This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Daniel Victor Holcomb,




Filed September 21, 2004

Affirmed in part and reversed in part
Klaphake, Judge


Blue Earth County District Court

File No. KT-02-562/K6-03-563



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


Eileen Wells, Mankato City Attorney, Linda Boucher Hilligoss, Assistant City Attorney, 10 Civic Center Plaza, Post Office Box 3368, Mankato, MN  56002-3368 (for respondent)


Allen P. Eskens, Paul E. Grabitske, Eskens, Gibson & Behm Law Firm, Chtd., 115 East Hickory Street, Suite 200, P.O. Box 1056, Mankato, MN  56002-1056 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Daniel Victor Holcomb brings these consolidated appeals from convictions for (1) failure to yield and possession of marijuana in a motor vehicle; and (2) gross misdemeanor driving while impaired.  He argues that his DWI conviction must be vacated as a violation of Minn. Stat. § 609.035 (2002), which prohibits serial prosecutions, and that the evidence is insufficient to support his conviction on the marijuana offense.

            Because the state conceded at oral arguments before this court that it failed to present any evidence regarding the weight of the substance found in appellant’s pocket, which is one of the elements of the charged offense, we reverse and vacate the conviction on the marijuana offense.  Because the DWI and failure to yield offenses arose from the same behavioral incident, subsequent prosecution on the DWI offense after appellant was convicted of failing to yield was barred by Minn. Stat. § 609.035.  We therefore reverse and vacate the DWI conviction.


            On March 12, 2002, at approximately 7:45 p.m., appellant made an illegal left-hand turn and collided with another vehicle, injuring the other driver.  A witness, who had been following appellant for several blocks, testified that appellant was driving in an erratic manner, repeatedly crossing the line dividing the lanes, and hitting the median.  The officer at the scene determined that appellant was under the influence of alcohol, and testing subsequently measured his blood alcohol level at .19.  In a search incident to the arrest, the officer found a “small baggy containing a leafy green substance” in appellant’s jacket pocket; a field test conducted by the officer confirmed the substance as positive for marijuana.

            Appellant was charged by citation with failure to yield and possession of marijuana in a motor vehicle under Minn. Stat. §§ 152.027, subd. 3, 169.20, subd. 2 (2000).  Appellant was tab charged with gross misdemeanor DWI under Minn. Stat. § 169A.25 (2000).

            A bench trial was held on all three charges.  During closing arguments, appellant’s attorney argued that the evidence was insufficient to support the charge on the marijuana offense.  Appellant’s attorney also argued that the district court lacked jurisdiction over the DWI offense because the state never filed a formal complaint and the tab charge was dismissed by operation of Minn. R. Crim. P. 4.02, subd. 5(3).  The district court denied appellant’s motion to dismiss, concluding that appellant and his attorney had “waived his right to request a formal complaint” by waiting until the end of trial to raise the issue.  Appellant was convicted on all three charges.

            Prior to the date set for sentencing, appellant petitioned this court for a writ of prohibition.  By order dated March 4, 2003, this court rejected the district court’s waiver analysis and determined that Minn. R. Crim. P. 4.02, subd. 5(3) “mandates the filing of a formal complaint when a ‘designated gross misdemeanor’ is charged, even without a defense request.”  In re Holcomb, No. C9-03-338 (Minn. App. Mar. 4, 2003) (order).  This court determined that the district court was required to dismiss the gross misdemeanor DWI charge even though the issue was not raised until trial and that prohibition would lie to prevent the district court from sentencing appellant on that count.  This court further stated that

[a] dismissal for failure to comply with Rule 4.02, subd. 5(3), however[,] does not bar further prosecution unless so ordered by a court.  Minn. R. Crim. P. 17.06, subd. 4(3).  Any claim that retrial on the gross misdemeanor DWI charge is barred must first be presented to the district court.



            On March 24, 2003, the state filed a formal complaint charging appellant with DWI.  Appellant moved to dismiss the complaint as a violation of double jeopardy or the statute prohibiting serialized prosecution, Minn. Stat. § 609.035 (2002).  The district court denied appellant’s motion to dismiss, determining that appellant’s conduct did not constitute a single behavioral incident.

            The district court thereafter found appellant guilty of DWI on stipulated facts.  Following sentencing on both convictions, appellant filed these consolidated appeals.


            Under Minn. Stat. § 609.035, subd. 1 (2002), a conviction for one offense bars further prosecution of any other offense arising from the same conduct.  Where, as here, the material facts are not in dispute, we review de novo the district court’s application of the law.  State v. Meland, 616 N.W.2d 757, 759 (Minn. App. 2000).

