This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Michael NMN Ray,


Filed March 16, 1999


Amundson, Judge

Hennepin County District Court

File No. 97065656

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.



Appellant asserts that he should not have been convicted of assault, arguing that it was a lesser-included offense of his criminal sexual conduct convictions. Appellant also asserts that he may not be convicted and sentenced separately where the convictions arose from the same course of conduct. We affirm.


On the evening of July 26, 1997, appellant Michael Ray attended a party at Lisa Knapp's house with C.K., the female victim involved in this appeal. C.K. testified that, although she had been dating Ray, she told Ray that evening that she wanted to end their relationship. The couple left Knapp's house at approximately 9:00 p.m. and went to Pearl Smolek's house, where Ray had a rented room.

C.K. testified that upon entering Smolek's home, she grew nervous as she realized that she and Ray were the only people in the house. Ray began to threaten C.K.'s new boyfriend and appeared angry. C.K. testified that she attempted to leave the home through the front door, at which time Ray stopped her by closing the door, locking it and holding her by her neck. Ray then proceeded to choke C.K. while lifting her off the ground. The victim struggled to free herself from Ray's hold and although Ray eventually let her go, he forced her to sit down at the table to talk with him. C.K. testified that she complied with Ray's request, terrified and concerned that she might be seriously hurt or killed.

The couple started to argue. Ray put C.K. up against the wall, holding a knife to her throat. Ray got another knife from Smolek's kitchen and began chasing C.K. around the room with the knife. Ray pinned C.K. against the refrigerator, and she told him to kill her if he was going to kill her. Ray told C.K. that he had "better plans" for her. Ray then forced C.K. to perform oral sex. This continued for a couple of minutes but was interrupted when Ray saw Smolek about to enter the home. C.K. testified that the two sat in the kitchen and Ray threatened that if she did "anything stupid," he would slice her throat. Ray placed his knife back in its holder before Smolek entered the house.

C.K. testified that, upon entering, Smolek asked her if anything was wrong and C.K. answered that nothing was wrong. Ray asked Smolek to go to the liquor store and buy him some beer. Smolek agreed and left for the liquor store. Smolek was gone about ten minutes, during which time Ray continued to threaten C.K., saying he would "slice" her if she tried to leave. Upon Smolek's return, Smolek sat in the living room, and Ray told C.K. to sit on the loveseat. In front of Smolek, Ray called C.K. a whore and a slut and spit on her twice. Smolek testified that Ray told C.K. he was going to "humiliate her like she humiliated him." At one point, Ray pulled C.K. off of the couch by her hair and made her kneel in front of Smolek, calling her names. Ray also took C.K. with him to the bathroom a number of times, telling Smolek that he did not "trust the little whore."

After receiving a promise from Ray that he would not hurt C.K., Smolek went to bed at about 12:30 a.m. After Smolek left, Ray took his knife back out, sat on the couch and once again forced C.K. to perform oral sex, holding his knife against her temple. This time he ejaculated in C.K.'s mouth. Thereafter, Ray wrapped C.K.'s hair around his hands and brought her to bed in a lower bunk bed, making her sleep up against the wall. When Ray passed out, C.K. testified that she pretended she had to go to the bathroom and slowly worked her way out of the house. She then ran to Knapp's house and told Knapp what Ray had done to her. Knapp testified that C.K. had a cut on her throat and was bleeding. Knapp also testified that C.K. was crying and trembling and appeared terrified.

On January 26, 1998, a jury found Ray guilty of: (1) criminal sexual conduct in the first-degree in violation of Minn. Stat. § 609.342(1)(d) (1996); (2) assault in the second degree in violation of Minn. Stat. § 609.222, subd. 1 (1996); (3) false imprisonment in violation of Minn. Stat. § 609.255(2) (1996); and (4) criminal sexual conduct in the first-degree in violation of Minn. Stat. § 609.342(1)(c) (1996).

On February 25, 1998, the district court sentenced Ray to concurrent sentences of 110 months for the first count of criminal sexual conduct, 33 months for the assault charge, 13 months for the false imprisonment charge, and 110 months for the second count of criminal sexual conduct. On appeal, Ray first challenges his conviction of second-degree assault, asserting that it should be reversed because it is a lesser-included offense of first-degree criminal sexual conduct. Ray also argues that the district court erred in imposing multiple sentences for his convictions because they arose from the same continuous course of conduct.


"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), review denied (Minn. Oct. 16, 1984) (citations omitted). Although Ray did not object to his convictions and sentences at the time of sentencing, this does not result in a waiver of the issue. Ture v. State, 353 N.W.2d 518, 523 (Minn. 1984) (stating that a defendant's failure to raise issue of improper sentence at time of sentencing will not constitute a waiver barring defendant from later obtaining relief).

I. Second-Degree Assault Charge

Whether Minn. Stat. § 609.04 will bar a conviction for a lesser-included offense involves statutory interpretation and, therefore, is an issue of law. See State v. Bowser, 307 N.W.2d 778, 779 (Minn. 1981) (applying § 609.04 and vacating sentence as a matter of law). Accordingly, where the facts are not in dispute, our review of this issue is de novo. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

Ray argues that he was erroneously convicted of and sentenced for a lesser-included offense in violation of Minn. Stat. § 609.04, subd. 1(4) (1998), which provides:

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be

* * * *

(4) A crime necessarily proved if the crime charged were proved * * * .

