State v. Lopez

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Justia Opinion Summary

At issue in this case was whether Defendant committed burglary when he entered another guest’s hotel room without that guest’s consent and committed a crime in that room.

The Supreme Court affirmed the judgment of the district court finding Defendant guilt of first-degree burglary. On appeal, Defendant argued that the State failed to prove the essential element of burglary that he entered a building without consent. Specifically, Defendant argued that, as a paying guest at the hotel, he had consent to enter the hotel building and, therefore, could not commit burglary while in the hotel. The Supreme Court disagreed, holding that when Defendant entered the victim’s hotel room he exceeded the scope of his consent to be present in the hotel building. Therefore, the evidence was sufficient to sustain Defendant’s conviction.

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STATE OF MINNESOTA IN SUPREME COURT A16-0947 Court of Appeals Gildea, C.J. Concurring, Lillehaug, Chutich, and McKeig, JJ. State of Minnesota, Respondent, vs. Filed: January 24, 2018 Office of Appellate Courts Lionel Lopez, Appellant. ________________________ Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, Saint Paul, Minnesota; and Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota, for respondent. Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota; and Cheryl Hood Langel, Brian J. Kluck, Special Assistant Public Defenders, McCollum, Crowley, Moshet, Miller & Laak, Ltd., Minneapolis Minnesota, for appellant. ________________________ SYLLABUS A hotel guest commits burglary when he enters another guest’s room without consent and commits theft in that room. Affirmed. 1 OPINION GILDEA, Chief Justice. The question presented in this case is whether appellant Lionel Lopez committed burglary when he entered another guest’s hotel room without consent and committed a crime in that room. Following a court trial, the district court found Lopez guilty of firstdegree burglary. A divided court of appeals affirmed Lopez’s conviction. Because we conclude that a hotel guest commits a burglary if he or she exceeds the scope of consent by entering another guest’s hotel room and committing a crime while in the other guest’s room, we affirm. FACTS This case arises from a theft at a motel in Willmar. 1 On the night of the theft, Z.D. was sharing a room with a co-worker. The co-worker left the room while Z.D. took a shower. Because they had only one key to their room, Z.D. left the door opening onto the hallway unlatched while he showered. When Z.D. finished his shower, he discovered that his cell phone and wallet were gone, and he called the police. 1 The conduct at issue here occurred at the Super 8 Motel in Willmar, Minnesota. A motel traditionally has rooms that open directly onto a parking lot, with no common, shared space besides the lobby on the property. See American Heritage Dictionary of the English Language 1178 (3d ed. 1996). In contrast, a hotel traditionally has rooms that open into a common or shared space within the building. Motel, Wikipedia (last updated Sep. 5, 2017 7:59 AM), https://en.wikipedia.org/w/index.php?title=Motel&oldid=799038666 [opinion attachment]. The Super 8 Motel in Willmar has the layout of a hotel and to avoid confusion, we refer to it as a hotel. 2 The State’s evidence established that on the night of the theft, Lopez was also a guest at the hotel and was seen wandering the halls and checking hotel room doors to see if they were locked. When he came to Z.D.’s room, Lopez found the door unlatched and entered the room. Lopez took a cell phone and a wallet containing $42 in cash that he found in Z.D.’s room. Following an investigation, the State charged Lopez with first-degree burglary, Minn. Stat. § 609.582, subd. 1(a) (2016), and theft, Minn. Stat. § 609.52 (2016). Lopez waived his right to a jury trial, and following a bench trial, the district court found Lopez guilty of both offenses. On appeal, Lopez argued that the State failed to prove an essential element of burglary: that he entered a building without consent. 2 Specifically, Lopez contended that although a hotel is unquestionably a building, the individual rooms within it are not separate buildings. Lopez argued that, because he was a paying guest at the hotel, he had consent to enter the hotel building and therefore could not commit burglary while in the hotel. The State disagreed with Lopez’s interpretation of the burglary statute and argued that an earlier case addressing the scope of consent, State v. McDonald, 346 N.W.2d 351 (Minn. 1984), controlled. A divided court of appeals affirmed Lopez’s burglary conviction. State v. Lopez, 897 N.W.2d 295, 299 (Minn. 2017). We granted Lopez’s petition for review. 2 Lopez is not appealing his theft conviction. 