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This opinion will be unpublished and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
A17-1873

State of Minnesota,
Respondent,

vs.

Timothy Alan Bergeron,
Appellant.

Filed September 17, 2018
Affirmed
Jesson, Judge

Polk County District Court
File No. 60-CR-17-204

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

Greg Widseth, Polk County Attor ney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Worke, Judg e; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
In the early hours of a January morning, a trooper noticed a car driving toward him
without its headlights turned on. The trooper initiated a traf fic stop, and soon discerned

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that the driver, appellant Timothy Alan Bergeron, was potentially intoxicated. A urine test
later confirmed Bergeron was under the influence of methampheta mine, and a search of
the car revealed a glass smoking device, which is commonly used to smoke
methamphetamine. Bergeron was charged with, and eventually convicted of, driving under
the influence and possession of m ethamphetamine. On appeal, Be rgeron argues that the
trooper lacked sufficient reasonable suspicion of criminal acti vity to initiate a traffic stop
because sunrise had already occurred and Bergeron was not required to have his headlights
on. Bergeron also argues the district court erred by sentencin g him for both the DWI and
possession offenses. We affirm.
FACTS
At 7:45 a.m., on January 28, 2017, a trooper was on routine pa trol in Polk County
when he noticed an oncoming car being driven without its headlights on. Because the dark-
colored car was difficult to see in the low light conditions, t he trooper initiated a traffic
stop. The trooper noticed two individuals in the car, appellant Timothy Alan Bergeron in
the driver’s seat, and a passenger.
Bergeron told the trooper that he was on his way back from a car-parts store, but the
trooper became suspicious because he knew the store was closed that early in the morning.
The trooper ran a check on Bergeron’s driver’s license, and it came back as canceled—
inimical to public safety. The trooper arrested Bergeron and learned that Bergeron was on
probation and subject to searches. The trooper searched the car and located a glass smoking
device, which is commonly used to smoke methamphetamine, in the center console. The

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passenger then informed the trooper that he and Bergeron recent ly smoked all of the
methamphetamine that they had.
The trooper transported Bergeron to a corrections center, wher e Bergeron consented
to a urine test. Bergeron provided a sample, which tested posi tive for amphetamine and
methamphetamine. Bergeron admitte d to using methamphetamine an d then driving. 1
Bergeron was charged with first degree DWI in violation of Minn esota Statutes section
169A.20, subdivision 1(7) (2016) , and fifth-degree possession i n violation of Minnesota
Statutes section 152.025, subdivision 2(1) (2016).2
Bergeron later filed a motion to suppress evidence on the grou nds that the trooper
lacked a reasonable articulable suspicion of criminal activity sufficient to conduct a traffic
stop. Bergeron argued that the law requires cars have their he adlights on before sunrise,
but sunrise had already occurred at the time of the traffic stop because it was bright outside.
The district court held a hearing regarding the motion to suppr ess where the trooper
testified that at 7:45 a.m. he saw a “dark-colored vehicle” that did not “have its lights on”
and that it “was very tough to see.” He further testified that the traffic stop took place in
“early morning, lower light conditions” and it “was cloudy, overcast.” Lastly, he testified
that the car did not have its headlights on, while all of the o ther vehicles did. In addition
to the trooper’s testimony, two exhibits were entered. The first exhibit was a United States

1 The passenger also provided a taped statement, which was consi stent with Bergeron’s
statement.
2 Bergeron was also charged with gross-misdemeanor driving after cancellation—inimical
to public safety in violation of Minnesota Statutes section 171 .24, subdivision 5 (2016).
However, this charge was later dismissed.

