This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1143
State of Minnesota, Respondent,
vs.
Sedne Bonitaz Williams, Appellant.
Filed May 16, 2016 Affirmed Klaphake, Judge *
Clay County District Court File No. 14-CR-14-1949
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney, Moorhead, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Melissa V. Sheridan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Jesson, Presiding Judge; Kirk, Judge; and Klaphake,
Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
KLAPHAKE, Judge
Appellant challenges his convictions of two counts of first-degree criminal sexual
conduct, arguing that he was deprived of his constitutional right to effective assistance of
counsel when the district court failed to inquire into defense counsel’s conflict of interest.
Appellant also asserts that the district court erred by sentencing him on both convictions
because Minn. Stat. § 609.035 (2014) prohibits multiple sentences for conduct arising out
of a single behavioral incident. We affirm.
DECISION
I.
Appellant Sedne Bonitaz Williams argues that he was deprived of his constitutional
right to effective assistance of counsel because his court-appointed attorney had
represented the victim, A.S., at a juvenile court proceeding, and thus had a conflict of
interest. A criminal defendant has the right to effective assistance of counsel; counsel is
ineffective if (1) his or her performance is deficient, and (2) the defendant was prejudiced
by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). In addition to assistance of counsel, a criminal defendant has a Sixth-
Amendment “right to representation that is free from conflicts of interest.” Wood v.
Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981). According to Minn. R. Prof.
Conduct 1.7(a),
a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
2 (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer.
For purposes of demonstrating ineffective assistance of counsel, “[a] lawyer’s performance
is deficient if he represents a client despite having a conflict of interest.” State v. Paige,
765 N.W.2d 134, 140 (Minn. App. 2009).
A defendant who raises no objection at trial has the burden of demonstrating that
defense counsel had a conflict that affected counsel’s performance. Id. But “when an
attorney informs the district court of a probable risk of conflict, and the court fails to take
adequate steps to ascertain whether an impermissible conflict exists, the defendant’s
conviction must be reversed without inquiry into prejudice resulting from the alleged
conflict.” Id. at 140-41 (quotation omitted).
Here, after the jury was selected but before trial began, defense counsel informed
the district court that he had briefly represented A.S. at one or two delinquency proceedings
when he was assigned to courtroom duty and he had not recognized her name until he saw
her father in the courthouse. His explanation suggests that he made a pro forma appearance
as A.S.’s counsel and the matter was either resolved or handed over to a different attorney
in the public defender’s office. Defense counsel affirmed that this would not affect his
ability to zealously represent Williams. The district court questioned Williams, who stated
that he wanted defense counsel to proceed. Our review of the transcript confirms that
3 defense counsel was well-prepared, made pertinent objections, and cross-examined the
state’s witnesses, including A.S., thoroughly.
A theoretical or potential conflict is not sufficient to mandate reversal; instead, there
must be “an actual conflict of interest . . . that affected counsel’s performance – as opposed
to a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 122
S. Ct. 1237, 1243 (2002) (emphasis omitted) (quotation omitted). In State v. Stephani, the
defendant was represented by a public defender; shortly before trial, appointed counsel
discovered that another attorney in the same office had represented the victim in an
unrelated criminal case. 369 N.W.2d 540, 549 (Minn. App. 1985), review denied (Minn.
Aug. 20, 1985). This court concluded that “[t]he record fails to show an actual conflict of
interest that deprived appellant of his Sixth Amendment right to counsel.” Id. “[U]ntil a
defendant shows that his counsel actively represented conflicting interests, he has not
established the constitutional predicate for his claim of ineffective assistance.” Cuyler v.
Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719 (1980).
We are satisfied from our review of the record that no active conflict of interest
prevented defense counsel from zealously representing Williams, and, therefore, he was
not deprived of effective assistance of counsel.
II.
