This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
William John Stowell,
Filed April 13, 2004
Crow Wing County District Court
File No. K3-02-1359
Mike Hatch, Attorney General, Tracy L. Perzel, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Donald F. Ryan, Crow Wing County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
John M. Stuart, State Public Defender, Benjamin Butler, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.
Appellant challenges his sentence for two convictions of felony pattern of harassing conduct, arguing that the district court abused its discretion by (1) failing to separately identify the aggravating factors supporting each sentencing departure; (2) sentencing him in reliance upon aggravating factors unsupported by the record; (3) imposing consecutive sentences, thereby improperly exaggerating the criminality of his conduct; and (4) imposing multiple sentences for convictions arising out of a single behavioral incident. We affirm.
Katherine Anderson, n.k.a. Katherine (Katie) Melberg, terminated a romantic relationship with appellant William John Stowell in approximately June 2000. The same month, Katie began receiving harassing letters at her home address from appellant. In July, Katie began dating Jeff Melberg; they married in February 2001. Appellant began calling Jeff to say that if Jeff did not stop seeing Katie, appellant would “come and get” Jeff, “kill” Jeff and his family, or “hire someone in Minneapolis to take care of” Jeff. Between July and September, appellant sent at least 17 “frightening, offensive” letters to Katie and made at least 109 phone calls to Katie in which he threatened both Katie and her ten-year-old daughter.
In September 2000, Katie sought and obtained a harassment restraining order against appellant pursuant to Minn. Stat. § 609.748 (2000). That order required that appellant have no direct or indirect contact with Katie for two years and that he stay away from her residence and place of employment. Despite the order, Katie and Jeff continued to receive calls and letters that were virtually identical to those they had earlier received from appellant. After the order was entered, appellant, assuming the names of real people – including his own daughter – sent at least 20 letters to Katie. Katie and Jeff turned the letters over to the police, who began an investigation.
Less than two months later, appellant mailed four letters to Katie’s parents; each letter was signed by a different fictitious person. One stated that Jeff would soon have Katie “giving blow jobs to the high school boys.” Another, purportedly from Jeff’s male lover, claimed that Jeff was involved in a homosexual relationship, which was described in graphic detail. One claimed to be from an investigator conducting a “secret” ongoing investigation of Jeff’s “proclivity for young children” and recommending that Katie’s parents obtain custody of their granddaughter (Katie’s daughter), have Katie committed, and seek a restraining order against Jeff. Although no such investigation existed, appellant tried to instigate one by repeatedly using email aliases to contact state officials with false allegations of abuse perpetrated by Jeff. During the same period, appellant sent over 30 letters to Katie either anonymously or under the assumed identities of Katie’s real acquaintances.
In March 2001, appellant mailed Jeff a copy of Katie’s résumé that appellant had accessed via a computer at the Brainerd Public Library, where Katie had prepared and saved the document. Appellant altered the résumé so that the descriptions of Katie’s previous employment contained graphic references to sexual acts. The altered résumé, which was mailed to Jeff at work, was accompanied by a note purporting to be from the library and requesting that Katie remove the sexually explicit material from the public computer. The library subsequently denied sending the résumé and the letter. The same month, appellant mailed various pornographic materials to Jeff both at home and at work and sent a letter to Jeff stating he should stop seeing Katie because she had “genital warts and herpes.” Appellant also contacted friends of Jeff and, posing as an investigator, told them that he was investigating allegations of child abuse involving Jeff. He contacted both of Jeff’s former wives, by phone and by mail, in an attempt to get intimate personal information about Jeff and obtained documents related to both of Jeff’s prior divorce proceedings.
Katie filed an affidavit to initiate civil-contempt proceedings against appellant for violating the harassment restraining order. In April 2001, the district court found appellant in violation of the order. At the contempt hearing, appellant denied violating the restraining order. The district court found that appellant had violated the restraining order and continued sentencing. The court carefully questioned appellant to confirm that he understood that he was to have no contact of any sort with Katie; the court also observed to appellant that “your pattern of conduct continues regardless of what the courts of this state have ordered you to do.”
