This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1074

 

State of Minnesota,

Respondent,

 

vs.

 

Sean Patrick Anderson,

Appellant.

 

Filed July 26, 2005

Affirmed in part and reversed in part

Gordon W. Shumaker, Judge

 

Pine County District Court

File No. K7-03-1374

 

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

John K. Carlson, Pine County Attorney, Courthouse, 315 Main Street, Suite 8, Pine City, MN 55063-1693 (for respondent)

 

Melissa V. Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Appellant Sean Patrick Anderson contends that his statements to the police were involuntary and that the district court erred in failing to grant his motion to suppress them.  He also argues that the three crimes of which he was convicted were all part of a single behavioral incident and that the district court erred in imposing a sentence on the assault conviction.  Because the district court properly denied appellant’s motion to suppress but erred in imposing a sentence for the assault conviction, we affirm in part and reverse in part.  We also vacate the sentence for assault.

FACTS

On November 1, 2003, Pine County deputy sheriff Jesse Wersal responded to a call at the Holiday Gas Station in Pine City.  There, he met Nathan Schwarz, who stated that he had just been assaulted and robbed by Anderson and others.  Schwarz was able to identify Anderson by name and to describe his vehicle.  Deputy Wersal, who was familiar with Anderson, asked another deputy to check on Anderson’s vehicle.  Anderson was stopped in North Branch and held until Deputy Wersal transferred him to the Pine County jail.

            According to Deputy Wersal, he read to Anderson his Miranda rights; Anderson indicated that he understood his rights; and Anderson said he wanted to talk to Deputy Wersal and Deputy Vosika.  Deputy Wersal testified that, at no time during the interview, did Anderson ask the questioning to stop or request an attorney.  Deputy Wersal also testified that Anderson’s demeanor changed during the interview.  At the beginning, Anderson spoke normally but then began to cry.  Deputy Wersal testified that he believed Anderson began to cry when he started telling the truth, and he testified that neither he nor Deputy Vosika ever threatened Anderson.

            Deputy Wersal indicated that Anderson did not appear to be under the influence of drugs and that Anderson’s statement appeared to have been given voluntarily.  But at the omnibus hearing, Anderson claimed that he had been high on methamphetamine and marijuana before the robbery took place.  He also stated that he gave the statement to the police officers because he was scared.   

The district court denied Anderson’s motion to suppress his statement.  The parties agreed to submit the matter to the district court under stipulated facts in order to preserve for appeal the denial of the motion to suppress Anderson’s statement.  On February 13, 2004, the district court convicted Anderson of aiding and abetting kidnapping, aggravated robbery in the first degree, and assault in the second degree.  On March 11, 2004, the court sentenced Anderson to 44 months for the kidnapping charge, 44 months for the robbery charge, and 39 months for the assault charge, all to be served concurrently.  This appeal followed.

D E C I S I O N

Motion to Suppress

            Anderson argues that the district court erred in denying his motion to suppress the statement he made to the police.

In cases in which the claim is made that a confession was involuntary or that the waiver of the Miranda rights was involuntary, the [district] court must make a subjective factual inquiry into all of the circumstances surrounding the giving of the statement.  On appeal, this court will not reverse any findings of fact unless they are clearly in error, but this court will make an independent determination of voluntariness on the facts as found.

 

State v. Hardimon, 310 N.W.2d 564, 567 (Minn. 1981).  

            The voluntariness of a confession must be shown by a preponderance of the evidence.  State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991).  For a confession to be deemed involuntary, an element of coercive police conduct must exist.  State v. Hince, 540 N.W.2d 820, 824 (Minn. 1995).  Coercive conduct may include promises, express or implied, that elicit a confession.  Id.  The courts must look at the totality of the circumstances to determine voluntariness.  Id.  Generally, the factors a court should focus on include the defendant’s age, maturity, intelligence, education, experience, ability to comprehend, the adequacy of a warning, the length and nature of the interrogation, and whether the defendant was deprived of physical needs or denied access to friends.  State v. Thaggard, 527 N.W.2d 804, 808 (Minn. 1995).  “In short, the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort.” Haynes v. State of Washington, 373 U.S. 503, 513, 83 S. Ct. 1336, 1343 (1963) (citation omitted). 

            Anderson argues that his confession was involuntary and, thus, should not have been admitted.  He contends that his confession was involuntary because implicit threats and promises of leniency were made during the interrogation and because he was intoxicated and fatigued at the time of the interrogation.  He claims that the coercion came through implicit threats of how much trouble he would be in if he did not tell the truth.  He specifically notes that the deputies called him a liar and told him he would look like a “big idiot” if he was caught in a lie.  He also contends that Deputy Vosika’s comment that the jury would “throw the book at [him]” was proof of an implicit threat of how much trouble he would be in if he did not tell the truth.  But it is not improper to inform a defendant of the possible evidence marshaled against him.  Pilcher, 472 N.W.2d at 334.  And even lying to a suspect as to the strength of the state’s case against him is not enough by itself to render a confession involuntary.  Thaggard, 527 N.W.2d at 811.  

