State v. Ferguson

808 N.W.2d 586, 2012 Minn. LEXIS 1, 2012 WL 75198

• Court: Supreme Court of Minnesota
• Decided: January 11, 2012
• Docket: No. A10-0540
• Status: Published

Opinions

OPINION

MEYER, Justice.

Michael James Ferguson was convicted of one count of felony drive-by shooting at an occupied building, Minn.Stat. § 609.66, subd. le(b) (2010), and eight counts of second-degree assault, Minn.Stat. § 609.222, subd. 1 (2010), arising out of an incident in which multiple shots were fired at a duplex occupied by eight people. After Ferguson successfully appealed his original sentence, the district court imposed sentence on the drive-by shooting conviction and on all eight assault convictions. On appeal, the court of appeals held that Minn.Stat. § 609.035 (2010) required the district court to sentence Ferguson only on the drive-by shooting at an occupied building conviction and remanded for resentencing on that conviction. We conclude that the court of appeals misapplied the rule that a district court may not sentence a defendant to more than one crime for each victim, and that a single sentence for drive-by shooting at an occupied building is not commensurate with Ferguson’s culpability for using a dangerous weapon to intentionally cause eight persons to fear immediate bodily harm. We therefore reverse the decision of the court of appeals and uphold the sentence imposed by the district court.

On September 27, 2007, Michael James Ferguson and his brothers Marcus Dillard and Matthew Dillard went to a house in St. Paul to talk with someone about a dog Marcus had purchased. When the brothers knocked on the door, someone on the second floor yelled at them to leave. The brothers then got into a van; Matthew drove with Marcus in a rear passenger seat and Ferguson in the front passenger seat. Matthew initially drove the van away from the house, but then turned around. As the van passed by the house, Ferguson handed a gun to Marcus, who fired approximately six rounds at the house. Eight people were inside the house, but no one was injured.

Ferguson was charged with one count of drive-by shooting at an occupied building, Minn.Stat. § 609.66, subd. le(b), and eight counts of second-degree assault, Minn. Stat. § 609.222, subd. 1, each by aiding and abetting, Minn.Stat. § 609.05, subd. 1 (2010). A jury found Ferguson guilty as charged. After convicting Ferguson on all nine counts, the district court sentenced Ferguson on the eight assault convictions, imposing one 36-month sentence, a second 36-month sentence to be served consecutively with the first sentence, and six 39-month sentences to be served concurrently with the first sentence. The district court did not sentence Ferguson on the drive-by shooting conviction because it found that the drive-by shooting was part of a continuing course of conduct with the assaults.

Ferguson appealed his convictions and sentence. The court of appeals affirmed the convictions, concluding that there was sufficient evidence to prove that Marcus had committed eight counts of second-degree assault and that Ferguson had intentionally aided Marcus in all eight assaults. State v. Ferguson (Ferguson I), No. A08-1327, 2009 WL 3172139, at *2-4, 6 (Minn.App. Oct. 6, 2009). But the court of appeals reversed and remanded for resen-tencing, concluding that State v. Franks, 765 N.W.2d 68 (Minn.2009), required the district court to sentence Ferguson on the drive-by shooting conviction, which was the most serious of the offenses. Ferguson I, 2009 WL 3172139, at *5. The court stated that Ferguson’s new sentence could not exceed his original aggregate sentence of 75 months. Id. (citing State v. Jackson, 749 N.W.2d 353, 358 (Minn.2008)).

On remand, Ferguson asked the district court to impose sentence only on the drive-by shooting conviction and to set the sentence at 50 months, which was the minimum non-departing sentence for an offense with severity level VIII and a criminal history score of one. See Minn. Sent. Guidelines IV. Over Ferguson’s objection, the district court sentenced Ferguson to 39 months on the drive-by shooting conviction, 36 months on the first assault conviction, to be served consecutively with the drive-by shooting charge, and 39 months on each of the remaining seven assault convictions, to be served concurrently, for an aggregate sentence of 75 months. The district court explained that the downward departure on the drive-by shooting conviction was not based on any mitigating factors but was granted so that nine sentences could be imposed without exceeding Ferguson’s initial sentence. The district court could have sentenced Ferguson to as many as 69 months on the drive-by shooting conviction without departing from the guidelines. See Minn. Sent. Guidelines IV.

Ferguson appealed his revised sentence. The court of appeals held in a published decision that the district court could only sentence Ferguson on the drive-by shooting conviction. State v. Ferguson (Ferguson II), 786 N.W.2d 640, 645 (Minn.App.2010). The court vacated Ferguson’s sentences on his assault convictions and remanded for Ferguson to be resentenced on the drive-by shooting conviction to a sentence of not more than 75 months. Id. We granted review.

