This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed May 8, 2001
Reversed and remanded
Clay County District Court
File No. K6991924
Mike Hatch, Attorney General, Margaret H. Chutich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Lisa Nelson Borgen, Clay County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56560 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Poritsky, Judge.*
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant Demetrius Coleman challenges his conviction and sentence for aggravated robbery and witness tampering, arguing that (1) the district court improperly joined the two charges, (2) the evidence was insufficient to support the conviction for witness tampering, and (3) the imposition of consecutive sentences unfairly exaggerates the criminality of his conduct. We reverse and remand.
On October 14, 1999, according to the victim, Kevin Jones, appellant Demetrius Coleman robbed him in his apartment at gunpoint, taking a watch, cellular telephone, and marijuana. Jones noted that Coleman was wearing a bullet-resistant vest during the commission of the robbery. Jones did not immediately report the incident to the police.
On October 29, 1999, someone shot bullets into six vehicles that were parked in the parking lot of the apartment complex where Jones resides. One of the vehicles belonged to Jones’ girlfriend.
After seeing that the exterior of his girlfriend’s vehicle was riddled with bullet-holes, Jones contacted the police and alleged that Coleman was likely responsible for that damage. During the call, he also reported the October 14, 1999, robbery.
Officers then arrested Coleman. In their investigation they learned that Coleman drove a vehicle owned by his girlfriend’s parents and the officers received the parents’ permission to search the car. Officers seized a handgun and bullet-resistant vest from the trunk of the vehicle. Coleman stated that his cousin owned the handgun and in early October 1999 had placed the gun along with other belongings in the trunk of the vehicle. Coleman admitted that he had access to the gun, but he denied any involvement in damaging the six vehicles. Investigators later determined that the casings found at the scene were fired from the handgun found in Coleman’s vehicle.
When interviewed, Coleman stated that he went to Jones’ apartment to purchase some marijuana on October 14, 1999, and admitted taking the watch and telephone, but denied taking marijuana or brandishing a gun. He also admitted to owning a bullet-resistant vest, but denied that he was wearing it on that date.
Coleman was charged with: (1) first-degree aggravated robbery; (2) commission of a crime while wearing a bullet-resistant vest; (3) first-degree aggravated witness tampering; and (4) first-degree criminal damage to property. Counts one and two related to the robbery incident that occurred on October 14, 1999, and counts three and four related to the criminal damage to property that occurred on October 29, 1999. All of the charges were joined for trial. In a pretrial motion, Coleman moved under Minn. R. Crim. P. 17.03, subd. 3(1)(a), to sever the trial of the charges from the October 14, 1999, incident from the charges from the October 29, 1999, incident. The district court denied Coleman’s motion. The case went to trial and the jury convicted Coleman of first-degree aggravated robbery, first-degree criminal damage to property, and first-degree aggravated witness tampering. The jury acquitted Coleman of commission of a crime while wearing a bullet-resistant vest.
The district court sentenced Coleman to serve 58 months for aggravated robbery and a consecutive sentence of 86 months for aggravated tampering with a witness. This appeal followed.
D E C I S I O N
On motion of the prosecuting attorney or the defendant, the court shall sever offenses or charges if * * * the offenses or charges are not related[.]
Minn. R. Crim. P. 17.03, subd. 3 (1)(a). Under Minnesota law, offenses or charges are “related” if they are part of a single behavioral incident. State v. Profit, 591 N.W.2d 451, 460 (Minn. 1999), cert. denied 528 U.S. 862 (1999). The determination of whether offenses are part of a single behavioral incident depends on the particular facts of each case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). Even if joinder is improper, there will be no reversal unless the joinder was “prejudicially erroneous.” Profit, 591 N.W.2d at 460.
In deciding whether two crimes are part of a single behavioral incident, the focus is on the time and place of the crimes and a consideration of “whether the segments of conduct involved were motivated by an effort to obtain a single criminal objective.” State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983) (citation omitted). See also State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996) (holding that in determining whether there should be separate trials for separate charges, “[the reviewing court] look[s] to how the offenses were related in time and geographic proximity and at whether the actor was motivated by a single criminal objective.”).
The unities of time and place require that the offenses occurred at substantially the same time and place and arose from a continuous and uninterrupted course of conduct. State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989), review denied (Minn. May 24, 1989).
In previous cases, the supreme court has found that, although there may be unity in time and place among multiple offenses, they are not necessarily part of the same behavioral incident. See State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979) (holding that “while the offenses both involved coerced sexual intercourse with same 15-year-old girl and both occurred in the same general place and on the same day, the offenses were separated by a period of approximately 5 hours and neither act bore any essential relationship to the other”); State v. Shevchuk, 282 Minn. 182, 187-88, 163 N.W.2d 772, 776 (1968) (holding that several crimes were not part of a single behavioral incident where, although all the crimes occurred during the same evening, the period extended two and one-half hours, occurred in or by the victim’s vehicle, and the vehicle itself was moved from place to place). But cf. State v. Herberg, 324 N.W.2d 346, 349 (Minn. 1982) (holding that two incidents of first-degree criminal sexual conduct committed against the same victim, separated by both time and place, arose out of single behavioral incident because the defendant’s motivation in both incidents was “to satisfy his perverse sexual needs”).