Despite the court’s explicit instructions, prior to the contempt dispositional hearing, appellant sent various items, including pornography and dating service advertisements, to Jeff and additional letters to Katie. Appellant had a letter delivered to Jeff’s son, J.M., at high school. The letter claimed to be from Tammy Jensen, a 17-year-old girl who would be attending J.M.’s school the following year, and requested that J.M. contact Tammy at an email address provided in the letter. When J.M. did not respond, appellant sent him a letter at home with a photograph depicting Tammy Jensen as a blond teenage girl. Appellant does not dispute that he created the identity of Tammy Jensen for the purpose of communicating with J.M. As Tammy Jensen, appellant established an email correspondence with J.M., confided in J.M. about an unsatisfactory relationship with her own stepfather, and convinced J.M. to share information with her concerning the Melberg family including their vacation destinations, the location of their church, their work schedules, their license plate numbers, Jeff and Katie’s wedding ceremony, and Jeff’s prior marriages. “Tammy” also informed J.M. that a third person, named “Pequot Nancy,” had informed her that Jeff was an abusive father to J.M.
At the August 2001 dispositional hearing, appellant specifically stated, “I have complied, will comply with the order of not having any contact with Mrs. Melberg or the Melbergs or anything to do with them in any way, shape or form.” The court told appellant, “It’s time for you to walk away from this and leave Mrs. Melberg and her family alone for good.” The court sentenced appellant to 90 days in jail with 60 days stayed on the condition that appellant stop harassing the Melbergs.
Within days of the dispositional hearing, appellant continued his “Tammy Jensen” correspondence with J.M. and learned from J.M. that Katherine and Jeff were licensed foster parents and that a foster child was currently in their care.
At the end of August 2001, the Crow Wing County Attorney asked the sheriff to begin investigating allegations that appellant was stalking and making terroristic threats against the Melbergs and violating the harassment restraining orders.
In October 2001, appellant, using different assumed names – including “Pequot Nancy” – emailed the state Department of Human Services and the Melbergs’ foster care licensing agency to allege that Jeff was a child molester. Appellant provided the Melbergs’ foster care licensing agent with an email address allegedly belonging to Jeff and the password to the email account, and encouraged the agent to access the account and examine the mailbox, in which appellant had put material from and links to pornographic websites. Appellant made the allegations appear credible by including references to details about the Melberg family obtained in the course of his correspondence with J.M. As a result of appellant’s allegations, the Melbergs’ foster child was removed from their home.
In October 2001, the sheriff learned that the Department of Human Services and the Melbergs’ foster care licensing agency had received emails concerning Jeff. Upon investigation, investigators determined that all the emails had been sent from the Brainerd Public Library and a Brainerd café that provides Internet access. On October 26, the Melbergs’ foster care licensing agent informed the police that she had just received an email from “Tammy Jensen” concerning Jeff. A police officer went to the Brainerd Public Library and observed appellant’s vehicle in the parking lot; when appellant left the library and drove off, the officer arrested him for violating the harassment restraining order. The inventory search of the automobile conducted incident to the arrest revealed an uncased .22-caliber rifle on the rear floor of the passenger compartment.
The police obtained warrants to search appellant’s home and vehicle after the arrest. In appellant’s home, police discovered mailing labels that matched the labels on harassing letters sent to the Melbergs and Katie’s parents; correspondence created by appellant to create the impression that Jeff was threatening and harassing appellant; pornographic advertisements and catalogues for ordering the same; printouts of email correspondence between appellant, as Tammy Jensen, and J.M.; multiple photocopies of Jeff’s handwritten address and name; over 50 pages of court documents related to Jeff’s prior divorces; and correspondence created by appellant to appear as if it had been sent to him by Katie. The search of appellant’s car disclosed a copy of Katie’s altered résumé; printouts of email correspondence between appellant, as Tammy Jensen, and J.M.; names and phone numbers of Jeff’s former wives; lists of questions to ask Jeff’s former wives; and letters to Katie created by appellant using false identities.
By complaint filed in May 2002, appellant was charged with three counts of a pattern of harassing conduct while in possession of a firearm in violation of Minn. Stat. §§ 609.749, subd. 5, .11, subd. 5(a) (2000) – one count each for Katie Melberg, Jeff Melberg, and J.M. He was held in custody.
In June 2002, the state advised appellant that it intended to call his former wife, Diane Stowell, as a Spreigl witness to offer evidence that during and following her marriage to appellant, he harassed her by engaging in various behavior including hiring a private investigator to follow her, tape-recording her phone calls, using various aliases to write letters about her to her employer, physically abusing her, and threatening to kill her, her family, and her therapist. At approximately the same time, appellant forged his son’s name on bonding documents and presented the documents to a bail bonding company, thereby securing his release. On June 24, the district court ordered appellant returned to custody and entered an order forbidding appellant from contacting Spreigl witnesses Diane Stowell, C.S., appellant’s daughter, or J.S., appellant’s son. In the following weeks, appellant mailed letters to Diane, C.S., and J.S. threatening legal and financial consequences should they testify against him. Appellant attempted to circumvent the no-contact order concerning the Spreigl witnesses by giving letters to third parties – including the jail chaplain – with instructions to forward the letters.
