State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1427

State of Minnesota,
Respondent,

vs.

William Alphonso Warr,
Appellant.

Filed June 5, 2017
Affirmed
Rodenberg, Judge

Dakota County District Court
File No. 19HA-CR-14-244

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Jesson, Judge; and Smith,
John, Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant William Alphonso Warr appeal s his conviction for second-degree
murder, arguing that he was serially prosec uted and that, under Minn. Stat. § 609.035,
subd. 1 (2012), his plea of gu ilty to violating an order for protection prohibits his later
prosecution for murder. He makes additional pro se arguments. We affirm.
FACTS
In 2012, a district court issued an orde r for protection (OFP) prohibiting appellant
from contacting S.M. or her children. S.M. th en had two children and was pregnant with
appellant’s daughter. The daughter was born on October 8, 2012. S.M’s two sons, one of
whom was K.M.P., are not appellant’s children.
From approximately June 8, 2013 until June 11, 2013, and while the OFP remained
in effect, appellant violated it by visiting S.M.’s home. Wh ile there supervising S.M.’s
three children, appellant punched K.M.P. in the stomach. Appellant explained that he
punched K.M.P. because he wanted the ch ildren to stop “playing the way they were
playing, and [he] kind of lost [his] cool.” Appellant’s punch caused internal bleeding and
sepsis. K.M.P. suffered for two to three days, and died on June 11, 2013. Appellant admits
that the punch he delivered to K.M.P. killed the boy.
After K.M.P. died on June 11, the police went to S.M.’s home, observed appellant
there in violation of the OFP, and arrested him. Appellant was charged with felony
violation of an OFP and other crimes he co mmitted while fleeing police on June 11. He
pleaded guilty to those charge s and, on July 17, 2013, wa s sentenced for a felony OFP

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violation. Six months later, in January 2014, a grand jury indicted appellant on eight counts
of murder related to the death of K.M.P. Appellant pleaded guilty to one count of second-
degree murder, and he was sentenced for that crime.
Appellant later petitioned for postconvictio n relief, arguing that his conviction for
second-degree murder arose from the same behavioral incident as his earlier conviction for
violating an OFP and, therefore, amounted to a prohibited serial prosecution. The district
court denied appellant’s moti on, determining that the conv ictions did not arise from a
single behavioral incident.
This appeal followed.
D E C I S I O N
Appellant argues that, because both of hi s crimes arose from a single behavioral
incident, his conviction of second-degree murder is unlawful.
“Whether the offenses were part of a single behavioral incident is a mixed question
of law and fact, so we review the district c ourt’s findings of fact for clear error and its
application of the law to those facts de novo.” State v. Bakken , 883 N.W.2d 264, 270
(Minn. 2016). “Determining whether multiple o ffenses are part of a single behavioral
incident is not a mechanical exercise, but rather requires an examination of all the facts and
circumstances.” Id. (quotation omitted). “The State bears the burden of proving, by a
preponderance of the evidence, that a defenda nt’s offenses were not part of a single
behavioral incident.” Id.
Minnesota law prohibits serialized prosecutions, stating:

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[I]f 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 . . . . All the offenses, if prosecuted, shall be
included in one prosecution which shall be stated in separate
counts.

Minn. Stat. § 609.035, subd. 1. The statute bars multiple sentences for crimes arising from
a “single behavioral incident.” State v. Bauer, 792 N.W.2d 825, 827 (Minn. 2011). The
statute also bars a new charge or indictment after an earlier “charge arising from that same
behavioral incident” has been resolved. State v. Sater, 588 N.W.2d 512, 514 (Minn. App.
1998), review denied (Minn. Feb. 18, 1999).
Courts use two different tests when dete rmining whether two crimes arose from a
single behavioral incident. When all crimes at issue contain the same intent element, we
consider “(1) whether the offenses occurred at substantially the same time and place, and
(2) whether the conduct was motivated by an effort to obtain a single criminal objective.”
Bakken, 883 N.W.2d at 270 (quotations omitted). When the crimes have different intent
elements, we consider whether the crimes “(1) occurred at substantially the same time and
place and (2) arose from a continuing and uninterrupted course of conduct, manifesting an
indivisible state of mind or coincident errors of judgment.” State v. Fichtner, 867 N.W.2d
242, 253-54 (Minn. App. 2015), review denied (Minn. Sept. 29, 2015).
The parties dispute whether felony violation of an OFP under Minn. Stat. § 518B.01,
subd. 14(d) (2012), was, as of June 11, 2013, a general-intent crime or a specific-intent
crime.
1 We need not resolve that issue, because either test leads to the same conclusion.

1 In June 2013, Minnesota law concerning felo ny-level OFP violations only criminalized
“knowingly” violating the OFP. Minn. Stat . § 518B.01, subd. 14(d) (“A person is guilty

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When all of the crimes at issue contain an intent element, those crimes arise from a
single behavioral incident if, (1) “the offenses occurred at substantially the same time and
place,” and (2) “the conduct wa s motivated by an effort to obtain a single criminal
objective.” Bakken, 883 N.W.2d at 270 (quotations om itted). “In assessing whether the
crimes were committed with the same cr iminal objective, we have examined the
relationship of the crimes to each other.” Bauer, 792 N.W.2d at 829. “Broad statements
of criminal purpose do not unify separate acts into a single course of conduct.” State v.
Jones, 848 N.W.2d 528, 533 (Minn. 2014). The supreme court has provided two examples
that clarify this test. If a person commits murder by arson, he “may not be sentenced both
for the murder and for the arson, . . . because [he] is motivated by an effort to obtain a
single criminal objective.” State v. Bookwalter , 541 N.W.2d 290, 294 (Minn. 1995).
However, if a person murders a victim as part of a premeditated plan, “and then, as an
afterthought, steals the vi ctim’s car immediately afte r the murder, a single common
criminal objective fails to underlie the murder and the theft of the car.” Id. at 295.

