This opinion will be unpublished and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

A06-1284

 

State of Minnesota,

Respondent,

 

vs.

 

Jeremiah Marquis Johnson,

Appellant.

 

Filed August 21, 2007

Affirmed

Shumaker, Judge

 

Ramsey County District Court

File No. K9-05-3529

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, Suite 315, 50 Kellogg Blvd. West, St. Paul, MN 55102 (for respondent)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant challenges his convictions of first-degree criminal sexual conduct and first-degree burglary, arguing that evidence was insufficient to support his convictions because the victim’s testimony was unreliable.  Appellant also challenges the imposition of consecutive sentences for his convictions, arguing that it exaggerates the criminality of his conduct and was improper because the two offenses share a common element.  Because the evidence is sufficient to support the convictions and the district court did not abuse its discretion by imposing permissive consecutive sentences, we affirm. 

FACTS

            St. Paul Police received a report of a burglary at a home the night of October 12, 2005.  When officers arrived, R.J., the homeowner, stated that a man entered his home and stole money, car keys, and his car.

            R.J. told police that he was in bed when he heard someone downstairs.  A man entered R.J.’s bedroom and demanded money.  The man pointed what appeared to be a gun at R.J. and threatened to kill him.  The man took cash and a credit card from R.J.’s wallet, and also took car keys.  At one point, the man held the gun to R.J.’s head and choked him.  R.J. described the perpetrator and provided the license-plate number of the stolen car.

            Later that night, police located appellant Jeremiah Marquis Johnson driving the stolen car and arrested him.  Johnson fit the suspect’s description and possessed a “replica” or “toy” gun, as well as money, keys, and a wallet.

            Police brought R.J. to the scene of the stop, where he positively identified Johnson as the person who entered his home and robbed him.  Police allowed R.J. to leave with his car, but later discovered that Johnson had additional sets of R.J.’s keys.  The officers immediately went back to R.J.’s home to return the keys.

            When the police arrived back at R.J.’s home, R.J. stated that Johnson sexually assaulted him during the burglary.  R.J. stated that Johnson demanded oral sex and that he felt so threatened that he “didn’t have any other choice but to cooperate.”  R.J. maintained that he did not know Johnson and that he did not consent to Johnson entering his home and taking his money and car.

            Johnson was charged with first-degree criminal sexual conduct, theft of a motor vehicle, and two counts of first-degree burglary.  Johnson waived a jury trial and was tried before the district court.

            R.J. testified to the facts above.  Johnson also testified and contradicted much of R.J.’s testimony.  Johnson stated that he knew R.J. from prior drug deals and that R.J. owed him money.  Johnson also testified that R.J. allowed him to borrow the car on October 12, but that he kept it for much longer than they agreed.  Johnson denied any knowledge of the replica gun found in his possession and denied forcing R.J. to perform oral sex.

            Johnson’s ex-girlfriend also testified that Johnson and R.J. knew each other and that she saw Johnson go to R.J.’s house to collect money once before.  She admitted that she never saw or met anyone who lived in R.J.’s home.

            The district court found Johnson guilty of all charges and sentenced him to consecutive 50-month and 144-month terms for one burglary count and the criminal-sexual-conduct charge.  The district court also executed a 13-month concurrent sentence for the motor-vehicle theft, but did not sentence appellant for the second burglary count.  This appeal followed.

D E C I S I O N

Sufficiency of the Evidence

Johnson argues that the evidence was insufficient to support his convictions of burglary and criminal sexual conduct because Johnson’s testimony was not credible.  He contends that Johnson’s testimony “was so unbelievable on so many different points that a reasonable fact-finder . . . could not have convicted him” of burglary or criminal sexual conduct.

In considering a claim of insufficient evidence, this court gives a district court’s findings the same weight as a jury verdict and will not set it aside unless clearly erroneous.  Walker v. State, 394 N.W.2d 192, 196 (Minn. App. 1986), review denied (Minn. Nov. 26, 1986).  Our review is limited to a “painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” is sufficient to allow the fact-finder to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We “assume[] the [trier-of-fact] believed the state’s witnesses and disbelieved any contradictory evidence.”  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  Assessing the credibility of witnesses and weighing their testimony are duties within the exclusive province of the fact-finder.  State v. Landa, 642 N.W.2d 720, 725 (Minn. 2002).

