This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Donald H. Hanson,



Filed July 13, 2004

Affirmed in part and reversed in part

Stoneburner, Judge


Hennepin County District Court

File No. 02026468


John Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)


            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N




On appeal from convictions of and sentencing for three counts of criminal sexual conduct and one count of indecent exposure, Donald H. Hanson argues that the cumulative effect of the district court’s evidentiary errors, prosecutorial misconduct, and erroneous jury instructions denied him a fair trial.  Appellant also argues that the jury instructions deprived him of a unanimous verdict and that the district court erred in sentencing.  Because we conclude that appellant was not denied a fair trial or a unanimous verdict, we affirm the convictions.  Because the convictions of fifth-degree criminal sexual conduct and indecent exposure were based on a single act against a single victim and appellant is only subject to a five-year conditional-release term, we vacate the one-year sentence imposed for indecent exposure involving P.L. and modify the conditional-release term to five years.



Three elementary-school children, who were passengers on a school bus driven by appellant Donald H. Hanson, reported appellant’s inappropriate sexual conduct on the school bus.  Appellant was charged with:  second-degree criminal sexual conduct involving Q.K.F.; second-degree criminal sexual conduct involving J.H.L.; attempted second-degree criminal sexual conduct involving J.H.L.; fifth-degree criminal sexual conduct involving P.L.; and indecent exposure involving P.L.  The second-degree criminal sexual conduct charge involving Q.K.F. was dismissed before trial. 

            The investigating officer obtained a search warrant for appellant’s home based on the children’s statements about appellant’s conduct on the school bus; evidence from a daycare provider and a parent that appellant had picked up J.H.L. and another child early; the fact that when police went to appellant’s home to arrest him he was looking at the computer with a nine-year-old boy he had befriended on the school bus, and photographs he had of two juveniles in his wallet when he was arrested.  At appellant’s home, the investigating officer found, among other things, a copy of a bus schedule with the names of children written on it and copies of the Minnesota statutes about criminal sexual conduct crimes and tampering with a witness.

            At trial, Judy Weigman, a licensed social worker employed at CornerHouse, testified about her interview with J.H.L.  Weigman offered her opinion, over objection, that J.H.L. had been sexually abused.  Weigman did not interview P.L. and therefore did not offer any opinion testimony about whether he was abused.  Tapes of both children’s interviews at CornerHouse were played for the jury, but were not transcribed.

            A jury found appellant guilty of the four counts involving J.H.L. and P.L.  The district court sentenced appellant to a dispositional departure of 21 months for second-degree criminal sexual conduct involving J.H.L., concurrent sentences of 13 and one-half months for attempted second-degree criminal sexual conduct involving J.H.L., and one year each for fifth-degree criminal sexual conduct and indecent exposure involving P.L.  The court also imposed ten years of conditional release.  This appeal followed.


I.          Appellant was not denied a fair trial based on cumulative error

            Appellant asserts that the cumulative effect of evidentiary errors, prosecutorial misconduct and erroneous jury instructions denied him a fair trial.  We will examine each of appellant’s allegations separately to evaluate if there was error, and if there was error, we will examine the cumulative effect of the error. 

            a.         Search warrant

            Appellant first argues that evidence seized under the warrant should have been excluded because the search warrant lacked probable cause, did not state with particularity the items to be seized, and there was no nexus between the alleged sexual conduct and appellant’s home.

            This court’s review of a district court’s probable-cause determination accords great deference to the issuing court.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).  The review is limited to determining whether the issuing judge “had a ‘substantial basis’ for concluding that probable cause existed.”  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (citation omitted).  To determine whether the issuing court had a substantial basis for finding probable cause for the warrant, this court looks to the “totality of the circumstances” test promulgated by the United States Supreme Court. 

            The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.


Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983).  Appellate courts “must be careful not to review each component of the affidavit in isolation.  Even if each component is judged unsubstantial, the components viewed together may reveal . . . ‘an internal coherence that [gives] weight to the whole.’”  Wiley, 366 N.W.2d at 268 (quoting Massachusetts v. Upton, 466 U.S. 727, 734, 104 S. Ct. 2085, 2089 (1984)).  Marginal or doubtful cases should be resolved with a preference for warrants.  State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990). 

