State of Minnesota, Appellant,

This opinion will be unpublished and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
A16-1753

State of Minnesota,
Appellant,

vs.

Bryan Steven Voss,
Respondent.

Filed May 8, 2017
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Hennepin County District Court
File No. 27-CR-15-22928

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

Paul D. Baertschi, Steven M. Tallen, Tallen and Baertsch i, Minneapolis, Minnesota (for
appellant)

Thomas A. Sieben, Justen C. Imsande, Sieben & Cotter, PLLC, South St. Paul, Minnesota
(for respondent)

Considered and decided by Reilly, Presid ing Judge; Hooten, Judge; and Kalitowski,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, 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
REILLY, Judge
The City of Rogers and the City of Maple Grove separately charged respondent
Bryan Steven Voss for misdemeanor offenses that occurred on the same day. The City of
Rogers cited Voss for driving while impaired, and the City of Maple Grove charged Voss
with three counts of assault, one count of disorderly conduct, and one count of careless
driving. Voss pleaded guilty to the City of Rogers’ fourth-degree driving-while-impaired
charge, and the district court dismissed the City of Maple Grove’s remaining charges as
serialized prosecution in violation of Minn. Stat. § 609.035, subd. 1 (2014). Because we
determine that the Rogers police officer articulated reasonable suspicion to justify the stop
of the vehicle, but conclude that the charges brought by the City of Rogers and the City of
Maple Grove did not arise from a single behavioral incident, we affirm in part and reverse
in part. We remand for further proceedings in accordance with this opinion.
FACTS
On June 29, 2015, at approximately 8:57 p.m., Maple Grove Police Officer J.R.
Ohnstad received a report of an assault in the City of Maple Grove. When Officer Ohnstad
arrived at the address to investigate the report, he saw that the victim’s lip had started to
swell and change color. The victim stated th at he was driving home when he noticed a
driver tailgating him. The vi ctim reported that the tailgati ng driver displayed his middle
finger while continuing to follow him. The vi ctim described the driv er as a white male,
with a crewcut, and reported that the man was driving a white Chevy Silverado with
military plates. As the victim turned onto a side street to reach his home, the tailgating

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driver did not follow him, and instead drove past him. The tailgating driver then did a
U-turn and drove in the direction of the victim’s neighborhood. As the victim parked his
car in his driveway and stepped out of his vehicle, the other driver parked the Chevy
Silverado behind the victim’s car and stepped out of the truck. The driver punched the
victim in the face, knocking him to the ground. The driver then raised his fist and
approached the victim’s mother—who had em erged from the victim’s house—as if he
intended to hit her, but instead returned to his vehicle and drove away.
Sergeant Steve Sarazin of the Rogers Po lice Department heard the dispatch report
over the police radio. Within four miles of the assault and several minutes after the report,
Sergeant Sarazin saw a white male with a cr ewcut driving a white pickup truck with
military plates. Sergeant Sarazin noted the si milarities to the disp atch description and
stopped the white pickup truck to question the driver, who police later identified as Voss.
Sergeant Sarazin noticed several indicia of intoxication, including a strong odor of alcohol,
slurred and deliberate speech, an d glassy eyes. As he continued to speak to the driver, a
Maple Grove police officer arrived on the scene with the victim, and the victim positively
identified the driver as the individual who punched him.
The City of Rogers charged Voss with tw o counts of driving while impaired. In a
separate complaint, the City of Maple Grove charged Voss with three counts of
misdemeanor assault (counts I-III), one count of disorderly conduct (count IV), and one
count of careless driving (count V). Voss plead ed guilty to the City of Rogers’ fourth-
degree driving-while-impaired charge and sought dismissal of the City of Maple Grove’s
remaining charges. At the omnibus heari ng, Voss argued that (1) the assault was a

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“completed” misdemeanor, which rendered the st op unlawful, and (2) even if the assault
did not constitute a completed misdemeanor, allowing the City of Maple Grove to charge
counts I-V would result in serial ized prosecution, in violati on of Minn. Stat. § 609.035.
The parties submitted the matter to the court without testimony, and the record consisted
of a single exhibit—the police investigation file. The district court determined that the stop
to investigate the assault repor t was valid, but the district court dismissed the remaining
charges because the court found that they arose from the same behavioral incident.
The state appeals the district court’s orde r, arguing that counts I-V do not arise from
a single behavioral incident. Voss cross-appe als, contesting the lawfulness of the stop of
his vehicle.
D E C I S I O N
I. The misdemeanor driving-while-impai red offenses and assault-related
offenses did not arise from a single behavioral incident.

