This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2304

 

State of Minnesota,

Respondent,

 

vs.

 

Raul Garcia,

Appellant.

 

Filed ­­­March 13, 2007

Affirmed in part and vacated in part

Dietzen, Judge

 

Clay County District Court

File No. K7-05-467

 

Brian J. Melton, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, Moorhead, MN 56560; and

 

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his convictions of terroristic threats, false imprisonment-intentional restraint, violation of domestic abuse no-contact order, misdemeanor domestic assault, and the sentences imposed, arguing that the district court erred by (1) failing to obtain appellant’s waiver of his right to testify, (2) giving the no-adverse-inference instruction to the jury without appellant’s consent, and (3) imposing multiple sentences arising out of offenses that were part of the same behavioral incident.  We affirm the convictions and sentences except the sentence for misdemeanor domestic assault, which is vacated.

FACTS

            Appellant Raul Garcia and Tracy Lorsung (the victim) lived together for about seven and one-half years and have five children.  In May 2004, the victim obtained an order for protection against appellant.  In August 2004, the victim complained to the Clay County Sheriff’s Department that she had been abducted and beaten by appellant.  Appellant was subsequently charged with making terroristic threats, false imprisonment-intentional restraint, violation of a domestic abuse no-contact order, and misdemeanor domestic assault.

            At trial, the victim testified that she was dancing at Fox’s Bar in Moorhead with a friend identified as Ace, when appellant grabbed her arm and threatened to kill her.  One of the victim’s cousins, Stephanie Lorsung, grabbed the victim’s other arm and told appellant to let her go.  The victim then complained to the bar owner, who escorted appellant out of the bar. 

The victim stated that appellant later returned to the bar and tried to prevent her from dancing with Ace.  Appellant and Ace went outside, and the victim remained in the bar.  Later, when the victim and her two cousins were leaving the bar, appellant got out of a white pickup and began to argue with the victim.  The victim stated that appellant, who had a “mean look” on his face, grabbed her and forced her into the pickup.  She stated that she was unable to escape because the safety locks were in use.  Appellant then got into the pickup, pushed the victim’s head under the steering wheel, and struck her in the head with his fist four times.

            Appellant drove the victim to a rural area, but en route he pulled over three times and hit her each time.  Appellant then forced the victim out of the truck and kicked her in the head and stomped her face against the gravel road.  When the victim refused to get back into the truck, appellant hit her in the head and forced her back into the truck.  Appellant then drove the victim to an area about a block from her home and released her. 

The victim testified that appellant also threatened to kill her in the parking lot, in the pickup, and in the rural area.  About noon the next day, the victim reported the incident to deputy Darin Bredman, who took photographs.  The photographs showed redness, bruising and cuts on the top of the victim’s nose, bruising on her right arm and left hand, and redness and scratches on various parts of her head, chest, and arms.  The victim’s two cousins, Stephanie Lorsung and Penny Guttormson, corroborated her testimony as to the confrontations at the bar and in the parking lot.

            Laura Lorsung, another cousin of the victim, testified for appellant.  She stated that the victim left the bar with her, and they went to a restaurant and had breakfast.  She admitted she was romantically involved with appellant.  Appellant did not testify at trial.  The jury returned guilty verdicts on all four counts. 

At sentencing, appellant’s counsel argued that appellant should only be sentenced on the terroristic-threats conviction, based on Minn. Stat. § 609.035, which prohibits multiple punishment for offenses that arise out of the same behavioral incident.  The district court imposed individual sentences on all four counts.  This appeal followed.

D E C I S I O N

I.

 

            Appellant argues that the district court erred by not inquiring on the record whether he waived his right to testify.  Both the United States and Minnesota Constitutions guarantee a criminal defendant’s right not to testify.  U.S. Const. amend. V; Minn. Const. art. I, § 7; see also Griffin v. California, 380 U.S. 609, 614-15, 85 S. Ct. 1229, 1232-33 (1965); Minn. Stat. § 611.11 (2004) (stating that there is no presumption created by defendant’s refusal to testify).  The waiver must be both knowing and voluntary.  State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997).  Although district courts often confirm on the record that the defendant’s waiver of his right to testify is voluntary and knowing, the district court is not obligated to obtain an on-the-record waiver.[1]  Id. at 751-52.  When the appeal is only from the judgment of the conviction, without the benefit of a postconviction hearing, and without anything in the record to suggest otherwise, this court “must presume that the decision not to testify was made by defendant voluntarily and intelligently.”  State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980). 