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Naval Observatory sunset table that stated the sun rose at 7:55 a.m. the day of the arrest,
ten minutes after the trooper initiated the traffic stop. The second exhibit was the dashcam
footage.
The district court denied the motion to suppress. The court determined that, based
on the sunset table, the traffi c stop occurred ten minutes befo re sunrise. The court also
stated there was a discrepancy between the trooper’s testimony that it was difficult to see
Bergeron’s vehicle, and the dashcam footage that the court found depicted “ample daylight
to see oncoming vehicles.” However, the court stated it was un sure whether the lighting
in the dashcam footage was an exact match of the actual conditions. The court determined
that, despite this discrepancy, there was reasonable suspicion for the traffic stop.
The case proceeded to a stipulated-facts trial, where the distr ict court determined
that Bergeron was guilty of the DWI and possession of methamphe tamine. The district
court sentenced Bergeron to 51 months for the DWI, and to a concurrent 12 months for the
possession of methamphetamine.
D E C I S I O N
On appeal, Bergeron argues that t he district court erred when i t determined the
trooper had reasonable suspicion to initiate a traffic stop bas ed on a lack of headlights.
Alternatively, Bergeron contends that if the convictions stand, then the district court erred
by sentencing him for both the DWI and the possession of methamphetamine. We address
each argument in turn.

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I. The trooper had sufficient rea sonable suspicion of criminal activity to
initiate a traffic stop.

Bergeron contends that the lack of headlights did not provide s ufficient reasonable
suspicion of criminal activity to initiate a traffic stop because there was ample light. This
court reviews the legal conclusions of suppression rulings de novo and the district court’s
factual findings for clear error. State v. McCabe, 890 N.W.2d 173, 175 (Minn. App. 2017),
review denied (Minn. Apr. 26, 2017).
“Both the U.S. and Minnesota Constitutions protect the right of the people to be
secure in their persons, houses, papers, and effects by forbidd ing unreasonable searches
and seizures.” State v. Liebl, 886 N.W.2d 512, 515 (Minn. App. 2016) (quotation omitted).
Law enforcement is permitted to conduct a limited investigatory stop of motor vehicles if
the officer “has an objectively reasonable and articulable basis for suspecting the motorist
of criminal activity.” State v. Kilmer, 741 N.W.2d 607, 609 (Minn. App. 2007). Traffic
violations, even insignificant ones, can provide that basis for a legal stop. Id.
The traffic violation at issue here is driving without headligh ts before sunrise.
Minnesota requires drivers to turn on their headlights in several situations: from “sunset to
sunrise;” when it is raining or snowing; or at any time when co nditions impair visibility.
Minn. Stat. § 169.48, subd. 1(a) (2016). This court has previo usly determined that
testimony from a trooper, in conjunction with other evidence, i s sufficient grounds for a
district court to find that the event requiring headlights occurred. See, e.g., McCabe, 890
N.W.2d at 174, 176 (determining that an officer’s testimony that it was raining outside, in

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conjunction with dashcam footage depicting rain, was sufficient to support the district
court’s finding that it was raining outside).
Here, multiple facts in the record support the district court’s finding that sunrise had
not yet occurred. First, the trooper testified the traffic stop took place in the early morning,
and there were “lower light conditions.” Second, the sunset table establishes that the traffic
stop occurred before sunrise. Based on the district court’s fi nding that sunrise occurred
after the traffic stop, Bergeron violated the statute, which pr o v i d e d t h e t r o o p e r w i t h a
reasonable suspicion of criminal activity.
Bergeron argues that the district court’s finding that sunrise occurred after the traffic
stop was erroneous in light of the court’s finding that the dashcam footage appears to show
“ample daylight to see oncoming vehicles” and contradicted the trooper’s testimony. We
disagree. The trooper’s testimony, in conjunction with the tab le, is sufficient to support
the district court’s finding of fact that the traffic stop occurred before sunrise occurred. See
McCabe, 890 N.W.2d at 174, 176. The district court noted there was a discrepancy with
the video, but where there is evidence to support the district court’s conclusion—as there
is here—one piece of evidence to the contrary does not render t he district court’s finding
clearly erroneous.3

3 Bergeron also argues that the district court correctly noted t hat there was a discrepancy
between the trooper’s testimony and the dashcam footage, but re ached an incorrect legal
conclusion by erroneously relying on an unpublished decision from this court. We are not
persuaded. A close reading of th e district court’s order shows that the court did not rely
on the unpublished case, but ins tead cited to it to highlight t hat the trooper here did not
make a mistake of fact.

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While there are multiple paths the district court could have ta ken to determine
whether sunrise had yet occurred—either by looking at the techn ical point the sunrise
occurred based on a table, or merely by looking at the amount o f light outside—the path
the district court took was reasonable and supported by the rec ord. The district court
therefore did not err in determi ning there was sufficient reaso nable suspicion of criminal
activity to initiate the traffic stop.
II. The district court correctly sentenced Bergeron for both th e DWI and
the possession of methamphetamine.

