State v. Branch

• Decision Date: 06 May 2020
• Docket Number: A18-1055
• Citation: 942 N.W.2d 711
• Parties: STATE of Minnesota, Respondent, v. Deveon Marquise BRANCH , Appellant.
• Court: Minnesota Supreme Court

942 N.W.2d 711

STATE of Minnesota, Respondent,

v. Deveon Marquise BRANCH , Appellant.

A18-1055

Supreme Court of Minnesota.

Filed: May 6, 2020

Keith Ellison, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica May Surges, Assistant Public Defender, Saint Paul, Minnesota, for appellant.

OPINION

GILDEA, Chief Justice.

The question presented in this case is whether appellant Deveon Marquise Branch can receive sentences for both drive-by shooting at an occupied vehicle and second-degree assault, when the crimes arise from a single behavioral incident. The district court imposed two sentences to run concurrently: 48 months for drive-by shooting at an occupied vehicle and 36 months for second-degree assault. The court of appeals affirmed the sentences. State v. Branch , 930 N.W.2d 455 (Minn. App. 2019). Consistent with our decision in State v. Ferguson , 808 N.W.2d 586 (Minn. 2012), we conclude that Minn. Stat. § 609.035 (2018) does not prohibit the sentences. We therefore affirm.

FACTS

The facts are undisputed. On April 27, 2017, Branch met the mother of his child in a South Minneapolis neighborhood to drop off the child. After Branch gave the child to mother, she and the child, along with mother’s adult male friend, got into mother’s vehicle. Another adult male, C.L.G., was standing outside and next to the vehicle. Branch and C.L.G. began to argue. Branch pulled out a handgun and shot in C.L.G.’s direction, but the bullet struck the front passenger door of mother’s vehicle.

The State charged Branch with one count of drive-by shooting at an occupied vehicle under Minn. Stat. § 609.66, subd. 1e(b) (2018), one count of second-degree assault under Minn. Stat. § 609.222, subd. 1 (2018), and one count of reckless discharge of a firearm within a municipality under Minn. Stat. § 609.66, subd. 1a(a)(3) (2018). The complaint identified the mother of Branch’s child, who was sitting inside of the vehicle, as the victim of the second-degree assault. The complaint did not identify any specific victims for the drive-by-shooting charge.

Branch entered a straight guilty plea to all three counts with no agreement on sentencing. During the plea hearing, Branch admitted that he pulled out a handgun and fired a single gunshot in the direction of C.L.G. with the intention to "scare," but not harm, C.L.G. He confirmed that C.L.G. was "[s]tanding next to the vehicle that was ultimately struck with the bullet." Branch conceded that discharging "the firearm toward [C.L.G.] and toward that motor vehicle ... was reckless" and "by shooting in the direction of [C.L.G.], that was an assault on that person." He also agreed that "there were occupants inside that vehicle" when it "was struck by the bullet." The district court accepted Branch’s plea and convicted him of all three charges.

The district court sentenced Branch to 48 months in prison for drive-by shooting and 36 months for second-degree assault, with the sentences to be served concurrently.¹ The court did not impose a sentence for the reckless-discharge-of-a-firearm conviction.

Branch appealed, arguing that the sentence for second-degree assault should be vacated because his convictions for the assault and the drive-by shooting arose out of a single behavioral incident, were motivated by a single criminal objective, and were committed against only one victim. Branch , 930 N.W.2d at 457. The court of appeals affirmed the sentences. Id. at 459. Relying on our decision in Ferguson , 808 N.W.2d 586, the court of appeals determined that the offense of drive-by shooting at an occupied vehicle does not constitute an offense against each occupant of the vehicle. Branch , 930 N.W.2d at 459. The court of appeals concluded that the district court therefore "did not err by imposing sentences for drive-by shooting and second-degree assault, even if both convictions arose out of a single behavioral incident involving the same victim." Id.

We granted Branch’s petition for review.

ANALYSIS

We must decide if Branch’s second-degree assault sentence violates Minn. Stat. § 609.035. Whether Branch’s sentence violates section 609.035 is a question of law that we review de novo. See Ferguson , 808 N.W.2d at 590.

Section 609.035 states:

Except [for subdivisions that do not apply to this case], if 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. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.