            The record does not contain any discussion of appellant’s waiver of his right to testify.  Appellant suggests the absence of such evidence in the record prevents the court from presuming that such a waiver was made voluntarily and intelligently.  But the rule articulated in Smith requires that the court presume a voluntary and intelligent waiver unless there is evidence in the record that suggests the contrary.  299 N.W.2d at 506.  Appellant has presented no evidence to overcome the Smith presumption, and the district court is not required to make such an inquiry into defendant’s waiver.  Walen, 563 N.W.2d at 751.

II.

 

Appellant argues that the district court erred by giving the no-adverse-inference instruction to the jury without first obtaining his permission on the record.  At trial, the district court gave the following instruction: “The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions.  You should not draw any inference from the fact that the defendant has not testified in this case.” 

It is error to give a jury instruction on a defendant’s right not to testify without first obtaining the defendant’s permission on the record.  State v. Clifton, 701 N.W.2d 793, 798 (Minn. 2005) (citing State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002)).  But appellant failed to make a timely objection to the instruction.  Thus, our review is limited to a plain-error analysis.  Darris, 648 N.W.2d at 240 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  Plain-error requires that (1) there was error, (2) that was plain, and (3) that affected substantial rights.  Id.

An error is “plain” if it is “clear” or “obvious.”  State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002).  A non-objecting defendant bears a heavy burden of showing that substantial rights have been affected.  Griller, 583 N.W.2d at 741.  This burden is satisfied if the defendant shows the error was prejudicial and affected the outcome of the case.  Id.  Failure to object or seek curative instructions about comments on the right not to testify implies that such comments were not prejudicial.  State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984).

But even if it was plain error to give the no-adverse-inference jury instruction, appellant bears a heavy burden of showing that substantial rights have been affected. Griller, 583 N.W.2d at 741.  In considering this factor, we look not only at the strength of the evidence, but also at the impact the error had on the jury’s verdict.  See State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997).

On this record, appellant has not shown that the error affected the outcome of the case.  Here, the evidence in support of the conviction was strong.  Appellant’s girlfriend testified that the victim left the bar with her and they drove to a local establishment for breakfast.  But her testimony was contradicted by three other witnesses who observed the confrontations in the bar and in the parking lot.  And one witness saw appellant force the victim into his pickup.  Appellant’s failure to testify was not raised by either party during closing argument.  Thus, appellant has not shown that there is a reasonable likelihood that giving the instruction had a significant effect on the jury’s verdict.  Griller, 583 N.W.2d at 741.  Furthermore, our supreme court has previously held that giving a no-adverse-inference instruction without permission was not prejudicial.  See, e.g., Darris, 648 N.W.2d at 240-41; State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  On this record, we conclude that appellant has not satisfied the requirements of the plain-error analysis.

III.

Appellant argues that his sentence for false imprisonment, for violating a domestic abuse order, and for assault should be vacated because they all arose from the same behavioral incident as the terroristic threats conviction.  “The district court’s decision of whether multiple offenses are part of a single behavioral incident is a fact determination and should not be reversed unless clearly erroneous.” State v. Carr, 692 N.W.2d 98, 101 (Minn. App. 2005).  A factual determination is clearly erroneous if it is unsupported by the record.  See State v. Wasson, 615 N.W.2d 316, 322 (Minn. 2000).

Minnesota law 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.”  Minn. Stat. § 609.035, subd. 1 (2004).  Thus, if a defendant commits multiple offenses against the same victim during a single behavioral incident, the defendant may be sentenced for only one of those offenses.  State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995).

Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).  The factors a court should evaluate to determine whether the offenses constitute a single behavioral incident include “time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.”  State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).  Courts 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.  See State v. Bookwalter, 541 N.W.2d 290, 294-97; see also State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).

The district court imposed concurrent 15-month sentences for terroristic threats and false imprisonment, which were both stayed.  Jail sentences were imposed for the violation of the domestic abuse no-contact order and for misdemeanor domestic assault.

