This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Ricky Allan Lambertson,




Filed December 20, 2005

Reversed in part and vacated in part
Crippen, Judge


Stearns County District Court

File No. K9-03-4720


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Janelle Prokopec Kendall, Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Stoneburner, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the imposition of sentences for counts two (fourth-degree burglary) and three (criminal damage to property) of the criminal complaint, claiming that both convictions arose from the same behavioral incident as count one (second-degree burglary).  His claim having merit, we reverse and vacate the sentencing on counts two and three.  Because the second and third counts also state included offenses of his conviction for count one, we reverse the challenged convictions.


            On October 19, 2003, appellant Ricky Lambertson broke into a store.  St. Cloud police officers arrested appellant on the premises and found in his duffle bag a wooden duck belonging to the business.  Appellant subsequently admitted that he intended the break-in, broke a window to make entry, tore the building’s alarm off the wall after it went off, and took the wooden duck off a shelf. 

            Appellant was charged with: (1) second-degree burglary under Minn. Stat. § 609.582, subd. 2(d) (2002); (2) fourth-degree burglary under Minn. Stat. § 609.582, subd. 4 (2002); and (3) fourth-degree criminal damage to property under Minn. Stat. § 609.595, subd. 3 (2002).  The jury found him guilty of all counts. 

            The district court, in its judgment and warrant on the convictions, stayed imposition of sentence for the count-one conviction, stayed execution of a 345-day sentence (365 days less 20 days jail credit) on count two, and stayed execution of a zero-days sentence (20 days less 20 days jail credit) on count three.[1]  In September 2004, after appellant requested execution of his sentence, the court pronounced a count-one sentence of one-year and one-day imprisonment less 20 days jail credit.[2]  Appellant does not question execution of the one-year and one-day sentence, but he disputes the imposition of sentences for counts two and three.


Under Minn. Stat. § 609.035, subd. 1 (2002), absent certain exceptions, “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.”  The district court “may only sentence a defendant once for a single behavioral incident even though it results in multiple crimes.”  State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000).  The state bears the burden of proving by a preponderance of the evidence that the conduct underlying the offenses did not occur as part of a single behavioral incident.  Id.  In determining whether the offenses arose from a single behavioral incident, appellate courts consider “factors of time and place . . . and whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.”  Id. (quotation omitted).

According to the amended complaint, all three of appellant’s convictions resulted from the single break-in event.  The prosecutor stated during his opening remarks to the jury that the three charged counts were not “three separate incidences, but rather they all arise out of the same set of circumstances.”  Because all three offenses occurred at the same time and the same place and were all done to reach the same goal, appellant’s convictions all arose from the same behavioral incident.  See id. at 843 (noting that distance between two rooms within the same apartment “hardly justif[ied] a conclusion that the offenses were not part of a single behavioral incident”).        

Additionally, although appellant only argues that his sentences for counts two and three should be reversed, the district court clearly erred in allowing all three convictions to stand.  See Minn. R. Civ. App. P. 103.04 (providing this court has discretion to address any issue as justice requires); State v. Hannuksela, 452 N.W.2d 668, 673 (Minn. 1990) (stating appellate courts have responsibility to decide cases in accordance with law).  The district court file contains a letter from the prosecuting attorney stating, “I believe there should only have been a judgment of conviction and sentence for Count I [second-degree burglary].  Once your appeal has been concluded, I am willing to move the court to vacate the judgment and sentence for Counts II and III.”

Under Minn. Stat. § 609.04, subd. 1 (2002), the actor “may be convicted of either the crime charged or an included offense, but not both.”  An “included offense,” the statute provides, includes both a “lesser degree of the same crime” and a “crime necessarily proved if the crime charged were proved.”  Id.  Appellant’s fourth-degree burglary is a lesser-included offense of his second-degree burglary conviction.  The jury was also instructed that one of the elements of the second-degree burglary charge was that appellant “committed the crime of criminal damage to property.”  Neither conviction can stand.

We reverse the convictions on counts two and three of the complaint and vacate sentencing of appellant on those convictions.

            Reversed in part and vacated in part.    

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] At the preceding sentencing hearing, the court initially announced stayed execution of a one-year-one-day sentence on count one. The form of this sentence was evidently changed in response to a correction request of appellant.  With its initial announcement of the sentence, the court stated that the stayed sentences on the other counts were to run concurrently. 

[2] The subsequent criminal judgment and warrant of commitment stays the revocation proceedings pending completion of this appeal.  Neither the announced sentence nor the judgment and warrant indicate whether the court revoked the sentences on counts two and three.