            The affidavit supporting the warrant application outlined the allegations of J.H.L., Q.K.F., and P.L.; identified appellant as having been investigated for child molestation in 1998; stated that when the police arrived to arrest appellant, he was in the presence of a nine-year-old boy whom he had befriended while driving the school bus and that appellant and the boy were looking at a computer; stated that the police found two photographs of juvenile males in appellant’s wallet when he was arrested; and outlined the officers’ combined training and experience of more than 15 years in sex crimes investigations.  Specifically, the warrant stated, regarding the officers’ training and experience, that:

It is known that sex offenders who abuse children will keep and maintain pornography, which excites them and fosters their deviant fantasies.  Your affiants has (sic) received training through the BCA and FBI, which has provided information on pedophile offenders.  It is known that these individuals will keep and maintain pornography which depicts juvenile males engaging in sexual acts or poses with other juveniles or adults.  These offenders will keep either magazine or pictorial photographs, VHS videotapes, or use the computer internet to store, distribute and meet potential juvenile victims.


            The warrant authorized police to seize all homemade or commercially produced pornography in any form, including film or VHS tape, that depicts juvenile males posing or engaging in sexual acts; all homemade or commercially produced pornography that is stored, sold, transferred, or distributed over a computer hard drive and data kept on computer disks or tapes; all handwritten personal notebooks, letters, or notes that may contain names and addresses or identities of potential male victims; all personal notebooks, papers, ledgers, or diaries written or possessed by appellant describing sexual fantasies or acts involving juvenile males; and papers showing constructive possession to appellant’s residence.

            Pursuant to the warrant, police seized several items from appellant’s residence, including child pornography.[1]  Appellant moved to suppress evidence seized from his home.[2]  The district court denied appellant’s suppression motion, finding that, under the totality of the circumstances, there was probable cause and a sufficient nexus between the alleged conduct and appellant’s home, and that the warrant lists the items to be seized with sufficient specificity.

            At trial, the state introduced into evidence appellant’s copy of the bus route with children’s names that was seized from his home and solicited testimony that the officers

found copies of the sexual-assault and witness-tampering statutes at appellant’s home.[3]        



                        1.         Nexus to appellant’s residence

            Appellant argues that the warrant lacked probable cause because it failed to establish a sufficient nexus between appellant’s alleged crimes on the school bus and appellant’s home.  We disagree. 

            Minnesota requires “a direct connection, or nexus, between the alleged crime and the particular place to be searched.”  State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998).  In determining whether such a nexus exists, the issuing judge must consider the nature of the crime, “the nature of the items sought, the extent of the suspect’s opportunity for concealment, and the normal inferences as to where the suspect would normally keep the items.”  State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999).  “Information linking the crime to the place to be searched and the freshness of the information are also relevant.”  State v. Brennan, 674 N.W.2d 200, 204 (Minn. App. 2004). 

            Appellant concedes that the officers’ training and experience support the inference that the items sought would be at appellant’s residence.  But appellant argues that it is not reasonable to infer that appellant would keep child pornography at his home simply because (1) he was arrested in the presence of a nine-year-old boy who was looking at appellant’s computer with him; (2) he had pictures of juvenile males in his wallet; and (3) he was accused of sexual abuse by at least three juvenile males who rode his school bus.  Appellant, however, analyzes each of these factors in isolation.  In conducting an inquiry regarding the existence of probable cause, “courts do not examine the ‘bits and pieces of a probable cause showing in isolation,’ but must consider the totality of the circumstances.”  State v. Lieberg, 553 N.W.2d 51, 55 (Minn. App. 1996) (quotation omitted).  Considering the supporting affidavit as a whole, the district court properly concluded that there was a “fair probability” that evidence of a crime would be found in appellant’s home.

                        2.         Particularity of items to be seized

            Appellant claims that the “intended purpose of the warrant was to give officers an opportunity to rummage through appellant’s personal property in the hope of finding something incriminating” and therefore, the warrant lacked sufficient specificity with regard to the items to be seized. 

