This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Michael James Schuhwerck,


Filed February 13, 2007


Minge, Judge


Dakota County District Court

File No. K2-04-3536



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)


John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Minge, Presiding Judge; Hudson, Judge; and Huspeni, Judge.*


U N P U B L I S H E D  O P I N I O N

MINGE, Judge


Appellant Michael Schuhwerck challenges his conviction and sentence for attempted first-degree arson, second-degree arson, third-degree burglary, and first-degree criminal damage to property.  Appellant argues that the evidence was insufficient to establish attempted first-degree arson, that all of the charges arose out of one incident, and that he could be sentenced for only two of his convictions.  Because the evidence supports the attempted first-degree arson conviction, because multiple victims and the burglary conviction permit the imposition of four sentences, and because the district court did not abuse its discretion in sentencing appellant for all of his convictions, we affirm.



In the late 1990s, appellant’s father gave appellant’s sister, M.A.Z., 40 acres of land in Farmington, provided the father could continue to live there.  M.A.Z. sold part of the property but retained a ten-acre parcel, which contained a house, a pole barn, and a small shed.  M.A.Z. lived in the house and used the pole barn to store a riding lawn mower, other lawn equipment, and a boat.  She also allowed others to store cars, boats, and other vehicles in or near the pole barn.  One neighbor parked a semi-trailer next to the pole barn.

M.A.Z.’s father lived with her, and, for a short period of time, appellant stayed on the property.  But after a dispute with appellant, M.A.Z. filed a trespass notice and excluded both appellant and their father from the property.  M.A.Z. also obtained an order for protection against appellant.  She and appellant have called the police several times to file complaints against each other.

In the summer of 2004, M.A.Z. and her husband managed a resort in northern Minnesota.  M.A.Z. arranged for a friend to stay in the Farmington home for the summer.  The friend’s daughter joined her.  The friend agreed to help maintain the property.  Before leaving for the summer, M.A.Z. filled five gas cans so that her friend could mow the lawn.  The gas cans were kept inside the pole barn. 

Around 1:30 a.m. on July 5, 2004, M.A.Z.’s friend and her daughter were startled by the sound of breaking glass.  They turned on the lights, discovered that someone had broken the sliding glass door in the basement of M.A.Z.’s home, and called 911.  The dispatcher informed them that a fire had been reported somewhere on the property.  When the police arrived, they conducted a search of the premises using K-9 units and a State Patrol helicopter, but they found no suspects.

As a result of the fire and other activity the same night, the pole barn, the parked semi-trailer, and other stored property were severely damaged.  The interior and exterior of the semi-trailer sustained extensive fire damage, and one of its doors had been broken.  Someone had entered the pole barn.  Although that building sustained minimal fire damage, the service door on the back of the pole barn had a broken window, gasoline and other liquids were poured all around its interior and exterior, and several vehicles and other property in or near the pole barn had been vandalized and severely damaged.  This included personal property belonging to M.A.Z.  Subsequent tests indicated that samples of liquids that had been poured in and around the pole barn matched samples of gasoline taken from the gas cans that had been stored there. 

When police checked the house, they found one of the gas cans from the pole barn on the patio outside the broken glass door.  It was still full of gasoline, and there was blood on the handle.  Tests determined that the blood matched appellant’s blood.  Other than the presence of that gas can, there was no direct evidence of an attempt to burn M.A.Z.’s home. 

Appellant was arrested and charged with attempted first-degree arson, second-degree arson, second-degree burglary, third-degree burglary, and first-degree criminal damage to property.  Appellant moved to dismiss all charges, particularly the attempted first-degree arson charge, because of insufficient evidence.  The district court denied the motion, and a jury found appellant guilty of all charges except second-degree burglary. 

The prosecution recommended that appellant be sentenced for each conviction and that the criminal history score be “Hernandized.”  The prosecution argued that all four convictions involved different victims and offenses.  Appellant argued that he should only be sentenced for one conviction because all of the charges arose from the same behavioral incident and that it was inappropriate to use the Hernandez method when determining his criminal history score. 

The district court concluded that “these [were] all separate offenses, separate victims, and that the Hernandizing is appropriate,” and imposed sentences for all four convictions.  The district court applied the Hernandez method, which raised appellant’s criminal history score to two.  Then, it sentenced appellant to 36 months executed, which was the maximum presumptive sentence for attempted first-degree arson with a criminal history score of two.  The other sentences ran concurrently to the 36-month sentence.  This appeal follows.




