This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Jeremy Arvid Wallin,



Filed January 31, 2006

Affirmed in part, reversed in part, and remanded

Shumaker, Judge


Crow Wing County District Court





Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, Suite 1800, 445 Minnesota Street, St. Paul, MN 55101; and


Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401(for respondent)


Melissa V. Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)




            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Hudson, Judge.



U N P U B L I S H E D   O P I N I O N


Appellant contests the sufficiency of the evidence to support his convictions of separate counts of assault, criminal damage to property, and possession of a controlled substance, and argues that the imposition of a separate sentence for the property-damage conviction was erroneous.  We affirm the convictions, but reverse the sentence for criminal damage to property, and remand for resentencing.


Appellant Jeremy Wallin brandished a hammer during a dispute with other parties who had followed Wallin’s vehicle in their vehicle to a parking lot in Brainerd, because they suspected that Wallin’s vehicle contained stolen property.  In the course of the dispute, Wallin smashed the driver’s-side window of the other vehicle with the hammer.  Wallin was arrested the next day by Brainerd police, and during his induction to the jail police found that Wallin possessed multiple small baggies containing a white-powder residue.  Testing by the Bureau of Criminal Apprehension determined the residue to contain methamphetamine.  The state charged Wallin with assault, criminal damage to property, and possession of a controlled substance.

A jury returned guilty verdicts on three of seven counts: second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2002); fourth-degree criminal damage to property in violation of Minn. Stat. § 609.595, subd. 3 (2002); and fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025, subd. 2 (2002).  At a subsequent hearing, the district court sentenced Wallin to concurrent sentences of 45 months for the assault, 90 days for criminal property damage, and 19 months for methamphetamine possession.  Wallin contends that the evidence did not support the guilty verdicts and that the district court erred in its sentencing decision.



Our review of a claim of insufficient evidence is limited to a thorough analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to have reached the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary, especially when resolution of the matter depends on conflicting testimony.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989); State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

Assault and criminal damage to property

Wallin argues that the record does not contain proof beyond a reasonable doubt that he possessed the requisite intent to commit the assault and property-damage offenses.  “Generally a person's intent must be determined ‘from his words (if any) and actions in the light of all the surrounding circumstances.’”  State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981) (quotation omitted).  Wallin testified in his own defense that an occupant of the vehicle had threatened him with a knife and the driver tried to run him over in the parking lot, and Wallin claimed that he did not intentionally swing the hammer at the window: “I just pushed myself off of the front of the truck and swung the hammer in self—well, just in trying to move, really.” 

The driver of the other vehicle stated that he had followed Wallin to the parking lot because the vehicle Wallin drove contained stolen property.  On arriving at the parking lot, he was able to get Wallin’s license number and he called the police.  Then “[Wallin] came out of the car running with a hammer right at the . . . driver’s window, shattered the window out and just nearly got my head.”  Wallin argues in his appellate brief that his own testimony is the only direct evidence of his intent and that the state’s circumstantial evidence of assaultive intent “was not compelling enough” to contradict Wallin’s explanation.  But the determination of what was “compelling” is the exclusive prerogative of the jury, and the jury obviously believed the driver’s version of events.  Webb, 440 N.W.2d at 430; Pieschke, 295 N.W.2d at 584.  The evidence reasonably supports the jury’s conclusion.  Therefore, the convictions for assault and property damage have adequate support in the record.

Possession of a controlled substance 

Wallin contends that the evidence supporting his conviction for methamphetamine possession was legally insufficient.  A person is guilty of controlled substance crime in the fifth degree if the person unlawfully possesses one or more mixtures containing a controlled substance.  Minn. Stat. § 152.025, subd. 2 (2002).  Wallin asserts that because the BCA report identifies the amount of methamphetamine as a “trace,” the substance could not be weighed.  He then maintains that a substance must be weighable to support a felony drug charge.  He does not challenge the BCA’s determination that the substance in the baggies contained methampehtamine.

Wallin provides no apposite legal support for this argument, nor does he indicate support in the record for his claim that the methamphetamine residue found in the baggies was not susceptible to measurement.  Controlled substance possession crimes in the first through third degrees are all governed by threshold quantities of methamphetamine necessary to sustain a conviction (fourth-degree possession under Minn. Stat. § 152.024, subd. 2 (2002), is not applicable to methamphetamine possession).  See Minn. Stat. § 152.021, subd. 2 (2002) (25 grams); Minn. Stat. § 152.022, subd. 2 (2002) (six grams); Minn. Stat. § 152.023, subd. 2 (2002) (3 grams).  But fifth-degree possession under Minn. Stat. § 152.025, subd. 2, is not governed by a specific weight threshold, and Wallin has not provided legal authority that the statute is not applicable to trace or residual quantities of methamphetamine.  The controlled-substance conviction has adequate support in the record.



Minn. Stat. § 609.035, subd. 1 (2002), 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 offenses . . . .”  A court may only sentence a defendant once for “crimes resulting from a single behavioral incident.”  State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000).  “The primary purpose of section 609.035 is to protect a defendant convicted of multiple offenses from unfair exaggeration of the criminality of the conduct and to ensure that punishment is commensurate with culpability.”  State v. Gould, 562 N.W.2d 518, 520 (Minn. 1997).  Punishment “refers not to multiple convictions but multiple sentences and any multiple sentences, including concurrent sentences, are barred if section 609.035 applies.”  State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980).

Wallin disputes the district court’s imposition of concurrent sentences for his convictions for second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2002), and fourth-degree criminal damage to property in violation of Minn. Stat. § 609.595, subd. 3 (2002).  Both convictions were based on Wallin’s use of a hammer to smash the driver’s-side window of the vehicle in the parking lot, and the prosecutor identified that action to the jury as an element of each offense. 

Whether multiple offenses arose out of a single behavior incident depends on the facts and circumstances of the particular case.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).  Among the factors to be considered in determining whether two offenses arose out of a single behavioral incident are the singleness of purpose of the defendant and the unity of time and of place of the behavior.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  But the analysis does not end there:  “[A]part from the factors of time and place, the essential ingredient of any test is whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.”  State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 525 (1966).

Wallin’s two offenses did not only arise from a single behavioral incident; they were based upon a single impulse.  We cannot plausibly infer distinct criminal objectives for property damage and assault where the perpetrator was found to have shattered a window with a deadly weapon in order to cause fear to the person behind it. The state responds that, because Wallin did not raise the issue below and does not successfully articulate on appeal what his single criminal objective may have been, he has failed to meet his burden.  But the state has the burden at a sentencing proceeding “to establish by a preponderance of the evidence that the conduct underlying the offenses did not occur as part of a single behavioral incident.”  Williams, 608 N.W.2d at 841.  The record indicates no such effort.  We therefore find that the district court’s imposition of separate sentences for the assault and property-damage convictions was erroneous, and we remand that issue to the district court for the appropriate resentencing.

            Affirmed in part, reversed in part, and remanded.