This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed July 26, 2005
Affirmed in part, reversed in part, and remanded
Scott County District Court
File No. 2001-2165
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Scott County Justice Center, 200 West Fourth Street, JC347, Shakopee, MN 55379 (for respondent)
John M. Stuart, State Public Defender, Philip Marron,
Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
Appellant challenges his sentence after remand, arguing that (1) his convictions on four of the five counts must be vacated because they are either lesser-included offenses of the fifth count or are part of the same behavioral incident as the fifth count and (2) the district court’s upward durational departure violates his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004). Because counts III and IV are lesser-included offenses of count V, we vacate appellant’s convictions on those counts. But because the state met its burden of proving that appellant’s acts constitute separate and distinct offenses, we affirm his convictions on the remaining counts. Because the district court’s upward durational departure in sentencing violated appellant’s right to a jury trial under Blakely, we reverse in part and remand for resentencing.
In January 2000, 17-year-old M.C.S. reported to law enforcement that her stepfather, appellant Scott Lee Edmundson, had sexually abused her, beginning when she was four or five years old and continuing on a regular basis between 1986 and 1996. Appellant was subsequently charged with five counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a), (g), (h)(iii) (2000).
After a jury trial, appellant was convicted of all five counts. The district court applied the Hernandez sentencing method and sentenced appellant on count I to 90 months, on count II to 115 months, on count III to 135 months, on count IV to 160 months, and on count V to 360 months, with all of the sentences to run concurrently. The sentence on count V reflects an upward departure from the presumptive sentence of 158 months. To support the upward departure, the district court found the following aggravating factors: (1) victim vulnerability due to age; (2) abuse of a position of trust; (3) invasion of the victim’s zone of privacy; (4) the psychological and emotional effect on the victim; and (5) the use of multiple forms of sexual abuse.
On appeal, this
court affirmed appellant’s convictions. State v. Edmundson, No. A03-232,
2004 WL 332094 (
On remand, the district court imposed the same sentence that it had at the first sentencing hearing, including the upward departure to 360 months on count V. The district court noted that it “base[d] its departure decision on three aggravating factors—[appellant’s] invasion of the victim’s zone of privacy, the psychological injury to the victim, and the multiple forms of sexual abuse suffered by the victim.” This appeal follows.
I. Lesser-Included Offense
argues that his convictions on counts III and IV must be vacated because the
offenses charged are lesser-included offenses of count V. “Upon prosecution for a crime, the actor may
be convicted of either the crime charged or an included offense, but not
As an initial matter, the state argues that appellant waived this objection because he failed to raise it before the district court. Citing State v. Johnson, 653 N.W.2d 646 (Minn. App. 2002), the state suggests that “while [appellant] cannot waive the protection against double punishment, [he] can waive an objection to multiple convictions by failing to object.” But as we have previously stated, “[t]he protection of Minn. Stat. § 609.04 from multiple convictions for the same conduct is not waived through lack of previous presentation.” State v. Frank, 416 N.W.2d 744, 750 (Minn. App. 1987), review denied (Minn. Feb. 8, 1988).
reliance on Johnson is misplaced. There, we noted that “[t]he defendant in White waived his protection against
multiple prosecutions when he did not
object to his prosecution in the district court.” Johnson,
653 N.W.2d at 651 (emphasis added) (discussing State v. White, 300
Both White and Johnson addressed the protections contained in
The state also
points to State v. Kemp, 305 N.W.2d
322 (Minn. 1981), where the supreme court indicated that appellate courts might
decline to address future objections based on either section 609.035 or 609.04
unless the issue was first presented to the district court.
The intent of that language was to get defense counsel to petition for relief in the district court first, thereby possibly avoiding the need for an appeal and avoiding the need for this court to decide the issue.
. . . The intent of the language was not to suggest that a defendant waives or forfeits the issue if he does not raise it at the time of sentencing.
asserts that his convictions for single acts of engaging in sexual penetration
with M.C.S. when she was under 16 years of age and based on the finding that he
had a significant relationship to her must be vacated under Minn. Stat. §
609.04, subd. 1, because they are lesser-included offenses of his conviction
for engaging in multiple acts of sexual penetration with M.C.S. when she was
under 16 years of age and he had a significant relationship to her. The application of section 609.04 is a
question of law, which we review de novo.
See State v. Murphy, 545
N.W.2d 909, 914 (
609.04 prohibits a court from entering convictions for both one crime and a
second crime “necessarily proved” if the first crime was proved.
Minn. Stat. § 609.04 forbids two convictions of the same offense or of one offense and a lesser included offense on the basis of the same criminal act. 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.
v. Travica, 398 N.W.2d 666, 669 (
Here, among other offenses, appellant was charged with violating Minn. Stat. § 609.342, subd. 1(g) (2000) (counts III and IV), and Minn. Stat. § 609.342, subd. 1(h)(iii) (2000) (count V). The elements of these crimes are identical except that subdivision 1(g) applies to a single incident and subdivision 1(h)(iii) requires multiple incidents. All three of these convictions were based on appellant’s conduct between July 1986 and July 1996. Proving multiple acts of sexual penetration during this time frame necessarily proved a single act of sexual penetration during the same period. Accordingly, subdivision 1(g) constitutes a lesser-included offense of subdivision 1(h)(iii). Because appellant was “formally adjudicated” guilty of a crime and a lesser-included offense of that crime, his convictions on counts III and IV must be vacated. Plan, 316 N.W.2d at 728-29.
