State v. Garcia-Gutierrez

WRIGHT, Justice

(concurring).

Based on our case law and the structure of Minn.Stat. § 609.582 (2012), I concur with the conclusion of the majority that the State is not required to prove knowledge of possession as an element of burglary in the first degree. I write separately, however, to express my concern that, under the unusual factual circumstances *527presented here, our conclusion does not serve the public policy objectives underlying Minn.Stat. § 609.582, subd. 1(b).

One of the express purposes of our criminal laws is “to protect the public safety and welfare by preventing the commission of crime through the deterring effect of the sentences authorized.” Minn.Stat. § 609.01, subd. 1(1) (2012). The Legislature clearly intended Minn.Stat. § 609.582, subd. 1(b), to deter the commission of burglary with a dangerous weapon, whether the perpetrator brought the weapon to the scene or picked up the weapon during the commission of the burglary. Presumably, the Legislature concluded that, when a burglar possesses a dangerous weapon, the burglar is more likely to harm law enforcement officers or innocent bystanders. Providing harsher punishments for burglary committed with a dangerous weapon, therefore, serves the State’s interest in protecting public safety. The Legislature also may have intended to deter burglars from stealing guns in an effort to prevent those guns from being used in other crimes, which similarly would promote the State’s interest in protecting public safety. But no threat of punishment can deter a person from acting unknowingly.

Here, prosecuting Garcia-Gutierrez and his co-defendants for burglary in the first degree without requiring evidence that they knew the safe contained a gun serves no public safety purpose. The defendants did not have access to the gun during the burglary, so the gun posed no risk of injury to others. And unless the defendants knew there was a gun in the safe, no threat of more severe punishment for stealing a weapon could have deterred them from stealing the safe. Therefore, although I agree that Minn.Stat. § 609.582, subd. 1(b), permits the State to prosecute these defendants for burglary in the first degree, I question the decision to do so in these unusual circumstances. In light of the other charges brought by the State,1 there is ample opportunity for the State to prosecute these defendants for their alleged intentional conduct.

. The State also charged these defendants with one count of burglary in the second degree, in violation of Minn.Stat. § 609.582, subd. 2(a)(1) (2012); two counts of theft, in violation of Minn.Stat. § 609.52, subds. 2(a)(1), 3(1), 3(3)(a) (2012); and one count of crime committed for the benefit of a gang, in violation of Minn.Stat. § 609.229, subds. 2, 3(a) (2012). Two of the defendants are charged with possession of a pistol by someone ineligible to possess a firearm, in violation of Minn.Stat. § 624.713 (2012).