I.

Minnesota Statutes § 609.035 generally “prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single behavioral incident.” State v. Norregaard, 384 N.W.2d 449, 449 (Minn.1986). The purpose of section 609.035 is “to protect against exaggerating the criminality of a person’s conduct and to make both punishment and prosecution commensurate with culpability.” State ex rel. Stangvik v. Tahash, 281 Minn. 353, 360, 161 N.W.2d 667, 672 (1968). Section 609.035 “contemplates that a defendant will be punished for the ‘most serious’ of the offenses arising out of a single behavioral incident because ‘imposing up to the maximum punishment for the most serious offense will include punishment for all offenses.’” State v. Kebaso, 713 N.W.2d 317, 322 (Minn.2006) (quoting State v. Johnson, 273 Minn. 394, 399, 141 N.W.2d 517, 522 (1966)); State v. Franks, 765 N.W.2d 68, 77 (Minn.2009) (same). But the legislature did not intend section 609.035 to immunize offenders in every case from “the consequences of separate crimes intentionally committed in a single episode against more than one individual.” State ex rel. Stangvik, 281 Minn. at 360, 161 N.W.2d at 672. We have therefore “carved out an exception to [section 609.035] when multiple victims are involved.” State v. Whittaker, 568 N.W.2d 440, 453 (Minn.1997).

Under the multiple-victim exception, “courts are not prevented from giving a defendant multiple sentences for multiple crimes arising out of a single behavioral incident if: (1) the crimes affect multiple victims; and (2) multiple sentences do not unfairly exaggerate the criminality of the defendant’s conduct.” State v. Skipintheday, 717 N.W.2d 423, 426 (Minn.2006). “ ‘[T]he purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability and a defendant who commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons is more culpable than a defendant who harms only one person.’” State ex rel. Stangvik, 281 Minn. at 361, 161 N.W.2d at 672 (quoting People v. Ridley, 63 Cal.2d 671, 47 Cal.Rptr. 796, 408 P.2d 124, 128 (1965)). “In other words, we determined that multiple convictions arising from a single behavioral incident did not violate our rule against double punishment because where multiple victims are involved, a defendant is equally culpable to each victim.” State v. Edwards, 774 N.W.2d 596, 605 (Minn.2009). But a defendant “may not be sentenced for more than one crime for each victim” when the defendant’s conduct is motivated by a single criminal objective. State v. Prudhomme, 303 Minn. 376, 379, 228 N.W.2d 243, 245 (1975).

Here, the court of appeals concluded that the single count of drive-by shooting at an occupied building was the most serious offense committed against each of the eight victims. Ferguson II, 786 N.W.2d at 645. Based on this conclusion, the court held that Minn.Stat. § 609.035 prohibited the district court from imposing the seven additional second-degree assault sentences because “a defendant convicted of offenses arising out of a single behavioral incident and committed against multiple victims may be sentenced only on the most serious offense against each victim.” Id. The court of appeals effectively held that, under the facts of this case, the rule in question — a district court may not sentence a defendant to more than one crime for each victim — required the district court to impose one sentence, despite the fact that Ferguson’s conduct victimized eight people. Because the court of appeals misapplied the multiple-victim rule and because a single sentence for drive-by shooting at an occupied building is not commensurate with Ferguson’s culpability for using a dangerous weapon to intentionally cause eight persons to fear immediate bodily harm, we reverse.

II.

Whether an offense is subject to multiple sentences under Minn.Stat. § 609.035 is a question of law, which we review de novo. Skipintheday, 717 N.W.2d at 426. We conclude 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.¹ We reach this conclusion based on the following considerations.

First, the elements of drive-by shooting at an occupied building require only a reckless discharge of a firearm “at or toward” an occupied building.² Minn. Stat. § 609.66, subd. le (stating that “[w]hoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward ... an occupied building” is guilty of a felony); State v. Cruz-Ramirez, 771 N.W.2d 497, 507-08 n. 3 (Minn.2009) (noting that “the elements of drive-by shooting ... require only the reckless discharge of a firearm”). The defendant does not have to know that a building was occupied to be convicted under section 609.66, subdivision le(b). Just as entry into a single building occupied by three persons does not support three separate burglary convictions, see State v. Hodges, 386 N.W.2d 709, 711 (Minn.1986), a reckless discharge of a firearm at a single building occupied by eight people does not support eight separate drive-by shooting at an occupied building convictions.³

Second, although a drive-by shooting at an occupied building implies that people were in the building, nothing in the language of the statute refers to the effect of a shooting on the occupants of the building. Unlike the crime of assault, 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. See Minn.Stat. § 609.66, subd. le (2010).

