This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Richard Anthony Berry,



Filed February 22, 2005

Affirmed as modified

Lansing, Judge


Olmsted County District Court

File No. K3-03-4200



Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (respondent)


John Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (appellant)


            Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from his conviction of two counts of aiding and abetting financial-transaction-card fraud, Richard Berry challenges the imposition of two separate sentences for conduct that involved making two purchases at the same store with the same credit card within minutes of each other.  Because the two offenses were part of the same behavioral incident, we vacate the second, concurrent sentence.


            Richard Berry pleaded guilty to two counts of aiding and abetting financial-transaction-card fraud under Minn. Stat. §§ 609.821, subd. 2(1) and 609.05 (2002).  At the plea hearing, Berry admitted that he accompanied a woman who made two purchases in quick succession with a stolen credit card at a Target store in Rochester.  The woman first bought a digital camera and camcorder for $973.67.  As the cashier was ringing up these charges, the woman added $900 worth of gift cards to the purchase.  Because the cashier had closed out the first transaction, the cashier rang up the gift cards separately.  Target’s point-of-transaction records show that the first sale for $973.67 occurred between 2:01:14 and 2:01:59.  The second sale for $900 occurred between 2:04:00 and 2:05:00.

            In exchange for Berry’s agreement to plead guilty to the two charges, the prosecutor agreed to dismiss the remaining charges and to “cap” Berry’s sentence at the presumptive guidelines sentence.  After receiving the presentence-investigation report, Berry brought a motion requesting, among other things, that the two counts receive one sentence because they formed part of a single behavioral incident.  At the sentencing hearing, Berry argued that Minn. Stat. § 609.035 (2002) bars separate sentencing on the two counts.  The prosecution took no position.  The district court made no specific findings on Berry’s argument but implicitly rejected it by imposing two concurrent sentences:  a twenty-two-month presumptive guidelines sentence on the first count and a twenty-five-month sentence on the second count.  This appeal followed. 


“[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses. . . .”  Minn. Stat. § 609.035, subd. 1 (2002).  Section 609.035 prohibits multiple sentences on offenses that are committed as part of a single behavioral incident even if the sentences are concurrent.  State v. Norregaard, 384 N.W.2d 449, 449 (Minn. 1986).  In deciding whether two or more crimes were part of a single behavioral incident, we evaluate the factors of time and place; we also consider whether a single criminal objective motivates the conduct.  State v. Johnson, 273 Minn. 394, 404-05, 141 N.W.2d 517, 525-26 (1966).  Whether multiple offenses arose from a single course of conduct depends on the facts and circumstances of each case.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). 

The circumstances of the two fraudulent credit-card transactions are not in dispute.  The point-of-sales transaction reports for the purchases show that the same cashier rang them up with only two minutes and one second separating the two transactions.  The transactions were at the same register, in the same Target store, involved the same individuals, and were charged on the same credit card.  Thus, the unities of time and place are satisfied.  The factual basis for the plea established that, while Berry and his codefendant were standing at the register, Berry’s codefendant used the credit card without permission to purchase a digital camcorder and camera and then, while remaining at the cash register, to purchase gift cards.  The evidence demonstrates that Berry assisted his codefendant in conduct directed toward a single behavioral objective:  making unauthorized purchases with a credit card.  In a letter brief, the state acknowledges that Berry’s two convictions arose from a single behavioral incident and concedes that Berry’s sentence on the second count should be vacated.  We agree that application of Minn. Stat. § 609.035 bars the imposition of separate sentences for Berry’s convictions, and we vacate that part of the district court’s order imposing the second, twenty-five-month sentence.  

In a pro se supplemental brief, Berry challenges the computation of the criminal-history score used to determine his concurrent sentence on the second count.  Because we have vacated the second, concurrent sentence to comply with the requirements of section 609.035, we do not address any alleged errors in its computation.

            Affirmed as modified.