Opinion
No. CX-02-595
Filed August 13, 2002.
Appeal from the District Court, Hennepin County, File No. 00065056.
Mike Hatch, Attorney General,; and Jay M. Heffern, Minneapolis City Attorney, Lois Regnier Conroy, Assistant City Attorney, (for respondent)
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges an order denying his motion to vacate his sentences for a protective-order violation and for assault, arguing that those incidents were part of the same behavioral incident as the gross-misdemeanor harassment charge to which he pleaded guilty. Because the district court did not err, we affirm.
FACTS
On June 9, 2000, appellant Nasir Mohamed Mohamud entered his estranged wife's apartment and struck her; the district court issued a protective order that prohibited Mohamud from contacting his wife. The order was valid until June 20, 2000, and provided that it would be extended if Mohamud failed to appear for a hearing on that date. When Mohamud failed to appear, the order was extended until June 20, 2001. On June 29, 2000, Mohamud called his wife and was arrested. Mohamud called his wife from jail 147 times on July 3, 2000, and continued to call her on July 4 and 5.
The state filed a complaint alleging (1) one count of gross-misdemeanor harassment, in violation of Minn. Stat. § 609.749, subd. 2(a) (2000); (2) one count of fifth-degree assault, in violation of Minn. Stat. § 609.2242, subd. 1(2) (2000); (3) two counts of fifth-degree assault, in violation of Minn. Stat. § 609.2242, subd. 1(1); and (4) five counts of violation of a protective order, in violation of Minn. Stat. § 518B.01, subds. 14(a)-(b) (2000). In January 2001, pursuant to a plea agreement, Mohamud pleaded guilty to (1) one count of gross-misdemeanor harassment based on the 147 telephone calls made on July 3, (2) one count of fifth-degree assault based on the June 9 incident, and (3) three counts of violation of a protective order based on telephone calls Mohamud made to his wife on June 29 and July 4 and 5. The state dismissed the remaining counts. The district court sentenced Mohamud to consecutive sentences of 365 days for harassment and 90 days for each of his other convictions but stayed execution of the sentences. In late March 2001, Mohamud contacted his wife again; the district court revoked the stay and imposed the sentences.
In March 2002, Mohamud moved the district court to vacate all of his sentences except that for gross-misdemeanor harassment, alleging that all of the offenses to which he had pleaded guilty were part of the same behavioral incident; the district court vacated the sentences for the July 4 and 5 protective-order violations. But the district court denied Mohamud's motion to vacate the sentence for violation of a protective order based on the June 29 telephone call to his wife and the assault sentence based on the June 9 incident in which he struck his wife. Mohamud appeals.
DECISION
Mohamud argues that under Minn. Stat. § 609.035 (2000) a sentence for a harassment conviction bars separate sentencing for the individual acts that constituted the harassment. A reviewing court will not re-evaluate a sentence if the district court's discretion has been properly exercised and the sentence is authorized by law. State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980). Statutory construction is a question of law, which is reviewed de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).
"[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses." Minn. Stat. § 609.035, subd. 1 (2000). Thus, if a defendant commits more than one crime against the same person as part of a single behavioral incident, Minn. Stat. § 609.035, subd. 1, requires that the defendant be sentenced for only one of those offenses. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). The state has the burden of showing that separate sentences are not for convictions that arose from the same behavioral incident. State v. Barnes, 618 N.W.2d 805, 813 (Minn.App. 2000), review denied (Minn. Jan. 16, 2001). In determining whether multiple offenses arose from the same behavioral incident, an appellate court examines whether they were motivated by a single criminal objective and whether they were unified in time and place. Bookwalter, 541 N.W.2d at 294. Such a determination is not, however, a mechanical test but requires an examination of all the facts and circumstances. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).
Mohamud asserts that the remaining violation of a protective order and the assault were part of "harassing behavior" that occurred from June 9 to July 6, and, therefore, the district court erred by denying his motion to vacate the sentences for those offenses because they were part of the same behavioral incident as the gross-misdemeanor harassment. But although the complaint against Mohamud describes events occurring from June 9 through July 6, the factual basis established at Mohamud's plea hearing to support his harassment plea referred only to the 147 phone calls Mohamud made to his wife on July 3. The state did not, therefore, rely on an accumulation of the events that occurred between June 9 through July 6 in establishing gross-misdemeanor harassment; the 147 phone calls made on July 3 were sufficient to establish Mohamud's guilt of that offense. See Minn. Stat. § 609.749, subd. 2(a)(4) (providing that person who "repeatedly makes telephone calls" is guilty of gross-misdemeanor harassment). Because the assault occurred on June 9, the violation of protective order occurred on June 29, and the gross-misdemeanor harassment occurred on July 3, the crimes are separate in time. See Bookwalter, 541 N.W.2d at 294 (stating that unity in time is factor in determining whether offenses were part of the same behavioral incident).
Additionally, because the July 3 harassment occurred while Mohamud was in jail, the June 9 assault occurred in Mohamud's wife's apartment, and Mohamud was not in jail at the time he made the June 29 calls to his wife's apartment, the offenses were committed at different places. See id. (stating that unity in place is a factor in considering whether offenses were part of same behavioral incident).
Finally, there is no evidence that the offenses were motivated by a single criminal objective. While all the offenses were committed against Mohamud's wife, general criminal animus toward a victim does not establish a single criminal objective. See Eaton, 292 N.W.2d at 267 (concluding that objective to "swindle as much as possible" from same victim is too broad to be defined as single criminal objective).
Because the offenses took place at separate times, in separate places, and there is no evidence that they were motivated by a single criminal objective, the district court did not err by failing to vacate Mohamud's sentences for fifth-degree assault and the remaining violation of a protective order.