            A search warrant, in addition to being supported by probable cause, must contain a “particular description” of the items to be seized to avoid “a general, exploratory rummaging in a person’s belongings.”  State v. Miller, 666 N.W.2d 703, 712 (Minn. 2003) (quotation omitted).  “We have recognized that when determining whether a clause in a search warrant is sufficiently particular, the circumstances of the case must be considered, as well as the nature of the crime under investigation and whether a more precise description is possible under the circumstances.”  Id. at 713 (citing State v. Poole, 499 N.W.2d 31, 34 (Minn.1993) (“We have recognized that there is a degree of flexibility to the particularity requirement.”); State v. Ruud, 259 N.W.2d 567, 573 (Minn. 1977) (“A warrant can only be as specific as the nature of the materials sought will allow.”)).

            Appellant focuses specifically on language in the supporting affidavit submitted with the search-warrant application stating that the police will search to “find evidence which will tend to show that [appellant] is sexually attracted to juvenile males.”  Appellant argues that the search warrant was invalid because this statement “is identical” to a clause held unconstitutional in State v. Hannuksela, 452 N.W.2d 668 (Minn. 1990).  But the insufficient language in Hannuksela, authorizing the seizure of any “properties which tend to show evidence of crime,” was in the warrant.  Id. at 673.   In this case, the statement was contained only in the supporting affidavit.   The warrant specifically described the items to be seized:  all handwritten personal notebooks, letters, or notes that may contain names and addresses or identities of potential juvenile victims.  The district court did not err in concluding that the warrant identified items to be seized with sufficient particularity.

                        3.         Staleness of warrant information

            Appellant argues that the supporting affidavit improperly included “stale” information regarding the 1998 allegation of sexual abuse.  But appellant did not raise the staleness issue in the district court and has therefore forfeited his right to have the issue considered on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (appellate courts will generally not consider matters not argued and considered in the court below).  Furthermore, the information was not so stale that the issuing magistrate could not consider it, and the warrant application stated probable cause even without consideration of that statement. 

            b.         Expert testimony

            Appellant next claims that the district court erred in allowing Judy Weigman, the social worker from CornerHouse, to give her opinion regarding whether J.H.L. had been sexually abused.  Appellant objected on two grounds: the opinion invaded the province of the jury as fact-finder; and the opinion lacked foundation.  Relying on State v. Hollander, 590 N.W.2d 341 (Minn. App. 1999), the district court denied appellant’s objection, ruled that Weigman was an expert and allowed Weigman to offer her opinion regarding whether J.H.L. had been abused, so long as she did not offer her opinion on the issue of who committed the abuse.

            “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Appellant has the burden of establishing that the district court abused its discretion in evidentiary rulings and that he was prejudiced.  Id.

            “The basic consideration in admitting expert testimony under Minn. R. Evid. 702 is whether it will assist the jury in resolving the factual questions presented.”  State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984).  Moreover, case law supports the admissibility of expert-opinion testimony regarding whether a child has been sexually abused because such testimony does not go to the ultimate issue in the trial.  State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988); see also Hollander, 590 N.W.2d at 349 (relying on Dana to conclude that expert testimony regarding whether a child has been sexually abused was properly admitted).  The identity of the abuser is the ultimate issue and expert testimony that a defendant committed the abuse is objectionable.  Id.  But Weigman did not opine that appellant was the abuser.  She merely stated that, in her opinion, J.H.L. had been sexually abused.  Therefore, her opinion regarding whether J.H.L. had been abused was properly admitted.

            c.         Prosecutorial misconduct

            “Even if established, prosecutorial misconduct does not in and of itself require a new trial.”  State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002) (citation omitted).  In cases where less serious misconduct is involved, the misconduct is not prejudicial unless it had a substantial role in influencing the jury to convict.  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).  If the misconduct is unusually serious, that misconduct is not harmless unless there is a certainty beyond a reasonable doubt that the misconduct was harmless.  Id.  And a conviction is reversed only when the misconduct is “inexcusable and so serious and prejudicial that the defendant’s right to a fair trial is denied.”  Steward, 645 N.W.2d at 121.