Minn. Stat. § 609.035, subd. 1. In applying section 609.035, we have recognized that a person’s "conduct," as used in the statute, is limited to acts committed during a single behavioral incident and does not include acts that were committed as part of a separate behavioral incident. State v. Johnson , 273 Minn. 394, 141 N.W.2d 517, 524–25 (1966) ; see also Munt v. State , 920 N.W.2d 410, 416–17 (Minn. 2018) ("[A]cts that lack a unity of time and place or are motivated by different criminal objectives do not constitute a single behavioral incident, and therefore, are not ‘conduct,’ for purposes of section 609.035."). We have also determined that "acts committed against separate victims are not ‘conduct’ for purposes of section 609.035." Munt , 920 N.W.2d at 417. Taken together, a person may be punished for only one of the offenses that results from acts committed during a single behavioral incident and that did not involve multiple victims.

Branch contends that under section 609.035, the district court should have imposed a single sentence for his most serious offense, the drive-by shooting at an occupied vehicle. See Minn. Stat. § 609.035. The parties do not dispute that Branch committed the offenses during a single behavioral incident: Branch firing a single gunshot.² Discharging the firearm resulted in three criminal offenses—the drive-by shooting, the second-degree assault, and the reckless discharge of a firearm within a municipality. According to Branch, the drive-by shooting is the most serious offense because it has a severity level of eight and second-degree assault has a severity level of six. Minn. Sent. Guidelines 5.A; see also State v. Kebaso , 713 N.W.2d 317, 322 (Minn. 2006) ("[W]e have implicitly approved the use of the sentencing guidelines’ severity-level rankings as a method for determining which of multiple felony offenses is the most serious."). He argues that the second-degree assault sentence therefore violates section 609.035 because the district court should have imposed punishment for only his most serious offense—the drive-by shooting at an occupied vehicle. We disagree.

In Ferguson , we concluded that section 609.035 does not prohibit multiple sentences for the crime of drive-by shooting when the same conduct—the shooting—also constitutes assault. 808 N.W.2d at 588, 592. In Ferguson , the defendant was involved in a drive-by shooting at an occupied building, which was a house with eight people inside. Id. at 588. Ferguson was convicted of one count of drive-by shooting at an occupied building and eight counts of second-degree assault, one count for each person inside the house. Id. The district court in Ferguson imposed nine sentences: one sentence for the conviction for drive-by shooting at an occupied vehicle and eight sentences for the second-degree assault convictions, one sentence for each victim inside the house. Id. at 589. The court of appeals vacated the second-degree assault sentences, holding that the district court could sentence Ferguson on only the drive-by-shooting conviction. Id. The court of appeals reasoned that "[t]he most serious offense against each victim was the drive-by shooting," and therefore "the district court erred by imposing sentence on all nine convictions." State v. Ferguson , 786 N.W.2d 640, 645 (Minn. App. 2010). We reversed the court of appeals’ decision and upheld the sentences imposed by the district court. Ferguson , 808 N.W.2d at 592. We held that "for purposes of the rule that a district court may not sentence a defendant for more than one crime for each victim, a single count of drive-by shooting at an occupied building does not constitute a crime against each building occupant." Id. at 590.

We reached the conclusion in Ferguson for two reasons. Id. at 591. First, the crime of drive-by shooting at an occupied building "require[s] only a reckless discharge of a firearm at or toward an occupied building." Id. (citation omitted) (internal quotation marks omitted); see also Minn. Stat. § 609.66, subd. 1e ("Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward ... a building is guilty of a felony ...." (emphasis added)). Therefore, the act of recklessly discharging a firearm at an occupied building does not, by itself, support eight separate drive-by-shooting convictions. Ferguson , 808 N.W.2d at 591 (explaining that the number of convictions for a drive-by shooting at an occupied building does not depend on the number of building occupants "[j]ust as entry into a single building occupied by three persons does not support three separate burglary convictions").

Second, "the drive-by shooting statute does not require that the occupants of the building be injured, put in fear, or even be aware of the shooting" by the defendant. Id. (citing Minn. Stat. § 609.66, subd. 1e ). This feature distinguishes a drive-by shooting from an assault, which requires a defendant to have specific "intent to cause fear in another[,]" Minn. Stat. § 609.02, subd. 10 (2018) ; see also Ferguson , 808 N.W.2d at 591. Accordingly, we concluded in Ferguson that Minn. Stat. § 609.035 did not prohibit...