Here the offenses occurred at two distinct times and places. The October 14, 1999, offenses took place inside Jones’ apartment; the October 29, 1999, offenses happened two weeks after the robbery in the parking lot of the apartment complex in which Jones resides. These offenses were unrelated in time and tenuously related in place.
The state argues that the final requirement of a single criminal objective is present because Coleman’s offenses were motivated by his desire “to commit a robbery and get away with it,” thereby making the four crimes one course of conduct. Further, the state argues that the two series of events are integrally related in that the October 29, 1999, offenses were committed in furtherance of the October 14, 1999, offenses because they involved the same weapon and were directed toward the same victim.
We are not persuaded that the state has shown that Coleman was motivated by a single criminal objective. Even if there is merit to the state’s argument, “the existence of a common plan, alone, is simply insufficient to support joinder.” Profit, 591 N.W.2d at 460.
The evidence supports the conclusion that the two sets of crimes were separate incidents and were not part of a course of continuous, uninterrupted conduct. The aggravated robbery was completed on October 14. The criminal damage to property occurred two weeks later. Although the state would have us infer that the second incident was motivated by a desire to intimidate the complainant, there is no evidence to show the continuity of events that is the hallmark of a single behavioral incident. A mere relationship between events is not sufficient. Id. Joinder was improper.
Even if joinder is improper, “remand is not required if the district court’s denial of the motion to sever was not prejudically erroneous.” Id. In assessing the effect of improper joinder, a reviewing court is “certainly more likely to find prejudice when the joined offenses are unrelated in time, location, or objective.” Id. at 461.
The state argues that the single criminal objective of escaping apprehension linked the crimes of which Coleman was convicted and thus no prejudice resulted from the joinder. On this record, we disagree. Cases that have applied the so-called “avoidance-of-apprehension doctrine” have required that the joined crimes be substantially contemporaneous with each other. See Hawkins, 511 N.W.2d 13 (holding that the crimes of robbery and attempted murder were part of a single behavioral incident where, immediately after the robbery, defendant discovered that the victim was an undercover narcotics officer and tried to get the officer’s gun to kill him and thereby avoid apprehension). Coleman’s crimes were not substantially contemporaneous with each other.
Moreover, mere contemporaneity will not alone suffice to show a single behavioral incident where a single, common criminal objective does not underlie the joined offenses. Thus, the supreme court held that there was no common criminal objective when a defendant kidnapped a woman and sexually assaulted her in her van and then drove to another location where the defendant choked and beat the woman and tried to kill her so as to avoid apprehension. State v. Bookwalter, 541 N.W.2d 290, 295 (Minn. 1995). Noting that Bookwalter had opportunities to escape after the sexual assault and that the evidence never made clear his motivation for the attempted murder, the supreme court held that Bookwalter’s crimes were separate incidents. Id. at 297.
Here, the October 14 crimes were against a person and the October 29 crimes were against property. Although the state alleged that the October 29 crimes were directed at a person, those crimes did not involve the same victim as the October 14 crimes, the evidence did not directly link Coleman to the October 29 crimes; nor did the evidence show the motivation for the later crimes.
Our supreme court has said that a Spreigl analysis is helpful in determining whether improper joinder is unfairly prejudicial. Profit, 591 N.W.2d at 460. But the court cautioned that a Spreigl analysis should not be used to deny severance when the offenses do not constitute a single behavioral incident:
We do, however, recognize the inherent danger of district courts proceeding directly to a Spreigl analysis after paying only marginal attention to the traditional factors limiting joinder. We therefore remind the courts that if after careful analysis they conclude the joined offenses do not constitute a single behavioral incident or course of conduct, they are to sever the charges.
Id. at 461.
We do not suggest that the district court paid only “marginal attention” to traditional joinder factors. The district court made a thorough analysis of the issue but reached what we believe to be an erroneous conclusion by treating “related offenses” as necessarily parts of a single behavioral incident.
In its analysis the district court considered whether the crimes were motivated by a single objective, whether the offenses could be explained without necessary reference to each other, and whether the crimes were in furtherance of each other. These are proper considerations. State v. Martinez, 530 N.W.2d 849, 851 (Minn. App. 1995) (citations omitted), review denied (Minn. June 14, 1995). But the facts show two criminal objectives. The robbery can be explained without reference to the property damage crime, and the robbery surely was not in furtherance of that crime.
When multiple crimes are part of a continuous, uninterrupted course of conduct their character as parts of a single behavioral incident is more readily demonstrable than if the crimes are separated by time, place, and other factors. Where there is such a separation, as here, we look for the kinds of reciprocity described in Martinez. In other words, the multiple crimes must augment each other in some way before we can conclude that they are parts of a single behavioral incident. Without that reciprocity, we are left merely with discrete acts that have some relationship to each other – for example, the actor is the same for all – but otherwise do not fit the requirement of a single, interrelated course of conduct. That necessary reciprocity is lacking here, for while it can be argued, with some degree of speculation, that the October 29 act emanated from Coleman’s desire to avoid detection for the robbery, the robbery remains a completed crime that exists fully without any reference whatsoever to the October 29 occurrence. Therefore, we hold that, on this record, joinder was prejudicially erroneous and the matters must be returned for separate trials.
Reversed and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.