William J. Hennessy, Cook County Attorney, Cook County Courthouse, 411 West Second Street, Post Office Box 1150, Grand Marais, MN 55604 (for Respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Julie Knox Chosy, Volunteer Lawyers Network, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for Appellant)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

Brian John Larsen appeals his conviction for third-degree burglary, arguing that serialized prosecutions of burglary and related theft offenses are not permitted under Minn. Stat. §§ 609.035, 609.585 (1996). We affirm.

Larsen entered into a plea agreement with the state in which he pleaded guilty to an amended charge of attempted aggravated robbery. The state agreed to dismiss the charge for theft of a motor vehicle, subject to the express understanding that Washington County could impose restitution for the damage to the car. The court stayed execution of Larsen's sentence and ordered him to pay restitution to the Nissan's owners.

On March 28, 1995, the Cook County Sheriff's Department was notified that routine screening of outgoing mail at the Washington County jail revealed an admission by Larsen of his involvement in taking the Nissan on March 3. On November 2, 1995, the Cook County attorney charged Larsen with third-degree burglary, in violation of Minn. Stat. § 609.582, subd. 3 (1996), and theft of a motor vehicle, in violation of Minn. Stat. § 609.52, subd. 2(17). The Cook County attorney later dismissed the theft charge.

Larsen moved to dismiss the burglary charge in Cook County, arguing it was barred by Minn. Stat. § 609.035 (1996), the single behavioral incident statute. The Cook County District Court denied the motion to dismiss, concluding that Minn. Stat. § 609.585 (1996) permits multiple prosecutions for Larsen's offenses. Larsen was convicted of third-degree burglary. The court sentenced Larsen to 15 months, stayed imposition, and placed him on probation.

The third-degree burglary charge in Cook County was not based on the same behavioral incident for which Larsen was prosecuted in Washington County. Larsen was prosecuted in Washington County for driving the Nissan during the attempted robbery on March 8, not for taking the Nissan on March 3. See Minn. Stat. § 609.52, subd. 2(17) (1996) (person is guilty of theft if he "takes or drives" motor vehicle without consent of owner or owner's agent (emphasis added)).

The prohibitions of section 609.035 only apply if the multiple offenses arose out of a single behavioral incident. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). Whether multiple crimes are part of a single behavioral incident depends on the circumstances and facts of each case. Id. If both crimes are intentional, the factors to consider in making this determination include the unity of time and place of the behavior and whether the defendant was motivated by a single purpose in committing the crimes. Id.

Breaking into the garage in Cook County on March 3 and using the car during the attempted robbery five days later in Washington County unquestionably occurred at different times and places. Furthermore, in committing the crimes, Larsen was not motivated by a singular criminal objective because the offenses may be viewed as each having a separate purpose. See State v. Banks, 331 N.W.2d 491, 494 (Minn. 1983) (key consideration is whether offenses can be explained without necessary reference to each other). Because the offenses at issue are not part of a single behavioral incident, Minn. Stat. § 609.035 does not prevent the multiple prosecutions in this case.

Affirmed.