            An individual’s conduct may constitute one offense when the “offenses occur at substantially the same time and place, arise from a continuous and uninterrupted course of conduct, and manifest an indivisible state of mind or coincident errors of judgment.”  State v. Finn, 295 Minn. 520, 521, 203 N.W.2d 114, 115 (1972); see also State v. Johnson, 273 Minn. 394, 397-98, 141 N.W.2d 517, 520-21 (1966).  In general, cases involving DWI and another driving or traffic offense have been held to constitute a single course of conduct.  See, e.g., State v. Corning, 289 Minn. 382, 386, 184 N.W.2d 603, 606 (1971) (DWI and leaving scene of accident); State v. Gladden, 274 Minn. 533, 534, 144 N.W.2d 779, 780 (1966) (DWI and careless driving); Johnson, 273 Minn. at 397, 141 N.W.2d at 520 (DWI and driving over centerline).  Cases holding that offenses were separate behavioral incidents generally include at least one licensing or regulatory offense.  See, e.g., State v. Reiland, 274 Minn. 121, 124, 142 N.W.2d 635, 638 (1966) (driving after license revocation and criminal negligence); State v. Reimer, 625 N.W.2d 175, 177-78 (Minn. App. 2001) (discussing cases).

            Here, the offenses of DWI and failure to yield occurred at the same time and place.  The witness following appellant observed him driving erratically prior to the collision, and testified that he believed appellant might be intoxicated.  As in Johnson, the two offenses involve a “continuous and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.”  Johnson, 273 Minn. at 405, 141 N.W.2d at 525.  We therefore conclude that the two offenses constitute a single course of behavior under Minn. Stat. § 609.035 and that the district court erred in determining otherwise.

            The state counters that this is not a “further prosecution” prohibited by the statute, but is part of the same prosecution.  See State v. Sater, 588 N.W.2d 512, 514 (Minn. App. 1998), (concluding that “while a prosecutor cannot file a new indictment or complaint to begin prosecution of any new charge following a trial that resolved a charge arising from that same behavioral incident, charges tried but unresolved are subject to retrial”), review denied (Minn. Feb. 18, 1999).  Because the initial DWI charge was discharged by operation of rule 4.02 prior to the first trial in January 2002, and because the district court did not have jurisdiction over that charge, we cannot conclude that the DWI charge was “tried but unresolved” in the first bench trial.  See id.  Lack of jurisdiction voids a court’s actions, making it as if those actions never existed.  See Black’s Law Dictionary 1568 (7th ed. 1999) (definition of “void”).  The state’s filing of a separate, formal complaint on the DWI offense in March 2003 must be considered an attempt to begin “further prosecution” on a new charge, which is prohibited by Minn. Stat. § 609.035.

            The state further counters that appellant has waived the right to assert the protections of the statute.  This court’s previous order granting the writ of prohibition makes it clear that a defense request for a complaint is not necessary.  Appellant was under no obligation to bring the issue to the court’s attention at an earlier point in the proceedings.  Contrary to the state’s claim that this issue was first raised during closing arguments, discussions appear to have taken place regarding the state’s failure to file a formal complaint during at least two pretrial hearings.  We therefore conclude that appellant did not waive the protections of the statute prohibiting serial prosecutions.[1]

            Finally, appellant challenges the sufficiency of the evidence to support the marijuana offense, which prohibits the possession of “more than 1.4 grams of marijuana” in a motor vehicle.  Minn. Stat. § 152.027, subd. 3 (2000).  At oral arguments before this court, the state conceded that it failed to introduce any evidence regarding the weight of the substance.  We therefore reverse and vacate the conviction on the marijuana offense.  Cf. State v. Olhausen, 681 N.W.2d 21, 28-29 (Minn. 2004) (affirming conviction based on strong circumstantial evidence, where direct evidence not available because defendant had disposed of substance).

            Appellant’s conviction for failing to yield is affirmed; his convictions for possession of marijuana in a motor vehicle and DWI are reversed and vacated.

            Affirmed in part and reversed in part.

[1] In the alternative, appellant argues that his DWI conviction violates the constitutional prohibition against double jeopardy.  See U.S. Const. amend V; Minn. Const. art. I, § 7.  Given our determination that the DWI conviction is barred by Minn. Stat. § 609.035, we need not address this argument.  We do note, however, that the supreme court has suggested that Minn. Stat. § 609.035 is broader and applicable to cases like this involving “separate or nonincluded offenses rather than those where the offenses by definition or the requirement of proof may be found to be the same under the constitutional double-jeopardy rule.”  Johnson, 273 Minn. at 400, 141 N.W.2d at 522.