This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


Gregory Maxwell Villeneuve,


Filed April 12, 2005


Wright, Judge


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.*

U N P U B L I S H E D  O P I N I O N




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.




Villeneuve 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 (Minn. 1986).  But on established facts, whether offenses are part of a single behavioral incident presents a question of law, which we review de novo.  State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001); see also State v. Meland, 616 N.W.2d 757, 759 (Minn. App. 2000) (holding that, when material facts are not in dispute, appellate court reviews de novo district court’s application of law). 

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.  Id.; State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980).  Section 609.035, subdivision 1, is intended to “protect against exaggerating the criminality of a person’s conduct and to make both punishment and prosecution commensurate with culpability.”  State v. Secrest, 437 N.W.2d 683, 684 (Minn. App. 1989) (quoting State v. Eaton, 292 N.W.2d 260, 266 (Minn. 1980)), review denied (Minn. May 24, 1989). 

If section 609.035 applies, all multiple sentences, including concurrent sentences, are barred.  State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995).  Whether the offenses arose out of the same behavioral incident depends on the facts and circumstances of the particular case.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).

In State v. Johnson, the Minnesota Supreme Court set forth two tests for evaluating whether multiple offenses arise from a single behavioral incident.  273 Minn. 394, 404-05, 141 N.W.2d 517, 524-25 (1966).  Application of the particular test depends on the intentional nature of the offenses involved.  Id.  When conducting a single-behavioral-incident analysis for two intentional crimes, Minnesota courts consider (1) whether the conduct shares a unity of time and place and (2) whether the conduct was motivated by an effort to obtain a single criminal objective.  State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000);State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997); Marchbanks, 632 N.W.2d at 731.  When the offenses include both intentional and nonintentional crimes, however, the proper inquiry is whether the offenses (1) occurred at substantially the same time and place and (2) “[arose] out of a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.”  State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991); see also State v. Reimer, 625 N.W.2d 175, 176-77 (Minn. App. 2001) (quoting Johnson, 273 Minn. at 405, 141 N.W.2d at 525).  This second test substitutes the factor of “single criminal objective”—or intent—with the singleness of the conduct itself.  Johnson, 273 Minn. at 404, 141 N.W.2d at 525.  Whether conduct is singular depends on the indivisibility of the defendant’s state of mind, not the separability of the defendant’s actions.  State v. Krech, 312 Minn. 461, 465, 252 N.W.2d 269, 272-73 (1977). 

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 Minn. at 466-67, 252 N.W.2d at 273 (applying nonintentional test when traffic offense was one of multiple offenses at issue).

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). 

Conversely, a defendant’s state of mind is divisible when the conduct constituting each offense is dissimilar or unrelated.  Reiland, 274 Minn. at 124, 142 N.W.2d at 638.  For example, transporting an uncased firearm, taking deer out of season, and driving after license cancellation, although occurring in a single time frame, do not share an indivisible state of mind because the offenses are sufficiently distinct, separate, and unrelated.  Butcher, 563 N.W.2d at 784.  Similarly, in State v. Sailor, the Minnesota Supreme Court concluded that, although the defendant was drinking when he stole a vehicle, the offenses of driving while intoxicated and unauthorized use of an automobile were not part of an indivisible state of mind because the motivations for committing the two offenses were sufficiently distinct.  257 N.W.2d 349, 353 (Minn. 1977); see also State v. Murphy, 277 Minn. 355, 358, 152 N.W.2d 507, 510 (1967) (indivisible state of mind did not exist when acts underlying offenses of intoxication and unauthorized use of automobile were not necessarily related and did not result from single motivation).  

Here, 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 (Minn. 1988) (reasoning that to support conviction for deer shining, state must prove that defendant intentionally shined artificial light “in order to spot a wild animal”).  Driving while impaired is an independent offense unrelated to the purpose of hunting game for sport.  Villeneuve committed neither offense in furtherance of the other or in reference to the other.  The record fails to demonstrate that Villeneuve decided to drive while impaired to somehow further his deer-shining activities or that he was deer shining only because he was under the influence of alcohol.  To so assume on this record would be unduly speculative.  The offenses are sufficiently unrelated and Villeneuve’s state of mind sufficiently divisible to constitute distinct behavioral incidents. 

Moreover, 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.  Id. 

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.