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This opinion will be unpublished and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
A17-0561

State of Minnesota,
Respondent,

vs.

Benyamin Abner Israel,
Appellant.

Filed February 20, 2018
Affirmed in part and vacated in part
Schellhas, Judge

Kandiyohi County District Court
File No. 34-CR-15-229

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Shane Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Halbrooks, Judge; and Schellhas,
Judge.

U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his felony and misd emeanor convictions of fleeing a peace
officer and his sentences. We affirm in part and vacate in part.

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FACTS
After dark on a March evening in 2015, O fficer Josh Helgeson investigated a car
that he observed stopped in the middle of th e road without its headlights or taillights
illuminated. The driver of the car responded to the officer’s approach by driving into and
accelerating through a parking lot and onto a nearby street. Officer Helgeson pursued the
car at a fast pace for approximately 30 seconds, at which point the car entered an open field
and stopped. The driver exited the car and ran, and Officer Helgeson pursued the driver on
foot. After Officer Helgeson gave the driver several verbal commands, the driver stopped,
and Officer Helgeson arrested him.
Officer Helgeson identified the driver as appellant Benyamin Israel. Respondent
State of Minnesota charged Israel with felony fleeing a peace officer by motor vehicle and
misdemeanor fleeing a peace officer by means other than a motor vehicle under Minn. Stat.
§ 609.487, subds. 3, 6 (2014), and misdemeanor driving with a revoked license under Minn.
Stat. § 171.24, subd. 2 (2014).
Israel moved the district court to di smiss all charges on the bases that law
enforcement lacked reasonable articulable suspicion for a traffic stop and that the stop
violated his constitutional right to interstate travel. The district court denied the motion.
Israel then waived his right to a jury trial and submitted the case to the court under Minn.
R. Crim. P. 26.01, subd. 4. Th e district court found Israel guilty and convicted him of all
three counts.
This appeal follows.

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D E C I S I O N
On appeal, Israel challenges his felony conviction of fleeing a peace officer by
motor vehicle, his misdemeanor conviction of fleeing a peace officer by means other than
a motor vehicle, and his sentences.
I.
Israel states in his brief that “[t]he [district] court denied [his] motion to suppress,
ruling that the police stop of [him] did not violate [his] constitutionally guaranteed right to
travel.” (Emphasis added.) He also states th at “this Court may independently review the
facts and determine whether, as a matter of law, the district court erred in suppressing or
not suppressing the evidence.” (Emphasis added.) But the record does not reflect that Israel
moved the district court to suppress evidence. And in its order, the district court noted that
Israel argued that “all char ges should be dismissed becau se law enforcement lacked
reasonable articulable suspicion for a tr affic stop and because his constitutionally
guaranteed right to travel was violated.” On appeal, Israel does not challenge the district
court’s determination that the officer who stopped his vehicle had a reasonable, articulable
suspicion to stop him. We therefore addre ss whether the statutes underlying Israel’s
convictions violated his constitutional right to travel.
“A person may be charged with a crim e only where there is probable cause to
believe that the person is guilty—that is, wher e facts have been submitted to the district
court showing a reasonable probability th at the person committed the crime.” State v.
Lopez, 778 N.W.2d 700, 703 (Minn. 2010) (citing Minn. R. Crim. P. 2.01). Appellate courts

4
review a district court’s factual findings in a probable-cause determination for clear error
and the district court’s application of the legal standard of probable cause de novo. Id.
Minnesota law requires that motor-vehicle headlights be visible from sunset to
sunrise and that a motor vehicle driven have a red tail lamp visible from at least 500 feet
away. Minn. Stat. §§ 169.48, subd. 1(1), .50, subd. 1(a) (2014). Israel argues that the district
court erred by concluding that the Minnesota statutes that required him to use lights while
driving at night did not violate his right to interstate travel and denying his dismissal
motion. We disagree.
“The constitutionality of a statute is a question of law, whic h [appellate courts]
review de novo.” Schatz v. Interf aith Care Cntr. , 811 N.W.2d 643, 653 (Minn. 2012).
Appellate courts “presume that Minnesota st atutes are constitutional and will only strike
down statutes as unconstitutiona l when absolute ly necessary.” Id. at 653–54. “The party
challenging the constitutionality of a statute, therefore, must demonstrate that the statute is
unconstitutional beyond a reasonable doubt.” Id. at 654.
“The right to interstate travel is a fundamental right recognized by the United States
Constitution.” Id. In analyzing right-to-interstate-tra vel issues, appellate courts “ask
whether the right to travel has been so burdened by the challenged statute that the statute’s
classification requires strict scrutiny rather than minimal rational basis analysis because, in
reality, right to travel analysis refers to littl e more than a particular application of equal
protection analysis.” Id. (quotations omitted). “The right to interstate travel is burdened
when a statute actually deters such travel, when impeding travel is its primary objective,

5
or when it uses any classification which serves to penalize the exercise of that right.” Id.
(quotation omitted) (emphasis in original).
“But a statute does not burd en the right to interstate travel unless it affects a
component of the right.” Id. The right to travel has at least three different components:
(1) the right of a citizen of one state to enter and to leave
another state, (2) the right to be treated as a welcome visitor
rather than an unfriendly alien when temporarily present in the
second state, and, (3) for thos e travelers who elect to become
permanent residents, the right to be treated like other citizens
of that State.