While incarcerated in the fall of 2002, appellant also attempted to blame Karl Anderson, Katie’s ex-husband, for the harassment by mailing letters implicating Anderson to acquaintances outside the jail who were instructed to copy the letters and mail them back to appellant, who would then give them to the prosecutor as evidence of his innocence.
In January 2003, appellant pleaded guilty to two counts of a pattern of harassing conduct while possessing a firearm; the original count, involving Jeff, was amended to include appellant’s conduct toward J.M. There was no plea sentencing agreement. The district court subsequently ruled that appellant did not possess a firearm at the time of the harassment and the firearm portion of the charge was dropped.
In February 2003, following his guilty plea, appellant sent a letter to an unidentified third party outside the jail with instructions that the third party copy the letter in longhand and mail the copy to Katie. The letter, signed by the “Basement Bible Class,” stated that Katie and appellant had attended weekly Bible classes and church services through August 2002. The unidentified third party forwarded appellant’s letter and his instructions to Katie. Also prior to sentencing, appellant used a third party in an attempt to send two letters to the sentencing judge.
The presumptive sentence for the first charge is 18 months, stayed; the presumptive sentence for the second charge is 23 months, stayed. The presentence investigation (PSI) recommended (1) imposing an upward dispositional departure by executing appellant’s sentence on both counts; (2) imposing an upward durational departure by sentencing appellant to 36 months in prison on each count; and (3) imposing consecutive sentences. As reasons for the departure, the PSI cited appellant’s extreme and prolonged fixation on his victims; the particular vulnerability of J.M. at the time of the harassment; appellant’s abuse of a position of trust with respect to J.M.; and the particular cruelty exhibited by appellant’s harassment of the Melberg family. A psychosocial evaluation completed prior to sentencing stated that appellant suffers from a delusional disorder, erotomanic type; a mood disorder not otherwise specified; and a personality disorder. The psychosocial evaluator recommended “maximum consequences” for appellant due to “the significance and persistence of his pattern of behavior.”
Before sentencing, the state filed a motion requesting upward dispositional departures on both counts, upward durational departures on both counts, and consecutive sentencing. The state argued that appellant is unamenable to probation; that his harassment was more aggravated than the behavior typically involved in a pattern-of-harassment case; that appellant lacks remorse; that appellant abused J.M.’s trust and age-related vulnerability; that appellant attempted to blame another person for his crimes; that appellant caused extreme fear to the Melbergs; that the harassment involved extreme planning, manipulation, and sophistication; that appellant threatened the state’s witnesses before trial; and that appellant threatened the Melbergs’ zone of privacy through his email correspondence with J.M.
The district court imposed the dispositional departure – executed sentences – a triple durational departure – 54 months on each count – and consecutive sentences, sentencing appellant to 108 months in prison. In imposing the dispositional departure, the court stated, “With respect to disposition, understand that I find that you have violated the court orders of four judges. There is absolutely no way that you are amenable to probation.” In response to defense counsel’s request that it specify which of the aggravating sentencing factors it was applying, the court listed (1) appellant’s unamenability to probation; (2) the fact that appellant’s conduct was more aggravated than that involved in a typical pattern-of-harassment case; (3) appellant’s lack of remorse; (4) appellant’s abuse of J.M.’s trust; (5) appellant’s attempt to blame Karl Anderson for his crimes; (6) the psychological injury to Jeff and Katie Melberg; (7) the extreme planning, manipulation, and sophistication of the harassment; (8) appellant’s threatening behavior toward the state’s witnesses before trial; and (9) appellant’s invasion of the Melbergs’ zone of privacy through his email correspondence with J.M. The court stated, “I find that this case does involve substantial and compelling circumstances. . . . I have never, ever in my life heard of such conduct as occurred in this case over the extended period of time.” This appeal follows.
“The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case. The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances.” Minn. Sent. Guidelines II.D. “Substantial or compelling circumstances are those that make the facts of a particular case either more or less serious than a typical case involving the same crime.” State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992); see also State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (stating that generally, departures from the guidelines are reserved for instances where the defendant’s conduct was “substantially or significantly” more serious than that typically involved in the commission of the offense in question).
