This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-907

State of Minnesota,

Respondent,

vs.

Harvey Lee Thomas,

Appellant.

Filed March 3, 1998

Affirmed

Harten, Judge

Hennepin County District Court

File No. 96057873

John M. Stuart, State Public Defender, Evan W. Jones, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2100 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant Harvey Lee Thomas appeals his conviction for theft over $500, arguing that the two thefts were not a single behavioral incident and should not have been combined. We affirm.

FACTS

In July 1996, employees at Dayton's department store observed Thomas and another man leaving the store with three comforters. An employee followed the men out of the store and onto a city bus. When confronted, Thomas gave the comforters to the employee; the employee did not detain him. Later that day, Thomas returned to Dayton's. Store employees saw him leave the store carrying three jackets that he had not paid for. He was detained and arrested. The aggregate price for all the comforters was $449.97 and for all the jackets, $195. The total price for all the merchandise was $644.97.

The amended complaint states two counts. Count one alleges theft over $500 in violation of Minn. Stat. § 609.52, subds. 2(1), 3(3)(a) (1996). Count two alleges theft over $200 in violation of Minn. Stat. § 609.52, subds. 2(1), 3(3)(c) (1996). Before trial, Thomas moved to have the case dismissed, arguing that the two thefts were separate courses of conduct. He claimed the value levels were not met to pursue both of the counts in the amended complaint. The court denied the motion, finding that it had no legal support, and the case proceeded to trial.

In charging the jury, the judge combined the comforter and jacket incidents into one count. The judge instructed the jury that it first must decide whether the state had proven the elements of theft. If so, they must determine the value level by answering "yes" to one of the following questions:

Was the value of the comforter[s] and jackets more than $500, but not more than $2,500? * * * Was the value of the comforter[s] and jackets more than $200, but not more than $500? * * * Was the value of the comforter[s] and jackets not more than $200?

The jury returned a guilty verdict finding Thomas committed theft of greater than $500 but less than $2,500.

D E C I S I O N

Thomas argues that the thefts were two separate incidents, and because separately neither the value of the comforters nor the value of the jackets exceeded $500, he could not be guilty of theft over $500. Therefore, he asks this court to reverse the conviction and remand for a new trial.

We agree with the district court that this argument is not supported by the law. Minnesota law prohibits multiple sentences for crimes committed as part of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (1996); State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). But here, the thefts were aggregated for prosecution and there is no violation of the statute.

In any prosecution of theft

the value of the money or property or services received by the defendant in violation of any one or more of the above provisions within any six-month period may be aggregated and the defendant charged accordingly in applying the provisions of this subdivision.

Minn. Stat. § 609.52, subd. 3(5) (1996). The total value of the comforters and jackets together exceeded $500, and the two thefts took place within six months. Count I of the amended complaint simply aggregated the two thefts to constitute theft over $500. Under subdivision 3(5), the district court did not err in aggregating the thefts, in denying Thomas' motion, or in its jury instructions.

Affirmed.