This opinion will be unpublished and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
Brian Keith Midderigh,
Filed May 3, 2005
Affirmed in part, reversed in part, and remanded
Polk County District Court
File No. KX-03-522
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Gregory A. Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)
John M. Stuart, State Public Defender, Ann Brom McCaughan,
Assistant State Public Defender,
Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
Appellant challenges his convictions of
second- and third-degree burglary, possession of burglary or theft tools,
fleeing a police officer, and felony theft, arguing that his convictions should
be vacated as they arose from the same criminal act and behavioral
incident. Because his conviction for
second-degree burglary arose out of the same offense, we reverse that
conviction, but affirm the other convictions on the basis that they did not
arise from the same criminal act or behavioral incident. Appellant also challenges his sentencing as a
career offender. Because the sentence
violated the principles of Blakely v. Washington, __
Shortly after midnight on April 12, 2003, Deputy Heath Hanson of the Polk County Sheriff’s Department observed a vehicle at the Red River Storage facility, which is located southwest of Crookston. Suspicious of criminal activity, Hanson stopped the vehicle and later identified its driver as appellant Brian Keith Midderigh.
Hanson asked appellant what he was doing at the property. Appellant stated that he was driving around the area, and that he was homeless and tired. Hanson noticed that there was a blue coat covering something on the front passenger seat. When Hanson asked what was under the blue coat, appellant reached into the back seat of the vehicle, grabbed a blanket, and put it over the blue coat. Appellant then put the vehicle in gear and started driving forward, but Hanson reached inside the window, grabbed the gearshift, and put the vehicle in park. Appellant was then ordered to exit the vehicle. Hanson searched the vehicle and discovered a black coin machine underneath the blue coat. He also discovered a pry bar, screwdriver, and gloves in the front seat, as well as a hammer in the back seat of the vehicle. Further investigation determined that the black coin machine discovered in appellant’s car was identical to one stolen from a Crookston car wash.
was charged with second- and third-degree burglary, possession of burglary or
theft tools, fleeing a peace officer in a motor vehicle, and felony theft. Following a trial conducted pursuant to the
procedures outlined in State v.
Lothenbach, 296 N.W.2d 854 (
D E C I S I O N
that his convictions of both second- and third-degree burglary violate Minn.
Stat. § 609.04, subd. 1 (2002), because third-degree burglary is a lesser-included
offense of second-degree burglary. It is a question of law, reviewed de novo,
whether offenses arose out of a single criminal act. See State v. Bertsch, 689 N.W.2d 276,
283 (Minn. App. 2004) (applying de novo standard to statutory interpretation of
Minn. Stat. § 609.04), review granted (
Minn. Stat. §
609.04, subd. 1, prohibits a district court from entering two convictions for
the same offense, or for a lesser-included offense, based on a single criminal
act. State v. Travica, 398 N.W.2d
666, 669 (
In their briefs, the parties concur that it would be proper to vacate appellant’s conviction for second-degree burglary. We agree. Vacating the second-degree burglary charge is appropriate in this case because appellant was also convicted of third-degree burglary, a lesser degree of second-degree burglary. See Minn. Stat. § 609.04, subd. 1(1) (stating a defendant may not be convicted of a charged offense and “[a] lesser degree of the same crime”); see also Minn. Stat. § 609.582, subds. 2, 3 (2002) (describing elements of second- and third-degree burglary). Therefore, we reverse appellant’s conviction of second-degree burglary.
Appellant also contends that the district court erroneously convicted appellant of both third-degree burglary and possession of burglary or theft tools because the convictions arose from the same criminal act, in violation of Minn. Stat. § 609.04, subd. 1. We disagree. It is clear from a reading of the applicable statutory sections that third-degree burglary and possession of burglary or theft tools constitute separate offenses. Compare Minn. Stat. § 609.582, subd. 3, with Minn. Stat. § 609.59 (2002); cf. Minn. Stat. § 609.585 (2002) (stating that conviction of burglary is not bar to conviction of possession of burglary or theft tools if possession was “committed on entering or while in the building entered.”). Consequently, we conclude that there is no violation of Minn. Stat. § 609.04, subd. 1, and appellant was properly convicted of both third-degree burglary and possession of burglary or theft tools.