Williams argues that the district court erred by imposing sentences on both first-
degree criminal sexual conduct convictions. Under Minn. Stat. § 609.035, subd. 1 (2014),
“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.” An appellate court must determine
4 whether multiple offenses occurred during a single course of conduct, in which case a
defendant may be sentenced for only one of the offenses. State v. Jones, 848 N.W.2d 528,
533 (Minn. 2014). “Whether a defendant’s offenses occurred as part of a single course of
conduct is a mixed question of fact and law.” Id. We review the district court’s findings
for clear error and its application of law to the facts de novo. Id. The state has the burden
of proving by a preponderance of the evidence that the actions underlying multiple offenses
did not occur as part of a single behavioral incident or course of conduct. State v.
McCauley, 820 N.W.2d 577, 591 (Minn. App. 2012), review denied (Minn. Oct. 24, 2012).
When a defendant has been found guilty of multiple intentional offenses, 1 a court
considers whether (1) there is a unity of time and place; and (2) whether defendant’s
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1143
State of Minnesota, Respondent,
vs.
Sedne Bonitaz Williams, Appellant.
Filed May 16, 2016 Affirmed Klaphake, Judge *
Clay County District Court File No. 14-CR-14-1949
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney, Moorhead, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Melissa V. Sheridan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Jesson, Presiding Judge; Kirk, Judge; and Klaphake,
Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
KLAPHAKE, Judge
Appellant challenges his convictions of two counts of first-degree criminal sexual
conduct, arguing that he was deprived of his constitutional right to effective assistance of
counsel when the district court failed to inquire into defense counsel’s conflict of interest.
Appellant also asserts that the district court erred by sentencing him on both convictions
because Minn. Stat. § 609.035 (2014) prohibits multiple sentences for conduct arising out
of a single behavioral incident. We affirm.
DECISION
I.
Appellant Sedne Bonitaz Williams argues that he was deprived of his constitutional
right to effective assistance of counsel because his court-appointed attorney had
represented the victim, A.S., at a juvenile court proceeding, and thus had a conflict of
interest. A criminal defendant has the right to effective assistance of counsel; counsel is
ineffective if (1) his or her performance is deficient, and (2) the defendant was prejudiced
by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). In addition to assistance of counsel, a criminal defendant has a Sixth-
Amendment “right to representation that is free from conflicts of interest.” Wood v.
Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981). According to Minn. R. Prof.
Conduct 1.7(a),
a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
2 (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer.
For purposes of demonstrating ineffective assistance of counsel, “[a] lawyer’s performance
is deficient if he represents a client despite having a conflict of interest.” State v. Paige,
765 N.W.2d 134, 140 (Minn. App. 2009).
A defendant who raises no objection at trial has the burden of demonstrating that
defense counsel had a conflict that affected counsel’s performance. Id. But “when an
attorney informs the district court of a probable risk of conflict, and the court fails to take
adequate steps to ascertain whether an impermissible conflict exists, the defendant’s
conviction must be reversed without inquiry into prejudice resulting from the alleged
conflict.” Id. at 140-41 (quotation omitted).
Here, after the jury was selected but before trial began, defense counsel informed
the district court that he had briefly represented A.S. at one or two delinquency proceedings
when he was assigned to courtroom duty and he had not recognized her name until he saw
her father in the courthouse. His explanation suggests that he made a pro forma appearance
as A.S.’s counsel and the matter was either resolved or handed over to a different attorney
in the public defender’s office. Defense counsel affirmed that this would not affect his
ability to zealously represent Williams. The district court questioned Williams, who stated
that he wanted defense counsel to proceed. Our review of the transcript confirms that
3 defense counsel was well-prepared, made pertinent objections, and cross-examined the
state’s witnesses, including A.S., thoroughly.
A theoretical or potential conflict is not sufficient to mandate reversal; instead, there
must be “an actual conflict of interest . . . that affected counsel’s performance – as opposed
to a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 122
S. Ct. 1237, 1243 (2002) (emphasis omitted) (quotation omitted). In State v. Stephani, the
defendant was represented by a public defender; shortly before trial, appointed counsel
discovered that another attorney in the same office had represented the victim in an
unrelated criminal case. 369 N.W.2d 540, 549 (Minn. App. 1985), review denied (Minn.
Aug. 20, 1985). This court concluded that “[t]he record fails to show an actual conflict of
interest that deprived appellant of his Sixth Amendment right to counsel.” Id. “[U]ntil a
defendant shows that his counsel actively represented conflicting interests, he has not
established the constitutional predicate for his claim of ineffective assistance.” Cuyler v.
Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719 (1980).
We are satisfied from our review of the record that no active conflict of interest
prevented defense counsel from zealously representing Williams, and, therefore, he was
not deprived of effective assistance of counsel.
II.
Williams argues that the district court erred by imposing sentences on both first-
degree criminal sexual conduct convictions. Under Minn. Stat. § 609.035, subd. 1 (2014),
“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.” An appellate court must determine
4 whether multiple offenses occurred during a single course of conduct, in which case a
defendant may be sentenced for only one of the offenses. State v. Jones, 848 N.W.2d 528,
533 (Minn. 2014). “Whether a defendant’s offenses occurred as part of a single course of
conduct is a mixed question of fact and law.” Id. We review the district court’s findings
for clear error and its application of law to the facts de novo. Id. The state has the burden
of proving by a preponderance of the evidence that the actions underlying multiple offenses
did not occur as part of a single behavioral incident or course of conduct. State v.
McCauley, 820 N.W.2d 577, 591 (Minn. App. 2012), review denied (Minn. Oct. 24, 2012).
When a defendant has been found guilty of multiple intentional offenses, 1 a court
considers whether (1) there is a unity of time and place; and (2) whether defendant’s
conduct was “motivated by an effort to obtain a single criminal objective.” State v. Bauer,
792 N.W.2d 825, 828 (Minn. 2011) (quotation omitted). “The application of this test
depends heavily on the facts and circumstances of the particular case.” Id.
According to the record evidence, Williams spent several hours with A.S., whom
he knew was 12 years old. Williams drove A.S. from Fargo, North Dakota, where he
picked her up, to Dilworth, Minnesota, where he had her engage in oral sex while in his
car. Williams then drove A.S. to an apartment in Moorhead, Minnesota, where the two
visited Williams’ friend and the friend’s mother. During this visit, Williams and A.S.
1 Criminal sexual conduct crimes are crimes of general intent: the defendant must intend to do the act that constitutes the crime. State v. Hart, 477 N.W.2d 732, 736 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992); see also State v. Wenthe, 865 N.W.2d 293, 302 (Minn. 2015) (stating that “[g]enerally, criminal sexual conduct offenses require only an intent to sexually penetrate, unless additional mens rea requirements are expressly provided”).
5 smoked marijuana; the length of the visit is not certain from the record, but it lasted at least
20-30 minutes and trial testimony suggests that the visit was longer than that. After leaving
the apartment, Williams had sexual intercourse with A.S. in the car, which was parked
inside a garage.
In State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989) (quotation omitted),
review denied (Minn. May 24, 1989), this court concluded that in a case involving criminal
sexual conduct, “[t]he conduct involved must be motivated by a desire to obtain a single
criminal objective” and “[t]he offenses must occur at substantially the same time and place,
arise in a continuous and uninterrupted course of conduct and manifest an indivisible state
of mind.” The conduct here does not share unity of time and place. The criminal acts were
interrupted by the visit to Williams’ friend’s apartment, and although they occurred in
Williams’ car, the car was parked at different locations. Williams had a broad criminal
objective: sexual activity with A.S., but his conduct escalated in seriousness over the course
of time he spent with A.S. In State v. McLemore, 351 N.W.2d 927, 928 (Minn. 1984), the
supreme court concluded that three acts of sexual contact with a child that occurred over
the course of a weekend were not part of a single behavioral incident despite the unity of
place and the relatively short time period. Likewise, the supreme court concluded that two
incidents of sexual contact with the same victim occurring five hours apart but in the same
place, were not a part of the same behavioral incident, reasoning that “neither act bore any
essential relationship to the other.” State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979).
The supreme court commented, “[T]he underlying purpose of [Minn. Stat.] § 609.035 is to
prevent punishment which is disproportionate to the culpability of the defendant. Here, we
6 are satisfied that multiple punishment of defendant is not barred by the statute and is
consistent with the purpose of the statute.” Id.
We similarly conclude that Williams’ conduct does not have the unity of time, place,
and criminal objective that are the features of a single behavioral incident, and we therefore
affirm.
Affirmed.