3 ANALYSIS On appeal, Lopez argues that his burglary conviction should be reversed because the evidence is insufficient. We use the same standard of review to evaluate the sufficiency of the evidence in bench trials and jury trials. State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011). We will not overturn a verdict, “ ‘if, giving due regard to the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense.’ ” State v. Chavarria-Cruz, 839 N.W.2d 515, 519 (Minn. 2013) (quoting State v. Leake, 699 N.W.2d 312, 319 (Minn. 2005)). In determining whether the evidence presented is sufficient, “it is often necessary to interpret a criminal statute.” State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017). Lopez grounds his sufficiency-of-the-evidence argument in the first-degree burglary statute, and he contends that the State failed to prove an essential element of first-degree burglary. In order to prove that Lopez committed first-degree burglary, the State must prove, among other things, that Lopez “enter[ed] a building without consent and with intent to commit a crime, or enter[ed] a building without consent and commit[ed] a crime while in the building.” Minn. Stat. § 609.582, subd. 1 (2016). A building, in turn, is defined as “a structure suitable for affording shelter for human beings including any appurtenant or connected structure.” Minn. Stat. § 609.581, subd. 2 (2016). Lopez argues that he did not commit burglary when he entered Z.D.’s hotel room because, as a guest of the hotel, he had permission to be in the hotel building. He contends that Z.D.’s hotel room was not a separate building but was rather part of the hotel building, 4 a building in which Lopez had consent to be. Lopez also argues that a hotel room cannot be a separate building because that would be contrary to the common understanding of what the word “structure” means. Instead, he claims that a hotel room is merely a connected structure located within the overall hotel building, rather than a separate building. The State disagrees with Lopez’s interpretation, and contends that Z.D.’s hotel room was a separate building under the burglary statute. Because “structure” means anything assembled out of component parts, and a hotel room is a structure suitable for affording shelter to human beings, the State argues that each hotel room is a separate building. Independent of its statutory interpretation argument, the State urges us to affirm Lopez’s conviction based on our analysis in State v. McDonald, 346 N.W.2d 351 (Minn. 1984). It is not necessary to resolve the statutory interpretation issue the parties present in this case. 3 Even if we assume that Lopez’s interpretation is correct—that a hotel room is 3 The concurrence does not resolve the statutory question the parties present either. Rather than answer the question the parties present—whether a hotel room is a “building” under Minn. Stat. § 609.581, subd. 2—the concurrence applies a different provision in the statute. Specifically, the concurrence interprets the phrase “enters a building without consent” in Minn. Stat. § 609.582, subd. 1. Even if it were proper to reach an issue the parties do not raise, our precedent does not support the concurrence’s interpretative analysis. After concluding that the phrase it interprets is ambiguous, the concurrence looks to the canons of construction in an effort to resolve the ambiguity. But the canons the concurrence cites do not support the concurrence’s proposed resolution of the ambiguity. The concurrence cites the whole-statute canon and then looks to the second-degree burglary statute, Minn. Stat. § 609.582, subd. 2. Because the crime of second-degree burglary is included in the same statute as first-degree burglary and second-degree burglary includes “portions” of a building, the concurrence concludes that first-degree burglary must 5 not a separate building under the definition of building in Minn. Stat. § 609.581, subd. 2— we agree with the State that McDonald is dispositive. The defendant in McDonald entered a drugstore during business hours, but at a time when the pharmacy inside was closed. Id. at 352. He went into a storage area “that was off limits to the general public and from there tried to gain access to the locked pharmacy for the purpose of stealing controlled substances.” Id. Under the statute in effect at that time, a person committed a burglary if he or she, among other things, “enter[ed] a building without consent . . . [and] with the intent to commit a crime in it.” Minn. Stat. § 609.58, subd. 2 (1982). We affirmed McDonald’s burglary conviction. McDonald, 346 N.W.2d at 352. In so doing, we did not decide if the storage room constituted a separate building under the include “portions” of a building as well. The problem with this analysis is that first-degree burglary is defined differently than second-degree burglary, and our precedent holds that “ ‘when different words are used in the same context, we assume that the words have different meanings’ ” State v. Nelson, 842 N.W.2d 433, 439 (Minn. 2014) (quoting