The first issue is whether the evidence was sufficient to prove that appellant attempted to commit first-degree arson.  In considering a claim of insufficient evidence, our review requires “a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” was sufficient to allow the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  A jury has the exclusive function of judging witness credibility and weighing the evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  We must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

“[A] conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  But, “[w]hile it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  Circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  State v. Quick, 659 N.W.2d 701, 710 (Minn. 2003). 

A 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.  Appellate courts will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably have concluded that appellant was guilty of the charged offenses.  Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004).  This analysis must be conducted with the evidence viewed in the light most favorable to the jury’s verdict.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).  Therefore, overturning a jury verdict is a heavy burden for a defendant.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).

The jury found appellant guilty of attempted first-degree arson.  A defendant is guilty of attempting to commit a crime when he or she: (1) intends to commit the crime; and (2) “does an act which is a substantial step toward, and more than preparation for, the commission of the crime . . . .”  Minn. Stat. § 609.17, subd. 1 (2002).  First-degree arson is: (1) intentionally; (2) causing damage to a building; (3) that is used as a dwelling at the time the act was committed, whether the inhabitant was present at the time of the act or not; (4) by fire or explosive.  Minn. Stat. § 609.561, subd. 1 (2002).

            Appellant argues that circumstantial evidence showing that he used a can containing gasoline to break the sliding glass door of the house is not enough to show that he intended to set fire to the house.  However, the evidence is more extensive.  It supports the determination that appellant broke the door of the pole barn, found the gas cans, poured gasoline around the pole barn, and set fire to the semi-trailer parked next to the pole barn.  The evidence also shows that M.A.Z.’s friend turned on the lights just after the gas can broke the sliding glass door.  The prosecution argued during its closing argument that this light was likely the first indication appellant had that someone was on the property and that when appellant saw the light, he became fearful that he would be discovered, abandoned his attempt to set fire to the home, and fled the scene.

We conclude that the chain of circumstantial evidence presented here, when considered as a whole, adequately supported the jury’s conclusion that appellant intended to set fire to M.A.Z.’s home.  Therefore, we will not disturb the jury’s verdict finding appellant guilty of attempted arson in the first degree.


A.  Separate Sentences

The second issue is whether the district court erred by imposing sentences on all four convictions.  When the material facts are not in dispute, we may review de novo the district court’s application of the law of multiple sentencing.  See State v. Meland 616 N.W.2d 757,759 (Minn. App. 2000).  Minnesota law limits the imposition of more than one sentence on a defendant who commits multiple offenses as part of a single behavioral incident: “Except as [otherwise] provided . . ., 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 . . . .”  Minn. Stat. § 609.035, subd. 1 (2002). 

The limit on multiple sentences is not absolute.  Two exceptions are applicable in this case:  The first is a judicially-created exception for crimes against multiple victims.  State v. Gartland, 330 N.W.2d 881, 883 (Minn. 1983).  Under the multiple-victim exception, a defendant may be given a separate sentence for each victim, “so long as the multiple sentencing does not unfairly exaggerate the criminality of the defendant’s conduct.”  Id.  In applying Minn. Stat. § 609.035, subd. 1, the courts have determined that whether multiple offenses constitute a single behavioral act depends upon factors of “time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.”  State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).  “[W]hether multiple offenses are part of a single behavioral act under section 609.035 is not a mechanical test, but involves an examination of all the facts and circumstances.”  Id.

The second exception relevant to this case is for burglary offenses as provided in Minn. Stat. § 609.585 (2002).  Under this statutory exception, a person who commits burglary may be punished for both the burglary and the most serious crime committed in entering or while inside the burgled building.  Id.  For example, a district court may impose two consecutive 20-year sentences for aggravated robbery and burglary convictions, even though the convictions are part of the same behavioral incident under section 609.035.  State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980). 

