsistent with this opinion. 

D E C I S I O N

Because burglary is defined in terms of entry and is complete upon entry, 

appellant committed the offense of first-degree burglary under Minn. Stat. § 609.582, 

subd. 1(c), before the third-degree criminal-sexual-conduct offense. Therefore, appellant 

should have been sentenced for first-degree burglary first and third-degree criminal 

sexual conduct second.

Reversed and remanded.
C/D-1

SCHELLHAS, Judge (concurring in part, dissenting in part)

I concur with the majority’s syllabus point that, when imposing consecutive 

sentences, the district court must sentence the offenses in the order in which they 

occurred. I respectfully disagree that the district court erred by sentencing appellant for 

criminal sexual conduct first and first-degree burglary second. 

“An offense is defined by its elements.” State v. Patterson, 796 N.W.2d 516, 532 

(Minn. App. 2011), aff’d, 812 N.W.2d 106 (Minn. 2012). The state charged appellant 

with first-degree burglary under Minn. Stat. § 609.582, subd. 1(c) (2012). The elements 

of that offense are that the defendant (1) entered a building without consent, and 

(2) committed an assault while in the building. See Minn. Stat. § 609.582, subd. 1(c). The 

defendant “[e]nters a building without consent” by “enter[ing] a building without the 

consent of the person in lawful possession,” or by “remain[ing] within a building without 

the consent of the person in lawful possession.” Minn. Stat. § 609.581, subds. 4(a), 4(c)

(2012); see also State v. Crockson, 854 N.W.2d 244, 247 (Minn. App. 2014) (citing 

Minn. Stat. § 609.581, subd. 4(a), (c), and noting that “‘[w]ithout consent’ means either 

entering or remaining in a building ‘without the consent of the person in lawful 

possession’”), review denied (Minn. Dec. 16, 2014); State v. Totimeh, 433 N.W.2d 921, 

924 (Minn. App. 1988) (concluding that state met its burden to prove that appellant 

entered house without consent when he failed to comply when told to leave, thereby 

violating section 609.581, subdivision 4(c)), review denied (Minn. Feb. 22, 1989).

Here, at sentencing, the district court noted that appellant did not leave S.E.’s 

home until after he committed criminal sexual conduct against her while he remained 
C/D-2

within her home without her consent. Applying a de novo standard of review, the 

majority concludes that the district court erred as a matter of law by sentencing appellant 

for the predicate offense of criminal sexual conduct first and first-degree burglary second. 

The majority reasons that “the burglary was complete as soon as appellant entered S.E.’s 

apartment with intent to commit the sexual assault” and therefore the burglary was 

completed before the sexual assault occurred. 

At sentencing, the district court incorporated by reference language from the 

state’s sentencing memorandum, stating as follows: 

Since [appellant]’s burglary conviction was predicated 

or conditioned upon his completion of the criminal sexual 

conduct, the later conviction should be sentenced first. The 

elements of the criminal sexual conduct offense simply 

require a defendant to non-consensually sexually penetrate a 

victim through force or coercion.

The [appellant] met every element of the criminal 

sexual conduct charge after he sexually penetrated the victim. 

However, the [appellant] did not meet every element of the 

burglary charge until after the criminal sexual conduct 

elements were met. This is because the burglary in the first 

degree is conditioned on a defendant’s commission of another 

crime while inside a victim’s home without that person’s 

consent.

. . . .

While both offenses were, in essence, simultaneous, it 

is important to understand that the conduct here underlying 

the [appellant]’s criminal sexual conduct conviction was 

completed before and as a necessary part of the elements of 

this burglary conviction. The current iteration of the 

Minnesota Sentencing Guidelines does not address the order 

in which to sentence simultaneous offenses, when the 

completion of one offense depends upon the completion of 

another predicate offense; hence we have State law and cases 
C/D-3

that—or cases that describe how the Court is—what direction 

the Court should take in situations like this.

 

(Emphasis added.) The district court noted that “[appellant] didn’t leave the house until 

after he was done. He’s still in her premises without her permission.” 

I would apply an abuse-of-discretion standard in reviewing the district court’s 

sentence. See State v. Soto, 855 N.W.2d 303, 307−08 (Minn. 2014) (“We afford the trial 

court great discretion in the imposition of sentences and reverse sentencing decisions 

only for an abuse of that discretion.” (quotation omitted)). I agree with the district court 

that appellant did not complete the commission of first-degree burglary until he 

committed the charged predicate offense of criminal sexual conduct. 

The majority states that

even if the burglary offense was not completed until an assault 

was committed, we note that the unique circumstances of this 

case, where the district court specifically found facts that 

support a conclusion that an assault was committed before the 

sexual assault occurred, require us to hold that the burglary 

was complete before the sexual assault was complete. 

I disagree. First, the state did not charge appellant with the assault that the district court 

found occurred when appellant grabbed S.E.’s forearms and pushed her up against the 

bedroom wall. Second, the state did not designate the assault as the predicate offense for 

the first-degree burglary charge. Third, even if appellant committed first-degree burglary 

when he physically assaulted S.E., the state predicated the first-degree burglary charge on 

appellant’s commission of criminal sexual conduct. Fourth, when appellant sexually 

assaulted S.E., he remained in her home without her consent and therefore continued to 

commit burglary during his commission of the predicate offense.
C/D-4

I disagree with the majority’s reliance on State v. Anderson, 345 N.W.2d 764 

(Minn. 1984). The Anderson court did not address the complete definition of “enters a 

building without consent” under section 609.581, subdivision 4. Rather, the supreme 

court agreed with the defendant that “the burglary charged in th[e] case was based on a 

claim of illegally entering (not unlawfully remaining in) the building.” Anderson, 345 

N.W.2d at 766. In this case, I would conclude that the district court did not abuse its 

broad discretion in sentencing appellant for criminal sexual conduct first and for firstdegree burglary second. I would affirm appellant’s sentence.