This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Charles Elmer Mullen,


Filed July 8, 1997

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

St. Louis County District Court

File Nos. K4-95-600212/K7-96-600215

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

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

Alan L. Mitchell, St. Louis County Attorney, 100 N. Fifth Ave. W., #501, Duluth, MN 55802 (for Respondent)

Considered and decided by Short, Presiding Judge, Klaphake, Judge, and Schultz, Judge.[*]



Appellant Charles Elmer Mullen contests his conviction for a pattern of harassing conduct and challenges the imposition of multiple sentences. Because the trial court properly instructed the jury on the pattern of harassing conduct offense and appellant has shown no due process violation, we affirm the convictions. Because the trial court erred in sentencing appellant on the misdemeanor criminal damage to property offense, we reverse and remand for resentencing on that offense. We affirm the other sentences.


1. Jury Instruction on Pattern of Harassing Conduct

A trial court has considerable latitude when selecting the language for jury instructions. See State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990), cert. denied, 498 U.S. 1030, 111 S. Ct. 687 (1991). When viewed in their entirety, jury instructions must "fairly and adequately" explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988), cert. denied, 498 U.S. 945, 111 S. Ct. 359 (1990). If an error is made, the defendant is entitled to a new trial only "[i]f it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict." State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992).

Appellant challenges the jury instruction on intent for a pattern of harassing conduct offense under Minn. Stat. § 609.749, subd. 5 (1994). The supreme court has construed this "stalking" statute to require proof of specific intent. State v. Orsello, 554 N.W.2d 70, 76-77 (Minn. 1996) (defendant's gross misdemeanor conviction under Minn. Stat. § 609.749 reversed and new trial ordered because jury instructions only required finding of intentional conduct, rather than intent to harass). This court applied the Orsello ruling retroactively in State v. Bowen, 560 N.W.2d 709, 712 (Minn. App. 1997).

Minn. Stat. § 609.749, subd. 5(a), makes it a felony to engage in

a pattern of harassing conduct with respect to a single victim or one or more members of a single household in a manner that would cause a reasonable person under the circumstances to feel terrorized or to fear bodily harm and that does cause this reaction on the part of the victim[.]

A "pattern of harassing conduct" means two or more acts within a five-year period that constitute a stalking or harassment crime, assault in the fifth degree, or any other crime listed in Minn. Stat. § 609.749, subd. 5(b).

Appellant notes that the focus in Orsello was on the gross misdemeanor stalking offense under Minn. Stat. § 609.749, subd. 2, and concedes that the instructions given in this case "[a]rguably" satisfied the specific intent requirement for an individual stalking offense. He argues, however, that the charged offense requires an additional instruction that he specifically intended to engage in the pattern of harassing conduct. We disagree. There is no authority in the statutory language supporting appellant's interpretation. Orsello requires a finding of specific intent for each underlying stalking offense, but does not require an additional finding for a pattern of harassing conduct.

The jury instructions here complied with Orsello. The instructions for burglary, fifth-degree assault, and criminal damage to property each required a specific intent finding. The instruction for the individual crime of harassment and stalking also required a finding of intent to harass. Therefore, we affirm this conviction.

2 . Due Process of Law

Appellant was originally charged with burglary and assault in 1995. He was later charged with having committed a pattern of harassment "on or about the 12th day of March, 1996." Although the complaints were combined, the date for the harassment offense was not amended. Appellant argues he was denied due process when the trial court allowed the jury to consider actions from 1995 in the pattern of harassment charge because the complaint did not adequately inform him of the charges and allow him to properly present a defense. See State v. Wurdemann, 265 Minn. 92, 94, 120 N.W.2d 317, 318 (1963) ("An indictment * * * must fairly apprise the defendant of the charge brought against him, in order, it has been said, that he might properly prepare his defense, and so that he is protected from subsequent prosecution for the same offense.").

Because appellant initially agreed to allow one of the jury instructions for pattern of harassing conduct to include conduct in April 1995, he waived this issue. Moreover, even if he did not waive the issue as to all of the clarifications made by the trial court, he has shown no prejudice. See Minn. R. Crim. P. 17.05 (trial court may permit amendment of complaint any time before verdict "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced"); see also State v. Ostrem, 535 N.W.2d 916, 922-23 (Minn. 1995).

3. Sentencing

Appellant argues that the trial court erred in sentencing him for first-degree burglary, fifth-degree assault, a pattern of harassing conduct, and fourth-degree criminal damage. Subject to certain exceptions, Minn. Stat. § 609.035, subd. 1 (1994) prohibits multiple sentences for two or more offenses committed as part of the same behavioral incident. Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the case. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). The court should consider the unity of the time and place of the behavior and whether the defendant was motivated by a single criminal objective in committing the crime. Id.

Minn. Stat. § 609.585 (1994) provides an exception to Minn. Stat. § 609.035, stating:

[A] prosecution for or a conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.

Thus, the sentences for burglary and fifth-degree assault may stand.

Appellant contends that the pattern of harassing conduct offense, as submitted by the state, required one single criminal objective and that he may not be punished for it and the underlying actions. We disagree. The remaining offenses did not stem from a single behavioral incident. The underlying acts occurred at different times, at somewhat varying locations, and did not involve one continuing criminal objective. See Bowen, 560 N.W.2d at 712 (concluding that pattern of harassing conduct was not single behavioral incident where conduct occurred over time span of about three months). Furthermore, because appellant admits that he and the victim had other contact that was not of an harassing nature during the 11-month period between incidents, he could not have sustained one criminal motivation during that period.

The parties agree that the trial court erred in sentencing appellant to 180 days on the criminal damage to property charge because the court had reduced that charge to a misdemeanor level. Because appellant may only be sentenced to 90 days for that offense, we reverse, vacate that sentence, and remand for resentencing on the misdemeanor conviction.

4. Perjury

Appellant argues in his pro se brief that the trial court erred in admitting certain testimony that he claims was untruthful. The jury ultimately determines the credibility, reliability, and weight to be given to the testimony of individual witnesses. See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Thus, even if appellant's claims are true, he has not presented grounds for reversible error.

Affirmed in part, reversed in part and remanded.

[ ]*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.