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This opinion will be unpublished and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
A17-1373

State of Minnesota,
Respondent,

vs.

Paulette Martinique Rogers,
Appellant.

Filed August 6, 2018
Reversed and remanded
Florey, Judge

Hennepin County District Court
File No. 27-CR-16-16581

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Peterson, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant was convicted of both check forgery and offering a forged check. In this
direct appeal, she asserts that Minn. Stat. § 609.04 (2014) bars one of the convictions.

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Because both convictions arose u nder different sections of the same criminal statute, and
both convictions are based on acts committed during a single behavioral incident, we agree
that section 609.04 bars one of the convictions. We therefore reverse and remand.
FACTS
In November 2015, appellant Paulette Martinique Rogers entered a bank and
attempted to cash a $3,200 check payable to appellant and drawn on the account of M.A.
Appellant had worked for M.A. as a personal-care attendant, taken a check from his house,
and filled in and signed the check in M.A.’s name without his permission.
Appellant was charged with both check fo rgery and offering a forged check with
intent to defraud. In April 2017, she pleaded guilty to both counts. In June 2017, the
district court entered judgment of convictio n for both counts an d stayed imposition of
sentence for both counts. This appeal followed.
D E C I S I O N
Appellant asserts that she should not have been convicted of and sentenced for both
check forgery and offering a forged check. She argues that Minn. Stat. § 609.04 allows for
only one of the convictions b ecause the convictions are based upon a single behavioral
incident and arise under different subdi visions of the same criminal statute. 1 The state

1 Although appellant pleaded guilty to the charges and did not raise her multiple-conviction
argument before the district court, the parties agree that appellant did not forfeit the
argument, and it is properl y before this court. See Spann v. State , 740 N.W.2d 570, 573
(Minn. 2007) (stating that “an appellant does not waive claims of multiple convictions or
sentences by failing to raise the issue at the time of sentencing”); see also Minn. R. Crim.
P. 27.03, subd. 9 (stating that unauthorized sentences may be corrected at any time).

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concedes as much and does not oppose appellant ’s request that one of the convictions be
vacated.
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offens e, but not both.” Minn. Stat . § 609.04, subd. 1. Section
609.04 has been interpreted to bar “multiple convictions u nder 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).
Appellant was convicted of falsely making or altering a check “so that it purports to
have been made by another or by the maker un der an assumed or fictitious name, or at
another time, or with different provisions, or by the authority of one who did not give
authority.” Minn. Stat. § 609. 631, subd. 2(1) (2014). Appe llant was also convicted of
offering, or possessing with intent to offer, a forged check, with intent to defraud. Minn.
Stat. § 609.631, subd. 3 (2014). Both crimes arise under the same criminal statute. See
Jackson, 363 N.W.2d at 760-61 n.1 (reversing so that a conviction could be vacated where
defendant was charged with both forgery and uttering a forged instrument, and both crimes
arose under different subdivisions of the same statute).
Determining whether two intentional crimes are part of a single behavioral incident
requires consideration of the time and place of the crimes and whether the criminal conduct
was motivated by a single criminal objective. State v. Bauer, 792 N.W.2d 825, 828 (Minn.
2011). The state has the burden of proving that crimes were not part of a single behavioral
incident. State v. Zuehlke, 320 N.W.2d 79, 82 (Minn. 1982). The state concedes that the

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crimes were part of a single behavioral incident. The crimes were committed at the same
time and place, and involved the same check and criminal objective.
Because section 609.04 bars appellant’s multiple convictions, we reverse and
remand for the district court to vacate one of appellant’s convictions and sentences.
Reversed and remanded.