The state argues that the district cour t erred in its determination that the
misdemeanor driving-while-impaired and assau lt-related offenses arose out of a singular
behavioral incident. Because th e facts of this case are undisputed, we review the district
court’s determination as to whether multiple offenses arose from a single behavioral
incident de novo. State v. Bauer, 776 N.W.2d 462, 477 (Minn. App. 2009) (Bauer I), aff’d,
792 N.W.2d 825 (Minn. 2011).
Minnesota Statutes section 609.035 bars multiple punish ments for offenses that
arise from the same behavioral incident. Mi nn. Stat. § 609.035, su bd. 1 (“[I]f a person’s
conduct constitutes more than one offense under the laws of this state, the person may be

5
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.”). When a person is charged with multiple
offenses, a district court must examine the offenses charged to de termine whether they
“resulted from a single behavioral incident.” State v. Johnson, 273 Minn. 394, 404, 141
N.W.2d 517, 524 (1966). In these instances, multiple prosecutions are strictly prohibited
to “protect a defendant convicted of multiple offenses against unfair exaggeration of the
criminality of his conduct.” State v. Norregaard, 384 N.W.2d 449, 449 (Minn. 1986).
Minnesota law provides two separate tests for determini ng whether multiple
offenses arose from the same behavioral incident. State v. Bauer, 792 N.W.2d 825, 827-
28 (Minn. 2011) (Bauer II). The first test applies only if the offenses at issue are multiple
intentional crimes; the second test applies when the challenged offenses include both
intentional and nonintentional crimes. Bauer I, 776 N.W.2d at 478. We agree with both
parties that the second test applies. Unde r the second test, Minnesota courts consider
whether the offenses “(1) occu rred 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.” Id. (quotation and citation omitted).
With regard to the first part of this test, the district court correctly found that the two
offenses “occurred at substantially the same time and place.” Id. The investigatory stop
occurred shortly after the assault and within four miles of the victim’s residence. See State
v. Boley, 299 N.W.2d 924, 926 (Minn. 1980) (holding that offenses that occurred in the
same general area and within minutes of each other arose from the same behavioral
incident); see also State v. Finn, 295 Minn. 520, 522, 203 N.W.2d 114, 115 (1972) (noting

6
that offenses that occurred within five minutes and three miles of each other substantially
occurred at the same time and place). The firs t part of the single-behavioral-incident test
is satisfied.
With regard to the second portion of the test, the dr iving-while-impaired offenses
and the assault-related offenses did not arise from “a continuing and uninterrupted course
of conduct, manifesting an indivisible state of mind or coincident errors of judgment.”
Bauer I, 776 N.W.2d at 478 (quotation and citati on omitted). In this case, Voss engaged
in at least two entirely separate offenses. Vo ss committed the first offe nse, assault, when
he parked his vehicle in the victim’s driveway, exited his truck, approached the victim, and
punched the victim in the face, knocking the victim to the ground. Voss then stepped back
into his truck and drove away. When Sergea nt Sarazin stopped Vo ss to investigate the
assault report, he noticed several indicia of intoxication and, after Voss failed the sobriety
testing, the City of Rogers charged Voss with driving while impaired, the second offense.
The record conclusively shows that Voss engaged in two separate and distinct offenses—
driving while impaired and assault. Each ti me Voss drove he violated the driving while
impaired laws. See State v. Fichtner, 867 N.W.2d 242, 253-54 (Minn. App. 2015) (noting
that the supreme court has historically classified DWI offenses as nonintentional crimes),
review denied (Minn. Sept. 29, 2015). When Voss intentionally exited his truck and
punched the victim in the face, he demonstrated the general intent required for assault. See
State v. Dorn, 887 N.W.2d 826, 830 (Minn. 2016) (clarifying that assault-harm is voluntary
offense that requires only general intent to commit the physical act that is forbidden under
Minnesota law).

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Voss cites State v. Krech, 312 Minn. 461, 252 N.W.2d 269 (1977), to support his
contention that the incidents arose out of the same behavioral incident. The facts of Krech
are readily distinguishable from the facts at issue here. In Krech, the defendant led police
on a high-speed chase that ended when the defendant crashed into an officer, thereby
assaulting the officer. Id. at 463, 252 N.W.2d at 271. Krech did not stop and exit his
vehicle to commit the assault, and there was no interruption between the high-speed chase
and the assault. Id. Krech accelerated his car toward the officer in an attempt to cause
bodily injury, without interrupt ion. For that reason, the supreme court determined that
Krech’s conduct exhibited “an indivisible state of mind or coincident errors of judgment.”
Id. at 467, 252 N.W.2d at 273 (quotation omitted). Unlike Krech, Voss did not engage in
a continuous or uninterrupted co urse of action and he demonstr ated at least two separate
errors of judgment.  
Lastly, Voss contends that the state’s c oncession—that count V, careless driving,
arose from the same behavioral incident—is indicative of his continuous and uninterrupted
course of conduct. It is a well-established rule of law in Minnesota that if the state wants
to charge a defendant with more than one of fense, the state should bring one prosecution
listing the charges as separate counts. Id. at 468, 252 N.W.2d at 274 (citing State v.
Reiland, 274 Minn. 121, 127, 142 N.W.2d 635, 639 (1966)). But a subsequent prosecution
in a separate jurisdiction does not violate Minn. Stat. §  609.035 when the offenses do not
arise from the same behavioral incident. See, e.g., State v. Butterfield , 555 N.W.2d 526,
531 (Minn. App. 1996) (holdi ng defendant’s desire to satis fy sexual needs too broad of
motivation where defendant assaulted vi ctim in three different locations), review denied