Id. (quotation omitted) (emphasis in original).
“The first component, the right to move from state to state, is affected only when a
statute directly impairs the exercise of the right to free interstate movement by imposing
some obstacle on travelers.” Id. Israel does not explain how the subject statutes in this case
impose an obstacle on interstate travelers.
“The second component of the right to travel, the right to be temporarily present in
a second state, is protected by the Privileges and Immunities Clause of the United States
Constitution.” Id. (citing U.S. Const. art. IV, § 2, cl. 1). “This right prevents a state from
discriminating against temporar y visitors where there is no substantial reason for the
discrimination beyond the mere fact that they are citizens of other States.” Id. (quotation
omitted). The statutes at issue in this case do not discriminate against temporary visitors
merely because they are citiz ens of other states and ther efore do not impact the second
component of the right to interstate travel.

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“The third component of the right to interstate travel—t he right to be treated like
other citizens of the second state—is protected by the Equal Protection Clause of the United
States Constitution.” Id. at 654−55 (citing U.S. Const. amend. XIV, § 1).
[T]he third component of the interstate travel right protects the
right of a citizen of one state to become a citizen of a second
state. This right is affected when the new state places some
burden on citizens of other states who move to the new state to
become permanent residents.

Id. (citing Mitchell v. Steffen , 504 N.W.2d 198, 199, 203 (M inn. 1993) (holding that a
Minnesota statute that reduced general-assistance benefits to indigents who had not resided
in Minnesota for at least six months was unconstitutional)). Like in Schatz, “[b]ecause [the
statutes at issue in this cas e], do[] not place any burden on a citizen of another state who
moves to Minnesota, it follows that the statute[s] do[] not affect the third component of the
right to interstate travel.” Id.
Here, Israel acknowledges, “Minnesota courts have repeatedly upheld the
provisions of the motor-vehicle code as constitutional.” And he fails to identify how
requirements for headlights and taillights violate his right to travel. We conclude that Israel
has failed to demonstrate that Minn. Stat. §§ 169.48, subd. 1(1), .50, subd. 1(a), are
unconstitutional beyond a reasonable doubt because they burden his constitutional right to
interstate travel. We therefore affirm the district court’s denial of Israel’s motion to dismiss
for lack of probable cause.
II.
Israel argues that the district court erred by convicting and sentencing him for both
the felony and misdemeanor flee ing offenses. Although Israel did not raise the issue in

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district court, we do not deem the issue waived. See Spann v. State, 740 N.W.2d 570, 573
(Minn. 2007) (“[A]n appellant does not waive claims of multiple convictions or sentences
by failing to raise the issue at the time of sentencing.”).
“A conviction is defined as either a plea of guilty or a verdict or finding of guilt that
is accepted and recorded by the court.” Id. (quotation omitted). “A guilty verdict alone is
not a conviction.” Id. “Upon prosecution for a crime, the actor may be convicted of either
the crime charged or an included offense, but not both.” Minn. St at. § 609.04, subd. 1
(2014). An “included offense” is “[a] crime necessarily proved if the crime charged were
proved.” Id. “To determine whether an offense is an included offense falling under [section
609.04], a court examines the elements of the offense.” State v. Bertsch, 707 N.W.2d 660,
664 (Minn. 2006).
The elements of fleeing by motor vehicle are: (1) fleeing or attempting to flee, (2) by
motor vehicle, (3) a peace officer acting in his or her lawful di scharge of an official duty,
(4) when the offender knows or should reasonably know the same is a peace officer. Minn.
Stat. § 609.487, subd. 3. The elements of fleeing a peace officer by other means are:
(1) fleeing or attempting to flee, (2) by any means except by motor vehicle, (3) a peace
officer acting in his or her lawful discharge of an official duty, (4) for the purpose of
avoiding arrest, detention, or investigation, or to conceal or destroy potential evidence
related to the commission of a crime. Id., subd. 6.
Because each offense requires proof of an el ement that the other does not, neither
offense necessarily is proved when the other is proved. Fleeing by means other than a motor
vehicle therefore is not a lesser-included offense of fleeing by motor vehicle. See State v.

