UNPUBLISHED OPINION
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
HOOTEN, Judge.
Appellant challenges his second-degree burglary conviction, arguing that the jury instructions impermissibly directed a verdict as to one of the elements of the offense. We reverse and remand for a new trial.
FACTS
Appellant Kenneth Edgar Staeheli was charged with second-degree burglary, theft of movable property, and theft of a motor vehicle arising out of an incident on the night of October 21, 2012. A two-day jury trial was held in August 2014, and the following facts were established at trial.
Staeheli's brother and sister-in-law resided in Florida during the winter and resided in their Eagan house for the rest of the year. In late September or early October of 2012, Staeheli's brother and sister-in-law left Minnesota for the winter. The homeowners left their son in charge of the house while they were away. Their son was not staying at the house, but he stopped by frequently. Additionally, the homeowners had tenants residing in a separate, lower level of the house. One of the tenants testified that the lower level had a separate entrance and had no access to the rest of the house.
On the night of October 21, 2012, the tenant heard footsteps upstairs. When he went outside, the tenant witnessed someone driving the homeowners' 2001 Cadillac DeVille out of the garage. Knowing that the homeowners were in Florida for the winter, the tenant called their son, who instructed him to call the police. The police were informed that someone had entered the home, taken some personal items and clothing, and driven away in the car. Police eventually recovered the vehicle in Staeheli's auto shop in Forest Lake. Inside the vehicle police found the missing items and clothing.
Staeheli testified that he believed he had permission from his brother and sister-in-law to enter their Eagan home and take their car. He further testified that the allegedly stolen items had already been in the car when he went to retrieve it. Staeheli stated that he had lived with his brother on a number of occasions and had frequently been allowed to drive his brother's cars. On the night in question, Staeheli admitted to entering both the garage and the house, but maintained that he entered the house only for the purpose of grabbing a snack and using the restroom. Staeheli's brother and sister-in-law refuted Staeheli's testimony, stating that although Staeheli had previously lived with them, he had not been given permission to enter the house or take the car on October 21, 2012. Additionally, Staeheli's sister-in-law testified that the missing items were not in the backseat of the car when they left for Florida and that there was evidence that someone had ransacked the house by going through her drawers and closet on the night the car was taken.
The state requested a modification to the standard jury instructions for second-degree burglary to include the sentence, "[A]n attached garage is included in the definition of a dwelling." Staeheli objected on the grounds that the addition was an incorrect statement of the law, but over his objection the district court granted the request for modification. The district court instructed the jury in part:
The elements of burglary in the second degree are first, the [d]efendant entered a building without the consent of the person in lawful possession. A building is a structure suitable for affording shelter for human beings including any adjacent, appurtenant or connected structure.
Second, the building entered was a dwelling. A dwelling is a building used as a permanent or temporary residence. An attached garage is included in the definition of a dwelling. Third, the [d]efendant committed the crime of theft while in the building. Fourth, the [d]efendant's act took place on or about October 21, 2012, in Dakota County.
(Emphasis added.) The jury found Staeheli guilty on all three counts. Staeheli was sentenced, and this appeal followed.
DECISION
I.
On appeal, Staeheli challenges only his second-degree burglary conviction. He argues that by instructing the jury that "[a]n attached garage is included in the definition of a dwelling," the district court improperly directed a verdict as to an element of second-degree burglary, requiring reversal and a new trial. Before we address the merits of this contention, however, we must first decide whether this argument is properly preserved for appeal. "[Appellate courts] generally will not decide issues which were not raised before the district court, including constitutional questions of criminal procedure." Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). However, "[s]tructural errors always invalidate a conviction whether or not a timely objection to the error was made." State v. Brown, 732 N.W.2d 625, 630 (Minn. 2007). In the present case, Staeheli objected to the jury instruction on the grounds that the additional language was an incorrect statement of the law, but failed to object on the grounds that the additional language constituted a directed verdict. Because we ultimately conclude that the additional language constituted a directed verdict, and that this error is structural, Staeheli's failure to object on that basis does not preclude our review.
II.
A district court is allowed "considerable latitude in the selection of language for jury instructions." State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). We view jury instructions in their entirety to determine whether they fairly and adequately explain the law. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). If the instructions, read as a whole, "correctly state[] the law in language that can be understood by the jury," there is typically no reversible error. See State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). But, a jury instruction that materially misstates the law is error. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). We review de novo whether a jury instruction correctly states the law. State v. Lory, 559 N.W.2d 425, 427-28 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).
The district court may not direct a verdict for the prosecution in a criminal case, no matter how conclusive the evidence. United Bhd. of Carpenters & Joiners of Am. v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782 (1947). Further, the district court "may not instruct the jury that any of the elements of the offense have been proven beyond a reasonable doubt, absent a judicial admission by the defendant of any of the elements." State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984). To determine whether the district court directed a verdict, we must decide whether the district court's ruling "represents a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354-55 (1977) (involving judgments of acquittal).