Bergeron contends that the district court erred by sentencing him for both the DWI
and possession of methamphetamine because they were part of a single behavioral incident.
When the facts are not in dispute, as is the case here, this court reviews de novo “whether
multiple offenses form part of a single behavioral act.” State v. McCauley, 820 N.W.2d
577, 591 (Minn. App. 2012), review denied (Minn. Oct. 24, 2012).
In analyzing whether multiple offenses arise from a single behavioral incident, the
Minnesota Supreme Court has put forth two separate tests depend ing on whether any of
the crimes have an intent element. State v. Bauer, 792 N.W.2d 825, 827-28 (Minn. 2011).
Here, the parties do not agree on which test to use. While the parties agree that possession
is an intentional crime, the state argues DWI is not an intentional crime for purposes of this
analysis. Bergeron disputes thi s, arguing that both possession and DWI are intentional
crimes.
We agree with the state. In State v. Clement, the Minnesota Supreme Court stated
a DWI was a “nonintentional traffic offense.” 277 N.W.2d 411, 412 (Minn. 1979). And

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in State v. Sailor , the Minnesota Supreme Court stated misdemeanor DWI is not an
intentional crime. 257 N.W.2d 349, 352 (Minn. 1977). Because one of the crimes here
does not contain an intentional component, the proper test is w h e t h e r t h e o f f e n s e s
“(1) occurred at substantially the same time and place and (2) arose from ‘a continuing and
uninterrupted course of conduct, manifesting an indivisible sta te of mind or coincident
errors of judgment.’” State v. Bauer, 776 N.W.2d 462, 478 (Minn. App. 2009) (citing State
v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991)), aff’d, 792 N.W.2d 825 (Minn. 2011).
In application of this test, both factors weigh in favor of con cluding that the
possession and DWI offenses were not part of the same behaviora l incident. For the first
prong, timing and place, the record suggests the offenses occur red at different times. In
his taped statement to the troop er, Bergeron stated that he smo ked methamphetamine the
night before in his car and had unsuccessfully attempted to buy more just before his arrest.
The possession offense, therefore , occurred the night before th e arrest, while the DWI
occurred in the morning. See State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016) (stating
a possession crime, while continuous, “is complete when the offender takes possession of
the prohibited item”). For the second prong, whether the offenses arose from a continuous
course of conduct manifesting an indivisible state of mind, the offenses were sufficiently
distinct. The possession offense occurred the night before, an d the record suggests the
purpose was to personally use the methamphetamine. See State v. Zimmerman , 352
N.W.2d 452, 454 (Minn. App. 1984) (stating in the absence of other facts, the objective of
possession is the “personal use of mind-altering drugs”). The DWI occurred the following

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morning and was the result of Bergeron wanting to buy more meth amphetamine. As a
result, these two offenses did not occur as part of a continuous course of conduct.
The parties cite to two unpublis hed opinions from this court wh ere we reached
different conclusions on whether possession and DWI were part o f the same behavioral
incident. But different outcomes in different cases can be expected as this analysis is, after
all, “not a mechanical test, but involves an examination of all the facts and circumstances.”
State v. Soto, 562 N.W.2d 299, 304 (Minn. 199 7). And different cases contai n different
facts. Here Bergeron’s own testimony revealed that he possesse d the methamphetamine
the night before the DWI, and the purpose of him driving the fo llowing morning—while
still under the influence—was to obtain more methamphetamine. Because these two
crimes were distinct from one another, the district court did not err in sentencing Bergeron
for both offenses.4
Affirmed.

4 Bergeron cites to caselaw where the Minnesota Supreme Court determined that DWI and
open-bottle violations are the same behavioral incident. See State v. Tildahl, 540 N.W.2d
514, 515 (Minn. 1995); City of Moorhead v. Miller , 295 N.W.2d 548, 550 (Minn. 1980).
However, this line of caselaw is distinguishable from possession offenses, as an open-bottle
violation is inherently tied to the driving violation—both offenses can only occur in a car.