Dereje v. State, 837 N.W.2d 714, 720 (Minn. 2013)) (citing Transp. Leasing Corp. v. State, 199 N.W.2d 817, 819 (Minn. 1972)). The concurrence also turns to the former burglary statute, which as the concurrence notes, included “portions of such structures as are separately occupied.” Because the old statute included this phrase, the concurrence inserts the phrase back into the amended statute. But when the Legislature amends a statute, we presume that the Legislature changed the law. Braylock v. Jesson, 819 N.W.2d 585, 588 (Minn. 2012). This presumption can be overcome only if there is evidence that the Legislature did not intend to change the law. See State v. Vredenberg, 264 N.W.2d 406, 407 (Minn. 1978) (citing the Advisory Committee Comment to the amended burglary statute as “ma[king] clear” that “[t]he aim of the drafters of the revised statute was to streamline the definition, not to omit certain structures from the protection of the statute”). As the concurrence acknowledges, there is no expression here from the Legislature that overrides the presumption. Moreover, the substantive changes the concurrence cites raise doubts about the concurrence’s conclusion that the amendments to the burglary statute were mere “streamlining.” 6 burglary statute. Instead, we held that the burglary was complete once McDonald exceeded the scope of his license to be present in the drugstore by entering a nonpublic area of the store—the storage room—with the intent to commit a crime. Id. We recognized that consent to enter a building may be limited to specific areas. Accordingly, a person enters a building without consent under the burglary statute when he or she enters a portion of a building where they do not have permission to be. Consistent with our analysis in McDonald, because Lopez entered a space where he did not have permission to be—Z.D.’s room—and committed a crime in that room, he was guilty of burglary. Lopez argues that McDonald is distinguishable because the burglary statute defines “building” differently now than it did when McDonald was decided. The State argues that the difference in the statutory definition of “building” is not relevant. The State contends that McDonald simply established a rule that if a person exceeds the scope of the consent and then commits a crime, it is a burglary. We agree with the State. Lopez is correct that the prior version of the burglary statute specifically defined a building to be both a structure suitable for affording shelter for human beings and a separately occupied portion of such a structure. The current version of the statute uses different language to define “building.” Compare Minn. Stat. § 609.58, subd. 1(2) (1982) (“ ‘Building’ includes a dwelling or other structure suitable for affording shelter for human beings . . . and includes portions of such structure as are separately occupied.”) (emphasis added), with Minn. Stat. § 609.581, subd. 2 (2016) (“ ‘Building’ means a structure suitable for affording shelter for human beings including any appurtenant or connected structure.”). This difference is immaterial to the continued validity of McDonald for two reasons. 7 First, the provision in the definition of building that “include[d] portions of such structure as are separately occupied,” Minn. Stat. § 609.58, subd. 1(2) (1982), was not at issue in McDonald. McDonald committed a burglary when he entered a nonpublic storage area of a drugstore, without consent and with the intent to commit a crime. See McDonald, 346 N.W.2d at 352. This storage area was not a separately occupied portion of a structure suitable for affording shelter for human beings, it was a part of such a structure—the drugstore. Our holding in McDonald did not depend in any way on the fact that the statutory definition of “building” at the time included a separately occupied portion of a structure. See id. Instead of focusing on the nature of the building in McDonald, we focused on consent. We held “that the burglary was complete once defendant exceeded the scope of the consent given him and other members of the public and entered the storage room” with the intent to commit a crime. Id. We recognized that a building open to the public may still have portions of it that are not open to the public and that a person enters a building without consent if he or she enters a portion of a building that is not open to the public. See id. Second, the portions of the burglary statute at issue in McDonald have remained the same since that case was decided, with only minor stylistic changes. Today, what constitutes “enter[ing] a building without consent” means exactly what it did in 1983. Compare Minn. Stat. § 609.581, subd. 4 (2016), with Minn. Stat. § 609.58, subd. 2 (1982). As a result, based on McDonald, if a person enters a structure that is a building under the statutory definition, and exceeds the scope of consent with the intent to commit a crime 8 therein, he or she would commit a burglary under either the previous or present version of the statute. Applying the rule from McDonald to the facts of this case, Lopez undeniably had the hotel’s consent to be present in the hotel’s common areas and the room he rented for the night, but he did not have consent to enter other, non-public areas of the hotel. 