State v. Moore

• Decision Date: 12 January 1979
• Docket Number: No. 47866.,47866.
• Citation: 274 NW 2d 505
• Parties: STATE of Minnesota, Respondent, v. Dennis J. MOORE, Appellant.
• Court: Minnesota Supreme Court

274 N.W.2d 505 (1979)

STATE of Minnesota, Respondent, v. Dennis J. MOORE, Appellant.

No. 47866.

Supreme Court of Minnesota.

January 12, 1979.

C. Paul Jones, Public Defender, Mollie G. Raskind, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., John Daniels, Jr., Sp. Asst. Atty. Gen., St. Paul, Helen Hill Blanz, County Atty., Grand Rapids, for respondent.

Considered and decided by the court without oral argument.

PER CURIAM.

Defendant was originally charged by a five-count complaint with five offenses: one count of second-degree criminal sexual misconduct, two counts of aggravated assault, one count of being a felon in possession of a pistol, and one count of furnishing intoxicating liquor to a minor. The district court granted the prosecutor's motion to dismiss the liquor count and defense counsel's motion to dismiss one of the two aggravated assault charges. The jury found defendant not guilty of the remaining aggravated assault charges and not guilty of second-degree criminal sexual conduct, but guilty of the lesser-included offense of fourth-degree criminal sexual conduct¹ and guilty of being a felon in possession of a pistol.² The trial court, while not agreeing with defense counsel that the two convictions arose from the same behavioral incident, nonetheless sentenced defendant only on the sexual misconduct charge to a term of 5 years in prison with the sentence to run consecutively to any previous sentences for which parole might be revoked. Defendant appeals to this court challenging only the conviction of the sex offense. His basic claim is that his joint trial on the weapons charge and the sex charge violated his constitutional rights, requiring a reversal of the conviction of the sex offense. We affirm.

Rule 17.03, subd. 1, Rules of Criminal Procedure, allows limited joinder of offenses, the test for joinder being the same as that provided in Minn.St. 609.035, which allows prosecuting and punishing a defendant only once for multiple crimes arising from a single course of conduct. The approach we follow under § 609.035 in determining whether two or more intentional crimes arose from the same behavioral incident is to focus on the factors of time and place and to consider also whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective. State v. Johnson, 273 Minn. 394, 141 N.W.2d 517 (1966).

In this case defense counsel himself argued at the time of sentencing that the weapons offense and the sex offense arose from the same course of conduct. The trial court, while sentencing defendant only for the sex offense, disagreed with this, and we do too. However, the fact that defense counsel argued this shows that the state was justified in joining the offenses in one complaint in order to protect itself against any later claims of multiple prosecutions contrary to § 609.035. See, State v. Johnson, supra.

Under Rule 17.03, subd. 3, Rules of Criminal Procedure, defense counsel should have moved for severance of the weapons charge if he did not want it tried jointly with the other charges, and under Rule 10.03, the failure to so move constitutes a waiver of the issue unless defendant can show good cause for relief from the waiver.³ Here defendant argues that his counsel would have moved for severance if he had received pretrial notice that the prosecutor, in proving the weapons violation, intended to prove that defendant had a prior conviction. The trouble with this argument is that defendant, simply by being charged with the weapons violation, had notice that the prosecutor would have to prove defendant had a prior conviction. This is because in order to gain a conviction of the charge, the prosecutor, in the absence of a stipulation removing the issue from the case,⁴ must prove that the defendant had a prior conviction. See, State v. Doeden, 309 Minn. 544, 245 N.W.2d 233 (1976). Since the mere charging of defendant with the offense gave defendant notice that the state would be introducing evidence of a prior conviction, defendant's claim that his failure to move to sever is attributable to the state must be rejected.

In fact, since the record is silent as to the reasons defense counsel failed to move to sever, it is just as possible that it was a deliberate decision by the defense counsel based on reasons of strategy. A defendant may decide not to move to sever in a case in which severance would otherwise be in order because he wishes to avoid having to defend himself in separate trials. A. B. A. Project on Standards for Criminal Justice, Standards Relating to Joinder and Severance, § 1.1, comments. He may also reasonably believe that he has a better chance of obtaining concurrent sentences if all the charges are filed at once. Id.

Finally, defendant has not convinced us that he was prejudiced by the failure to sever. One fact which stands out is that although the jury knew that defendant had once been convicted of...