This opinion will be unpublished and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

A06-809

 

State of Minnesota,

Respondent,

 

vs.

 

Bryce J. Bjork,

Appellant.

 

 

Filed August 21, 2007

Affirmed in part, reversed in part, and remanded

Randall, Judge

 

Olmsted County District Court

File Nos. K5-03-4098, K7-04-3870

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and

 

Mary M. McMahon, Special Assistant Public Defender, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge; Randall, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant Bryce Jason Bjork challenges his sentences in two files, arguing that the district court erred in its determination of his sentences, because (1) the district court sentenced him for both obstructing legal process and first-degree driving while impaired, when they were part of the same behavioral incident; (2) Minn. Stat. § 609.035, subd. 5 (2002), is unconstitutional; (3) the criminal-history score exaggerated the seriousness of the offenses; and (4) the district court sentenced him for both obstructing legal process and first-degree felony refusal, when they were part of the same behavioral incident.  We affirm in part, reverse in part, and remand.

FACTS

            This appeal involves two files, K5-03-4098 and K7-04-3870, which resulted from incidents that occurred about a year apart.

File No. K5-03-4098

            On October 4, 2003, after watching appellant leave the bar, an officer observed appellant Bryce Jason Bjork get into the driver’s seat of a vehicle along with three passengers.  Knowing that appellant’s driving privileges had been revoked, the officer attempted to pull appellant over by activating his squad lights.  Appellant failed to stop the vehicle and instead accelerated.  The officer activated his siren.  Appellant stopped the vehicle, exited, and began to run.  The officer chased appellant and tackled him; appellant began to wrestle with the officer, still trying to escape.  A second officer employed a taser in order to handcuff appellant.  The officer noticed several signs of intoxication in appellant, including a strong odor of alcohol, slurred speech, bloodshot and watery eyes, and mood swings.  At the law enforcement center, appellant was read the implied consent advisory.  Appellant provided one breath sample, which yielded a .129 alcohol concentration, but he refused to provide the requisite second sample. 

            For the incident that occurred on October 4, 2003, appellant was charged with fleeing a peace officer; first-degree driving while impaired; first-degree refusal to submit to test; obstructing arrest/ legal process; and gross-misdemeanor driving after cancellation.

File No. K7-04-3870

            On October 7, 2004, a trooper pulled over a vehicle that was driving erratically, including turning without signaling, driving in a way that caused squealing tires, weaving back and forth, and driving onto the center line.  The officer pulled over the vehicle, which appellant was driving.  The trooper observed appellant’s bloodshot eyes and a strong odor of alcohol emanating from the vehicle.  Appellant agreed to perform some field sobriety tests, and he failed all three of them.  The trooper asked appellant to sit in the back of his squad car so that he could administer a preliminary breath test.  Appellant lunged at the trooper, who was aided by other officers in subduing appellant and placing him under arrest.  Appellant was read the implied consent advisory and submitted to a test, which indicated that appellant’s alcohol concentration was .12. 

            For the incident that occurred on October 7, 2004, appellant was charged with two counts of first-degree driving while impaired; gross-misdemeanor driving after cancellation; and obstructing legal process.

Procedural History

            On December 12, 2005 appellant appeared for a jury trial on file K5-03-4098 regarding the charges of fleeing a peace officer and obstructing legal process.  But before going to trial on those charges, on the same file appellant entered guilty pleas to the charges of first-degree test refusal and gross-misdemeanor driving after cancellation. (K5-03-4098).  And appellant entered guilty pleas in file K7-04-3870 to first-degree driving while impaired, driving after cancellation, and obstructing legal process.  Any remaining charges were dropped.  After a trial, the jury found appellant guilty of fleeing a peace officer and obstructing legal process. 

            Appellant filed a motion challenging the district court’s calculation of his criminal-history score and seeking downward dispositional and durational departures.  The district court sentenced appellant on January 24, 2006, and addressed appellant’s motions before sentencing him.  The district court determined that appellant’s criminal-history score was zero before being sentenced for fleeing a peace officer in file K5-03-4098; two (one misdemeanor point plus one felony point) when sentenced for the next offense, refusal to test in file K5-03-4098.  Then, in file K7-04-3870, the district court determined that appellant’s criminal-history score was three (one misdemeanor point plus two felony points).         

            The district court denied appellant’s motion for a downward dispositional departure but granted his motions for downward durational departures.  Appellant received a downward durational departure on the sentences for refusal to test (K5-03-4098) and first-degree driving while impaired (K7-04-3870).