                        1.         Inadmissible hearsay

            At trial, the prosecutor asked Sergeant Dan Swalve what led him to investigate appellant.  Sergeant Swalve testified:

I received information that a six-year-old boy made an allegation that his bus driver had some sexual conversation with him and would make, or when the boy would get on the bus, the driver would kind of lay across the seat and the boy would have to crawl over him to get onto the bus.


Appellant claims that the prosecutor’s question elicited inadmissible hearsay.  Appellant did not make a contemporaneous objection when Sergeant Swalve’s testimony was given.  But appellant did submit a standard, pretrial motion to preclude the introduction of “any testimony from any police officers or investigators as to what other witnesses related to them.”  Although the better practice would have been to renew the objection at trial, we conclude that appellant preserved the issue for appeal.  State v. Litzau, 650 N.W.2d 177, 183 (Minn. 2002).

            To support his claim of inadmissible hearsay, appellant relies on Litzau and State v. Williams, 525 N.W.2d 538 (Minn. 1994).  In both cases, the supreme court cautioned that “a police officer testifying in a criminal case may not, under the guise of explaining how [the] investigation focused on defendant, relate hearsay statements of others.”  Litzau, 650 N.W.2d at 182; Williams, 525 N.W.2d at 544.  But both Litzau and Williams involved the disclosure of the contents of tips received from unidentified informants.  Litzau, 650 N.W.2d at 182; Williams, 525 N.W.2d at 544.  Here, Sergeant Swalve did not testify that he received a tip from an unidentified informant.  Rather, his testimony involved a prior consistent statement made by a testifying witness, J.H.L., which, under the rules of evidence, is non-hearsay.  Minn. R. Evid. 801(d)(1) (a prior consistent statement of a testifying witness is admissible as non-hearsay).  J.H.L. testified regarding what he reported about the bus driver, and appellant had the opportunity to confront and cross-examine J.H.L.

            And even if admission of this testimony was error, it was harmless, considering that J.H.L. and his father testified regarding J.H.L.’s initial report and therefore, the jury had already heard the information, such that Sergeant Swalve’s testimony about the statement could not have had a substantial role in influencing the jury to convict.  At most, the testimony was cumulative. 

                        2.         Attempt to inflame jury’s passions during closing argument

            During closing argument, the prosecutor stated:

[T]his is a man who created the opportunity to victimize the most vulnerable people in our community.  We’ve got five- and a six-year-old kid excited about going to school for their first year in school.  This should be a time when they should be carefree and have nothing to worry about.  They should have been able to trust that [appellant] would not harm them, would not ask them to keep secrets that shouldn’t be kept from their parents, certainly would not reach out and attempt to touch and then later touch [J.H.L.], and certainly not expose himself to [P.L.].  However, what happened here was that the defendant violated the trust of the parents and, members of the jury, he violated the law in four different ways.


            Appellant did not object to the prosecutor’s remarks or seek a curative instruction and therefore, has forfeited his right to complain about them on appeal.  State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996).  Moreover, a defendant’s failure to object implies the comments were not prejudicial.  State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984).  This court may address unobjected-to prosecutorial statements if they amount to plain error affecting substantial rights.  State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997); Minn. R. Crim. P. 31.02.         

            Reviewing courts must “consider the closing argument as a whole rather than focus on particular ‘phrases or remarks that may be taken out of context or given undue prominence.’”  State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000).  We conclude that the prosecutor’s statements were not unduly inflammatory.  It is undisputed that, as a school-bus driver, appellant held a position of trust.  In his capacity as the bus driver, appellant was responsible for getting the children safely to school.  Further, the children’s parents trusted the bus driver to do just that.  In this case, the state’s theory was that appellant took advantage of this trust to abuse the children.  The prosecutor’s remarks were an accurate description of the facts based on the evidence introduced at trial, unlike the remarks in the case appellant relies on, State v. Porter, 526 N.W.2d 359 (Minn. 1995).  In Porter, the supreme court determined that the prosecutor’s statements had no purpose other than to inflame the passions of the jury and were not based on the evidence presented or any reasonable inferences from that evidence.  Id. at 364.  Moreover, the prosecutor’s statements here were relatively brief, constituting just one paragraph in a 22-page closing argument.

