This opinion will be unpublished and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

A04-1655

 

 

State of Minnesota,

Respondent,

 

vs.

 

Scott Edmundson,

Appellant.

 

 

Filed July 26, 2005

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge

 

 

Scott County District Court

File No. 2001-2165

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Scott County Justice Center, 200 West Fourth Street, JC347, Shakopee, MN 55379 (for respondent)

 

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant challenges his sentence after remand, arguing that (1) his convictions on four of the five counts must be vacated because they are either lesser-included offenses of the fifth count or are part of the same behavioral incident as the fifth count and (2) the district court’s upward durational departure violates his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because counts III and IV are lesser-included offenses of count V, we vacate appellant’s convictions on those counts.  But because the state met its burden of proving that appellant’s acts constitute separate and distinct offenses, we affirm his convictions on the remaining counts.  Because the district court’s upward durational departure in sentencing violated appellant’s right to a jury trial under Blakely, we reverse in part and remand for resentencing.

FACTS

In January 2000, 17-year-old M.C.S. reported to law enforcement that her stepfather, appellant Scott Lee Edmundson, had sexually abused her, beginning when she was four or five years old and continuing on a regular basis between 1986 and 1996.  Appellant was subsequently charged with five counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a), (g), (h)(iii) (2000).[1] 

After a jury trial, appellant was convicted of all five counts.  The district court applied the Hernandez[2] sentencing method and sentenced appellant on count I to 90 months, on count II to 115 months, on count III to 135 months, on count IV to 160 months, and on count V to 360 months, with all of the sentences to run concurrently.  The sentence on count V reflects an upward departure from the presumptive sentence of 158 months.  To support the upward departure, the district court found the following aggravating factors: (1) victim vulnerability due to age; (2) abuse of a position of trust; (3) invasion of the victim’s zone of privacy; (4) the psychological and emotional effect on the victim; and (5) the use of multiple forms of sexual abuse. 

On appeal, this court affirmed appellant’s convictions.  State v. Edmundson, No. A03-232, 2004 WL 332094 (Minn. App. Feb. 24, 2004).  But we held that, in light of Taylor v. State, 670 N.W.2d 584 (Minn. 2003), “the district court erred in basing its decision to depart upward on the victim’s vulnerability due to age and [appellant’s] abuse of a position of trust” and remanded for “resentencing based on the remaining aggravating factors.”  Edmundson, 2004 WL 332094, at *4.

On remand, the district court imposed the same sentence that it had at the first sentencing hearing, including the upward departure to 360 months on count V.  The district court noted that it “base[d] its departure decision on three aggravating factors—[appellant’s] invasion of the victim’s zone of privacy, the psychological injury to the victim, and the multiple forms of sexual abuse suffered by the victim.”  This appeal follows.

D E C I S I O N

I.          Lesser-Included Offense

            Appellant argues that his convictions on counts III and IV must be vacated because the offenses charged are lesser-included offenses of count V.  “Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.”  Minn. Stat. § 609.04, subd. 1 (2000).  An “included offense” is, among other things, “[a] crime necessarily proved if the crime charged were proved.”  Id., subd. 1(4).  If a defendant is “formally adjudicated” guilty of both a crime and a lesser-included offense, the conviction for the latter should be vacated.  State v. Plan, 316 N.W.2d 727, 728-29 (Minn. 1982).

As an initial matter, the state argues that appellant waived this objection because he failed to raise it before the district court.  Citing State v. Johnson, 653 N.W.2d 646 (Minn. App. 2002), the state suggests that “while [appellant] cannot waive the protection against double punishment, [he] can waive an objection to multiple convictions by failing to object.”  But as we have previously stated, “[t]he protection of Minn. Stat. § 609.04 from multiple convictions for the same conduct is not waived through lack of previous presentation.”  State v. Frank, 416 N.W.2d 744, 750 (Minn. App. 1987), review denied (Minn. Feb. 8, 1988).

The state’s reliance on Johnson is misplaced.  There, we noted that “[t]he defendant in White waived his protection against multiple prosecutions when he did not object to his prosecution in the district court.”  Johnson, 653 N.W.2d at 651 (emphasis added) (discussing State v. White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (1974)).  The state points to this language to support its argument that appellant waived his objection to multiple convictions. 