In file K5-03-4098, appellant was sentenced to a 36-month prison term for first-degree DWI; execution of that sentence was stayed for seven years.  Obstructing arrest and driving after cancellation were sentenced concurrently, and appellant was placed on probation.  And the district court ordered appellant to serve the presumptive sentence of 12 months and one day for fleeing a peace officer (it was executed at appellant’s request). 

            In file K7-04-3870, appellant was sentenced to a 48-month prison term to be served consecutively.  Appellant was sentenced to a consecutive 30 days for the driving-after-cancellation offense, executed.  Finally, appellant was sentenced to serve one year in jail for obstructing arrest, concurrent with the other executed prison sentences. 

D E C I S I O N

I.

            Appellant argues that the district court erred by sentencing him for gross-misdemeanor obstructing legal process and first-degree driving while impaired in file K7-04-3870 because they are the same behavioral incident. 

            A district court generally may not impose more than one sentence on a defendant who commits multiple offenses as part of a single behavioral incident.  Minn. Stat. § 609.035, subd. 1 (2004).  Under section 609.035, the factors to be considered in determining whether multiple offenses constitute a single behavioral incident are 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); see State v. Johnson, 273 Minn. 394, 405, 141 N.W.2d 517, 525 (1966) (stating that “it would seem that violations of two or more traffic statutes result from a single behavioral incident where they occur at substantially the same time and place and arise out of a continuous and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.”).  The determination of whether multiple offenses are part of a single behavioral incident under section 609.035 is not a mechanical test but involves an examination of all the facts and circumstances.  Soto, 562 N.W.2d at 304.  To obtain multiple sentences, the state must prove by a preponderance of the evidence that the defendant’s conduct is not part of a single behavioral incident.  State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).

An appellate court may review whether the record supports a district court’s determination that conduct underlying two offenses was not a single behavioral incident.  State v. Nordby, 448 N.W.2d 878, 880 (Minn. 1989).  The district court’s determination will not be reversed on appeal unless it is clearly erroneous.  Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).  Here, appellant did not argue before the district court that these convictions constituted a single behavioral incident.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that this court will generally not consider matters not argued and considered in the district court).  But this court may decide to consider this argument in the interests of justice.  Minn. R. Civ. App. P. 103.04 (stating that this court has discretion to address any issue as justice requires).  Further, the protection against multiple sentencing cannot be waived.  State v. Johnson, 653 N.W.2d 646, 650 (Minn. App. 2002).

The crime of obstructing arrest/legal process requires a specific intent to obstruct, resist, or interfere with a peace officer while the officer is engaged in the performance of official duties.  Minn. Stat. § 609.50, subd. 1(2) (2004).  Appellant’s second offense, first-degree driving while impaired, requires only a general intent to do the act.  See Minn. Stat. § 169A.20, subd. 1(1) (2004).  When the intent requirements of the offenses differ, the analysis focuses on whether the conduct was continuous and uninterrupted, manifesting an indivisible state of mind or coincident errors of judgment, in order to constitute a single behavioral incident.  State v. Anderson, 468 N.W.2d 345, 346 (Minn. App. 1991).

Here, the district court did not consider whether these convictions were part of the same behavioral incident, as the issue was not raised, but sentenced appellant for both convictions.  Appellant was sentenced to one year at the Olmsted County Adult Detention Center for obstructing arrest/legal process, to run concurrently with the first-degree DWI sentence.  Appellant argues that his DWI and attempt-to-escape arrest constituted a single behavioral incident.  See State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991) (“In a series of decisions—the avoidance-of-apprehension cases—we have held that multiple sentences may not be used for two offenses if the defendant, substantially contemporaneously committed the second offense in order to avoid apprehension for the first offense.”).  Here, appellant struggled with the officer to avoid being arrested.  See State v. Zuehlke, 320 N.W.2d 79, 82 (Minn. 1982) (holding that multiple sentences may not be used for two offenses if the defendant, substantially contemporaneously committed the second offense in order to avoid apprehension for the first offense).

Respondent compares this case to State v. Thomas, a case in which this court rejected Thomas’s attempt to analogize his fact situation to the avoidance-of-apprehension doctrine, where “Thomas’ actions were clearly not motivated by an attempt to escape or destroy the evidence.  Rather, it was an attempt at escalating the encounter to a more serious level by harming the BCA agents.”  State v. Thomas, 352 N.W.2d 526, 529 (Minn. App. 1984), review denied (Minn. Oct. 11, 1984).  Respondent argues that appellant’s actions were intended to escalate the situation to a more serious level through the use of physical force against a state trooper.  But the record indicates that appellant was simply trying to escape, not harm the officer.  And he did not escalate the situation in the same way that Thomas did because he did not grab the officer’s firearm.  Appellant did not have a weapon. 

