State v. Jones, A12–1189.

• Decision Date: 02 July 2014
• Docket Number: No. A12–1189.,A12–1189.
• Citation: 848 N.W.2d 528
• Parties: STATE of Minnesota, Respondent, v. Don Antoine JONES, Appellant.
• Court: Minnesota Supreme Court

848 N.W.2d 528

STATE of Minnesota, Respondent,

v.Don Antoine JONES, Appellant.

No. A12–1189.

Supreme Court of Minnesota.

July 2, 2014.

Syllabus by the Court

1. Minnesota Statutes § 609.035, subd. 1 (2012), generally limits the number of sentences a defendant may receive for multiple convictions arising out of a single course of conduct.

2. Minnesota Statutes § 518B.01, subd. 16 (2012), does not create an exception to Minn.Stat. § 609.035, subd. 1.

3. If separate sentences are not precluded by Minn.Stat. § 609.035, subd. 1, the fact that the convictions involve a single course of conduct does not prevent a district court from imposing permissive consecutive sentences in accordance with Minn. Sent. Guidelines II.F.2.b (2010).

Reversed and remanded.

Lori Swanson, Attorney General, Saint Paul, MN; and Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, MN, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, Assistant State Public Defender, Saint Paul, MN, for appellant.

OPINION

WRIGHT, Justice.

In this case, we consider whether the statutory prohibition against multiple punishments in Minn.Stat. § 609.035, subd. 1 (2012), bars the imposition of separate sentences for multiple current felony convictions involving one victim and a single course of conduct when the Minnesota Sentencing Guidelines list the offenses as eligible for permissive consecutive sentences.¹ Appellant Don Antoine Jones was charged in Scott County with stalking, a violation of Minn.Stat. § 609.749, subds. 2(4), 4(b) (2012), and violating an order for protection, a violation of Minn.Stat. § 518B.01, subd. 14(d)(1) (2012). A jury returned two guilty verdicts, and Jones was convicted of both offenses. The district court imposed a sentence for each offense and ordered the two sentences to be served consecutively. The court of appeals affirmed the sentences, and we granted Jones's petition for review. Because we conclude that the district court and the court of appeals erred by conflating two distinct issues—whether separate sentences may be imposed and how separate sentences should be served—we reverse and remand to the district court with instructions to vacate the sentence imposed for violating an order for protection.

I.

Jones and S.J. met in 2003, had two children together, and married in 2009. S.J. decided to end their marriage in 2010. Thereafter, Jones caused S.J. to fear for her safety and the safety of their children. On October 11, 2010, S.J. sought and was granted an ex parte order for protection in accordance with Minn.Stat. § 518B.01 (2012). Two days later, Jones was served with that order.

On October 16, 2010, S.J. received 33 text messages from Jones between the hours of 10:00 p.m. and 12:30 a.m., while she was working at the Trail of Terror, a seasonal Halloween attraction in Shakopee. The messages indicated that Jones was in the vicinity and able to see S.J. For example, one message stated, “I see you; do you see me?” Another read, “I see Bob [a co-worker of S.J.]; tell him to get back to work.” S.J. feared for her safety and contacted law enforcement. A Scott County deputy responded and searched the Trail of Terror unsuccessfully for Jones. At trial, the deputy testified that S.J. was “visibly shaken” after receiving Jones's messages.

Jones was charged in Scott County with stalking, Minn.Stat. § 609.749, subds. 2(4), 4(b), and violating an order for protection, Minn.Stat. § 518B.01, subd. 14(d)(1). Following a jury trial, Jones was convicted of both offenses. The State sought consecutive sentences that would run consecutively to a 57–month sentence Jones was already serving for felony stalking in Ramsey County. In doing so, the State relied on the Minnesota Sentencing Guidelines, which permit consecutive sentences when a district court imposes separate sentences for multiple current felony convictions that are listed in section VI of the sentencing guidelines.² The district court imposed sentences of 18 months imprisonment for stalking and one year and one day for violating the order for protection. The district court further ordered those sentences to be served consecutively following the 57–month sentence that Jones was already serving. The district court specifically observed that each offense of conviction was on the list of offenses eligible for permissive consecutive sentences. See Minn. Sent. Guidelines VI (2010).

