This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Gregory Maxwell Villeneuve,
Itasca County District Court
File No. K8-02-2302
Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
John J. Muhar, Itasca County Attorney, David S. Schmit, Assistant County Attorney, Itasca County Courthouse, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent)
Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.*
Appellant challenges concurrent sentences imposed for deer shining and fourth-degree driving while impaired, arguing that, because the offenses arose from a single behavioral incident, the district court erred in imposing a separate sentence for each conviction. We affirm.
In the early morning hours of November 16, 2002, while conducting aerial surveillance for deer-shining activity, Conservation Officer Allen Buchert observed a vehicle enter a field and slowly sweep its headlights from left to right across the field and tree line. Officer Buchert immediately notified Officers Ken Soring and Brian Buria, who were patrolling on the ground, of the suspected deer-shining activity. Officer Buchert continued to observe the vehicle as it drove in a circle, traveled southwest into another field, and again shined its headlights into the field at various angles.
Approximately 15 minutes after the sighting, Officers Soring and Buria stopped the vehicle. As Officer Soring approached the vehicle, he observed an uncased rifle in the passenger’s seat. Officer Buria ordered the driver, later identified as appellant Gregory Villeneuve, out of the vehicle. Villeneuve fumbled with the locks for approximately one minute before opening the car door. The officers then informed Villeneuve that he was under arrest for deer shining.
While speaking with Villeneuve, the officers observed that his speech was slurred and that he staggered as he walked. The officers also smelled a strong odor of an alcoholic beverage on his breath. Based on their observations, the officers concluded that Villeneuve was under the influence of alcohol.
The officers contacted Officer Brian Castellano to transport Villeneuve to jail for unlawfully engaging in deer shining. When Officer Castellano arrived, he immediately concluded that Villeneuve was intoxicated. Villeneuve refused to take a preliminary breath test and later refused to provide a breath sample at the jail. A subsequent search of the vehicle uncovered a box of ammunition, a cartridge carrier with cartridges, and two open, but partially filled, cans of beer in the front seat.
Villeneuve was charged with using artificial lights to locate animals, in violation of Minn. Stat. § 97B.081, subd. 1 (2002); fourth-degree driving while impaired, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .27, subd. 1 (2002); and refusal to submit to a chemical test, in violation of Minn. Stat. § 169A.20, subd. 2 (2002). The state later agreed to dismiss the charge of test refusal. Following a trial on stipulated facts, the district court convicted Villeneuve of deer shining and driving while impaired.
At the sentencing hearing, the district court determined that the two remaining charges “were not the product of a single behavioral incident,” reasoning that “the elements [were] quite different as far as the crimes [were] concerned.” The district court imposed a sentence on each offense to be served concurrently. This appeal followed.
argues that the district court improperly sentenced him for two convictions
arising out of a single behavioral incident, in violation of Minn. Stat.
§ 609.035, subd. 1 (2002). A
district court’s sentencing decision ordinarily entails factual determinations
that will not be reversed on appeal unless clearly erroneous. Effinger
v. State, 380 N.W.2d 483, 489 (
Subject to limited exceptions,
which do not apply here, “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.” Minn. Stat. § 609.035,
subd. 1. Thus, when multiple offenses
arise out of a single behavioral incident, the district court shall sentence
for only one offense.
If section 609.035 applies, all
multiple sentences, including concurrent sentences, are barred. State
v. Bookwalter, 541 N.W.2d 290, 293 (
In State v. Johnson, the
Minnesota Supreme Court set forth two tests for evaluating whether
multiple offenses arise from a single behavioral incident. 273
Driving while impaired is a nonintentional traffic crime. State v. Clement, 277 N.W.2d 411,
412-13 (Minn. 1979); State v. Sailor, 257 N.W.2d 349, 352 (Minn. 1977);
see also State v. Reiland, 274 Minn. 121, 124-25, 142 N.W.2d 635,
638 (1966) (noting that intent not an essential element of traffic offenses,
including serious traffic crimes such as negligent homicide). Because one of Villeneuve’s sentenced
offenses was driving while impaired, we apply the two-prong nonintentional
test. See Krech, 312
Because the parties agree, and our review of the facts establishes, that the offenses occurred at substantially the same time in one uninterrupted course of driving, we move to the second prong of the analysis—namely, whether Villeneuve’s conduct underlying the offenses of driving while impaired and deer shining manifested an indivisible state of mind or coincident errors in judgment.
Generally, when offenses are committed independently of one another, even if committed at the same time, they fail to manifest an indivisible state of mind. State v. Butcher, 563 N.W.2d 776, 784 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). A defendant nonetheless exhibits an indivisible state of mind if his behavior was motivated or caused by only one objective. See, e.g.,Krech, 312 Minn. at 467, 252 N.W.2d at 273 (holding that driving while intoxicated, obstructing legal process, and assaulting police officers were all committed while intoxicated with singular purpose of avoiding apprehension); State v. Corning, 289 Minn. 382, 386, 184 N.W.2d 603, 606 (1971) (concluding that indivisible state of mind existed when both offenses arose from drunk-driving accident in which defendant’s conduct was plainly indicative of reasoning dulled by alcohol); State v. Gladden, 274 Minn. 533, 537, 144 N.W.2d 779, 783 (1966) (concluding that indivisible state of mind existed when offenses of careless driving and driving while impaired were committed with singular goal of driving).
a defendant’s state of mind is divisible when the conduct constituting each
offense is dissimilar or unrelated. Reiland,
as in Butcher and Sailor, Villeneuve’s motivations underlying the
offenses were sufficiently distinct as to exhibit a divisible, rather than
indivisible, state of mind. Villeneuve engaged in deer shining with a loaded
firearm in his car with the specific intent to spot deer. See Minn. Stat. § 97B.081, subd. 1; State
v. Hayes, 431 N.W.2d 533, 534 (
Villeneuve’s behavior exhibits divergent, rather than coincident, errors in
judgment. In the context of a
driving-while-impaired offense committed at the same time as another offense,
errors in judgment are deemed coincident when driving while impaired caused, or
at least contributed to, the second offense.
See, e.g., Corning, 289 Minn. at 386, 184 N.W.2d at 606
(holding that errors in judgment were coincident when drinking caused car
accident from which defendant fled without providing information); Johnson,
273 Minn. at 405, 141 N.W.2d at 525 (holding that defendant’s first error in
judgment, driving while under influence of alcohol,and second error,
deciding whereon roadway he should drive, were coincident). But when the errors in judgment are
multiple, distinct, and causally unrelated, the errors in judgment are not
coincident. For example, the Butcher court
held thatcommitting the offenses of transporting an uncased firearm,
taking deer out of season, and driving after license cancellation required
distinct errors in judgment because the offenses lacked any necessary
connection to each other. 563 N.W.2d at
784. As such, the charged offenses were
so distinct that they did not share coincident errors in judgment.
As in Butcher,Villeneuve’s offenses resulted from distinct errors in judgment. The error in judgment precipitating Villeneuve’s driving-while-impaired conviction was to drive after consuming an excessive amount of alcohol. This is qualitatively different from Villeneuve’s other error in judgment, which was to scan his headlights over an open field with the specific intent to spot and shoot deer. Villeneuve’s actions manifest two distinct and unrelated judgments—to drive while impaired and to shine deer.
Because the conduct underlying Villeneuve’s offenses did not arise from a single behavioral incident, the district court properly imposed a separate sentence for each conviction.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.