8
(Minn. Dec. 17, 1996); State v. Secrest , 437 N.W.2d 683, 685 (Minn. App. 1989)
(upholding consecutive sentences in criminal sexual conduct case where sexual assaults
occurred in separate counties a nd there was no unity in time), review denied (Minn.
May 24, 1989). For purposes of this limited appeal, we accept the state’s concession and
assume, without deciding, that count V, careless driving, arose out of the same behavioral
incident as driving while intoxicated. Be cause the remaining counts did not arise from a
single behavioral incident, and because the C ity of Rogers and the City of Maple Grove
were entitled to bring subsequent prosecutions in separate jurisdictions due to the nature of
the offenses, we reverse. We remand counts I-IV to the district court for proceedings in
accordance with this decision.
II. The stop of the vehicle was lawful.
In the alternative, Voss argues that, if this court determines that the offenses did not
arise from the same behavioral incident, the di strict court correctly dismissed the charges
because the assault-related offenses constituted a completed misdemeanor under Blaisdell
v. Comm’r of Pub. Safety, 375 N.W.2d 880 (Minn. App. 1985) (Blaisdell I), aff’d on other
grounds, 381 N.W.2d 849 (Minn. 1986), and that the stop to investig ate the completed
misdemeanors was impermissible under the Four th Amendment. As a general rule, an
officer may make an arrest for most misdem eanors if the misdemeanor occurs within the
presence of the police officer. See Minn. Stat. § 629.34, subd. 1(c)(1) (2014). But this was
not an arrest—it was an inves tigatory stop, and the presence requirement is not similarly
applicable to investigatory stops. See State v. O’Neill, 299 Minn. 60, 65, 216 N.W.2d 822,
826 (1974). Further, because the officer initiated the stop to investigate a recent

9
misdemeanor, the fact that the investigatory stop resulted in a lawful arrest does not render
the stop invalid.
In Blaisdell v. Comm’r of Pub. Safety (Blaisdell II), the supreme court declined to
address whether a stop to investigate a comp leted misdemeanor is always impermissible
under the Fourth Amendment. 381 N.W.2d 849, 850 (Minn. 1986). Instead, the supreme
court commented that “misdemeanors committed in the ‘very recent past’ probably are not
completed ones.” Id.; see also Blaisdell I , 375 N.W.2d at 882 n. 2 (“Courts should be
hesitant to declare criminal conduct which oc curred in the very recent past (such as the
same day of the stop) to be ‘completed.’” ). Following the supreme court’s guidance in
Blaisdell II, we have repeatedly held that a stop to investigate a misdemeanor committed
in “the very recent past” is lawful. See, e.g., State v. Stich, 399 N.W.2d 198, 199 (Minn.
App. 1987) (upholding a warrantless stop to investigate a misdemeanor offense committed
only moments before). Because the assault-rela ted offense at issue here occurred within
four miles and within a short time of th e investigatory stop, the stop was a lawful
investigatory stop.
The test that we apply to determine if a police officer la wfully stopped and
temporarily seized a person is whether the of ficer had “reasonable, articulable suspicion
that the person has been, is, or is about to be engaged in cr iminal activity.” Blaisdell II,
381 N.W.2d at 850 (quoting United States v. Place , 462 U.S. 696, 702, 103 S. Ct. 2637,
2641 (1983)). In State v. Anderson , we held that a warrantless stop of a vehicle to
investigate a misdemeanor offense was lawful when (1) the officer arrived at the scene
within a matter of minutes, (2) dispatch supplied the officer with an adequate description

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of the vehicle involved, and (3 ) the vehicle was observed with in the close vicinity of the
crime scene. 391 N.W.2d 527, 530 (Minn. App. 1986) (citing State v. Ritchie, 379 N.W.2d
550 (Minn. App. 1985)).
Here, the stop occurred within four miles of the assault; this distance is clearly
within the general vicinity of the misdemeanor. Voss matc hed the description dispatch
supplied to the officers: a white male, approximately 30 years old, with a crewcut, driving
a white Chevy truck with Natio nal Guard license plates. And the stop occurred shortly
after the assault. The officer had a reasonable, articulable suspicion that Voss was involved
in the assault. The district court did not err in its determination that the stop was lawful.
Affirmed in part, reversed in part, and remanded.