Jones appealed, challenging, among other things, the imposition of two consecutive sentences for the Scott County offenses. The court of appeals affirmed. State v. Jones, No. A12–1189, 2013 WL 2924263, at *5 (Minn.App. June 17, 2013). In its opinion, the court of appeals acknowledged that Minn.Stat. § 609.035, subd. 1, provides that if a person commits more than one offense during a single course of conduct, the person may be punished for only one of the offenses, subject to certain exceptions. Jones, 2013 WL 2924263, at *4. But the court of appeals concluded that it is irrelevant whether the offenses committed by Jones involved a single course of conduct because the offenses are on the sentencing guidelines list of offenses eligible for permissive consecutive sentences. Id. at *5 (citing Minn. Sent. Guidelines VI, cmt. II.F.203 (2010)).

We granted Jones's petition for further review.

II.

We first consider whether the district court erred by imposing two sentences for Jones's conduct. Jones argues that, under Minn.Stat. § 609.035, subd. 1, the district court was required to impose a sentence on only one of his convictions because the convictions of stalking and violating an order for protection involved a single course of conduct.

Section 609.035, subdivision 1, provides that, “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,” subject to certain exceptions. Therefore, deciding whether the district court's imposition of two sentences was barred by section 609.035, subdivision 1, requires us to determine first whether the conduct underlying the offenses involved a single course of conduct. See State v. Johnson, 273 Minn. 394, 399, 141 N.W.2d 517, 521–22 (1966). If so, we then consider whether an exception to section 609.035, subdivision 1, applies.

A.

Whether a defendant's offenses occurred as part of a single course of conduct is a mixed question of law and fact. State v. Kendell, 723 N.W.2d 597, 607 (Minn.2006). We review the district court's findings of historical fact under the clearly erroneous standard, but we review the district court's application of the law to those facts de novo. See State v. Sterling, 834 N.W.2d 162, 167–68 (Minn.2013). Whether a defendant's multiple offenses occurred during a single course of conduct depends on the facts and circumstances of the case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn.1994). Offenses are part of a single course of conduct if the offenses occurred at substantially the same time and place and were motivated by a single criminal objective. Johnson, 273 Minn. at 405, 141 N.W.2d at 525.

Based on the undisputed facts presented here, Jones's offenses occurred at substantially the same time and place and were motivated by a single criminal objective. The 33 text messages that Jones sent to S.J. between the hours of 10:00 p.m. and 12:30 a.m. comprise the conduct underlying Jones's offenses of both stalking and violating an order for protection. S.J. received all of the messages while she was working at the Trail of Terror. Although the precise time that each message was sent is not in the record, a series of 33 messages over two and one-half hours amounts to a rate of approximately one message every four minutes.

Jones's conduct also reflects a singular intent to intimidate and harass S.J. In deciding whether crimes were committed with a single criminal objective, we examine the relationship of the crimes to each other. State v. Bauer, 792 N.W.2d 825, 829 (Minn.2011). Broad statements of criminal purpose do not unify separate acts into a single course of conduct. See, e.g., Bauer, 792 N.W.2d at 830 (sharing drugs with friends for no profit was not a single criminal objective); State v. Gould, 562 N.W.2d 518, 521 (Minn.1997) (making as much money as possible was not a single criminal objective); State v. Gilbert, 262 N.W.2d 334, 338 (Minn.1977) (“general hatred of women” was too broad to constitute a single criminal objective). But acts “motivated by a continuous intent to harass” a particular person over the course of a few hours evince a single criminal purpose. State v. Mullen, 577 N.W.2d 505, 511 (Minn.1998). Here, it was Jones's objective to harass S.J. when he sent her 33 text messages during a period of two and one-half hours. This objective is sufficiently specific to constitute a single criminal objective.

The State seeks to establish that, because the messages were sent over a period of two and one-half hours and because the Trail of Terror spans a large area, the offenses did not occur at the same time and place. But the cases cited by the State include circumstances that are distinguishable from those presented here. For example, in State v. Shevchuk, we concluded that the crimes of assault, robbery, and unauthorized use of a motor vehicle, which were committed over a period of about two and one-half hours, were not part of a single course of conduct under section 609.035. 282 Minn. 182, 184–86, 163 N.W.2d 772, 774–76 (1968). But in Shevchuk, we considered more than the length of time during which the offenses were committed. Id. at 187–88, 163 N.W.2d at 776. We also considered that the victim's car was driven to several locations, that the crimes occurred at “clearly separate times,” and that there was no “single criminal objective” among the offenses. Id. at 186–88, 163 N.W.2d at 775–76. Unlike the defendant in Shevchuk, Jones did not subject S.J. to multiple...