This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Brian Keith Midderigh,




Filed ­­­May 3, 2005

Affirmed in part, reversed in part, and remanded

Dietzen, Judge


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, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.


U N P U B L I S H E D   O P I N I O N



            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, __ U.S. __, 124 S. Ct. 2531 (2004), we reverse and remand for resentencing.


            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.

            Appellant 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 (Minn. 1980),the district court found appellant guilty on all five charges.  In December 2003, the district court sentenced appellant to 60 months in prison on the third-degree burglary conviction.  The 60-month sentence was an upward durational departure, which the district court imposed after finding that appellant was a “career offender,” pursuant to Minn. Stat. § 609.1095, subd. 4 (2002).  The district court imposed concurrent sentences for the possession of burglary tools and fleeing a police officer.  The district court declined to sentence appellant for second-degree burglary and did not sentence him for the felony theft charge.  This appeal follows.



Appellant argues 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. Feb. 15, 2005); see also State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996) (stating whether a statute has been properly construed is a question of law reviewed de novo).

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 (Minn. App. 1987).  “In applying section 609.04 the court must look at the statutory definitions rather than the facts in the particular case to determine whether the lesser offense is necessarily included.”  Id.

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 (Minn. App. 2001) (citation omitted).  “The determination of whether multiple offenses are part of a single behavioral act . . . is not a mechanical test, but involves an examination of all the facts and circumstances.”  State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).  The factors to be considered are the time and place of the conduct and whether the conduct was “motivated by a desire to obtain a single criminal objective.”  Id.

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 (Minn. App. 2003); Soto, 562 N.W.2d at 304 (stating that in drug sale cases, “the criminal plan of obtaining as much money as possible is too broad an objective to constitute a single criminal goal”). 

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 to Minnesota’s sentencing guidelines), review granted (Minn. Dec. 22, 2004).[1]  Because appellant’s challenge to his sentence raises a constitutional issue, we review the challenge de novo.  See State v. Saue, 688 N.W.2d 337, 340 (Minn. App. 2004) (stating de novo standard is applicable because constitutional issues are raised when defendant challenges sentence under Blakely), review granted (Minn. Jan. 20, 2005) (stayed pending decision in State v. Shattuck, C6-03-362 (Minn. argued Nov. 30, 2004)); see also State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998) (holding the constitutionality of a statute presents a question of law that this court reviews de novo), review denied (Minn. Feb. 24, 1999).

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. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), at the time of sentencing.  In Leja, however, the supreme court reduced the upward departure on other grounds, and Blakely was not released until after Leja had been argued.  Leja, 684 N.W.2d at 447 n.2.  Additionally, this court has determined that an appellant “is entitled to the benefit of Blakely even though he [or she] did not assert his [or her] Sixth Amendment rights at trial by objecting on Apprendi grounds.”  State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  In Fairbankswe further concluded that a case is “pending” as long as appellant has not exhausted “all rights to appeal and certiorari,” and that if Blakely issues are raised on direct appeal, they are properly before this court.  Id.  Here, on direct appeal, appellant’s brief clearly raises the constitutional issues set forth in Apprendi and Blakely.  Therefore, appellant has not waived this claim and respondent’s argument is without merit.

Also, appellant 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 (Minn. Dec. 14, 2004).  But we have previously determined that such a waiver does not carry forward to sentencing.  Fairbanks, 688 N.W.2d at 336 (“[W]e reject the state’s argument that Fairbanks’s waiver of his right to trial by jury should be extended to the sentencing proceeding, and that in submitting stipulated facts to the court, Fairbanks thereby waived his right to have findings incident to that process decided by a jury.”).  Thus, even though appellant agreed to waive his right to a jury trial, that waiver does not carry forward to sentencing.

Although the 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.  Minn. Stat. § 609.1095 (2002).  The sentencing court may depart from the presumptive sentence if the judge finds and specifies in the record that the offender has five or more prior felony convictions and the present offense is a felony that was committed as a part of a pattern of criminal conduct.  Id., subd. 4; State v. Huston, 616 N.W.2d 282, 283-84 (Minn. App. 2000).  A pattern may be demonstrated by proof of criminal conduct similar in motive, purpose, results, participants, victims, or other shared characteristics.  State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996).

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 (Minn. Dec. 22, 2004).  Consequently, the Mitchell court held that the defendant has a right to a jury, rather than a judicial determination, of whether there is a pattern of criminal conduct for purposes of upward durational departures pursuant to Minn. Stat. § 609.1095, subd. 4.  Id. at 400.

            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.”  Id. at 399.

            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.

[1] The supreme court granted review in Conger but stayed the matter pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004).  By order filed in Shattuck on December 16, 2004, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury was a violation of the defendant’s rights as articulated in BlakelyState v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam).  The court indicated that a full opinion would be forthcoming and directed the parties to submit additional briefs on an appropriate remedy.  Id.