            Appellant also claims that the prosecutor improperly argued that the complainants’ testimony did not have to be corroborated.  The prosecutor stated, “This is not a requirement of the law, that the testimony of a sexual assault victim has to be corroborated or backed up in any way.”  Again, appellant did not object to the prosecutor’s statement regarding corroboration and has forfeited his right to complain on appeal.  Atkins, 543 N.W.2d at 647.  

            Appellant relies on State v. Williams, 363 N.W.2d 911 (Minn. App. 1985), review denied (Minn. May 1, 1985), to support his corroboration theory.  But Williams is inapposite here because in Williams, over defense objection, the district court instructed the jury that “it is not necessary that the testimony of the complainant or complaining witness be corroborated.”  363 N.W.2d at 914.  The reviewing court concluded that, because corroboration is an evidentiary matter and not a substantive matter, it should not have been addressed in the jury instructions, even though the instruction is consistent with both statutory and case law.  Id.  But the reviewing court concluded that the error was harmless.  Id.   Here, the court did not address corroboration in the jury instructions.  Rather, the prosecutor correctly stated that the law does not require corroboration of the victims’ accounts.  Although inappropriate for a general jury instruction, this is an accurate statement of law and does not constitute plain error requiring a new trial.

            We conclude that the prosecutor did not engage in misconduct.

            d.         Jury instructions

            Appellant claims that the district court committed plain error requiring a new trial by failing to instruct the jury to consider the charges of criminal sexual conduct separately.  This court reviews a district court’s jury instructions “for abuse of discretion and errors of law.”  State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).  The district court does not abuse its discretion when the jury instructions fairly and adequately state the applicable law.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  Jury instructions must be viewed in their entirety.  Id.

            The supreme court has stated that “for trial of all offenses joined under Minn. R. Crim. P. 17.03, subd. 1, the jury must be instructed to consider each of the charges separately.”  State v. Kates, 610 N.W.2d 629, 631 (Minn. 2000) (footnote omitted).  Here, appellant waived any challenge to the jury instructions by failing to object to them at trial, unless the failure to give the instruction constituted plain error.  State v. Baird, 654 N.W.2d 105, 109 (Minn. 2002); Minn. R. Crim. P. 26.03, subd. 18(3) (requiring assignment of error regarding jury instructions to be made before the jury retires).          Appellant claims that he “objected to the state’s argument that the separate charges corroborated each other and requested an instruction very similar to the one proposed by the supreme court in Kates.”  Appellant objected to the corroboration comments as “Spreigl for each other without giving the defense notice.”  Appellant then asked the court “to give the jury a curative instruction that the two offenses, that the two victims are independent of each other and that they’re not to be considered together but they’re completely separate.”  The state responded that it had given a Spreigl notice and that the allegations were tried together because appellant requested a joint trial instead of the severance he had previously been granted.  The district court denied appellant’s request for a curative instruction, finding that there was nothing improper about the argument that the similarities in the children’s accounts corroborated each other.  See State v. Wermerskirchen, 497 N.W.2d 235 (Minn. 1993); State v. Williams, 325 N.W.2d 812 (Minn. 1982); State v. Wiskow, 501 N.W.2d 657 (Minn. App. 1993).  Kates does not overrule these decisions or prohibit a prosecutor from arguing that separate, but similar, allegations corroborate one another. 

            Appellant did not bring Kates to the district court’s attention, and, therefore, he failed to properly preserve the issue for appeal.  “An objection must be specific as to the grounds for challenge.”  State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993) (holding that an objection on grounds of legal conclusion did not alert trial court to hearsay and Confrontation Clause issues), review denied (Minn. Aug. 31, 1993).  Further, a defendant does not preserve an objection for appeal if he objects at trial on grounds different from those argued on appeal.  Id.  But because the court failed to adhere to the rule announced in Kates, we will review this claim under a plain-error analysis.