of a felony . . . if the person knowingly violat es this subdivision . . . .”). The Minnesota
Supreme Court has noted that the statute only prohibited violating an OFP if “a valid OFP
existed, and [the] defendant knew of [the OFP].” State v. Colvin, 645 N.W.2d 449, 454
n.1 (Minn. 2002). In 2013, the legislature amended the statute to remove the word
“knowingly” from the statute. 2013 Minn. Laws ch. 47, § 1, at 204 (codified as amended
at Minn. Stat. § 518B.01, subd. 14(d) (Supp. 2013)). This amendment went into effect on
August 1, 2013, and appellant’s crimes took place in June 2013, so we apply the 2012
version of the statute in this case. Minn. Stat. § 645.02 (2012) (stating that amendments
go into effect on the next August 1 following enactment, unless otherwise specified); State
v. Basal , 763 N.W.2d 328, 335 (Minn. App. 20 09) (noting that amendments are not
retroactive without clear evidence of retroactive intent).

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In his pleas of guilty, which occurred on two different dates, appellant admitted that
he violated the OFP in order to have contac t with his daughter and S.M., and that he
murdered K.M.P. in an impulsi ve reaction to how K.M.P. wa s playing. The objective to
punish K.M.P. is clearly separate from appella nt’s objective of having contact with S.M.
and his daughter by violating the OFP. There is no unity of objective between the earlier
conviction for violating the OFP and the later murder charge.
Because appellant’s criminal acts were not committed with a unity of objective, the
district court correctly determined that the crimes did not arise fro m a single behavioral
incident applying the intentional-crimes test.
When offenses contain different intent elements, they arise out of a single behavior
if they “(1) occurred at substantially th e same time and place and (2) arose from a
continuing and uninterrupted cour se of conduct, manifesting an indivisible state of mind
or coincident errors of judgment.” Fichtner, 867 N.W.2d at 253-54.
The district court determined, in the alternative, that appellant’s crimes arose from
different errors in judgment and that he had different states of mind while committing them,
applying the different-intent-elements test. The record again supports the district court’s
conclusion. Appellant admits that he violated the OFP in order to have contact with his
daughter. Conversely, he admits that he punched K.M.P. out of frustration and having “lost
[his] cool.” The violation of the OFP and the murder of K.M.P. were committed with
different motivations on different days, and were the result of different errors of judgment.
Appellant argues that his case is similar to the Minnesota Supreme Court case of
State v. Zuehlke, 320 N.W.2d 79, 80 (Minn. 1982), and that we should therefore conclude

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that his crimes arose from a continuing and uninterrupted course of conduct. In Zuehlke, a
man appealed his convictions of providing beer to minors and violating the open-bottle law
after he purchased beer and rode around in a car drinking it with underage persons. Id. at
80-81. The supreme court determined that the defendant obtained the alcohol with the
intent to drive around drinking it, so there was un ity of conduct. Id. at 82. The supreme
court stated that, “if the state could have established that defendant bought the beer partly
for consumption outside the ca r and that some of it was c onsumed outside the car,” the
supreme court may have concluded the offenses were not part of a unitary course of
conduct. Id.
The reasoning in Zuehlke does not support appellant’s argument. In Zuehlke, the
defendant provided the underage persons w ith alcohol specifically to drive around and
commit the open-bottle violation. Id. Here, appellant did not vi olate the OFP in order to
kill or harm K.M.P. In fact, it seems that he continued to violate the OFP after having
struck K.M.P. The district court properly and correctly determin ed that appellant’s
separate crimes did not arise from a continuing and uninterrupted course of conduct.
Because the crimes of violating an OFP and murdering K.M.P. did not arise from a
continuing and uninterrupted course of co nduct, we need not an alyze whether they
occurred at the same time and place.2

2 Although unnecessary to ou r conclusion, the OFP viola tion concerned appellant’s
conduct on June 11. The murd er conviction was for his c onduct which occurred several
days before K.M.P’s death.

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Appellant also argues, pro se, that the Double Jeopardy Clause of the United States
Constitution bars his conviction of second-deg ree murder after the earlier conviction for
violating the OFP. See U.S. Const. amend. V (providing Double Jeopardy Clause); Rew v.
Bergstrom, 845 N.W.2d 764, 795 (Minn. 2014) (noting that the Double Jeopardy Clause
protects an individual from multiple punishme nts for the same crime and from a second
prosecution after acquittal or conviction). Minnesota’s statutory serial-prosecution
protection is broader than the Double Jeopardy Clause. State v. Johnson, 273 Minn. 394,
400, 141 N.W.2d 517, 522 (1966) (“[T]he dr afters [of section 609.035], as well as the
legislature, intended not only to protect against double punishment but also to broaden the
protection afforded by our constitutional provisions against double jeopardy.”). The later
murder prosecution does not, by reason of the earlier OFP-violation conviction, twice place
appellant in jeopardy for the same offense. Appellant’s pro se arguments have no merit.
Appellant’s OFP conviction arose out of a different behavioral incident than his
conviction for the murder of K.M.P. Neither Minn. Stat. § 609.035, subd. 1, nor the Double
Jeopardy Clause bar his murder conviction.
Affirmed.