State v. Bauer

792 N.W.2d 825, 2011 Minn. LEXIS 5, 2011 WL 13757
CourtSupreme Court of Minnesota
DecidedJanuary 5, 2011
DocketNo. A08-1698
StatusPublished
Cited by36 cases

This text of 792 N.W.2d 825 (State v. Bauer) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bauer, 792 N.W.2d 825, 2011 Minn. LEXIS 5, 2011 WL 13757 (Mich. 2011).

Opinion

OPINION

GILDEA, Chief Justice.

The question presented in this case is whether the district court violated Minn. Stat. § 609.035 (2010) when it sentenced appellant Cody Bauer (Bauer) for both selling a controlled substance and failing to affix tax stamps to the controlled substance. Because we conclude that the crimes did not arise from the same behavioral incident, we hold that section 609.035 is not applicable, and we therefore affirm.

The facts at trial established that in May 2006 the Minnesota Bureau of Criminal Apprehension (BCA) and the Paul Bunyan Drug Task Force (Task Force) engaged in a five-month operation to “identify drug traffickers” and eliminate drugs from the city of Warroad. The Task Force contracted with an experienced confidential informant (Cl) to create a fictional storefront to serve as a front for the operation. The drug transactions occurred in a “buy room” located in the back of the store. The buy room was equipped with video and audio equipment so law enforcement could view and listen to the transactions from a location across the street. The BCA paid the Cl a salary of $2,000 a month and between $50 to $100 for each buy depending on the quantity and the type of drug the Cl purchased. The Cl was responsible for paying the rent and utilities on the storefront along with any overhead costs associated with maintaining the storefront. When the Cl made a buy, law enforcement required that he sign a receipt indicating that he received the payment. The Cl then placed the drugs in a heat-sealed bag and deposited the drugs into a locked cabinet.

The Cl hired appellant’s mother, Denise Bauer (Denise), in May 2006 to work in the store part time. On May 16, while working with Denise, the Cl learned that Denise was taking morphine for migraines and inquired whether he could buy any of her medication or whether she had any other drugs to sell. Denise told the Cl that she did not have anything to give him but thought that her son, Cody, could obtain drugs for the Cl. The Cl then asked Denise to call Bauer to see if he had anything to sell. Denise called Bauer, and about forty-five minutes later, Bauer arrived at the Cl’s store with an eighth of an ounce of marijuana, which the Cl purchased for $25.

Bauer went back to the Cl’s store on June 29. Bauer told the Cl that he was going to obtain an undetermined amount of ecstasy while on a trip to Oslo, Minnesota, and asked the Cl if he would “front him money” for the ecstasy. The Cl stated that he would not provide Bauer with the money to purchase the ecstasy, but he did give Bauer $50 to purchase marijuana. About an hour later, Bauer returned to the store and sold the Cl a quarter ounce of marijuana.

Bauer returned from Oslo on July 3. He went to the Cl’s store that same day and told the Cl that he had “gotten some ecstasy” and wanted to know if the Cl wanted to purchase any from him. The Cl [827]*827stated that he wanted to purchase two pills for himself and his girlfriend. Bauer then left the store to retrieve the ecstasy and later returned with two pills. The CI subsequently paid Bauer for the two pills. During this transaction, the CI asked Bauer for 10 more ecstasy pills. Bauer left the store to retrieve 10 more ecstasy pills and he returned later that same day with the 10 pills. Bauer said the 10 pills would cost $820, but the CI said he would only pay $800 for the pills. Bauer agreed to this price and sold the 10 ecstasy pills to the CI.

Respondent State of Minnesota subsequently charged Bauer in connection with the drug sales to the CI. Specifically, the State charged Bauer with: sale of a controlled substance in the third degree, Minn.Stat. § 152.023, subd. 1(2) (2010) (count 1); failure to affix tax stamps to a controlled substance, Minn.Stat. § 297D.09, subd. la (2010) (count 2); two counts of sale of a controlled substance in the fifth degree, Minn.Stat. § 152.025, subd. 1(1) (2008) (counts 3 and 4); and conspiracy to commit a controlled-substance crime in the fifth degree, Minn.Stat. §§ 152.025, subd. 1(1), 152.096 (2010) (count 5). Counts 1 and 2 involved ecstasy and counts 3-5 involved marijuana. The jury found Bauer guilty of all five counts and the district court convicted him of each offense. The court sentenced Bauer on the first four counts in accordance with the Sentencing Guidelines.1

Bauer appealed his sentence to the court of appeals, arguing that he should not have been sentenced on both count 1 and count 2. State v. Bauer, 776 N.W.2d 462, 477 (Minn.App.2009). The court held ■ that both offenses at issue on appeal — sale of a controlled substance and failure to affix a tax stamp — were intentional crimes. Id. at 479. Because Bauer was not motivated by a single criminal objective when he committed the offenses, the court held that the offenses did not constitute a single behavioral incident. Id. at 480. The court accordingly affirmed Bauer’s sentences. Id.

We granted Bauer’s petition for review. On appeal to our court, Bauer argues that the district court erred in sentencing him on both the convictions for selling the controlled substance of ecstasy and failing to affix tax stamps to the ecstasy. Bauer contends that the crimes arose from a single behavioral incident, and that therefore multiple sentences violated Minn.Stat. § 609.035.

I.

Under Minn.Stat. § 609.035, subd. 1, “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.” We have interpreted section 609.035 to bar multiple sentences for crimes that arise from a single behavioral incident.2 State v. Bookwalter, 541 N.W.2d 290, 293 (Minn.1995). And we have used different tests to determine whether crimes arise from a single behavioral incident. State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 525 (1966). Which test applies depends on [828]*828whether the crime at issue contains an intent element. Id. at 404, 141 N.W.2d at 525.

The sale of a controlled substance is an intentional crime for purposes of Minn. Stat. § 609.035. See State v. Gould, 562 N.W.2d 518, 521 (Minn.1997) (applying the test of intentional crimes to determine whether multiple sale-of-controlled-substance offenses arose from a single behavioral incident). But we have not previously determined whether the offense of failing to affix a tax stamp to a controlled substance contains a mens rea requirement. The court of appeals analyzed this offense as an intentional crime for purposes of section 609.035. Bauer, 776 N.W.2d at 479. The parties do not ask us to revisit the conclusion. Instead, both Bauer and the State ask us to analyze the tax-stamp offense as an intentional crime. Accordingly, we will assume without deciding for purposes of this case that the offense of failure to affix tax stamps, in violation of Minn.Stat. § 297D.09, subd. la, is an intentional crime.

In order to determine whether two intentional crimes are part of a single behavioral incident, we consider “factors of time and place ...

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Cite This Page — Counsel Stack

Bluebook (online)
792 N.W.2d 825, 2011 Minn. LEXIS 5, 2011 WL 13757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bauer-minn-2011.