The test is not applied mechanically; rather, courts look to the totality of the circumstances. State v. Richardson, 633 N.W.2d 879, 888 (Minn.App. 2001). Because McDaniels's conduct satisfies the test for a single behavioral incident, the district court improperly sentenced her for both harassment and violating the harassment restraining order.
Id. A determination of whether there is unity of time rests on whether the conduct was continuous throughout. Compare State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000) (indicating that a pattern of harassment beginning in the summer of 1996 and ending in June of 1997 was deemed a single time period), with State v. Richardson, 633 N.W.2d 879, 888-89 (Minn. App. 2001) (concluding that there was no unity of time when the conduct was broken and sporadic over a period of four years); but see State v. Bowen, 560 N.W.2d 709, 712 (Minn. App. 1997) (stating that a pattern of conduct occurring over a span of two months could not be a single behavioral incident). Here, the record contains no information as to when any of the planning conduct relating specifically to R.S. took place. It is impossible to conclude that appellant's conduct relating to R.S. occurred at the same time as his conduct relating to the other offenses.
5(b). A conviction under subdivision 5(a) "can stand only when at least two separate and discrete criminal acts against a single individual occur." State v. Richardson, 633 N.W.2d 879, 887 (Minn. App. 2001). To establish Andersen's pattern of stalking N.B., the prosecutor only questioned Andersen during the plea hearing about the alleged burglary on September 20 and the violation of the order for protection that happened that same evening. As Andersen correctly asserts, these two violations were part of the same behavioral incident and were not "two separate and discrete criminal acts."
"A conviction of pattern of harassment requires proof beyond a reasonable doubt of all elements of the pattern harassment statute, including that defendant acted within the elements of the underlying offenses." State v. Richardson, 633 N.W.2d 879, 887 (Minn.App. 2001). Thus, in order to satisfy the elements of a pattern-of-harassing-conduct offense, the state must prove that appellant (1) committed two or more of the predicate offenses within a five-year period; (2) knew that his conduct would cause his ex-wife to feel terrorized; and (3) by his conduct, caused his ex-wife to feel terrorized or fear bodily harm.
A conviction of [a] pattern of harassment requires proof beyond a reasonable doubt of all elements of the pattern harassment statute, including that defendant acted within the elements of the underlying offenses.State v. Richardson, 633 N.W.2d 879, 887 (Minn.App. 2001) (citation omitted). Thus, in order to satisfy the elements of a pattern-of-harassing-conduct offense, the state must prove that Alvarez (1) committed two or more of the predicate offenses within a five-year period; (2) knew that his conduct would cause Rivera to feel terrorized; and (3) by his conduct, caused Rivera to feel terrorized or fear bodily harm. Cf. 10 Minnesota Practice, CRIMJIG 13.58 (Supp.
Prosecutors generally have broad discretion when charging criminal offenses. Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668 (1978); see State v. Richardson, 633 N.W.2d 879, 884 (Minn.App. 2001) ("in the absence of any limiting statutory language, we give deference to the prosecutor's discretion to evaluate the facts of a case, which may lead to various combinations of charges, and to select the particular charges best suited to achieve justice"). Minnesota theft statutes give a prosecutor the discretion to "either prosecute seriatum or aggregate the offenses."
See State v. Richardson, 633 N.W.2d 879, 885 (Minn.App. 2001) (providing that instructions must be read as a whole and "if the instructions correctly state the law in a manner in which the jury could understand them, there is no reversible error").
The record indicates that while the district court did not instruct the jury on the statutory definition of assault during its instructions on the assault charges, it provided the jury with an accurate definition of assault during its instruction on self-defense. See State v. Richardson, 633 N.W.2d 879, 886 (Minn. App. 2001) (finding no error when allegedly omitted element was included elsewhere in instructions). In addition, the district court instructed the jury that its instructions were to be considered as a whole.
In the absence of limiting statutory language, a court gives deference "to the prosecutor's discretion to evaluate the facts of a case, which may lead to various combinations of charges, and to select the particular charges best suited to achieve justice." State v. Richardson, 633 N.W.2d 879, 884 (Minn. App. 2001). There are no special circumstances here permitting us to interfere with the state's charging decision.
2000) (finding single behavioral incident because conduct occurring on the street in front of victims' home over the course of a year was directed toward a single criminal objective of harassing the victims and criminal complaint used identical facts for multiple counts); State v. Mullen, 577 N.W.2d 505, 511-12 (Minn. 1998) (finding unity of time, place, and intent where "telephone calls and breaking [a] window occurred within a few hours and were motivated by a continuous intent to harass" the victim); but see State v. Richardson, 633 N.W.2d 879, 888-89 (Minn. App. 2001) (finding that single purpose of harassing victims did not establish single behavioral incident when defendant's conduct occurred against multiple victims between 1991 and 1999). Maldonado Zepeda's separate acts of sexual contact in different forms on different days imply that he sought to satisfy his recurring but distinct sexual interests as they affected him on different occasions.