State of Minnesota, Respondent, vs. Scott Richard Seelye, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1200

 

 

State of Minnesota,

Respondent,

 

vs.

 

Scott Richard Seelye,

Appellant.

 

Filed October 5, 2004

Affirmed in part, reversed in part, and remanded

Parker, Judge*

 

Cass County District Court

File No. K9-02-493

 

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Earl E. Maus, Cass County Attorney, 300 Minnesota Avenue, Walker, MN 56484-3000 (for respondent)

 

John Stuart, State Public Defender, Lydia M. Villalva Lijó, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge; Halbrooks, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

Appellant Scott Seelye was convicted of first- and second-degree burglary, and first- and second-degree arson for breaking into a building that contained a grocery store and an adjoining residential apartment and setting a fire that destroyed the building.  On appeal, appellant argues that:  (1) there was insufficient evidence to support his convictions; (2) the adjoining apartment did not convert the entire building into a dwelling for the purpose of second-degree burglary; (3) appellant cannot be convicted of both first- and second-degree arson for setting one fire; (4) the district court abused discretion in finding the defendant in direct criminal contempt; (5) and the district court abused discretion in imposing an upward sentencing departure.  Because there was sufficient evidence to support his convictions, we affirm Seelye's convictions of first- and second-degree burglary and first-degree arson.  Because second-degree arson is inapplicable when a building is a dwelling, we reverse Seelye's conviction of second-degree arson.  We also affirm the holding of direct criminal contempt, but reverse and remand Seelye's primary sentence.

D E C I S I O N

I

In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that the jury believed the state's witness and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

A conviction "based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence."  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted).  "While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence."  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999) (citation omitted).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Jones, 516 N.W.2d at 549.  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

Seelye first argues that there was insufficient evidence to establish that he possessed and used charcoal lighter fluid to start a fire as required for first-degree burglary and first-degree arson.  First-degree burglary requires that a burglar possesses a dangerous weapon "when entering or at any time in the building."  Minn. Stat. § 609.582, subd. 1(b) (2000).  A dangerous weapon includes "any combustible or flammable liquid or other device or instrumentality that . . . is calculated or likely to produce death or great bodily harm."  Minn. Stat. § 609.02, subd. 6 (2000).  First-degree arson requires that a building be intentionally destroyed or damaged by using a flammable material to start or accelerate a fire.  Minn. Stat. §609.561, subd. 3(a) (2000).

Seelye broke into the grocery store through the adjacent apartment and tripped an alarm that rang at the owners' home.  After the owners, George Wosika and his wife, arrived at the store, Wosika saw Seelye inside the front of the store and saw Seelye walk down an aisle while placing items inside a bag and then go to the front of the checkout counter.  Recognizing Seelye, Wosika went to the rear of the store to inform his wife of the intruder's identity.  Upon returning to the front, Wosika saw Seelye standing at the checkout counter, approximately four feet away.  Wosika's view through the glass door was partially obstructed so that he could not see what Seelye was doing with his hands, but he could see Seelye moving around and turning from side to side.  While Seelye stood at the checkout counter, Wosika saw flames erupt to the left of Seelye at waist level.  Two witnesses for Seelye testified at trial that someone looking inside the store would have been able to see Seelye clearly as he stood by the counter.   To the extent this contradicts Wosika's testimony, we must assume for review that the jury believed Wosika.

The store sold flammable materials such as charcoal lighter fluid, propane gas, and fuel.  There was a charcoal lighter fluid display located about four feet from the front of the counter.  There was also a gallon container of white gas in the rear of the store and another one near the front counter.

The deputy state fire marshal testified that he believed the fire was intentionally set with a combustible liquid near the charcoal lighter fluid display and a rubber-backed throw rug.  He observed a "rainbow effect" and a burn pattern near the rug and in the nearby flooring.  The fire marshal did not find the same "rainbow effect" in the area between the charcoal lighter fluid display and the fire's origin, which he said suggested there was no connection between the two spots.  Even though he did not find any containers near the burn pattern, the fire marshal testified that fluid was likely squirted onto the rug and nearby flooring.

The Minnesota Bureau of Criminal Apprehension's forensic laboratory tested the rug and found that it contained an ignitable liquid, the definition of which includes materials such as paint thinners, charcoal lighter fluids, and mineral spirits.  Based on the type of materials that were inside the store, the fire marshal believed that the ignitable liquid found on the rug was charcoal lighter fluid.  While no such ignitable fluid was found on Seelye's clothing and shoes, the fire marshal testified that Seelye could have started the fire without getting any charcoal lighter fluid on himself.

Viewed in the light most favorable to the verdict, this evidence is sufficient to establish, excluding beyond a reasonable doubt any reasonable inference other than guilt, that Seelye possessed and used charcoal lighter fluid to start the fire.