The decision to depart from the presumptive guidelines sentence on the basis of aggravating or mitigating circumstances rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996); State v. Behl, 573 N.W.2d 711, 714 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998). “Even if the district court’s express findings were not explained with particularity, this court must affirm the departure if the record contains valid and sufficient reasons to support the departure.” State v. Martinson, 671 N.W.2d 887, 894 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004). Even where the “district court’s stated reasons for the departure are arguably inadequate [the departure will be upheld if] . . . the record does contain clear, valid, and sufficient reasons to support the district court’s conclusion.” Id.
Whether the seriousness of the offense warrants a departure is something that the reviewing court must decide based on its “collective, collegial experience in reviewing a large number of criminal appeals.” State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982); see also State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981) (holding that the reviewing court will overturn the decision of the district court upon reaching a “collegial conclusion” that a sanction is disproportional to the severity of the crime).
Here, the presumptive disposition for appellant’s conviction on the first charged offense – involving Katie – is an 18-month stayed sentence; the presumptive disposition for appellant’s conviction on the second charged offense – involving Jeff and J.M. – is a 23-month stayed sentence. The district court departed both durationally and dispositionally in imposing an executed 54-month sentence for each conviction. Because the presumptive disposition for each count is a stayed sentence, the court’s imposition of consecutive sentences also constitutes a departure. See Minn. Sent. Guidelines II.F. (stating that unless the presumptive disposition for the current offenses is commitment to the Commissioner of Corrections, the imposition of consecutive sentences requires a departure).
Appellant argues that the district court erred by not identifying separately and with adequate specificity the aggravating factors justifying the dispositional departure, the durational departure, and the consecutive-sentence departure. Generally, perpetrator-related factors – such as a defendant’s dangerousness and any unamenability to probation – bear on a dispositional departure, while factors related to the seriousness of the offense bear on a durational departure or one with respect to consecutive service. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). The same set of aggravating factors may justify “departing both durationally and with respect to consecutive service in the same case.” State v. Wellman, 341 N.W.2d 561, 566 (Minn. 1983).
Here, the district court announced at the sentencing hearing that it was imposing the triple departure because (1) appellant was unamenable to probation; (2) appellant’s conduct was more aggravated than that involved in a typical pattern-of-harassment case; (3) appellant lacked remorse; (4) appellant abused J.M.’s trust; (5) appellant attempted to blame others for his crimes; (6) appellant caused psychological injury to Jeff and Katie; (7) the harassment involved extreme planning, manipulation, and sophistication; (8) appellant threatened the state’s witnesses before trial; and (9) appellant invaded the Melbergs’ zone of privacy through his email correspondence with J.M.
In support of his contention that the district court did not adequately specify the aggravating sentencing factors, appellant relies on State v. Williams, 608 N.W.2d 837, 840 (Minn. 2000), which stated that “unless the trial court states with particularity what aggravating factors it is relying on to justify each departure the rationale for the departure is unknown and effective appellate review is denied”; cf. State v. Hines, 343 N.W.2d 869, 872 (Minn. App. 1984) (holding that “[a]lthough not always necessary, it would be helpful if judges would examine each departure separately, because reasons to depart on one crime may not be available for another crime”).
We conclude that Williams is inapposite to the case before us. In Williams, “[t]he trial court relied on 15 aggravating factors to justify, in the aggregate, upward departures on the three sentences” imposed for attempted first-degree murder, first-degree criminal sexual conduct, and first-degree burglary, all involving the same victim. 608 N.W.2d at 840. The supreme court held that the “trial court erred in not separately identifying the aggravating factors supporting each sentencing departure,” reasoning that “a separate analysis of the reasons for departure as to each sentence may have led to a different sentencing result, would have informed the appellant as to the rationale for each sentence, and of course would have provided a clear record for review.” Id. at 841.
Here, appellant was charged with two counts of the same crime involving different victims, and not, as in Williams, different crimes – each with different elements – involving the same victim. Because the charges against appellant shared identical elements, there is little or no risk, as there was in Williams, that factors supporting departure on one sentence might not justify a departure on another sentence. See id. Moreover, our review of the sentencing transcript indicates that the district court left little doubt as to which factors justified which sentencing departure. The court first announced that the dispositional departure was justified by appellant’s unamenability to probation. The court then listed the factors upon which it relied in departing durationally and with respect to consecutive sentences. Of those factors, the court announced one factor that specifically related to the charge involving J.M.; the record is clear that the remaining factors applied both to the charge involving Jeff and J.M. and to the charge involving Katie. The district court adequately specified the aggravating factors justifying the dispositional departure, the durational departure, and the consecutive-sentence departure.
