may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Harvey Lee Thomas,
Filed March 3, 1998
File No. 96057873
John M. Stuart, State Public Defender, Evan W. Jones, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Michael O. Freeman, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2100 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.
Appellant Harvey Lee Thomas appeals his conviction for theft over $500, arguing that the two thefts were not a single behavioral incident and should not have been combined. We affirm.
The amended complaint states two counts. Count one alleges theft over $500 in violation of Minn. Stat. § 609.52, subds. 2(1), 3(3)(a) (1996). Count two alleges theft over $200 in violation of Minn. Stat. § 609.52, subds. 2(1), 3(3)(c) (1996). Before trial, Thomas moved to have the case dismissed, arguing that the two thefts were separate courses of conduct. He claimed the value levels were not met to pursue both of the counts in the amended complaint. The court denied the motion, finding that it had no legal support, and the case proceeded to trial.
In charging the jury, the judge combined the comforter and jacket incidents into one count. The judge instructed the jury that it first must decide whether the state had proven the elements of theft. If so, they must determine the value level by answering "yes" to one of the following questions:
Was the value of the comforter[s] and jackets more than $500, but not more than $2,500? * * * Was the value of the comforter[s] and jackets more than $200, but not more than $500? * * * Was the value of the comforter[s] and jackets not more than $200?
The jury returned a guilty verdict finding Thomas committed theft of greater than $500 but less than $2,500.
We agree with the district court that this argument is not supported by the law. Minnesota law prohibits multiple sentences for crimes committed as part of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (1996); State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). But here, the thefts were aggregated for prosecution and there is no violation of the statute.
In any prosecution of theft
the value of the money or property or services received by the defendant in violation of any one or more of the above provisions within any six-month period may be aggregated and the defendant charged accordingly in applying the provisions of this subdivision.
Minn. Stat. § 609.52, subd. 3(5) (1996). The total value of the comforters and jackets together exceeded $500, and the two thefts took place within six months. Count I of the amended complaint simply aggregated the two thefts to constitute theft over $500. Under subdivision 3(5), the district court did not err in aggregating the thefts, in denying Thomas' motion, or in its jury instructions.