Here, appellant was convicted of four separate crimes: attempted first-degree arson, second-degree arson, third-degree burglary, and criminal damage to property.  Minnesota law defines first-degree arson as a “crime of violence.”  Minn. Stat. § 624.712, subd. 5 (Supp. 2003).  The district court reasoned that appellant was “preparing to burn down a home with people present in it,” and concluded that there were “separate victims.”  Therefore, the district court implicitly considered M.A.Z.’s friend and her daughter, who were present in the home, to be victims of the attempted first-degree arson.  Because arson is a crime of violence, we conclude that M.A.Z.’s friend and her daughter are properly considered separate victims of attempted first-degree arson.  

Appellant was also convicted of second-degree arson for setting fire to the semi-trailer owned by M.A.Z.’s neighbor.  Appellant concedes that the owner of the trailer was a separate victim. 

Finally, the evidence established that appellant entered the pole barn with the intent to damage property belonging to his sister, M.A.Z., and that he damaged her property.  This supports the conviction for third-degree burglary.  Under the statutory exception for burglary (Minn. Stat. § 609.585), there may be a separate conviction and sentence for criminal damage to property.  Appellant concedes that property belonging to M.A.Z. was damaged as a result of the burglary and that she was a victim.  This action then supports a further conviction for criminal damage to property.

Based on the record, we conclude that the four crimes of which appellant was convicted were properly considered as separate crimes under Minnesota law, that the district court did not err in making that determination, and that the district court could sentence appellant for each of these four convictions. 

B.  Hernandez Method/Criminal History Score

The next issue is whether the calculation of appellant’s criminal history score and the imposition of multiple sentences is an abuse of discretion.  A district court’s determination of a defendant’s criminal history score will not be reversed absent an abuse of discretion.  State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002); Bolstad v. State, 439 N.W.2d 50, 53 (Minn. App. 1989).  Aggregating convictions to calculate a criminal history score is generally within a district court’s discretion, but it is not mandatory.  State v. Pittel, 518 N.W.2d 606, 608 (Minn. 1994).  In the aggregating process, the convictions for offenses that are sentenced first are used to calculate the criminal history score for subsequently sentenced offenses.  This aggregating process is known as the Hernandez method.  See State v. Hernandez, 311 N.W.2d 478 (Minn. 1981).  As previously discussed, section 609.035 limits sentencing for a defendant whose convictions arise from the same behavioral incident.  A parallel limit exists in applying the Hernandez method to the criminal history score.  State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983); Hernandez, 311 N.W.2d at 480-81.  But it is generally permissible to use the Hernandez method to compute a defendant’s criminal history score in cases where an exception to section 609.035 applies.  Gartland, 330 N.W.2d at 883.     

Here, as the prior discussion indicates, multiple sentences are permitted.  Based on the record in this case, we conclude that the district court did not abuse its discretion in using the Hernandez method to calculate appellant’s criminal history score.

C.  Exaggerating Criminality

The final issue is whether imposing sentences for multiple victims in this case unfairly exaggerates the criminality of his offenses.  We will uphold the imposition of one sentence per victim if doing so does not result in “punishment grossly out of proportion to the defendant’s culpability.”  State v. Schmidt, 612 N.W.2d 871, 878 (Minn. 2000) (quotation omitted). 

Here, M.A.Z.’s friend and her friend’s daughter were both in the home and would have been in grave danger had appellant set fire to the home.  Attempted first-degree arson is a dangerous crime that could lead to death or serious bodily injury.  Similarly, the damage to the pole barn and the various items of equipment in and around the structure was serious.  Finally, appellant received a 36-month sentence for attempted first-degree arson, and all of his sentences ran concurrently.[1]

Another way in which multiple convictions and concurrent sentences may exaggerate the criminality of an offense is by enhancing the criminal history score.  However, the legal protections built into Minn. Stat. § 609.035, subd. 1, the application of exceptions to that section, and the resulting limits on using the Hernandez approach, all of which have already been discussed, are a check on unreasonable exaggeration of offenses.  Because these checks allow multiple sentences with enhanced criminal history scores here, appellant’s claim of exaggeration is not meritorious. 

In the circumstances of this case, we conclude that the imposition of multiple sentences and the use of Hernandez to construct appellant’s criminal history score did not unfairly exaggerate the criminality of appellant’s offenses.


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

[1] The 36-month sentence was within the presumptive range of sentences for attempted first-degree arson for a defendant with a criminal history score of two.  Minn. Sent. Guidelines II.G.; IV; V.