Seelye next argues that the evidence was insufficient to prove that charcoal lighter fluid is a flammable material as required for both first-degree burglary and first-degree arson.  Minn. Stat. §§ 609.02, subd. 6, .561, subd. 3(a) (2000).  Flammable material is a "flammable or combustible liquid, a flammable gas, or a flammable solid."  Minn. Stat. § 609.561, subd. 3(b)(4) (2000).  A flammable liquid is "any liquid having a flash point below 100 degrees Fahrenheit and having a vapor pressure not exceeding 40 pounds per square inch (absolute) at 100 degrees Fahrenheit."  Id., subd. 3(b)(3).  A combustible liquid is a liquid with a flash point at or above 100 degrees Fahrenheit.  Id., subd. 3(b)(1).

The deputy state fire marshal testified that flammable liquids have flash points of 99 degrees or less.  He did not specify the flash point of a combustible liquid, nor did he state that charcoal lighter fluid met the statute's temperature requirement.  The fire marshal did, however, often refer to charcoal lighter fluid as a combustible liquid.  We conclude that this establishes, inconsistent with any other theory, that charcoal lighter fluid is a combustible liquid, and we therefore affirm Seelye's convictions of first-degree arson and first-degree burglary.

II

A burglary conviction will not be sustained when the building is not within the statutory definition.  State v. Edwards, 589 N.W.2d 807, 810 (Minn. App. 1999), review denied (Minn. May 18, 1999) (citing State v. Shore, 289 Minn. 302, 307, 183 N.W.2d 776, 780 (1971)).  A second-degree burglary occurs when a person "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 . . . if (a) the building is a dwelling."  Minn. Stat. § 609.582, subd. 2(a) (2000).  A dwelling is defined for the purposes of the burglary statute as "a building used as a permanent or temporary residence."  Minn. Stat. § 609.581, subd. 3 (2000).  Whether a building is classified as a "dwelling" under the statute is a legal determination that is reviewed de novo.  Edwards, 589 N.W.2d at 810.

The building contained an apartment that was completely furnished.  The owners testified that they rented the apartment during the winter months to ice fishermen.  They also rented it from the opening of fishing season in spring to Memorial Day weekend and expected someone to stay there the weekend following the fire.  Finally, the owners testified that they occasionally allowed friends and relatives to stay in the apartment. 

A temporary residence remains a dwelling only as long as the owner does not intend to abandon it permanently.  State v. Kowski, 423 N.W.2d 706, 710 (Minn. App. 1988).  In Edwards, we stated "a building is a dwelling . . . when used as a temporary or permanent residence in the immediate past as long as it has not been abandoned, as required by Kowski."  Edwards, 589 N.W.2d at 811 (emphasis added).  Edwards does not alter the result in Kowski, where we held that a vacation home maintained its status as a dwelling even though the owner returned to his permanent residence in the spring time and did not return until October that year.  Kowski, 423 N.W.2d at 707.  Buildings used on a seasonal basis maintain their status as dwellings even though they are left empty during off seasons.  Because the Wosikas did not have any intention of abandoning their seasonal apartment, we conclude that the apartment was a dwelling.

Because the adjoining apartment was a dwelling, the entire building meets the statutory definition of a dwelling.  See State v. Schotl, 289 Minn. 175, 179, 182 N.W.2d 878, 880 (1971) (concluding that a building that included both a mercantile area and living quarters was properly classified as a dwelling).  We therefore affirm Seelye's conviction of second-degree burglary.

III

Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  In his pro se brief, Seelye argues that arson statutes do not permit a conviction of both first- and second-degree arson for setting one fire.

Under Minnesota law, a person may not be convicted of both a charged crime and a lesser-included offense.  Minn. Stat. § 609.04, subd. 1 (2000).  "An included offense may be . . . (1) A lesser degree of the same crime . . . ."  Id.  Thus, because second-degree arson is a lesser-included offense of first-degree arson, Seelye may not be convicted of both crimes.  See Minn. Stat. §§ 609.561, .562 (defining elements of first-degree and second-degree arson).

Additionally, Minn. Stat. § 609.562, the second-degree arson statute, specifically refers to the destruction or damage of "any building not covered by section 609.561."  (Emphasis added.)  This court has held that "if a building subject to arson is a dwelling, section 609.561 applies to the criminal conduct and section 609.562 is inapplicable."  State v. Lewis, 385 N.W.2d 352, 356 (Minn. App. 1986), review denied (Minn. May 29, 1986).  While the defendant in Lewis was convicted of first- and second-degree arson, this court reversed the defendant's second-degree arson conviction because the building was a dwelling.  Id. 

Because second-degree arson is a lesser-included offense of first-degree arson, and because we have concluded that this building was a dwelling covered by section 609.561, so that section 609.562 is inapplicable, we conclude that Seelye's conviction of second-degree arson must be reversed.  While we agree with Seelye's argument in his pro se brief that he cannot be convicted of both first and second-degree arson, Seelye's other pro se arguments merit no relief.

IV

A finding of direct contempt, based on the trial court's firsthand observation of the contemnor's conduct, will be reversed only if the trial court acted "capriciously, oppressively, or arbitrarily."  In re Jenison, 265 Minn. 96, 103, 120 N.W.2d 515, 520, vacated on other grounds, 375 U.S. 14, 84 S. Ct. 63 (1963).  The contempt decision is subject to reversal only if the district court abused discretion.  Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996).