            Plain error exists if there is (1) error; (2) that is plain; and (3) the error affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997)).  If all three factors are satisfied, the court may exercise its discretion to review an error that was not preserved for appeal if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Johnson, 520 U.S. at 467, 117 S. Ct. at 1549 (alteration in original) (quotation omitted).

            The district court, in this case, erred by failing to give the Kates instruction, and the error is plain.  But appellant must also show that the error affected his substantial rights.  Griller, 583 N.W.2d at 741.  Appellant argues that because he was convicted of all four charges, the district court’s failure to give the instruction affected his substantial rights.  But in instructing the jury, the district court read each charge separately and distributed separate verdict forms for each of the four charges, which identified the victim involved in each charge.  This court has previously held that if a jury clearly understood that the charges were to be considered separately, failure to give the Kates instruction is harmless error.  State v. Dick, 638 N.W.2d 486, 491 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002).  Because the district court’s jury instructions essentially complied with Kates, the procedure separated the charges for the jury, and there was substantial evidence from which the jury could find appellant guilty of all four charges, the error did not seriously affect the fairness or integrity of the trial and is, therefore, not a ground for a new trial.  See Griller, 583 N.W.2d at 742 (holding that while there was plain error, a new trial was not necessary because fairness and integrity of judicial proceedings were not adversely affected).

            Appellant argues that the cumulative effect of the alleged evidentiary errors and the alleged prosecutorial misconduct requires a new trial.  But because the district court did not commit any of the evidentiary errors appellant alleged, the prosecutor did not commit misconduct, and failure to give the Kates instruction was harmless, appellant was not denied a fair trial and is not entitled to a new trial under a cumulative-effect-of-error theory.

II.        Unanimous verdict   

            The state introduced evidence that appellant engaged in multiple acts of criminal sexual conduct with J.H.L. between January and April 2002.  J.H.L. reported to Weigman from CornerHouse that appellant tried to touch his penis, but J.H.L. would not let him.  J.H.L. later told his parents that appellant touched his penis over his clothes.  J.H.L. testified that appellant touched his penis under his clothes and that this happened more than once.

            The jury was instructed regarding one count of second-degree criminal sexual conduct and one count of attempted second-degree criminal sexual conduct against J.H.L., occurring between January and April 2002.  The state argued that appellant committed a completed act of second-degree criminal sexual conduct when he touched J.H.L.’s penis under his clothing and also committed an act of attempted second-degree criminal sexual conduct when he tried to touch J.H.L.’s penis and J.H.L. would not let him.[4]  Appellant did not object to the jury instructions.

            Although the district court instructed the jury that they must unanimously agree on the verdict, appellant now claims that the district court violated his right to a unanimous verdict by failing to instruct the jury that they had to agree on the specific acts and dates of the acts underlying his convictions for second-degree criminal sexual conduct and attempted second-degree criminal sexual conduct.  But because appellant failed to object to the jury instructions, he is entitled to relief only if he establishes (1) error; (2) that is plain; and (3) that affects his substantial rights.  Griller, 583 N.W.2d at 740.

            Appellant relies on State v. Stempf, in which this court held that juries must unanimously agree on the question of whether a defendant committed the act or acts that constitute an element of the crime charged.  627 N.W.2d 352, 359 (Minn. App. 2001).  Stempf was convicted of one count of fifth-degree possession of methamphetamine.  Id. at 354.  Although Stempf was only charged with one count of possession, the state introduced two instances of possession to prove its case.  Id.  The defendant had different defenses to the two alleged acts of possession and requested an instruction to require the jurors to evaluate the two acts separately.  But the district court did not instruct the jury that it had to agree unanimously on which act constituted which crime.  Id.  Since the state did not specify the act, the lack of a specific unanimity instruction was held to have denied the appellant his right to a unanimous verdict.  Id. at 358.

            Here, appellant was charged with one count for the completed crime and one count for the attempted crime based on the theory that these acts took place at different times between January and April 2002.  Specific dates need not be charged or proven in a sexual-abuse case.  State v. Poole, 489 N.W.2d 537, 543 (Minn. App. 1992), aff’d 499 N.W.2d 31 (Minn. 1993).  We conclude that the general unanimity instruction sufficiently protected appellant’s right to a unanimous verdict.