II. Single Behavioral Incident
contends that his sentences for counts I and II must be vacated because they
are based on the same behavioral incident as the conduct underlying count
V. Minn. Stat. § 609.035, subd. 1
(2000), provides that “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
In determining whether multiple offenses arise from a single behavioral incident, this court must consider the defendant’s singleness of purpose, i.e., whether the defendant was motivated by a desire to obtain a single criminal objective. We must also consider whether the offenses (1) arose from a continuous and uninterrupted course of conduct, (2) occurred at substantially the same time and place, and (3) manifested an indivisible state of mind.
653 N.W.2d at 651-52 (quotation and citations omitted). The burden of proof is on the state to
demonstrate that multiple acts are separate and distinct criminal
offenses did not all occur at “substantially the same time.” The record indicates that the jury was
presented with evidence of multiple distinct acts of abuse by appellant
occurring at numerous times over many years.
It is clear that these acts were not part of a “continuous and
uninterrupted course of conduct.”
Rather, the acts represent multiple and distinct instances of sexual
abuse with significant breaks in the continuity of those acts. It is equally clear that these distinct acts
do not represent an “indivisible state of mind.” Moreover, although, in a broad sense,
appellant’s motivation throughout the years may have been to abuse M.C.S., such
a motivation is too broad to constitute a “single criminal objective.” Cf.
State v. Soto, 562 N.W.2d 299, 304 (
argues that the Supreme Court’s recent decision in Blakely v. Washington, 124
recently addressed a related question in State
v. Senske, 692 N.W.2d 743 (Minn. App. 2005), review denied (Minn. May 17, 2005), where we held that, when
sentencing on multiple counts, a district court may impose consecutive
sentences based on a judicial finding that offenses were “crimes against
persons” without violating Blakely.
III. Upward Durational Departure
argues that the district court violated his right to a jury trial under
Blakely by sentencing him to 360
months in prison—more than double the presumptive sentence. The decision to depart from the
presumptive sentence rests with the district court and will generally not be
disturbed absent a clear abuse of discretion.
State v. Givens, 544 N.W.2d 774, 776 (
In Blakely, the
Supreme Court held that the greatest sentence that a judge may impose is “the
maximum sentence [that may be imposed] solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.”
We have previously held that
Blakely applies to upward durational departures under the sentencing
guidelines. State v. Conger, 687
N.W.2d 639, 644 (Minn. App. 2004), review granted (
Here, the state concedes that the district court’s upward departure violated appellant’s Sixth Amendment rights as set forth in Blakely. Accordingly, the sentence must be reversed and the case remanded to the district court for further proceedings not inconsistent with this opinion.
Finally, we note that
appellant “is not automatically entitled on remand to a reduction of [his]
sentence to the presumptive sentence.
Because the appropriate remedy, including the possible impaneling of a
jury to determine the sentencing issues, has not been fully litigated, it ‘must
be determined in the first instance by the district court.’” State
v. Thompson, 694 N.W.2d 117, 123 (
Affirmed in part, reversed in part, and remanded.
 Count I alleged that appellant had sexually penetrated M.C.S.’s vagina digitally and/or with other objects when she was under 13 years of age in violation of Minn. Stat. § 609.342, subd. 1(a). Count II alleged that appellant had engaged in cunnilingus with M.C.S. when she was under 13 years of age in violation of Minn. Stat. § 609.342, subd. 1(a). Count III alleged that appellant had sexually penetrated M.C.S.’s vagina digitally and/or with other objects, when she was under 16 years of age and he had a significant relationship to her, in violation of Minn. Stat. § 609.342, subd. 1(g). Count IV alleged that appellant had engaged in cunnilingus with M.C.S., when she was under 16 years of age and he had a significant relationship to her, in violation of Minn. Stat. § 609.342, subd. 1(g). Count V alleged that appellant had engaged in sexual penetration with M.C.S. when she was under 16 years of age and he had a significant relationship to her, and that the sexual abuse involved multiple acts committed over an extended period of time, in violation of Minn. Stat. § 609.342, subd. 1(h)(iii).
v. Hernandez, 311 N.W.2d 478 (
 Minn. Stat. § 609.342, subd. 1, provides, in relevant part:
A person who engages in sexual penetration with another person, or in sexual contact with a person under 13 years of age . . . is guilty of criminal sexual conduct in the first degree if any of the following circumstances exists:
. . . .
(g) the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration. . . . ; or
(h) the actor has a significant relationship to the complainant, the complainant was under 16 years of age at the time of the sexual penetration, and:
. . . .
(iii) the sexual abuse involved multiple acts committed over an extended period of time.
The supreme court granted review in Conger, but stayed additional
proceeding of that matter, pending a final decision in State v. Shattuck,
No. C6-03-362 (