Minnesota law provides 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" is guilty of second-degree burglary if "the building is a dwelling." Minn. Stat. § 609.582, subd. 2(a)(1) (2012). "Building" is defined as "a structure suitable for affording shelter for human beings including any appurtenant or connected structure." Minn. Stat. § 609.581, subd. 2 (2012). "Dwelling" is defined as "a building used as a permanent or temporary residence." Id., subd. 3 (2012). Thus, for the jury to return a verdict of guilty in a second-degree burglary case, it must find that (1) the defendant entered a building with intent to commit a crime or committed a crime while in the building, and (2) the building entered was a dwelling.
Staeheli cites State v. Moore in support of his argument that the district court's jury instructions impermissibly directed a verdict as to an element of the offense. 699 N.W.2d 733 (Minn. 2005). In Moore, a first-degree assault case, the state had to prove great bodily harm, which included an injury that "`causes a permanent or protracted loss or impairment of the function of any bodily member or organ.'" Id. at 736-37 (quoting Minn. Stat. § 609.02, subd. 8 (2004)). The district court instructed the jury that "[t]he loss of a tooth is a permanent loss of the function of a bodily member." Id. at 736. On review, the supreme court explained that whether a particular injury constituted great bodily harm was a question of fact for the jury. Id. at 737. The supreme court concluded that
instructing the jury that the loss of a tooth is the permanent loss of the function of a bodily member, in effect, instructed the jury that the definition of "great bodily harm" was established. Thus, the instruction removed from consideration by the jury the question of whether the loss of a tooth constitutes "great bodily harm."
Id. Staeheli contends that this case is like Moore because the district court removed from the jury's consideration the "dwelling" element of second-degree burglary by including the additional language and, in doing so, directed a verdict as to that element.
As in Moore, by instructing the jury that an attached garage is included in the definition of a dwelling immediately after instructing the jury that it had the duty of finding whether the building entered was a dwelling, the district court essentially asked and answered a question of fact that belonged to the jury. The jury needed to decide, as a matter of fact, whether Staeheli entered a dwelling—i.e., whether he entered a "building used as a permanent or temporary residence." Minn. Stat. § 609.581, subd. 3. We conclude that by adding the state's requested language to the second element of the instruction, the district court removed from the jury's consideration a question of fact and thereby erroneously directed a verdict as to an element of the offense.1
III.
Having held that the instruction was error, we now address the state's argument that the error was harmless beyond a reasonable doubt. The state argues that, even if the district court erred, the error was harmless because Staeheli admitted at trial that he entered both the house and the garage on the night in question, leaving the jury little to decide as to whether the dwelling element was met. Staeheli counters that the jury instruction constituted structural error not subject to harmless error review.
Generally, there are two types of error that occur during trial: trial error and structural error. State v. Kuhlmann, 806 N.W.2d 844, 850-51 (Minn. 2011). Trial errors are errors that occur "during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether [their] admission was harmless beyond a reasonable doubt." Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 1264 (1991). "Most errors are trial errors, which are reviewed under a prejudicial-impact analysis to determine whether they require reversal and a new trial." State v. Watkins, 840 N.W.2d 21, 25-26 (Minn. 2013). By comparison, structural errors are "defects in the constitution of the trial mechanism, which defy analysis by `harmless-error' standards." Fulminante, 499 U.S. at 309, 111 S. Ct. at 1265. When such errors occur, "[t]he entire conduct of the trial from beginning to end is obviously affected," and "no criminal punishment may be regarded as fundamentally fair." Id. at 309-10, 111 S. Ct. at 1265 (quotation omitted). As such, structural errors require "automatic reversal of a conviction," even absent a showing of prejudice. Kuhlmann, 806 N.W.2d at 851.
In Rose v. Clark, the United States Supreme Court stated in dicta that "harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury." 478 U.S. 570, 578, 106 S.Ct. 3101, 3106 (1986). The Court further wrote that the state "cannot contend that the deprivation [of judgment of each element by the jury] was harmless because the evidence established the defendant's guilt; the error in such a case is that the wrong entity judged the defendant guilty." Id.
In Moore, the Minnesota Supreme Court held that when a jury instruction "deprives the defendant of the right to have the jury determine that every element of the charged offense has been established, harmless error analysis is not applicable." 699 N.W.2d at 738. In so holding, the Moore court determined that the proper resolution was to reverse and remand for a new trial. Id.2
Here, the district court erred in directing a verdict as to an element of the charged offense, thereby depriving Staeheli of his right to have a jury determine each element of the offense beyond a reasonable doubt. Because directing a verdict for the prosecution on an element of the offense is structural error, the error is not subject to harmless error analysis. Accordingly, we reverse Staeheli's second-degree burglary conviction and remand for a new trial.
Reversed and remanded.
