This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-98-2013

State of Minnesota,

Respondent,

vs.

Charles Todd Malenke,

Appellant.

Filed August 31, 1999

Affirmed in part and vacated in part

Peterson, Judge

Pine County District Court

File No. K398187

Mike Hatch, Attorney General, Paul R. Kempainen, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

John K. Carlson, Pine County Attorney, Courthouse, 315 Sixth Street, Pine City, MN 55063 (for respondent)

John M. Stuart, State Public Defender, D. Adrian Bryan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Amundson, Judge.

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

PETERSON, Judge

Appellant Charles Todd Malenke was convicted on four counts of first-degree criminal sexual conduct. He argues that three of the convictions must be vacated because they were for lesser-included offenses. Malenke also argues that the sentence imposed for one of the lesser-included offenses must be vacated. We affirm in part and vacate in part.

FACTS

Malenke was convicted on four counts of criminal sexual conduct in the first degree. Count I charged criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(a), (sexual penetration of a person who is under 13 by an actor who is more than 36 months older). Count II charged criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(h)(iii), (sexual penetration of a person under 16 by an actor who had a significant relationship to the victim and where sexual abuse involved multiple acts committed over an extended period of time). Count III charged criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(a), (sexual contact with a person who is under 13 by an actor who is more than 36 months older). Count IV charged criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (sexual contact with a person under 16 by an actor who had a significant relationship to the victim and where sexual abuse involved multiple acts committed over an extended period of time).

The trial court sentenced Malenke to a 134-month prison term on count II and to a concurrent 134-month prison term on count I. Because the trial court found that counts III and IV stemmed from the same behavioral incidents as counts I and II, it did not sentence Malenke on counts III and IV.

D E C I S I O N

Malenke argues that his convictions on counts I, III, and IV must be vacated because the offenses charged in those counts were lesser-included offenses of the offense charged in count II. Malenke also contends that the concurrent sentence for his conviction on count I must be vacated.

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following:

* * * *

(4) A crime necessarily proved if the crime charged were proved.

Minn. Stat. § 609.04, subd. 1 (1996).

When the defendant is convicted of multiple crimes in violation of different sections of the same statute, only one conviction may be adjudicated. State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). If a defendant's conviction for a lesser-included offense is "formally adjudicated," that conviction should be vacated. State v. Plan, 316 N.W.2d 727, 728-29 (Minn. 1982). The application of section 609.04 to proven facts is an issue of law. See State v. Bowser, 307 N.W.2d 778, 779 (Minn. 1981) (applying section 609.04 and vacating sentence as a matter of law). Accordingly, our review of this issue is de novo. See State v. Carter, 569 N.W.2d 169, 173 (Minn. 1997) (de novo review applied to legal issue when facts not disputed), rev'd on other grounds sub nom. Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469 (1998).

The trial court erred by adjudicating Malenke's convictions on all four counts of first-degree criminal sexual conduct because three of the counts are lesser-included offenses of the fourth offense. Count II charged Malenke with multiple acts of sexual penetration committed from October 1997 to February 2, 1998. Count IV, which charged Malenke with multiple acts of sexual contact from October 1997 to February 2, 1998, is a lesser-included offense because multiple sexual contacts were necessarily proved when multiple acts of sexual penetration were proved. Count I, which charged Malenke with a single act of sexual penetration on February 2, 1998, is a lesser-included offense because the single act of sexual penetration was one of the multiple acts of sexual penetration proved under count II. Count III, which charged Malenke with a single act of sexual contact on February 2, 1998, is a lesser-included offense because the single act of sexual contact occurred as part of one of the multiple acts of sexual penetration proved under count II.

The state agrees that Malenke's convictions on counts I, III, and IV, and the concurrent sentence imposed for the conviction on count I must be vacated.

We affirm the conviction and sentence on count II. We vacate the convictions on counts I, III, and IV and the concurrent 134-month sentence imposed on count I.

Affirmed in part and vacated in part.