This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-97-1573

State of Minnesota,

Respondent,

vs.

Derek E. Warrington,

Appellant.

Filed July 7, 1998

Affirmed

Willis, JudgeWillis, Judge

Mower County District Court

File No. K8961079

Hubert H. Humphrey III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and Patrick A. Oman, Mower County Attorney, Courthouse, 201 1st Street NE, Austin, MN 55912 (for respondent)

Daniel N. Rosen, Rosen & Rosen, PLLP, 1200 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

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

WILLIS, Judge

Appellant challenges (1) the district court's denial of his motion to compel a witness to submit to defense interviews and (2) his sentence, on the ground that the district court improperly used Hernandez sentencing. We affirm.

FACTS

On July 18, 1996, Timothy Coker, a confidential informant for the Southeast Minnesota Narcotics Task Force, told police that he had arranged to purchase cocaine from appellant Derek Warrington the next day. On July 19, Coker met with appellant and the two went to a house where Coker called Julie Davis, another informant, to bring money to buy cocaine from appellant. Coker and Davis bought three one-eighth ounce bags of cocaine from appellant. On July 23, 1996, Coker and Davis met appellant at his house and bought one one-eighth ounce bag of cocaine from appellant.

On July 25, 1996, Coker told appellant that he wanted to buy a larger quantity of cocaine from him; appellant responded that he would sell him a half-ounce for $1,000. Later that day, Coker and Davis went to appellant's house to make the buy. During that meeting, appellant said that he made $6,000 to $8,000 a month selling drugs and that his clientele ranged from 15 to 60 years old. Davis gave appellant $1,000, and appellant gave Davis and Coker four bags that contained together a half-ounce of cocaine. On July 30, 1996, Coker, Davis, and a female officer, Denise Bechthold, went to appellant's house, where Bechthold bought two one-eighth ounce bags of cocaine from appellant.

On September 12, 1996, appellant was charged with two counts of controlled substance crime in the first degree under Minn. Stat. 152.021, subd. 1(1) (1996); two counts of controlled substance crime in the second degree under Minn. Stat. 152.022, subd. 1(1) (1996); and four counts of failure to affix tax stamps under Minn. Stat. 297D.09, subd. 1 (1996). Appellant moved the court to compel Coker and Davis to submit to a pretrial interview with his counsel; the district court denied the motion. The district court dismissed two of the charges of failure to affix tax stamps, and after a trial, a jury found appellant guilty on all remaining charges.

The district court sentenced appellant to 86 months on count I, controlled substance crime in the first degree, based on a criminal history score of 0 for a severity level 8 offense. The court then assigned additional points to appellant's criminal history score for the remaining counts resulting in the following sentences: 68 months on count III, controlled substance crime in the second degree, based on a criminal history score of 2 for a severity level 7 offense; 122 months on count V, controlled substance crime in the first degree, based on a criminal history score of 3 for a severity level 8 offense; and 98 months on count VII, controlled substance crime in the second degree, based on a criminal history score of 5 for a severity level 7 offense. The court ordered the sentences on counts I, III, and VII to run concurrently with the sentence on count V. This appeal followed.

D E C I S I O N

I.

Appellant contends that the district court abused its discretion in denying his motion to compel Coker, a prosecution witness, to submit to a pretrial interview by appellant's counsel. A district court has considerable discretion in granting or denying discovery requests, and this court will reverse the district court's decision only for an abuse of that discretion. State v. Renneke, 563 N.W.2d 335, 337 (Minn. App. 1997).

Appellant argues that the state violated the rules of criminal procedure by misrepresenting to the district court and appellant's counsel that Coker refused to be interviewed by defense counsel before trial. The rules of criminal procedure provide that

neither the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information * * * to refrain from discussing the case with opposing counsel * * * , nor shall they otherwise impede opposing counsel's investigation of the case.

Minn. R. Crim. P. 9.03, subd. 1.

Appellant relies on the following exchange at trial between Coker and appellant's attorney to support his argument:

Q: * * * [D]id you indicate to [Detective Farnum] that you didn't want to talk to me?

A: I indicated to him -- I asked him if it was a necessity, he said that you don't have to if you don't want to. I told him I felt it was a security problem, that -- and just left it at that.

Q: So are you telling us that you never told him you didn't want to talk to me?

A: What I just told you that I told him is what I told him. I told him it was a security problem. I would just -- pretty much if this goes to trial I would just leave it and talk to a -- say my piece in court.