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Mitchell, 881 N.W.2d 558, 562 (Minn. App. 2016) (c oncluding that first-degree burglary
(dangerous weapon) is not a lesser-included offense of first-degree burglary (assault)
because each crime “requires proof of an element that the other does not”), review denied
(Minn. Aug. 23, 2016).
“But section 609.04 does more than preclu de conviction of both an offense and an
included offense.” Id. at 563. “[S]ection 609.04 bars multip le convictions under different
sections of a criminal statute for acts committed during a single behavioral incident.” State
v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985) (footnote omitted).
Single behavioral incident under Minn. Stat. § 609.035 (2014)
Contending that he committed the offenses of felony fleeing by motor vehicle and
misdemeanor fleeing by other means during a single behavioral incident, Israel argues that
the district court erred by convicting him of, and sentencing hi m for, both offenses.
“Subject to various exceptions, if a person’ s conduct constitutes mo re than one offense
under the laws of this state, the person may be punished for only one of the offenses.” State
v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016) (quo ting Minn. Stat. § 609.035, subd. 1
(2014)). “The State bears the burden of proving, by a preponderance of the evidence, that
a defendant’s offenses were not part of a single behavioral incident.” Id.
When deciding whether two or more offe nses occurred during a single behavioral
incident, appellate courts “review the district court’s findings of fact for clear error and its
application of the law to those facts de novo.” Id. Here, the prosecutor did not address at
sentencing whether Israel co mmitted the crimes during a si ngle behavioral incident, and
the district court made no finding on this issue.

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When “the crimes . . . contain an inte nt element, [appellate courts] determine
whether the crimes were part of a single behavioral incident by considering (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.” Id. (citation and quotation
marks omitted). Fleeing by motor vehicle is a specific-intent offense. State v. Johnson, 374
N.W.2d 285, 288 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985). Fleeing by
other means also is a specific-intent crime. State v. Wilson, 830 N.W.2d 849, 854 (Minn.
2013).
Here, without citation to supporting ca selaw, the state simply argues that
“[a]lthough the separation [of the fleeing crimes] in terms of time, place, and objective are
not substantial, they are enough to reasona bly support the district court’s imposition of
separate sentences for the two counts.” The st ate also argues that Israel “completed the
crime of fleeing in a motor vehi cle when he initially failed to stop and accelerated away
from Officer Helgeson,” and that he “complet ed the crime of fleeing on foot when he
separately elected to run from Officer Helgeson.” We disagree.
The record reflects that Israel committed his fleeing crimes in substantially the same
place—the streets and a field in Willmar, and th at his conduct was motivated by an effort
to obtain a single criminal objective—fleeing from law enforcement. See State v. Barnes,
618 N.W.2d 805, 813 (Minn. App. 2000) (“ [C]riminal conduct committed to avoid
apprehension for another offense is generally considered part of the same behavioral
incident.”), review denied (Minn. Jan. 16, 2001). We conclude that the state failed to meet

10
its burden of proving, by a prep onderance of the evidence, that Israel did not commit his
crimes as part of a single behavioral incident.
Exception under Minn. Stat. § 609.035, subd. 5
Because we have concluded that the state failed to prove that Israel did not commit
his fleeing crimes as a single behavioral incident, we must consider whether an exception
to section 609.035, su bdivision 1, applies. Mitchell, 881 N.W.2d at 563. The fleeing
exception in section 609.035 provides: “Notw ithstanding subdivision 1, a prosecution or
conviction for violating section 609.487 is not a bar to conviction of or punishment for any
other crime committed by the defendant as part of the same conduct.” Minn. Stat.
§ 609.035, subd. 5 (emphasis added).1
Israel argues that the fleeing exception in subdivision 5 does not justify multiple
convictions or sentences because both fleeing crimes are violations of section 609.487 and
therefore neither crime is “any other crime” for purposes of the exception. We agree.
In Mitchell, the defendant argued that secti on 609.035, subdivision 1, prohibited
multiple convictions and sentences for his cr imes of first-degree burglary (assault) and
first-degree burglary (dangerous weapon) because he committed the crimes during a single
behavioral incident and no exception applied. 881 N.W.2d at 563. The state argued that
notwithstanding Minn. Stat. § 609.035, subd. 1 ., the following language in the burglary
statute allowed multiple sentences: “a prosecution for or conviction of the crime of burglary
is not a bar to conviction of or punishment for any other crime.” Id. (quoting Minn. Stat.

1 The state does not address the exception contained in Minn. Stat. § 609.035, subd. 5.

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§ 609.585 (2002)) (emphasis added). This c ourt rejected the state’s argument and
concluded that “the only reasonable interpretation of ‘any other crime’ is a crime different
from burglary,” and we remanded for the court to vacate one of Mitchell’s convictions. Id.
at 564.
Here, we similarly conclude that the on ly reasonable interpretation of “any other
crime” in section 609.035, subdivision 5, is a crime different from fleeing under section
609.487. We conclude that the district c ourt erred by convicting Is rael of both fleeing
crimes and imposing sentences for both crim es. Minnesota law “c ontemplates that a
defendant will be punished for the most serious of the offenses arising out of a single
behavioral incident.” State v. Kebaso , 713 N.W.2d 317, 32 (Minn. 2006) (quotation
omitted). Israel’s felony fleeing- by-motor-vehicle crime is th e most serious offense. We
therefore affirm Israel’s conviction of, and sentence for, felony fleeing in a motor vehicle,
and we vacate his conviction of, and sentence for, misdemeanor fleeing by other means.
Affirmed in part and vacated in part.