Respondent argues that the obstruction of arrest was not contemporaneous in time with the DWI offense.  But appellant was trying to escape from an officer for a crime for which he was stopped.  This is generally considered to be part of the same behavioral incident (avoidance-of-apprehension cases).  See Zuehlke, 320 N.W.2d at 82 (holding that multiple sentences may not be used for two offenses if the defendant, substantially contemporaneously committed the second offense in order to avoid apprehension for the first offense).

Because these two convictions arose from the same behavioral incident, the district court erred by sentencing appellant to one year at the Olmsted County Adult Detention Center for obstructing arrest/legal process, and that sentence should be vacated.

II.

Appellant argues that Minn. Stat. § 609.035, subd. 5 (2002), is unconstitutional because it violates the Eighth Amendment protection against cruel or unusual punishment.  As respondent points out, it appears that appellant did not raise this argument before the district court.  We need not consider this argument for the first time on appeal, but may do so in the interests of justice.  See Roby, 547 N.W.2d at 357 (stating that the constitutionality of a statute cannot be challenged for the first time on appeal, but this court has discretion to address any issue as justice requires).

Appellant fails to meet the heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional.  See State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990) (stating that “to challenge successfully the constitutional validity of a statute, the challenger bears the very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional”).  The constitutionality of a statute presents a question of law, which this court reviews de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

The statute provides the following:

Notwithstanding subdivision 1, a prosecution or conviction for violating section 609.487 [fleeing a peace officer] is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.  If an offender is punished for more than one crime as authorized by this subdivision and the court imposes consecutive sentences for the crimes, the consecutive sentences are not a departure form the sentencing guidelines.

 

Minn. Stat. § 609.035, subd. 5 (2004).

Appellant merely asserts that “multiple sentences for the same behavioral incident cannot be justified,” arguing that the statute violates the Eighth Amendment protection against cruel or unusual punishment.  See Minn. Const. art. I, § 5; State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (holding that assignment of error in brief based on “mere assertion” and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).  Appellant argues in generalities and fails to explain why the statute is cruel or unusual in this case. 

III.

            Appellant challenges the district court’s determination of his criminal-history score in file K7-04-3870, arguing that separate punishment for the earlier-occurring offenses of fleeing a peace officer and refusal to test unfairly exaggerated the criminality of his offenses.  Appellant was first sentenced on file K5-03-4098 and then on K7-04-3870.  For the second file, K7-04-3870, he was sentenced to 48 months, a downward durational departure, based on a severity level of 7 and a criminal-history score of 3.  Appellant requests resentencing, using a criminal-history score of 2.5 rather than 3.  The district court determined the criminal-history score of 3 by adding both the felony fleeing a police officer and the felony refusal from file K5-03-4098, which appellant disagrees with.  Appellant argues that the multiple sentences imposed regarding file K5-03-4098, “unfairly exaggerate[] the criminality of the sentence on this new file [K7-04-3870] because it moves the appellant from a presumptive stayed sentence to a presumptive executed sentence.”  Without legal analysis or citation, appellant then asserts that the sentence must be corrected to reflect a criminal-history score of 2.5 rather than 3, claiming the criminal-history score from the previous offense “unfairly exaggerates the criminality of the new offense” by increasing the sentence from a presumptive stay to a presumptive commit.  We disagree. 

Minn. Stat. § 609.035, subd. 5, expressly authorizes such multiple sentencing when felony fleeing of a peace officer is involved.  Furthermore, the record reflects that before sentencing appellant, the district court did consider whether the criminality of the offense would be exaggerated by the sentence, and it decided to apply a downward durational departure.  The district court ordered downward durational departures on the sentences for refusal to test (K5-03-4098) and first-degree driving while impaired (K7-04-3870) because it was concerned about not exaggerating the criminality of the offense.  The district court did not abuse its discretion here, as these were appellant’s fifth and sixth impaired-driving convictions.

IV.

            Appellant argues that in file K5-03-4098, the district court erred by sentencing appellant to gross-misdemeanor obstructing legal process and first-degree felony refusal because they are the same behavioral incident.  Appellant asserts that the analysis for this issue is the same as appellant’s first issue, citing the avoidance-of-apprehension cases such as Gibson.  We disagree.  The gross-misdemeanor obstructing legal process (trying to escape from the officer to avoid arrest) was a separate behavioral incident from the first-degree felony refusal (refusing to submit to the second Breathalyzer test at the law enforcement center). 

Affirmed in part, reversed in part, and remanded.