Respondent concedes that appellant should not have received a separate sentence for the misdemeanor domestic assault conviction because the assault occurred at substantially the same time and place as the false imprisonment.  We agree.  The record is clear that appellant put the victim in his truck against her will and assaulted her over the next two or three hours.  Consequently, we conclude that the misdemeanor domestic assault sentence, as the lesser sentence, should be vacated.  Minn. Stat. § 244.11, subd. 2(b) (2006); State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006).

Appellant argues that all offenses for which he was convicted arose from one episode that occurred over the course of that evening.  We disagree.  Appellant’s conviction of the domestic abuse no-contact order is easily distinguishable as a separate event.  Appellant violated the no-contact order by confronting the victim at the bar at approximately 11:00 p.m. and then did not return for approximately two hours.  This particular offense was separated by several hours from the false imprisonment.  And we conclude that violation of a domestic abuse no-contact order has a clearly different criminal objective, and is distinguishable from, false imprisonment or terroristic threats.

We turn then to appellant’s convictions of terroristic threats and false imprisonment.  Appellant argues that those offenses occurred at the same place—the bar and the bar parking lot and as part of one continuous event.  We disagree.  Here, the locations are not substantially the same—the terroristic threats occurred inside the bar, and the false imprisonment began at the parking lot when the victim was forced into appellant’s truck and continued until she was released.  And the crimes were separated in time by approximately 45 minutes.

The recent case of State v. Bookwalter supports our conclusion.  In Bookwalter, the defendant, who was hiding in the victim’s car, forced her to pull over, and then sexually assaulted her in her car.  After driving a little further, the defendant made the victim get out of the car and attempted to murder her in order to cover up the sexual assault.  Bookwalter, 541 N.W.2dat 295.  The supreme court determined that the sexual assault and attempted murder occurred at two distinct places and were not part of the same behavioral incident.  On this record, we cannot conclude that the offenses in this case satisfy the unity of “time and place” or constitute a “continuous and uninterrupted course of conduct.”  Bookwalter, 541 N.W.2dat 295; Johnson, 653 N.W.2d at 652.

Appellant argues that the offenses demonstrate a single state of mind and criminal objective which was to “control” the victim.  Respondent argues that the desire to “control” the victim is too generic a motive to classify distinct crimes as a single behavioral incident.  A single criminal objective must demonstrate a unity of purpose or be the result of a “single motivation directed toward a single goal.”  State v. Reiland, 274 Minn. 121, 125, 142 N.W.2d 635, 638 (1966); see also Bookwalter, 541 N.W.2d at 295-96 (holding that an offense that did not occur as part of a prearranged plan did not constitute a single criminal objective).

Here, evidence exists in the record that appellant harassed, threatened, and expressed anger at the victim in an effort to intimidate her into not dancing with another man.  When he later imprisoned and beat the victim, his intention seems to have been to punish the victim and prevent any other man from being with her.  On this record, it is not clear that appellant’s actions were the result of a single motivation directed toward a single goal or the result of a prearranged plan. See Reiland, 274 Minn. at 125, 142 N.W.2d at 638; Bookwalter, 541 N.W.2d at 295-96.

But even if appellant’s actions may be understood as an attempt to “control the victim,” that motive is too generic to bring together a series of distinct events and under the rubric of a “single criminal objective.”  See State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980) (holding that a large plan to “swindle as much money as possible” was too broad a motive to render multiple thefts a single behavioral incident); State v. Gilbert, 262 N.W.2d 334, 338 (Minn. 1977) (holding that a “general hatred of women” is too broad to be a criminal goal within the meaning of Minn. Stat. § 609.035); State v. Butterfield, 555 N.W.2d 526, 531 (Minn. App. 1996) (holding that a defendant’s desire to “satisfy his sexual needs” is too broad a motive to justify application of the single-behavioral-incident rule), review denied (Minn. Dec. 17, 1996).  On this record, the district court’s finding that the terroristic threats and the false imprisonment/assault
crimes were not unified by time, place, or purpose and, therefore, were not part of the same behavioral incident, was not clearly erroneous.  See Carr, 692 N.W.2d at 101.

            Affirmed in part and vacated in part.