This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Richard Jeff Rosillo,


Filed August 5, 1997

Remanded and motion denied

Short, Judge

Faribault County District Court

File No. K59619

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Joel R. Welder, Faribault County Attorney, 1120 Giant Drive, P.O. Box 5, Blue Earth, MN 56013 (for appellant)

J. Anthony Torres, Margaret A. Skelton, Torres Law Offices, Inc., 1401 West 76th Street, Suite 400, Richfield, MN 55423 (for respondent)

Considered and decided by Parker, Presiding Judge, Crippen, Judge, and Short, Judge.


SHORT, Judge

Richard Jeff Rosillo pleaded guilty to four counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b), for engaging in sexual relations with a person under the age of sixteen. Finding Rosillo's four convictions arose from a single behavioral incident, the trial court concluded Minn. Stat. § 609.035 barred the imposition of multiple sentences. On appeal, the state argues the acts underlying the convictions were distinct behavioral incidents, and each conviction was separately punishable. We remand to the trial court for resentencing and deny Rosillo's motion for attorney fees.


A trial court has great discretion in sentencing, and this court may not substitute its own judgment for that of the trial court. McLaughlin v. State, 291 Minn. 277, 284, 190 N.W.2d 867, 872 (Minn. 1971). Whether multiple offenses form part of a single behavioral act is a question of fact. See Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986) (reviewing trial court's finding of two separate behavioral acts under clearly erroneous standard).

Under Minn. Stat. § 609.035, subd. 1 (1996), a person who commits multiple offenses against the same victim during a "single behavioral incident" may be punished for only one offense. State v. Herberg, 324 N.W.2d 346, 348 (Minn. 1982). In determining whether a series of offenses constitutes a single behavioral incident, the relevant factors are: (1) unity of time and place; and (2) 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, 524-25 (1966), cited in State v. Bookwalter, 541 N.W.2d 290, 295 (Minn. 1995); see State v. Eaton, 292 N.W.2d 260, 266 (Minn. 1980) (noting single behavioral incident is result of single motivation directed toward single criminal goal). The purpose of the statute is both to protect against exaggerating the criminality of the defendant's conduct and to ensure that punishment is commensurate with the crime committed. Id.

The state argues Rosillo's four acts of criminal sexual conduct against the victim constituted four distinct behavioral incidents. We agree. The record demonstrates: (1) the state's complaint charged Rosillo with one act of criminal sexual conduct occurring in each of four months; (2) the four acts charged were not continuous and uninterrupted, but were each separated by approximately thirty days; (3) the acts did not occur in the same place, but on various gravel roads; and (4) prior to each of the four acts, Rosillo formed a criminal objective to penetrate the victim sexually at a definite time and place. Given these facts, the trial court clearly erred in concluding the acts underlying Rosillo's four convictions formed part of a single behavioral incident. See State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989) (holding defendant's ongoing sexual contacts with child, often separated by month or more or interrupted by various activities, constituted separable behavioral incidents), review denied (Minn. May 24, 1989); see also State v. McLemore, 351 N.W.2d 927, 928 (Minn. 1984) (permitting multiple sentencing of defendant for three acts of sexual contact with victim occurring on three occasions during single weekend); State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979) (finding two acts of criminal sexual conduct against victim, occurring in the same location but separated by five hours, bore no essential relation to each other and did not form single behavioral incident). While Rosillo claims his actions were motivated by an indivisible criminal objective to have intimate sexual relations with the victim, such a motivation is too broad to support the trial court's finding of a single behavioral incident. See Eaton, 292 N.W.2d at 267 (rejecting defendant's argument that he had single objective to steal from victim, and concluding he had separable criminal objectives to steal two different checks at two different times); Secrest, 437 N.W.2d at 685 (rejecting defendant's claim that ongoing sexual contacts with child resulted from unitary motivation to satisfy perverse sexual desires).

Because the trial court found Rosillo's convictions arose from a single behavioral incident, the court concluded it did not have the discretion to impose a sentence on more than one conviction. However, in light of our holding that Rosillo's four convictions for criminal sexual conduct were separately punishable, we remand to the trial court to exercise its discretion in resentencing. We also decline to award Rosillo attorney fees in connection with this appeal. See State v. Bauerly, 520 N.W.2d 760, 763 (Minn. App. 1994) (noting criminal rules entitle accused to attorney fees in responding to pretrial and postconviction appeals, but not sentencing appeals), review denied (Minn. Oct. 27, 1994).

Remanded and motion denied.