4 When Lopez entered Z.D.’s hotel room, he exceeded the scope of his consent to be present in the hotel building. Lopez therefore entered a building without consent when he entered Z.D.’s hotel room, and then when he stole Z.D.’s property while in Z.D.’s room, he committed a burglary. We therefore hold that the evidence was sufficient to sustain Lopez’s conviction. CONCLUSION For the foregoing reasons, we affirm the decision of the court of appeals. Affirmed. 4 Lopez acknowledged in his brief that he “had consent to enter the motel in which he was staying as a guest, but not to enter all of the separate rented rooms within that motel.” 9 CONCURRENCE LILLEHAUG, Justice (concurring). I agree with the opinion of the court that Lionel Lopez committed a burglary when he entered another guest’s hotel room without that guest’s consent. I write separately and respectfully, however, because I have difficulty with the court’s exclusive reliance on State v. McDonald, 346 N.W.2d 351 (Minn. 1984). Certainly McDonald is helpful, but I would take the next step and apply our usual principles of statutory interpretation. Applying those principles, I conclude that the phrase “enters a building without consent” is ambiguous, but that the Legislature intended that the burglary statute cover Lopez’s conduct: unconsentedto entry of a portion of a building with intent to commit a crime. I. The first-degree burglary statute, in relevant part, makes it a crime for a person to “enter[] a building without consent and with intent to commit a crime.” Minn. Stat. § 609.582, subd. 1 (2016). “Enters a building without consent” has three statutory definitions: (1) “to enter a building without consent of the person in lawful possession,” (2) “to enter a building by using artifice, trick, or misrepresentation to obtain consent to enter from the person in lawful possession,” or (3) “to remain within a building without the consent of the person in lawful possession.” Minn. Stat. 609.581, subd. 4 (2016). In this case, Lopez entered one portion of the building with consent, but then entered another portion of the building without consent. The question before us is: does this factual situation satisfy the elements of the crime of burglary? C-1 Relying solely on McDonald, the majority says yes. McDonald upheld the burglary conviction of a defendant who entered a drugstore open to the public but who then, “without consent, entered a closed storage room that was off limits to the general public.” 346 N.W.2d at 352. Following is the entirety of McDonald’s discussion relative to the issue before us today: “We uphold the conviction on the ground that the burglary was complete once 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.” Id. McDonald is useful precedent, but has precious little, if any, analysis. 1 It would have been helpful had McDonald explained its rationale, because it was applying the facts to a different version of the burglary statute. The burglary statute in effect when McDonald committed his burglary contained a different definition of “building” than today’s statute. The definition then in effect provided that “building” “includes portions of such structure as are separately occupied.” Minn. Stat. § 609.58, subd 1(2) (1982). The current statute’s definition of “building” no longer contains that clear language. See Minn. Stat. § 609.581, subd. 2 (2016). In my view, McDonald alone does not unequivocally answer the question before us. Therefore, I resort to principles of statutory interpretation. 1 The appeal, filed in December 1982, came directly to us from the district court, rather than from the court of appeals. The Minnesota Court of Appeals did not begin its work until November 1, 1983. Minn. Stat. § 480A.01 (2016). McDonald was considered on March 19, 1984, and the three-paragraph opinion was filed on April 6, 1984, less than three weeks later. The single paragraph discussing the burglary issue consists of three sentences: the first states the facts, the second rejects an argument by the State (not relevant here), and the third is the holding. C-2 II. The statutory definition of “enters a building without consent” is perfectly clear when applied to a single-use building or a single-family dwelling. If the person in lawful possession of a single-family home consents to another person entering the home, that person cannot subsequently be convicted of burglarizing the home. The non-consent element would be lacking. But the meaning of “enters a building without consent” becomes more complicated when we consider buildings that contain multiple, separate portions. After all, the owner or manager of an apartment