Anderson has not shown that the deputies actually threatened him.  In fact, he admits that no specific threats were made.  More importantly, he was read his rights, indicated that he understood them, and said he wanted to talk to the deputies.  While the supreme court has pronounced its distaste for coercive methods, the deputies’ actions, simply demanding that Anderson tell the truth, are not the coercive conduct the supreme court contemplated.  See id. at 808-810 (condemning use of trickery and deception to induce a defendant to waive his Miranda rights).  The deputies repeatedly told Anderson that they were giving him the first opportunity to tell them the truth about what happened, and asked that he stop lying to them about the incident.  Anderson eventually confessed to the deputies, apologized for lying, and said that he had lied because he was afraid of what would happen to him because this was the first time he had ever been in trouble.  

            Anderson also argues that the confession was coerced when the deputies impliedly promised lenient treatment.  Specifically, he cites Deputy Vosika’s statement that Anderson had just made “stupid decisions” as proof of the implied promise of lenient treatment.  This statement does not qualify as an implied promise of leniency.  It was an expression of the deputy’s viewpoint and did not reasonably imply that “stupid decisions” are not serious when they result in crimes.  Furthermore, even if Anderson interpreted certain statements to imply that leniency would be given, courts do not mechanically hold statements involuntary simply because a promise was involved.  Id. at 811.

            Finally, Anderson claims that his statements should be considered involuntary because he was intoxicated and fatigued at the time of the interrogation.  He testified at the omnibus hearing that he was high on methamphetamine before the incident leading to his arrest and had not had much sleep before the interrogation.  However, Deputy Wersal testified that Anderson did not appear intoxicated during the interrogation.  And, during the interrogation, when Anderson was asked if he had been drinking alcohol or smoking marijuana that evening, he indicated that he would not do that.  Additionally, the district court determined, after examining the testimony and evidence submitted at the omnibus hearing, that there was “no indication that [Anderson] was under the influence of methamphetamine or sleep deprived.”  Anderson, a 19-year-old high-school graduate, was able to coherently and intelligently answer all of the deputies’ questions.  Therefore, because Anderson has failed to show that he was threatened, promised leniency, or that he was intoxicated, and because he was clearly able to understand his rights and voluntarily agreed to speak with the deputies, his claim that the district court erred in admitting his statement to the police is without merit.  We affirm the district court’s admission of the confession. 

Assault Sentence

            Anderson argues that his sentence for the assault conviction should be vacated because it was part of the same behavioral incident as the robbery and kidnapping.  When a person’s conduct constitutes more than one criminal offense, he may be punished for only one of the offenses.  Minn. Stat. § 609.035, subd. 1 (2002).  The purpose of this statute is to limit punishment to a single sentence when a single behavioral incident results in the violation of multiple criminal statutes.  State v. Brown, 597 N.W.2d 299, 305 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999).  Multiple punishment means that multiple sentences, including concurrent sentences, are barred when Minn. Stat. § 609.035 applies.  Id.  When determining if the offenses arose from a single behavioral incident, courts generally consider the factors of time and place and whether the defendant was motivated by a single criminal objective.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).

            Anderson argues that the kidnapping, robbery, and assault all occurred at the same time and place and were motivated by the single objective of obtaining Schwarz’s money.  Essentially, he claims that the assault conviction is based on the fact that he held a knife to Schwarz in order to effectuate the robbery, and, thus, because robbing Schwarz was the goal throughout the incident, it qualifies as a single behavioral incident under Minn. Stat. § 609.035, subd. 1.  Anderson told Schwarz that there was a party at Jeep Hill; and, upon arriving at Jeep Hill, Anderson pulled out a knife and demanded Schwarz’s money.  Schwarz then gave him a five-dollar bill and a pack of cigarettes.  Anderson demanded more money, stating that he knew Schwarz had been paid that day and that he wanted all of the money.  Schwarz convinced Anderson that the rest of the money was hidden in his wallet back in town at a friend’s house.  Anderson then drove the van back to town in order to collect more money.  Upon arriving in town, Schwarz attempted to escape, and Anderson stabbed him in the hand and attempted to stab him in the back as he tried to run away.  Anderson’s goal throughout this incident was to retrieve money from Schwarz.  Robbery was his motivation when he pulled the knife and continued to be his motivation when he drove back to town, holding a knife on Schwarz and eventually stabbing him.  We hold that a sufficient nexus in purpose between the assault and the robbery existed, making both crimes part of the same continuous incident.  Thus, while the conviction stands, the sentence is vacated.   

            Affirmed in part and reversed in part.