The dissent asserts that our decision is inconsistent with State v. Rieck, 286 N.W.2d 724 (Minn.1979). We perceive no inconsistency. The defendant in Rieck had firebombed a house in an attempt to prevent an individual who he mistakenly thought was in the house from testifying against the defendant’s half brother. Id. at 725. We held that the defendant could be convicted of one count of tampering for the intended victim in addition to five counts of assault — one for each occupant of the house — even though the person he was attempting to silence was not in the house. Id. at 726-27. The dissent claims that Rieck indicates that the effect of a crime on its purported victims is irrelevant to whether the crime is a victimless crime. But the tampering statute incorporates attempt: whoever “intentionally prevents or dissuades or intentionally attempts to prevent or dissuade by means of force or threats of injury ... a person who is or may become a witness.” Minn.Stat. § 609.498, subd. 1(a) (2010) (emphasis added). Thus, Rieck merely reflects the longstanding rule that one may attempt a crime to which the intended victim is oblivious. The crime that is attempted has an obvious effect on the intended victim.

In sum, 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. Consequently, the court of appeals erred when it concluded that Minn.Stat. § 609.035 prohibited the district court from imposing the eight additional second-degree assault sentences.

III.

Even if the single count of drive-by shooting at an occupied building were the most serious offense committed against each victim, the district court properly sentenced Ferguson because a single sentence for drive-by shooting at an occupied building is not commensurate with Ferguson’s culpability for using a dangerous weapon to intentionally cause eight persons to fear immediate bodily harm. As discussed above, the purpose of Minn.Stat. § 609.035 is to protect against exaggerating the criminality of a person’s conduct and to make both punishment and prosecution commensurate with culpability. State ex rel. Stangvik, 281 Minn, at 360, 161 N.W.2d at 672. Although a sentence for the most serious offense ordinarily includes punishment for all offenses, see Rebaso, 713 N.W.2d at 322, that principle does not hold true in this case. The State charged one count of the most serious offense — drive-by shooting at an occupied building. But a sentence for that single offense is not commensurate with Ferguson’s criminal liability because it fails to reflect Ferguson’s increased culpability for committing an act of violence with the intent to harm more than one person.⁴ We therefore reverse the decision of the court of appeals and uphold the sentence imposed by the district court.⁵

Reversed.

1 . We limit this conclusion to the offense of drive-by shooting at an occupied building, and express no opinion about who could be victims of a drive-by shooting at a person or an occupied vehicle. We do not reach the question of whether an occupant of a building at which shots were fired in a drive-by shooting could also be the victim of a drive-by shooting at a person.

2 . The dissent cites State v. Gartland, 330 N.W.2d 881 (Minn.1983), as "refut[ing] the contention that lack of intent to kill or injure renders a crime victimless.” Gartland does not stand for the proposition that intent is irrelevant to whether a crime has victims. The defendant in Gartland was charged with two counts of criminal negligence resulting in death, Minn.Stat. § 609.21 (1982) (since amended to criminal vehicular homicide, Minn.Stat. § 609.21 (2010)), an offense which obviously has a victim. See id. at 883. The defendant argued that the multiple-victim exception should never apply “in any case in which the statute violated does not require a showing of intent.” Id. We rejected that contention, holding that "[tjhe fact that defendant may not have intended to hurt anyone should not make a difference” as to whether that defendant could be sentenced once per victim. Id. We did not address in that case whether a defendant's intent was relevant to whether the underlying crime had victims— only whether lack of intent precluded application of the multiple-victim exception.

3 . In Hodges, 386 N.W.2d at 711, we stated that "the multiple-victim exception clearly permits three assault convictions if a burglar assaults three different people after entering a house.” The same holds true when the person, who recklessly discharges a firearm at an occupied building, assaults eight different building occupants by committing the act with an intent to cause fear of immediate harm. See Minn.Stat. § 609.02, subd. 10 (2010) (defining "assault” as "an act done with intent to cause fear in another of immediate bodily harm or death”).

4 . The dissent misconstrues our analysis as a discussion of the second prong of the multiple victim exception. That prong provides a cap on multiple sentences and reflects the principle that a defendant’s sentence should not unfairly exaggerate the criminality of his or her conduct. State v. Marquardt, 294 N.W.2d 849, 851 (Minn. 1980). Our analysis considers the separate and distinct situation in which a sentence on the most serious offense unfairly depreciates the criminality of the defendant’s conduct. In such a situation, we conclude the rule announced in Kebaso, 713 N.W.2d at 322, does not apply.

5 . Because we reverse the decision of the court of appeals and uphold the sentence imposed by the district court, we do not reach Ferguson’s argument that the State may not challenge the length of his 39-month sentence on drive-by shooting because no remand is necessary.