building or hotel is not considered to be “in lawful possession” of the tenant-occupied units contained within that larger structure. It is the lawful occupant of a particular unit who lawfully possesses that unit, and thus can consent (or not consent) to another person entering that unit. See, e.g., Stoner v. California, 376 U.S. 483, 489 (1964) (“At least twice [the Supreme] Court has explicitly refused to permit an otherwise unlawful police search of a hotel room to rest upon consent of the hotel proprietor . . . . In Lustig [v. United States, 338 U.S. 74 (1949)] the manager of a hotel allowed police to enter and search a room without a warrant in the occupant’s absence, and the search was held unconstitutional.”); Abel v. United States, 362 U.S. 217, 241 (1960) (concluding that the hotel only had “the exclusive right to [a hotel room’s] possession” after the occupant had vacated the room); Thomas v. Cohen, 304 F.3d 563, 574 (6th Cir. 2002) (“[T]enants in lawful possession of a home or apartment generally have a legitimate expectation of privacy by virtue of having a property interest in a particular piece of real estate.”). C-3 In this context, there are two reasonable interpretations of the phrase “enters a building without consent.” 2 On the one hand, as Lopez urges, “enters a building without consent” could mean that once a person has consent to enter the building, the person cannot commit a burglary therein, even if that person enters a separate portion of the building without the consent of the person in lawful possession of that portion. As Lopez argues, the current statute does not include any references to “portions.” On the other hand, “enters a building without consent” could be read as necessarily including the entering of a separate portion of a building without consent. This reading recognizes the modern reality that buildings often consist of multiple units or subdivisions that are put to different uses and are possessed by different occupants. Under this interpretation, if Lopez entered the hotel lobby with consent, he can nevertheless be guilty of first-degree burglary by entering a hotel room without the consent of the occupant. Because there are two reasonable readings of the phrase “enters a building without consent,” it is ambiguous. See State v. Nelson, 842 N.W.2d 433, 443 (Minn. 2014). Therefore, I turn to the canons of construction to determine which interpretation is more reasonable. 2 The holding of the court of appeals majority was based on a third interpretation— that a room is a separate “building.” The court of appeals dissent disagreed. The opinion of our court does not reach that legal issue. Neither does this concurrence. C-4 III. Several canons of construction are useful here. I first consider “the mischief to be remedied,” “the object to be obtained,” and the “consequences of a particular interpretation.” Minn. Stat. § 645.16 (2016). Plainly, the purpose of the burglary statute is to prevent people from unlawfully entering buildings to commit crimes. The statute further singles out the burglary of a dwelling as first-degree burglary, suggesting that the Legislature thought it was particularly important to secure people while they are residing in their “permanent or temporary residence.” Minn. Stat. § 609.581, subd. 3 (2016). Courts have recognized that the dignity interest a person has while residing in a hotel room or apartment is tantamount to the dignity interest one has while residing in a house. See, e.g., City of Memphis v. Greene, 451 U.S. 100, 127 (1981) (“[A] man’s home is his castle. The interest in privacy has the same dignity in a densely populated apartment complex . . . or in an affluent neighborhood of single-family homes.”); United States v. Ramos, 12 F.3d 1019, 1023 (11th Cir. 1994) (“Use of a motel room for lodging provides the same expectation of privacy as does a home.”). Lopez’s position—that once you enter a building with consent you cannot commit a burglary anywhere therein—would make it difficult to secure people who reside in hotel rooms or apartments, thereby not remedying the “mischief,” undermining the “object to be attained,” and producing harmful consequences. The only way for the burglary statute to be workable in the context of multi-unit buildings is to conclude that the phrase “enters a building without consent” necessarily includes unconsented-to entry into separate portions of the building. C-5 A second useful canon to apply in this case is the whole-statute canon. See State v. Riggs, 865 N.W.2d 679, 683 (Minn. 2015). Here, a strong clue is provided in the very same burglary statute, specifically the subdivision regarding second-degree burglary, Minn. Stat. § 609.582, subd. 2 (2016). A person commits second-degree burglary if the person “enters a building without consent and with intent to commit a crime . . . [if] the portion of the building entered contains a banking business . . . [or if] the portion of the building entered