            The record shows that R.J. and Johnson presented conflicting testimony about the events on October 12, 2005, and their prior relationship, if any.  The district court accepted R.J.’s testimony and rejected Johnson’s testimony, and we will not disturb that credibility determination.  Landa, 642 N.W.2d at 725.  Furthermore, R.J.’s testimony was not so outlandish or unbelievable to require us to reverse the district court’s credibility determination.  Finally, R.J’s testimony alone was sufficient to prove the sexual assault and did not require independent corroboration.  Minn. Stat. § 609.347, subd. 1 (2004).  Based on this record, we hold that the evidence was sufficient to support Johnson’s convictions.   

Sentencing

            Johnson also challenges the district court’s imposition of consecutive sentences for his burglary and criminal-sexual-conduct convictions, arguing that the sentences exaggerate the criminality of his conduct and were improper because the two crimes are not “discrete” offenses.

“We will not reverse a district court’s decision to impose a consecutive sentence unless there has been a clear abuse of discretion.”  Neal v. State, 658 N.W.2d 536, 548 (Minn. 2003).  A district court’s “decision regarding permissive, consecutive sentences will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant’s conduct.”  State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998).

            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 (2004).  The purpose of section 609.035, subdivision 1, 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).  But Minn. Stat. § 609.585 (2004) states that a burglary conviction “is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.”  Minn. Stat. § 609.585.  Similarly, a conviction of first-degree criminal sexual conduct with force or violence “is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”  Minn. Stat. § 609.035, subd. 6 (2004).  

            The Minnesota Sentencing Guidelines provide for permissive, consecutive sentencing for multiple current convictions of first-degree burglary and first-degree criminal sexual conduct.  See Minn. Sent. Guidelines II.F, VI.  But appellant argues that his consecutive sentence is improper because the burglary and criminal-sexual-conduct offenses arose from a single behavioral incident.  Accordingly, appellant contends that the district court could only sentence him for one of the crimes.  We disagree.

            The statutory exceptions to the prohibition against punishments for multiple offenses committed during the same behavioral incident apply in this case.  Johnson was convicted of first-degree burglary, and under section 609.585, the district court could convict and sentence Johnson for the criminal-sexual-conduct offense committed during the burglary.  Similarly, under section 609.035, subdivision 6, Johnson’s conviction of criminal sexual conduct allowed for conviction and sentencing for the burglary offense committed during the criminal sexual conduct.  Therefore, although Johnson’s burglary and criminal-sexual-conduct offenses arose from the same behavioral incident, statutory exceptions apply that permit consecutive sentences for both convictions. 

            Johnson also argues that consecutive sentencing was improper because the burglary and criminal-sexual-conduct offenses share a common element and therefore are not “discrete” crimes.  See State v. Senske, 692 N.W.2d 743, 749 (Minn. App. 2005) (stating that “[c]onsecutive sentencing involves separate punishments for discrete crimes.”), review denied (Minn. May 17, 2005).

            Johnson’s burglary and criminal-sexual-conduct convictions both required possession of a dangerous weapon or an article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon.  Minn. Stat. §§ 609.582, subd. 1(b), .342, subd. 1(d) (2004).  But just because the offenses share a common element does not mean that they should be considered the same offense for sentencing purposes.  The sentencing guidelines explicitly provide for permissive, consecutive sentencing for Johnson’s convictions.  See Minn. Sent. Guidelines II.F, VI.  Additionally, neither charge is a lesser-included offense of the other, and, therefore, they are not the same offense.  See Minn. Stat. §§ 609.04, subd. 1 (2004) (stating that “an actor may be convicted of either the crime charged or an included offense, but not both”), .342, subd. 1 (defining first-degree criminal sexual conduct), .582, subd. 1 (defining first-degree burglary).  The district court did not abuse its discretion by imposing consecutive sentences for Johnson’s burglary and criminal-sexual-conduct convictions.

            Affirmed.