Opinion
No. C4-98-649.
Filed December 8, 1998.
Appeal from the District Court, Ramsey County, File No. K9-97-2141.
Hubert H. Humphrey III, Attorney General, and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Enrico Darius Taylor appeals from his conviction for pattern of harassing conduct against his ex-wife, Barbara Taylor. He argues that a prior conviction for terroristic threats against his ex-wife in Hennepin County precludes his conviction in Ramsey County under Minn. Stat. § 609.035, subd. 1 (Supp. 1997), which bars serialized prosecution in Minnesota. Appellant also argues that his conviction violates constitutional double jeopardy and his due process rights. We affirm.
FACTS
On March 28, 1997, Barbara Taylor obtained an ex parte order for protection from the family court division of the Ramsey County District Court. The order prohibited appellant from committing acts of abuse, making contact with Barbara Taylor, and entering her residence or place of employment.
On March 29, 1997, appellant telephoned the residence where Barbara Taylor lived with her mother and brother. That residence is in Ramsey County. Appellant spoke with Barbara Taylor's brother, Terry Rogers, and stated: "Wherever I see her, I will shoot her." Appellant telephoned the Ramsey County residence two more times on March 29 and spoke with Barbara Taylor's mother, Annabel Rogers. During the first call, appellant said: "I want my clothes. I'm going to kill her. Tell the b — ch what I said." During the second call, appellant said: "I'm going to come over there and throw a brick through your window."
On March 31, 1997, appellant telephoned Barbara Taylor's residence and stated: "I'm going to bring my posse over and take care of you." On April 8, 1997, appellant knocked on the door of the residence. Terry Rogers answered and appellant told Rogers that he wanted some things he left at an apartment he previously shared with Barbara Taylor.
On April 12, 1997, appellant telephoned the residence three times. During the first call, appellant said: "B — ch, you have one hour to live." During the second call, appellant said: "I'm sending someone over to shoot through your window." During the third call, appellant said: "Tell the b — ch she can't hide."
On April 16, 1997, appellant telephoned the residence and threatened to "blow someone up." While St. Paul police officers were at the residence taking a report on this telephone call, appellant called the home two more times. That same day, appellant telephoned Barbara Taylor's sister at the residence and told her that he would kill her and get her son. Barbara Taylor reported all of these incidents to the police immediately after each occurrence.
Appellant was charged with harassment and stalking in Hennepin County District Court for incidents between April 1 and April 18, 1997, at Barbara Taylor's place of employment, which was in Hennepin County. He was charged with making terroristic threats on April 17, 1997, against Barbara Taylor and her supervisor. On July 22, 1997, appellant pleaded guilty in Hennepin County to the April 17th charge of making terroristic threats by phone calls that threatened Barbara Taylor with violence. He was sentenced to 37 months.
Appellant was then charged in Ramsey County District Court with pattern of harassing conduct for the series of phone calls that were received at Barbara Taylor's residence in Ramsey County. On December 9, 1997, the court denied appellant's motion to dismiss on grounds of serialized prosecution and double jeopardy. Appellant waived his right to a jury trial, and on December 22, 1997, the court found appellant guilty of the crime of pattern of harassing conduct, which occurred in Ramsey County from March 29 through April 16, 1997. The conduct included: (1) terroristic threats received on March 29, April 12, and April 16, 1997, via telephone at the residence occupied by Barbara Taylor and her family; (2) violation of the order for protection on April 8, 12, and 16, 1997, by telephoning the residence and appearing at the residence; (3) a pattern of harassing conduct with respect to Barbara Taylor and the members of her household; and (4) acting in a manner that would cause a reasonable person to feel terrorized or fear bodily harm.
The district court found the prosecution of defendant in Ramsey County District Court did not violate the prohibition against serialized prosecution because none of the acts in the Hennepin County Complaint, all of which occurred in Hennepin County, was alleged in the Ramsey County Complaint. On February 9, 1998, appellant was sentenced to 53 months, to be served concurrently with the previously imposed sentence in Hennepin County.
DECISION
[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 and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.