Appellant argues that the record does not support the aggravating sentencing factors found by the district court in support of the dispositional and durational departures and that the court did not identify the “severe aggravating circumstances” necessary to justify a greater-than-double durational departure. See State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). We will not reverse the district court’s findings of fact unless they are clearly erroneous. State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999).
The record supports the district court’s decision to impose a dispositional departure on the grounds that appellant was unamenable to probation: appellant violated numerous court orders and explicit instructions from various judges to stop contacting the Melbergs or anyone associated with them. He continued his harassing conduct from jail after he was incarcerated. Both the PSI and the psychosocial evaluation conducted prior to sentencing unequivocally state that appellant is unlikely to cease contacting and harassing the Melbergs absent incarceration and treatment.
We also conclude that the record supports the district court’s findings concerning the factors referenced in support of a durational departure. It is undisputed that appellant made hundreds of harassing contacts from approximately June 2000 through his sentencing in April 2003. Minn. Stat. § 609.749, subd. 5(b) (2000), provides that a “pattern of harassing conduct” means “two or more acts within a five-year period”; appellant’s conduct was substantially more aggravated than that involved in a typical pattern-of-harassment case. Appellant’s lack of remorse is demonstrated in the record by his continuing conduct after his incarceration, when he threatened the state’s Spreigl witnesses – members of his own family – after profusely apologizing to the district court for his behavior at the guilty-plea hearing. The record is clear that appellant gained and betrayed the trust of J.M. and used the information he obtained from the child to harm Jeff and Katie. See State v. Jackson, 596 N.W.2d 262, 267 (Minn. App. 1999) (holding that the district court may find an aggravating factor where a defendant obtains and betrays the trust of a previously unknown victim), review denied (Minn. Aug. 25, 1999).
It is undisputed that appellant tried to create the appearance that Karl Anderson was the perpetrator of the harassment against the Melbergs. The district court heard and credited testimony from the Melbergs concerning the psychological injury they experienced as a result of appellant’s harassment, which included death threats. Appellant’s activity demonstrably involved a great deal of planning, manipulation, and sophistication, as he established email accounts in fictitious names, obtained post office boxes using assumed names, practiced forgery, created false mailing addresses, and regularly used third parties to conceal the provenance of his correspondence. Finally, the record supports the district court’s finding that appellant invaded the Melbergs’ zone of privacy when, posing as Tammy Jensen, he sent email to J.M. that the boy received and responded to in the Melbergs’ home. See State v. Kindem, 338 N.W.2d 9, 18 (Minn. 1983) (holding that upward departures are appropriate where a defendant “invades the zone of privacy that surrounds the victim’s home”). None of the findings relied upon by the district court as bases for the durational departures are clearly erroneous.
Appellant next argues that the district court did not identify the “severe aggravating factors” necessary to justify a greater-than-double durational departure. “Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration.” Glaraton, 425 N.W.2d at 834. “But when the aggravating circumstances are severe, the doubling limit . . . does not apply.” Id.; see also State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993) (holding that “when severe aggravating circumstances are present . . . the trial court may use both a durational departure and a departure as to consecutive service to obtain a sentence longer than two times the presumptive sentence duration” (quotation omitted)). When severe aggravating circumstances are present, the only absolute limit on sentence duration for the offense is the statutory maximum. See Williams, 608 N.W.2d at 840; State v. Mesich, 396 N.W.2d 46, 52-53 (Minn. App. 1986) (upholding imposition of maximum sentence of 240 months for criminal sexual conduct in the first degree, a sentence nearly 5.5 times the maximum presumptive sentence duration in that case), review denied (Minn. Jan. 2, 1987).
Both this court and the supreme court have affirmed sentencing departures of more than double, three times the presumptive, four times the presumptive, and beyond. See Norton, 328 N.W.2d at 144, 147 (affirming imposition of three times presumptive sentence); State v. Strommen, 411 N.W.2d 540, 545 (Minn. App. 1987) (upholding upward departure of 4.19 times presumptive sentence), review denied (Minn. Oct. 28, 1987); Mesich, 396 N.W.2d at 53 (affirming departure of 5.5 times presumptive sentence).
In determining whether a case is one warranting a greater than double departure, the reviewing court must rely on its “collective, collegial experience in reviewing a large number of criminal appeals.” Norton, 328 N.W.2d at 146.