Direct contempt occurs in the immediate view and presence of the court and arises from one or more of the following acts:  "(1) Disorderly, contemptuous, or insolent behavior toward the judge while holding court, tending to interrupt the due course of a trial or other judicial proceedings; (2) A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the business of the court."  Minn. Stat. § 588.01, subd. 2 (2002).  Criminal contempt is defined, in part, as "disorderly, contemptuous, or insolent behavior, committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority."  Minn. Stat. § 588.20, subd. 2(1) (2002).

After the district court imposed Seelye's sentence, Seelye requested a short visit with his family.  The district court said that it would be left up to the jail and then adjourned the hearing.  To this Seelye responded, "F--kin'.  You don't give a mother f--ker a visit."  The district court found Seelye in contempt of court and sentenced him to another 60 days in jail.

Seelye first argues that a summary finding of direct criminal contempt violates his rights to a jury trial under the Minnesota Constitution.  The power of the court to summarily punish direct criminal contempt is well established. Minn. Stat. § 588.03 (2002); see State v. Tatum, 556 N.W.2d 541, 545 (Minn. 1996).  Therefore, Seelye's claim that he is entitled to a jury trial is without merit.

Seelye also states that the court did not make the statutorily required order explaining the facts that constituted the contemptuous conduct.  In cases of direct criminal conduct punished summarily, the court must issue an order "reciting the facts" and "adjudging the person proceeded against to be guilty of a contempt."  Minn. Stat. § 588.03 (2002).  The district court, however, included in the sentencing departure report the section of the transcript that contained the basis for Seelye's contempt charge.  We conclude that this is adequate to meet the statutory requirement.

Finally, Seelye argues that his statements do not rise to the level of criminal contempt.  Obscene remarks similar to the ones made by Seelye have been grounds for contempt charges.  See, e.g., State v. Lingwall, 637 N.W.2d 311, 313-14 (Minn. App. 2001) (affirming a finding of direct criminal contempt where the defendant stated, "This is f--king stupid").  Even though the sentencing hearing was emotionally charged, that does not excuse Seelye's obscene comments to the district court.  We therefore conclude that the district court did not abuse discretion in holding Seelye in direct criminal contempt.

V

Departures from presumptive sentences are reviewed under an abuse-of-discretion standard, but there must be "substantial and compelling circumstances" in the record to justify a departure.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (citations omitted).  The reasons for a departure must be stated on the record.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

Seelye first argues that the district court failed to notify him that it was contemplating a departure.  If the district court is considering a departure from the presumed sentence, the rules require that defense counsel be advised of the possibility.  Minn. R. Crim. P. 27.03, subds. 1(A)(4), 1(C).  The purpose of notification is to enable defense counsel to present arguments against such departure.  See Lankford v. Idaho, 500 U.S. 110, 122-24, 111 S. Ct. 1723, 1730-31 (1991).  This court reviews de novo the district court's compliance with this rule.  State v. Bock, 490 N.W.2d 116, 122 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).  But noncompliance with this rule does not warrant reversal absent prejudice.  Id.

Seelye did not object to the lack of notice at trial, and the presentence investigation report provided Seelye with adequate notice that an upward departure was likely because three of its four sentencing options contained upward departures.  We therefore conclude that any failure of the district court to provide notice was not prejudicial.

Seelye also argues that the district court abused discretion in imposing an upward departure because the court's findings lacked explanation, specificity, and detail, and the court's findings were not sufficient to support an upward departure.  Before sentencing Seelye, the court stated:

The Court finds that based on the criminal history that you are a career criminal, that you are a violent career criminal, that this crime is a major economic crime, that the crime was committed with the purpose of covering up and concealing other crimes that you were committing, and that a departure from the sentencing guidelines is appropriate under the circumstances.

 

The court then sentenced Seelye to an upward departure of 240 months.

While this case was on appeal, however, the United States Supreme Court re-examined the discretion given judges to depart upwards from presumptive sentences.  See generally Blakely v. Washington, 124 S. Ct. 2531 (2004) (holding that factors resulting in upward sentencing departures in the state of Washington must be found by a jury absent admission or waiver).  Although the parties have provided supplemental briefing on this issue, this court is reluctant to consider issues raised for the first time on appeal, even if prompted by newly released United States Supreme Court opinions.  See State v. Goebel, 654 N.W.2d 700, 702 (Minn. App. 2002) (stating general rule requiring issues be litigated first in district court); Johnson v. Multiple Misc. Items, 523 N.W.2d 238, 241 (Minn. App. 1994) (declining to decide for first time on appeal effect of recently released Dep't of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937 (1994), although discussing opinion).

Accordingly, we reverse and remand with directions to the district court to reconsider the sentence in light of Blakely and explicitly designate the conviction or convictions upon which sentence is being imposed.  The sentencing court is further directed to clarify the jail credit to which appellant is entitled.

            Affirmed in part, reversed in part, and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.