This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS
C8-95-2728

State of Minnesota,
Respondent,

vs.

Douglas Andrew Anderson,
Appellant.

Filed July 2, 1996
Affirmed
Kalitowski, Judge

Clay County District Court
File No. K8956

Hubert H. Humphrey III, Attorney General, Linda M. Bullen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Todd Webb, Clay County Attorney, Clay County Courthouse, P.O. Box 280, 807 North 11th Street, Moorhead, MN 56561-0280 (for Respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Stone, Judge.*

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Douglas Andrew Anderson pleaded guilty to felony stalking. He challenges the conviction, arguing: (1) there is not a sufficient factual basis to support a conviction for felony stalking; and (2) he was improperly convicted of both a crime and a lesser included offense. We affirm.

D E C I S I O N

I.

Felony stalking requires a "pattern of harassing conduct" causing a reasonable victim to feel terrorized or fear bodily harm. Minn. Stat. ' 609.749, subd. 5(a) (1994). A pattern of harassing conduct means

two or more acts within a five-year period that violate the provisions of any of the following:

(1) this section [including misdemeanor stalking]; * * *

(3) section 609.224 [fifth-degree assault]; * * *.

Minn. Stat. ' 609.749, subd. 5(b). Misdemeanor stalking includes making repeated phone calls that cause a reasonable victim to feel oppressed, persecuted, or intimidated. Minn. Stat. ' 609.749, subd. 1, 2 (1994).

Here, Anderson pleaded guilty to felony stalking on July 25, 1995. The "two or more acts" required for the felony stalking charge included an assault occurring on December 19, 1994, and repeated threatening phone calls December 20-30, 1994, including 48 calls in one day. Anderson argues the felony stalking statute, by requiring two or more designated "acts," requires a conviction for the first act before the second act occurs. Thus, he reasons his guilty plea to felony stalking must be reduced because he was not convicted of fifth-degree assault until January 1995 (after the phone calls). We disagree.

The legislature has the exclusive authority to define by statute what constitutes a crime. State v. Soto, 378 N.W.2d 625, 627 (Minn. 1985). The stalking statute requires two or more designated "acts" and does not require an interceding conviction. Here, Anderson committed two such acts against the victim that the state could have proven at the time the plea was entered. Accordingly, the district court correctly rejected Anderson's argument and properly accepted the guilty plea.

Anderson further contends that, for the statute to be constitutional, a conviction must separate the two acts in order to give the defendant an opportunity to correct errant conduct. We disagree. The felony stalking statute is constitutional if it is rationally related to a legitimate state interest. See State v. Hanson, 364 N.W.2d 786, 790 (Minn. 1985) (applying rational relationship test to a constitutional challenge to a statute not involving a fundamental right). Here, the legislature's decision not to require an interceding conviction is rationally related to the legitimate state interest of protecting stalking victims by responding promptly to stalking crimes.

II.

Under Minnesota's statute prohibiting conviction for a lesser included offense, an

actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following:

(1) A lesser degree of the same crime; or

(2) An attempt to commit the crime charged; or

(3) An attempt to commit a lesser degree of the same crime; or

(4) A crime necessarily proved if the crime charged were proved; or

(5) A petty misdemeanor necessarily proved if the misdemeanor charge were proved.

Minn. Stat. ' 609.04, subd. 1 (1994).

Here, Anderson was charged with both gross misdemeanor stalking and felony stalking. The state dismissed the gross misdemeanor charge in exchange for a guilty plea on the felony charge. Thus, Anderson was not convicted on the lesser included offense of gross misdemeanor stalking.

Further, we disagree with Anderson's contention that his earlier fifth-degree assault conviction is a lesser included offense of the felony stalking charge. The prior assault was relevant to proving a pattern of harassing conduct. The fact that the