contains a pharmacy . . . .” Minn. Stat. § 609.582, subd. 2(a)(2)–(3) (emphasis added). These references to “portions” suggest that the word “building” includes separate areas within that building. Third, when interpreting an ambiguous statute we may also consider “the circumstances under which [the statute] was enacted” and “the former law.” Minn. Stat. § 645.16. We have stated that “[t]he Legislature’s amendment of a statute creates a presumption that the Legislature intended to change the law.” Braylock v. Jesson, 819 N.W.2d 585, 588 (Minn. 2012). But “[t]he presumption is rebutted . . . if the Legislature intended only to clarify the law.” Id. Whether an amendment is a substantive change or just a clarification is a question of statutory interpretation, and requires us to “compare the language of the pre-amendment and post-amendment versions of [the] statute.” Id. At the time McDonald committed his crime, the statute defined “building” as follows: “ ‘Building’ includes a dwelling or other structure suitable for affording shelter for human beings or appurtenant to or connected with a structure so adapted, and includes portions of such structure as are separately occupied.” Minn. Stat. § 609.58, subd 1(2) C-6 (1982) (emphasis added). The amended definition (effective August 1, 1983) provides that: “ ‘Building’ means a structure suitable for affording shelter for human beings including any appurtenant or connected structure.” Minn. Stat. § 609.581, subd. 2 (1984). Did the removal of the “portions” language necessarily mean that the Legislature intended to place the entering of a separately occupied portion of a building without consent outside the reach of the statute? I think not. We faced a similar issue involving the burglary statute in State v. Vredenberg, 264 N.W.2d 406 (Minn. 1978). The question in Vredenberg was whether houseboats were included within the statutory definition of “building” in the burglary statute. Id. at 406. Vredenberg’s argument was that, because the pre-1963 burglary statute expressly defined “building” as including a “vessel,” but the then-current version of the statute did not specifically include “vessel,” a houseboat could not be burglarized. Id. at 407. We rejected Vredenberg’s argument, and held that: The fact that Minn. Stat. § 609.58, subd. 1(2), does not specifically include ‘vessel’ within the definition of ‘building’ does not mean that the legislature intended to exclude boats . . . . The aim of the drafters of the revised statute was to streamline the definition, not to omit certain structures from the protection of the statute. Id. Granted, the streamlining we recognized in Vredenberg was documented by detailed legislative history, for which there is no 1983 counterpart. But we do know that, when the Legislature changed the burglary statute in 1983, only a few years after Vredenberg, the Legislature’s intent was to strengthen, not weaken, the statute: it doubled the maximum sentence and fine for the burglary of an occupied dwelling. Compare Minn. Stat. § 609.58, C-7 subd. 2(2) (1982) (allowing a person to be sentenced “[t]o imprisonment for not more than ten years or to payment of a fine of not more than $10,000, or both, if the building entered is a dwelling and another person not an accomplice is present in it”), with Act of June 14, 1983, ch. 321, § 2, 1983 Minn. Laws 2058, 2059 (allowing a person to be sentenced “to imprisonment for not more than 20 years or to payment of a fine of not more than $20,000, or both, if . . . the building is a dwelling and another person not an accomplice is present in it”). 3 It strikes me as implausible that, at the same time the Legislature made the statute stricter on burglaries of dwellings, it would have decriminalized (by changing the definition of “building”) the unconsented-to entry of apartments and hotel rooms. Likely the definitional amendment was not a new, irrational carve-out from the statute’s historic breadth, but simply more streamlining. Considering these canons together, the better reading of the phrase “enters a building without consent” is that the statute extends to entering portions of the building— in this case, a hotel room—without the consent of the occupant. That reading is also consistent with McDonald. Therefore, Lopez committed first-degree burglary when, without consent and with the intent to commit a crime, he entered someone else’s hotel room. 3 The Legislature continued to strengthen the burglary statute in subsequent sessions. In 1984, the maximum fine for burglarizing a dwelling was increased to $35,000. See Act of May 2, 1984, ch. 628, art. 3, § 6, 1984 Minn. Laws 1576, 1661. In 1986, a mandatory minimum sentence was added for burglary of an occupied dwelling. See Act of Apr. 1, 1986, ch. 470, § 19, 1986 Minn. Laws 1070, 1075. C-8 CHUTICH, Justice (concurring). I join in the concurrence of Justice Lillehaug. MCKEIG, Justice (concurring). I join in the concurrence of Justice Lillehaug. C-9