It is true, as appellant argues, that the district court did not make an explicit finding of severe aggravating circumstances in imposing a greater-than-double sentencing departure. But in sentencing appellant, the district court described the severity of appellant’s acts in the severest terms, stating that it had never, “in 40 years as a lawyer and on the bench . . . heard of such conduct as occurred in this case . . . [or] found anyone who had such disregard for the orders of the court.” The court also stated that appellant’s harassing conduct “was most egregious and extensive.” The district court’s statements plainly reflect its intent to sentence appellant in a manner consistent with the singular severity of appellant’s behavior. We therefore find that the district court’s failure to use the words “severe aggravating circumstances” did not invalidate the sentence imposed and conclude that this case is one warranting a greater-than-double departure.
Appellant argues that the district court improperly exaggerated the criminality of his conduct by imposing consecutive sentences. A district court’s decision to impose consecutive sentences will not be disturbed unless the resulting sentence “unfairly exaggerates the criminality of the defendant’s conduct.” State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998). “[C]onsecutive sentencing may exaggerate the criminality of the offense when multiple convictions were the result of the same behavioral incident.” State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). Whether consecutive sentences should be imposed is a question within the discretion of the district court. Allen, 482 N.W.2d at 231.
Appellant contends that his sentence unfairly exaggerates the criminality of his conduct because (1) it is greater than the sentences imposed upon other Minnesotans recently convicted of the same charges and (2) it is close to sentences imposed for offenses involving kidnapping, great bodily harm, or manslaughter. Both of appellant’s arguments are imprecise in that they disregard that the district court’s discretion to depart in sentencing – as to disposition, duration, and consecutive sentences – exists precisely because of the vast qualitative and quantitative differences among the aggravating and mitigating factors created by the different facts of each case. Appellant’s attempt to compare other harassment cases without reciting the aggravating factors of each one sheds little light on the fairness of his sentence. For instance, one pattern-harassment case cited by appellant, State v. Davis, No. C3-96-1528 (Minn. App. May 20, 1997), involved a defendant with a criminal-history score of nine who made three obscene phone calls. Nor does appellant explain the relevance of indicating that his sentence is similar to the presumptive-sentence crimes with higher guidelines severity levels. We conclude that the district court did not improperly exaggerate the criminality of appellant’s conduct by imposing consecutive sentences.
Appellant argues that the district court erred by sentencing him on both counts because his crimes arose from a single behavioral incident. We disagree.
Under Minn. Stat. § 609.035, subd. 1 (2000), with limited exceptions a court may only sentence a defendant once for a single behavioral incident even though it results in multiple crimes. The statute provides that “if 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.” Id.
“The approach used in determining whether two or more intentional crimes were part of the same course of conduct is to focus on the factors of time and place and also to consider whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.” State v. Zuehlke, 320 N.W.2d 79, 82 (Minn. 1982). Additional factors that must be considered include determining “the unity of time and of place of the behavior.” State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (quotation omitted). “The state has the burden to establish by a preponderance of the evidence that the conduct underlying the offenses did not occur as part of a single behavioral incident.” Williams, 608 N.W.2d at 841.
Appellant argues that his conduct was motivated by the single criminal objective of harassing the Melbergs and represented a unity of time in that it continued unabated from June 2000 until November 2001 (according to the complaint). He argues that as to the unity of place, the “vast majority of the harassment” was directed to the Melbergs’ home. The record does not support appellant’s argument: appellant’s pattern of harassing conduct lasted from June 2000 to early 2003; appellant sent mail to Katie at home and at work, to Jeff at home and at work, to Katie’s parents, to J.M. at school and at home, and to the Melbergs’ foster-care licensing agent. Appellant telephoned Katie and Jeff and Katie’s parents. Appellant’s conduct was sporadically directed to different members of Katie’s family at different times and at different locations. Appellant engaged in his harassing conduct from his home and from at least two other locations providing Internet access.
Appellant argues that his case is similar to State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000), in which the court concluded that a defendant who repeatedly drove past the same house for a year with the single criminal objective of harassing the victims had engaged in a single behavioral incident for sentencing purposes. But as the state argues, appellant’s case is much closer to the facts considered in State v. Richardson, 633 N.W.2d 879, 888-89 (Minn. App. 2001), in which we held that there was no single behavioral incident where the defendant harassed several victims sporadically over several years and the victims received harassing mail at different locations.
We conclude that appellant’s conduct did not constitute a single behavioral incident for sentencing purposes and that the district court properly sentenced appellant separately on each count.