This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Ryan Allen Vollmer,
Crow Wing County District Court
File No. K0972761
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Donald F. Ryan, Crow Wing County Attorney, Crow Wing County Courthouse, 326 Laurel Street, Brainerd, MN 56401 (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.
A search of appellant Ryan Allen Vollmer’s home pursuant to a warrant resulted in the recovery of stolen property. Appellant was convicted and sentenced on four counts of receiving stolen property. The district court determined that appellant’s four convictions were not part of a single behavioral incident and that the Hernandez method of calculating concurrent sentences applied. We affirm.
On December 22, 1997, police officers searched appellant Ryan Allen Vollmer’s home pursuant to a search warrant. The officers recovered stolen property, including seven different firearms that they could link to several different burglaries in the area.
Appellant was charged with seven separate counts of receiving stolen property (a firearm) in violation of Minn. Stat. §§ 609.53 (1996) and 609.52, subd. 3(1) (Supp. 1997). Under a plea agreement, appellant submitted an Alford plea to four counts of receiving stolen property (Counts II, III, IV, and V). At the plea hearing, appellant stipulated that the state had evidence to show that the four firearms were taken from four different homes and individuals during four separate burglaries. The parties submitted to the district court the issue of whether the four counts of receiving stolen property constituted a single behavioral incident. The district court determined that the offenses did not constitute a single behavioral incident and sentenced appellant under Hernandez to presumptive concurrent terms of 15 months, 18 months, 21 months, and 24 months. This appeal follows.
“In determining whether a defendant’s conduct constitutes more than one offense under section 609.035, the court must first determine whether the conduct constituted a single behavioral incident.” Effinger v. State, 380 N.W.2d 483, 488 (Minn. 1986). Determining whether two or more offenses are part of a single behavioral incident requires a factual analysis. State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983). This court applies a clearly erroneous standard when reviewing the district court’s determination on whether a single behavioral incident exists. Effinger, 380 N.W.2d at 489.
Appellant argues that, because he was never charged in any of the burglaries or thefts of the stolen property and because there was no evidence that he received the stolen property at different times or from different individuals, the four counts of receiving stolen property constitute a single behavioral incident.
The Minnesota Supreme Court has held that “[I]ntentional possession of property stolen at different times and places from different owners is not one behavioral incident.” State v. Wybierala, 305 Minn. 455, 455, 235 N.W.2d 197, 197-98 (1975). In Wybierala, defendant was convicted of theft. Id. at 456, 235 N.W.2d at 198. The court nonetheless addressed the issue of
whether defendant’s possession of stolen property at a given point in time is a single behavioral incident regardless of the fact that the different items of property making up the total in defendant’s possession were taken from different owners at different times and from different places, and were obtained on different occasions by the defendant from the persons who stole them.
Id. at 457-458, 235 N.W.2d at 199 (emphasis added). The supreme court defined a single behavioral incident in a stolen-property case to be either when a defendant (1) knowingly accepts stolen property “at one time and place from the same thief or thieves without regard to distinctions of ownership or time and place of theft”; or (2) retains without authority “possession of property having a common ownership, regardless of differences in the time and place of the theft or in the identity of the thieves.” Id. at 458, 235 N.W.2d at 199 (emphasis added). The court applied the test and found that the “thefts which yielded the stolen goods were separate and distinct [and that] [t]he owners of the goods stolen were not the same.” Id. Thus, the possession at one point in time of property stolen at different times from different individuals is not a single behavioral incident. Id.
Appellant argues that Wybierala is distinguishable because here appellant was not charged with the underlying theft and there are no facts to support the theory that he received the stolen property at different times. But the court in Wybierala did not rely on these two facts in concluding that “possession of stolen property at a given point in time” is not a single behavioral incident. The court instead relied on the fact that the underlying thefts were separate and distinct and the owners of the stolen property were different. The court’s analysis focused on when the property was taken and not when it was received.
In State v. Halverson, this court followed the supreme court’s analysis in Wybierala and concluded:
The stolen property here involved separate thefts from different victims at different times. The fact that Halverson had possession of the items at the same time when a search warrant was later executed does not change the offenses into a single behavioral incident for purposes of Minn. Stat. § 609.035.
State v. Halverson, 373 N.W.2d 618, 620 (Minn. App. 1985).
Appellant argues that Halverson is distinguishable because the defendant was also convicted of the underlying theft of an automobile. In that case, the defendant pleaded guilty to three counts of receiving stolen property, one count of theft/altering serial number, and one count of unlawful possession of cocaine. Id. at 619. The theft conviction was for stealing an automobile which was different from the three automobiles defined in the receiving-stolen-property convictions. Id. There was also no evidence regarding when the defendant received the stolen property. Id.
Thus, Halverson is indistinguishable from this case. Here, appellant stipulated that the state had evidence to show that the firearms were taken from different owners and homes. Because the evidence supports the district court’s finding that the underlying thefts were separate and distinct, appellant’s four convictions of receiving stolen firearms constitute separate behavioral incidents.
Finally, appellant argues that the sentencing provisions of Minn. Stat. § 609.52, subd. 3 (1996 & Supp. 1997), and Minn. Stat. § 609.53, subd. 1 (1996), already take into account the value of the stolen property and that the severity of the sentence increases as the value increases or when firearms are involved. Minn. Stat. § 609.52, subd. 3, sets forth the sentences for theft. But appellant is not being sentenced for theft. Minn. Stat. §§ 609.52, subd. 3(1) and 609.53, subd. 1(4), together state that a person receiving stolen firearms may be sentenced to prison for not more than 20 years, regardless of the value of the property. Appellant’s sentence is less than the maximum of 20 years provided for in the statutes.
DAVIES, Judge (concurring specially)
I concur with the majority opinion, which follows established precedent. I write separately to express my concern that the established rule creates the likelihood that the criminality of a defendant’s conduct will often be exaggerated.
 State v. Hernandez, 311 N.W.2d 478 (Minn. 1981).
 The officers recovered a .357 revolver handgun; Mossburg shotgun; SKS rifle; sawed-off .410 shotgun; broken down .22 rifle; Marlin rifle with scope; and Marlin .22 rifle.
 Appellant was also charged with assault, removal or alteration of serial numbers, and possession of a short-barreled shotgun. The assault charge was dismissed as part of the plea agreement. The serial number and short-barreled shotgun counts were dismissed by the state prior to the plea agreement in the interests of justice.
 [I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
Minn. Stat. § 609.035, subd. 1 (Supp. 1997).