This testimony shows that Coker did not want to be interviewed by defense counsel, and the state did not violate the rules of criminal procedure by so informing the court and appellant's counsel. A prosecution witness has no obligation to submit to an interview by defense counsel. State v. Reichenberger, 289 Minn. 75, 81, 182 N.W.2d 692, 696 (1970);[1] see also State v. Rud, 359 N.W.2d 573, 578 n.1 (Minn. 1984) (stating that criminal defendant has right to attempt to interview victims without interference from prosecution, but victims do not have to submit to such interviews). Appellant claims that Coker is "prosecution personnel" and is therefore required to submit to an interview by defense counsel, but he cites no authority to support his argument. Controlling caselaw does not distinguish between a confidential informant and any other witness. We conclude that the district court did not abuse its discretion in denying appellant's motion to compel Coker to submit to a defense interview.

II.

Arguing that his sales of cocaine were a single behavioral incident, appellant contends that the district court abused its discretion in imposing sentences in the manner approved in State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981) (holding it is in interests of judicial economy to allow sentencing court to increase defendant's criminal history scores for subsequent sentences when sentencing defendant on same day for three separate offenses that were not part of single behavioral incident). "The trial court is in [the] best position to weigh the various sentencing options and therefore is granted broad discretion in sentencing." Massey v. State, 352 N.W.2d 487, 489 (Minn. App. 1984) (citations omitted), review denied (Minn. Oct. 16, 1984).

Generally, Minnesota law bars multiple sentencing where multiple offenses are arise from a single behavioral incident. Minn. Stat. 609.035 (1996); State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983) (stating that to impose multiple sentences under section 609.035, state must prove facts establishing divisibility of defendant's course of conduct). But the district court, in sentencing a defendant on the same day for multiple offenses that were not part of a single behavioral incident, may properly increase a defendant's criminal history score to reflect each previous conviction in determining subsequent sentences. State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996) (interpreting court's holding in Hernandez). Under section 609.035, a court cannot use the Hernandez method to sentence a defendant unless the convictions arose from different courses of conduct. State v. Hartfield, 459 N.W.2d 668, 670 (Minn. 1990).

In determining whether multiple offenses arise from a single behavioral incident, the court must consider the "time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective," which requires "an examination of all the facts and circumstances." State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). In Soto, the four drug transactions for which the defendant was convicted took place on different days and three of the four sales occurred within a ten-day period. Id. at 301. All four involved the same three people--an informant, an undercover police officer, and the defendant. Id. Two of the four transactions occurred in the same place. Id. The district court sentenced the defendant to the presumptive guidelines sentence for each of four counts, using the Hernandez method to calculate his criminal history scores for the last three of the four sentences. Id. at 302. The supreme court held that the four transactions were separate and distinct offenses under Minn. Stat. 609.035 that could be sentenced separately using the Hernandez method. Id. at 304.

Here, the four sales for which appellant was convicted took place within an eleven-day period, three of the sales involved the same three people (the fourth involved those same three people plus one other), and three of the four transactions occurred in the same place. Appellant contends that the drug sales for which he was convicted arose from a single behavioral incident because he had the same objective in each transaction: a desire to relieve his loneliness and to start an intimate relationship with a woman described to him by Coker. Appellant does not claim, and the record does not show, that the separate sales were motivated by a single criminal objective. The criminal objective relevant to the section 609.035 analysis was the separate desire to complete each illegal drug transaction.

Appellant also contends that the district court erred in failing to make "findings or discuss in any way whether the state had met its burden to show that the counts were separate and distinct incidents, not tied together by a common objective." Although the only finding the district court made was that Soto was directly on point, the record supports the court's decision to use Hernandez sentencing. We conclude that the district court did not abuse its discretion in sentencing appellant.

Affirmed.

[ ]1 Appellant argues that Reichenberger stands for the proposition that a witness in Coker's position has a legal duty to submit to an interview by defense counsel because the supreme court cited the commentary to the A.B.A. Project on Standards for Criminal Justice, which provides that:

In the event a witness asks the prosecutor or defense counsel, or a member of their staffs whether it is proper for the witness to submit to an interview by opposing counsel or whether he is under a duty to do so, the witness should be informed that, although he is not under a legal duty to submit to an interview, it is proper and may be the duty of both counsel to interview all persons who may be witnesses and that it is in the interest of justice that the witness make himself available for interview by counsel.

Reichenberger, 289 Minn. at 81-82 n.1, 182 N.W.2d at 696 n.1. But the court in Reichenberger does not suggest that a prosecution witness is under an obligation to speak to defense counsel nor do the A.B.A. Standards suggest that a witness is under such an obligation.