Both White and Johnson addressed the protections contained in Minn. Stat. § 609.035, not those in Minn. Stat. § 609.04 (2000).  See White, 300 Minn. at 101-06, 219 N.W.2d at 90-93 (discussing Minn. Stat. § 609.035); Johnson, 653 N.W.2d at 650-52 (same).  In White, the supreme court noted that “[s]ection 609.035 actually includes two distinct protections, (1) the rule against multiple prosecutions, intended to protect defendants from harassment, and (2) the protection from multiple punishments, designed to insure that punishment will be commensurate with culpability,” and concluded that although the former could be waived, the latter could not.  300 Minn. at 103, 105-06, 219 N.W.2d at 92-93.  Protections against multiple convictions, in contrast, are codified in Minn. Stat. § 609.04.  Accordingly, White and Johnson are inapposite. 

The state also points to State v. Kemp, 305 N.W.2d 322 (Minn. 1981), where the supreme court indicated that appellate courts might decline to address future objections based on either section 609.035 or 609.04 unless the issue was first presented to the district court.  Id. at 326.  But as the supreme court later clarified in Ture v. State, 353 N.W.2d 518 (Minn. 1984):

The intent of that language was to get defense counsel to petition for relief in the district court first, thereby possibly avoiding the need for an appeal and avoiding the need for this court to decide the issue. 

 

. . . The intent of the language was not to suggest that a defendant waives or forfeits the issue if he does not raise it at the time of sentencing.

 

Id. at 523 (emphasis added).  The issue is no more waived by appellant’s failure to raise it at the time of resentencing than it would have been by his failure to raise it at the time of his original sentencing.  Cf. State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004) (noting that an appeal from a district court’s resentencing is a direct appeal), review granted (Minn. Jan. 20, 2005).  Accordingly, appellant’s objection based on the protection against multiple convictions contained in Minn. Stat. § 609.04 has not been waived.

            Appellant asserts that his convictions for single acts of engaging in sexual penetration with M.C.S. when she was under 16 years of age and based on the finding that he had a significant relationship to her must be vacated under Minn. Stat. § 609.04, subd. 1, because they are lesser-included offenses of his conviction for engaging in multiple acts of sexual penetration with M.C.S. when she was under 16 years of age and he had a significant relationship to her.  The application of section 609.04 is a question of law, which we review de novo.  See State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996) (stating that interpretation of a statute is a question of law subject to de novo review).

            Section 609.04 prohibits a court from entering convictions for both one crime and a second crime “necessarily proved” if the first crime was proved.  Minn. Stat. § 609.04, subd. 1(4).  As we have stated:

                        Minn. Stat. § 609.04 forbids two convictions of the same offense or of one offense and a lesser included offense on the basis of the same criminal act.  In applying section 609.04 the court must look at the statutory definitions rather than the facts in the particular case to determine whether the lesser offense is necessarily included.

 

State v. Travica, 398 N.W.2d 666, 669 (Minn. App. 1987) (citation omitted).

Here, among other offenses, appellant was charged with violating Minn. Stat. § 609.342, subd. 1(g) (2000) (counts III and IV), and Minn. Stat. § 609.342, subd. 1(h)(iii) (2000) (count V).  The elements of these crimes are identical except that subdivision 1(g) applies to a single incident and subdivision 1(h)(iii) requires multiple incidents.[3]  All three of these convictions were based on appellant’s conduct between July 1986 and July 1996.  Proving multiple acts of sexual penetration during this time frame necessarily proved a single act of sexual penetration during the same period.  Accordingly, subdivision 1(g) constitutes a lesser-included offense of subdivision 1(h)(iii).  Because appellant was “formally adjudicated” guilty of a crime and a lesser-included offense of that crime, his convictions on counts III and IV must be vacated.  Plan, 316 N.W.2d at 728-29.

II.        Single Behavioral Incident

Appellant next contends that his sentences for counts I and II must be vacated because they are based on the same behavioral incident as the conduct underlying count V.  Minn. Stat. § 609.035, subd. 1 (2000), provides that “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.”  Id.  As we have noted, this statute protects against both multiple prosecutions and multiple punishments.  White, 300 Minn. at 103, 218 N.W.2d at 92.  “Multiple punishment refers not to multiple convictions but multiple sentences and any multiple sentences, including concurrent sentences, are barred if section 609.035 applies.”  State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980).  When a defendant commits multiple offenses against the same victim in a “single behavioral incident,” the district court may sentence the defendant on only one of those offenses.  State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995).

In determining whether multiple offenses arise from a single behavioral incident, this court must consider the defendant’s singleness of purpose, i.e., whether the defendant was motivated by a desire to obtain a single criminal objective. We must also consider whether the offenses (1) arose from a continuous and uninterrupted course of conduct, (2) occurred at substantially the same time and place, and (3) manifested an indivisible state of mind.