Next, appellant contends that his multiple
convictions arose out of the same behavioral incident and, therefore, only one
sentence may be imposed. “Whether
multiple offenses form part of a single behavioral act is a question of fact. .
. . But where the facts are established, the determination is a question of law
subject to de novo review.” State v.
Marchbanks, 632 N.W.2d 725, 731 (
Here, the time and place of the possession of burglary or theft tools were different from the time and place of the third-degree burglary. The burglary occurred at a car wash in northwest Crookston sometime late on April 11 or in the early morning hours of April 12, and the possession of the burglary tools occurred in southwest Crookston at a later point in time.
Based on our review of the record, appellant’s possession
of burglary tools at the Red River Storage facility and his commission of the
car wash burglary were not motivated by a desire to obtain a single criminal
objective. The burglary tools were not
useful only to burglarize the car wash, but could have been used for any
burglary. While appellant may have been
motivated by the single criminal objective of committing burglaries to obtain
as much money as possible, such an objective is too broad to constitute a
single criminal objective. See Minn. Stat. § 609.035, subd. 1
(2002) (prohibiting multiple punishments for conduct arising out of same
behavior incident), overruled on other
grounds by State v. Bloofat, 671 N.W.2d 591 (
In this case the possession of burglary or theft tools occurred at a different time and place from the third-degree burglary, and we do not find a sufficient factual nexus between appellant’s burglary at the car wash and his possession of burglary tools at the other side of town to meet the requirements of a single criminal objective. Accordingly, we conclude that the district court did not err as a matter of law in sentencing appellant for both third-degree burglary and possession of burglary or theft tools.
Appellant also argues that the upward durational
departure of his sentence from the presumptive 32 to 34 months to 60 months
violated the United States Supreme Court’s holding in Blakely v. Washington,
__ U.S. __, 124 S. Ct. 2531 (2004). See
State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004) (applying Blakely
The state argues,
based on State v. Leja, 684 N.W.2d 442, 447 n.2 (Minn. 2004), that
appellant waived his Sixth Amendment right to jury trial claim because he
failed to challenge his sentence on the basis of Apprendi v.
agreed to a Lothenbach trial. In
a Lothenbach trial, the defendant waives his right to a jury trial and
submits the matter to the district court on stipulated facts. See Lothenbach, 296 N.W.2d at 857
(establishing the permissibility for a “defendant to enter a plea of not
guilty, waive his right to a jury trial, and then stipulate to the
prosecution’s case”); see also State v. Prax, 686 N.W.2d 45, 49 (Minn.
App. 2004) (recognizing validity of Lothenbach proceedings), review denied (
presumptive sentence in this case was 32 to 34 months imprisonment, appellant
was sentenced under the career-offender statute to an upward durational
departure of 60 months imprisonment.
Appellant contends that under Blakely he is entitled to a jury determination as to whether the instant offenses were committed as part of a pattern of criminal conduct. In State v. Mitchell, this court stated:
Determining whether a conviction is part of a “pattern of criminal conduct” involves a comparison of different criminal acts, weighing the degree to which those acts are sufficiently similar with respect to any of the characteristics listed in Gorman. This determination goes beyond a mere determination as to the fact, or number, of the offender’s prior convictions, which judges are permitted to make without violating the Sixth Amendment jury-trial right.
687 N.W.2d 393, 399-400 (Minn. App.
2004), review granted (
Here, the district court found at sentencing that
appellant had been convicted of multiple felonies, many of which were related
to theft, burglary, or the possession of burglary or theft tools. Although the district court cited evidence
showing appellant’s extensive felony record, appellant had a right to have a
jury determine whether his offense constituted a pattern of criminal conduct,
because such a decision “involves a comparison of different criminal acts,
weighing the degree to which those acts are sufficiently similar with respect
to any of the characteristics listed in Gorman.”
Because appellant properly raised this issue on appeal, and because this court has previously concluded that a determination of a pattern of criminal conduct must be made by a jury, we vacate appellant’s third-degree burglary sentence and remand for resentencing.
Affirmed in part, reversed in part, and remanded.
The supreme court granted review in Conger but stayed the matter pending
a final decision in State v. Shattuck, No. C6-03-362 (