Minn. Stat. § 609.035, subd. 1 (Supp. 1997). The purpose of section 609.035 is "`to limit punishment to a single sentence where a single behavioral incident result[s] in the violation of more than one criminal statute.'" State v. Bookwalter , 541 N.W.2d 290, 293 (Minn. 1995) (quoting Minn. Stat. Ann. § 609.035 advisory comm. cmt. (West 1987)). This court reviews the district court's findings of fact as to whether a number of offenses constitute a single behavioral incident under a clearly erroneous standard. Effinger v. State , 380 N.W.2d 483, 489 (Minn. 1986).
"[T]he prohibition against multiple punishment * * * applies only if the multiple offenses arose out of a single behavioral incident." Bookwalter , 541 N.W.2d at 294. Whether or not multiple offenses arose out of a single behavioral incident is dependent on the facts and circumstances of each case. Id. Factors to be considered include: (1) whether a defendant is motivated by a single criminal objective; and (2) the unity of time and place of the behavior. Id.
Appellant argues that he was engaged in a single, uninterrupted course of conduct that included both the Hennepin and Ramsey County incidents. We disagree. Appellant's motivation was too broad to justify application of the single behavioral incident rule. See State v. Butterfield , 555 N.W.2d 526, 531 (Minn.App. 1996) (holding defendant's desire to satisfy sexual needs too broad of motivation where defendant assaulted victim in three different locations), review denied (Minn. Dec. 17, 1996); State v. Secrest , 437 N.W.2d 683, 685 (Minn.App. 1989) (upholding consecutive sentences in criminal sexual conduct case where sexual assaults occurred in separate counties and there was no unity in time), review denied (Minn. May 24, 1989). The record reflects that on April 17, appellant threatened Barbara Taylor when he called her supervisor at work in Hennepin County and stated: "Listen you f---ing b — ch, if you want to play f---ing games with me tomorrow morning when I come to get [Barbara], I'm gonna get you too." Appellant also directly threatened Barbara Taylor when he called her mother and told her that he was going to kill Barbara Taylor by cutting her neck off. On the other hand, the calls to Barbara Taylor's Ramsey County residence consisted of threats different from the above and to different people. He threatened to kill Barbara Taylor by shooting her, bringing his "posse" to kill her, and shooting through a window. He violated the order for protection by phoning the Ramsey County residence and showing up there. He also threatened Barbara Taylor's sister and nephew with violence. Appellant's intent to intimidate and harass Barbara Taylor over a period of three weeks in two different counties, using different people and different threats in each county, on these facts, is disparate enough conduct to allow separate prosecutions in each county.
The Ramsey and Hennepin County incidents were separated by time, place, and days. These incidents are even more disparate than those occasions, where Minnesota courts have upheld a conviction and consecutive sentences where instances of criminal conduct were separated by only a few hours. See Secrest , 437 N.W.2d at 685 (upholding appellant's conviction where incidents of sexual assault on same victim were separated by several hours and interrupted by other activities). In State v. Bowen , 560 N.W.2d 709, 712 (Minn.App. 1997), the court found that a "pattern of conduct" that included both phone calls and a visit to the victim's home, occurring over a two-month time span, could not be considered a single behavioral incident. The record here reflects that the Ramsey County charges were proven independently of the April 17 Hennepin County incidents, and there is no overlap between the incidents in each complaint.
Appellant's subsequent prosecution in Ramsey County does not violate the constitutional prohibition against double jeopardy. See Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 182 (1932) (holding test to determine whether there are two offenses or only one is whether each provision requires proof of additional fact which the other does not).
"Before defendant may avail himself of the plea of former jeopardy it is of course necessary that he show that the [second] prosecution [was] for the identical act and that the crime both in law and fact was settled by the first prosecution."
Lupino v. State, 285 Minn. 507, 508, 171 N.W.2d 710, 711 (1969) (quoting State v. Fredlund , 200 Minn. 44, 48, 273 N.W. 353, 355 (1937)). Terroristic threats and the offense of a pattern of harassing conduct could overlap, to the point of being part of one single behavioral incident. But the two offenses are not single behavioral/lesser includeds as a matter of law. It depends on the facts. Here, the two charges did not impermissibly overlap. Each statutory section requires an element that the other does not, and as pointed out above, each county's complaint involves distinct and separate incidents.
We conclude the district court did not err in rejecting appellant's motion to dismiss due to double jeopardy. Finally, the due process argument in appellant's pro se brief is without merit because the Hennepin County phone calls were not used "as factual elements" in the Ramsey County complaint.