 

Johnson, 653 N.W.2d at 651-52 (quotation and citations omitted).  The burden of proof is on the state to demonstrate that multiple acts are separate and distinct criminal offenses.  Id. at 652.

Here, the offenses did not all occur at “substantially the same time.”  The record indicates that the jury was presented with evidence of multiple distinct acts of abuse by appellant occurring at numerous times over many years.  It is clear that these acts were not part of a “continuous and uninterrupted course of conduct.”  Rather, the acts represent multiple and distinct instances of sexual abuse with significant breaks in the continuity of those acts.  It is equally clear that these distinct acts do not represent an “indivisible state of mind.”  Moreover, although, in a broad sense, appellant’s motivation throughout the years may have been to abuse M.C.S., such a motivation is too broad to constitute a “single criminal objective.”  Cf. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997) (stating, in the context of drug sales occurring on different days and at different places, that “the criminal plan of obtaining as much money as possible is too broad an objective to constitute a single criminal goal within the meaning of section 609.035”).  On this record, the state has met its burden of proving that appellant’s acts constitute separate and distinct offenses.  Cf. State v. Richardson, 633 N.W.2d 879, 888-89 (Minn. App. 2001) (concluding that when a pattern of criminal conduct is broken and sporadic over a four-year period of time and there is no unity of place, there can be no single behavioral incident for sentencing purposes).  Accordingly, appellant’s sentences on counts I and II are valid sentences.

Appellant also argues that the Supreme Court’s recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), requires that “any question about the application of the single behavioral incident protections of Minn. Stat. § 609.035 . . . be decided by a jury.”  As appellant correctly notes, under Blakely, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  124 S. Ct. at 2536 (emphasis added).  But here appellant was not sentenced for “a crime,” he was sentenced for multiple crimes. 

This court recently addressed a related question in State v. Senske, 692 N.W.2d 743 (Minn. App. 2005), review denied (Minn. May 17, 2005), where we held that, when sentencing on multiple counts, a district court may impose consecutive sentences based on a judicial finding that offenses were “crimes against persons” without violating Blakely.  Id. at 747-48 (stating that “[t]he basic problem with applying Blakely to consecutive sentences is . . . that the two sentences are separate and punishments for different offenses”).  Although we did not specifically address the applicability of Blakely to section 609.035, we noted that the holdings in Blakely and Apprendi are “limited to enhancement of a sentence for a single crime.”  Id. at 748 (emphasis added); see also State v. Kinney, 106 P.3d 274, 276 (Wash. Ct. App. 2005) (concluding with respect to consecutive sentences that “determining that two crimes are separate offenses . . . does not operate to elevate either crime to the equivalent of a greater offense”).  Appellant was sentenced to concurrent sentences for separate offenses.  Because the sentences were for distinct offenses, the district court did not violate appellant’s Sixth Amendment right to a jury trial under Blakely by imposing concurrent sentences.

III.       Upward Durational Departure

            Appellant argues that the district court violated his right to a jury trial under Blakely by sentencing him to 360 months in prison—more than double the presumptive sentence.  The decision to depart from the presumptive sentence rests with the district court and will generally not be disturbed absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  But the Blakely argument raises a constitutional question, which this court reviews de novo.  State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995).

In Blakely, the Supreme Court held that the greatest sentence that a judge may impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Id. at 2537.  A defendant has a Sixth Amendment right to a jury determination of the existence of any fact, except the fact of a prior conviction, that increases the sentence above this maximum.  Id. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  

We have previously held that Blakely applies to upward durational departures under the sentencing guidelines.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[4]  Moreover, this court recently held that, under Blakely, an upward durational departure may not be based on an “admission” by a defendant, unless that “admission” is accompanied by the defendant’s waiver of his or her right to a jury trial on the aggravating factor.  State v. Hagen, 690 N.W.2d 155, 158-59 (Minn. App. 2004). 

Here, the state concedes that the district court’s upward departure violated appellant’s Sixth Amendment rights as set forth in Blakely.  Accordingly, the sentence must be reversed and the case remanded to the district court for further proceedings not inconsistent with this opinion.

Finally, we note that appellant “is not automatically entitled on remand to a reduction of [his] sentence to the presumptive sentence.  Because the appropriate remedy, including the possible impaneling of a jury to determine the sentencing issues, has not been fully litigated, it ‘must be determined in the first instance by the district court.’”  State v. Thompson, 694 N.W.2d 117, 123 (Minn. App. 2005) (quoting Hagen, 690 N.W.2d at 160).

            Affirmed in part, reversed in part, and remanded.