III.       Sentencing

            A reviewing court will reverse the district court’s imposition of a sentence if the district court’s “discretion is not properly exercised and the sentence is unauthorized by law.”  State v. Cook, 617 N.W.2d 417, 419 (Minn. App. 2000), review denied (Minn. Sept. 12, 2000). 

            The district court sentenced appellant to 21 months for second-degree criminal sexual conduct involving J.H.L., 13 and one-half months for attempted second-degree criminal sexual conduct involving J.H.L., one year for fifth-degree criminal sexual conduct against P.L., and one year for indecent exposure involving P.L.  The court also imposed a ten-year conditional-release term.

            The state concedes that the fifth-degree criminal-sexual-conduct and indecent-exposure convictions were based on a single act against a single victim, P.L., and, therefore, the district court should have imposed a judgment and sentence only on the count of fifth-degree criminal sexual conduct.  See Minn. Stat. § 609.035 (2000); State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995) (if defendant commits multiple offenses against the same victim during a single behavioral incident, Minn. Stat. § 609.035 provides that defendant may be sentenced for only one of those offenses).  The state also agrees that appellant’s conditional-release term should be reduced to five years under Minn. Stat. § 609.109, subd. 7(a) (2000) because this is appellant’s first conviction of criminal sexual conduct.  We therefore vacate the sentence imposed for indecent exposure and modify the conditional-release term to five years.

            The only remaining sentencing issue is whether the trial court properly imposed separate, concurrent sentences for appellant’s convictions of second-degree criminal sexual conduct and attempted second-degree criminal sexual conduct against J.H.L.  Appellant asserts that his conviction for attempted second-degree criminal sexual conduct must be vacated under Minn. Stat. § 609.04 (2000), which bars prosecution for lesser-included offenses or other degrees of the same crime.  But appellant’s convictions arose from different acts.  Therefore, the attempt conviction was not an “included offense” within the meaning of Minn. Stat. § 609.04.

            Similarly, appellant’s claim under Minn. Stat. § 609.035 regarding the attempt conviction is without merit.  As previously stated, section 609.035 prohibits courts from imposing multiple punishments for offenses resulting from a “single behavioral incident.”  Bookwalter, 541 N.W.2d at 293.  Whether multiple offenses form part of a single behavioral act is a question of fact.  See Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986) (reviewing district court’s finding of two separate behavioral acts under clearly erroneous standard).  The determining factor in deciding whether related criminal acts are separate events or a single behavioral incident is whether the conduct was motivated by an effort to obtain a single criminal objective.  Bookwalter, 541 N.W.2d at 295.  Courts will also consider unity of time and place to determine whether an event was a single behavioral incident.  State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).  Offenses are not part of the same behavioral incident if each offense can be explained without necessary reference to the other.  State v. Banks, 331 N.W.2d 491, 494 (Minn. 1983).

            In this case, appellant engaged in different types of sexual contact with J.H.L. at different times over a period of several months from January to April 2002.  Although both instances of abuse occurred on the school bus, they occurred on separate occasions.  The state claimed that, on one occasion, appellant touched J.H.L.’s penis and, on another occasion, appellant attempted to touch J.H.L.’s penis, and J.H.L. refused.  The jury


agreed and found appellant guilty of each count.  The district court did not err in sentencing appellant separately for these separate crimes committed at separate times.

            Affirmed in part and reversed in part.


                                                                                    Dated:  July 7, 2004

[1] None of appellant’s child pornography was introduced at trial.

[2] A second warrant, authorizing search of the hard drive of appellant’s computer, is not challenged in this appeal.

[3] Appellant claims that the state also introduced into evidence copies of the sexual-assault statutes and the tampering-with-a-witness statutes found at his home, but the record demonstrates that the state only questioned the officer regarding the fact that these statutes were seen in appellant’s home.

[4] Appellant asserts that jurors may have convicted him based on the allegation that he forced J.H.L. to crawl over him to get to his seat on the bus.  But neither party suggested that this behavior constituted sexual contact within the statutory definition.  See Minn. Stat. § 609.341, subd. 11(a) (2000).