Ray was charged with violating Minn. Stat. § 609.222, subd. 1, and § 609.342, subds. 1(c) and 1(d). These convictions arose from allegations based on Ray's conduct on the night of July 26, 1997, and the early morning hours of July 27, 1997. Ray asserts that because assault is a necessary element of first-degree criminal sexual conduct, his assault conviction must be reversed as a lesser-included offense of the two criminal sexual conduct convictions.

Minn. Stat. § 609.222, subd. 1 prohibits assault with a dangerous weapon. The criminal code defines assault as follows:

An act done with intent to cause fear in another of immediate bodily harm or death; or

The intentional infliction of or attempt to inflict bodily harm upon another.

Minn. Stat. § 609.02, subd. 10 (1998). Ray asserts that, because both criminal sexual conduct statutes include language that tracks the definition of assault, Ray's assault charge was necessarily established by proving the two counts of criminal sexual conduct. Because the record indicates that there were numerous incidents of assault that were separate and distinct from the two acts of criminal sexual conduct, we conclude that the district court properly allowed the separate conviction for assault.

Soon after arriving at Smolek's house, Ray grabbed C.K. by the neck, choking her and pinning her up against the wall. In fact, C.K. testified that this incident caused her to become unconscious for a brief period of time. Further, Ray threatened C.K. with a knife numerous times, separate and distinct from the actions that resulted in criminal sexual conduct charges. Thus, the district court properly allowed the separate conviction for assault.

II. Multiple Sentences

Whether incidents constitute more than one offense for sentencing purposes depends on the facts and circumstances of the particular case. State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996). Because this issue involves a fact determination, we will reverse a district court's findings only where they are clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).

In seeking to impose multiple sentences, the state has the burden of proving that the defendant's conduct constitutes multiple crimes that are not part of a single behavioral incident. State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983). Where "a person's conduct constitutes more than one offense * * *, the person may be punished for only one of the offenses." Minn. Stat. §609.035, subd. 1 (1998).

The determination of whether multiple offenses are part of a single behavioral act under section 609.035 is not a mechanical test, but it involves an examination of all the facts and circumstances.

State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997).

Under section 609.035, the factors to be considered in determining whether multiple offenses constitute a single behavioral act are time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.


Applying these factors to this present matter, it is evident that all of the crimes of which Ray was convicted occurred at the same location, Smolek's house. Although these acts all occurred within approximately a six-hour period, they were separated by substantial intervening circumstances that undermine Ray's contention that there was a substantial "unity of time" during which the crimes took place.

In State v. Spears, 560 N.W.2d 723, 727 (Minn. App. 1997), review denied (Minn. May 28, 1997), this court determined that where the "three offenses took place in [the defendant's] parked car within a 45-minute period, and were committed against a single victim," the defendant was engaged in a single behavioral incident. In contrast, Ray committed separate offenses against C.K. throughout the six-hour confinement. These acts occurred in different rooms throughout the house. Additionally, more than three hours elapsed between the first and second acts of criminal sexual conduct. Further, in the interim between the two sex crimes, Ray's roommate arrived home, spending almost three hours with Ray and the victim before going to bed. This substantial interruption destroys the "unity of time" between the two acts of forced fellatio. It also allowed Ray an opportunity to form new criminal objectives and to abandon or reconsider his initial criminal objectives.

Ray contends, however, that the false imprisonment, the assault, and the two counts of criminal sexual conduct were motivated by a single criminal objective, stating that his sole motivation in committing the offenses was to exert sexual control over his ex-girlfriend.

In State v. Bookwalter, 541 N.W.2d 290, 296 (Minn. 1995), the supreme court allowed multiple sentences for criminal sexual conduct and attempted murder to stand because no evidence in the record suggested that the defendant's sexual impulses motivated his murder attempt. The defendant had raped the victim in her van parked at one location, drove her around, and then attempted to murder her after dragging her out of the van at a different locale. Id. at 295.

Here, the record shows that soon after arriving at Smolek's residence, Ray asserted control over C.K. to keep her from leaving the home. He then assaulted her for the first time, holding her by her neck and pinning her against the wall. At this point, the record does not indicate that Ray had any intent to control C.K. sexually, but that he wanted to prevent her departure so that he could talk to her. The two then sat at the kitchen table to talk, but they began to argue, and Ray pulled out a knife and held C.K. against the wall. He also chased her with a kitchen knife. These actions do not seem to have been motivated by Ray's desire for sexual control.

Ray's first act of criminal sexual conduct was interrupted by the appearance of Smolek. The subsequent three hours involved numerous acts for which Ray's overriding objective seemed to be to humiliate C.K. During this time he spit on her, called her names in front of Smolek, and forced her to accompany him to the bathroom. Smolek testified that Ray even told her his purpose was to humiliate C.K. It was only after Smolek went to bed and Ray forced C.K. to perform another act of fellatio, ejaculating in her mouth, that he arguably was motivated by a desire for sexual control. Indeed, even after the second act of fellatio occurred, Ray continued to prohibit C.K.'s departure, wrapping her hair around his hands and taking her to bed with him. This final act of Ray does not seem to have been motivated by a need for sexual control, but by a desire to prevent C.K. from leaving him. The record indicates that these offenses were not part of a single behavioral incident.

Because the evidence in the record shows that the various offenses took place in separate rooms, at different times, and arose out of separate and distinct criminal objectives, the district court correctly sentenced Ray for the four convictions. We conclude that the multiple sentences were not clearly erroneous.