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This opinion will be unpublished and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
A18-0125

State of Minnesota,
Respondent,

vs.

Gilbert Lee Rodriquez,
Appellant.

Filed September 17, 2018
Reversed and remanded
Worke, Judge

Beltrami County District Court
File Nos. 04-CR-17-2721, 04-CR-16-3811

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

David L. Hanson, Beltrami County Attorney, David P. Frank, Assistant County Attorney,
Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chie f Appellate Public Defender, St. Paul, Minnesota (for
appellant)

Considered and decided by Jesson, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court erred in imposing sentences for both
domestic assault and violation of a domestic-abuse no-contact order (DANCO) because the

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offenses were part of a single behavioral incident. We agree, and reverse and remand for
resentencing.
FACTS
On August 16, 2017, A.L. reported to police that appellant Gilbert Lee Rodriq uez,
her former domestic partner and father of her child, entered her apartment and assaulted
her. A.L. told police that Rodriquez “attacked her without provocation and struck her
multiple times in the face with a heavy backpack.” Police observed that A.L. had
significant facial injuries. At the time of the assault, a DANCO was in effect with respect
to Rodriquez and A.L.
Rodriquez was charged with one felony count of a DANCO violation and one felony
count of domestic assault. Rodriq uez pleaded guilty to both counts. Rodriquez admitted
that he reviewed the complaint and that it was “essentially true and correct.” He admitted
that he had contact with A.L. on August 16 and that they had an argument. Rodriquez
admitted that after the argument, he intentionally struck A.L. in her face with his bag.
At the sentencing hearing, Rodriquez argued that because the DANCO violation and
domestic assault arose out of the same behavioral incident, the district court could impose
sentence on only one count. Th e district c ourt rejected Rodriq uez’s argument and
sentenced him to 18 months in prison for the DANCO violation and 21 month s in prison
for domestic assault, with both sentences stayed for five years. This appeal followed.
D E C I S I O N
Rodriquez argues that the di strict court erroneously concluded that the domestic -
assault and DANCO -violation offenses were not part of the same behavioral incident.

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“Whether [multiple] offenses were part of a single behavioral incident is a mixed question
of law and fact, so [appellate courts] review the district court’ 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). “A factual determination is clearly erroneous if it is unsupported
by the record.” State v. Heath , 685 N.W.2d 48, 61 (Minn. App. 2004), review denied
(Minn. Nov. 16, 2004).
Under Minnesota law, “if a person’s conduct constitutes more than one offense[,]
. . . the person may be punished for only one of the offenses. ” Minn. Stat . § 609.035,
subd. 1 (2016). Whether multiple offenses were part of a single behavioral incident
depends on the facts and circumstances of each case. State v. Jones, 848 N.W.2d 528, 533
(Minn. 2014). “Offenses are part of a single course of conduct if t he offenses occurred at
substantially the same time and place and were motivated by a single criminal objective.”
Id. The state bears the burden of establishing by a preponderance of the evidence that the
conduct underlying the offenses “did not occur as part of a single behavioral incident.”
State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).
Here, the district court determined that the DANCO-violation and domestic-assault
offenses took place at substantially the same time. The complaint alleged that Rodriquez
entered A.L.’s apartment and assaulted her. At the plea hearing, Rodriquez admitted that
after he argued with A.L., he struck her. The district court’s determination that the two
offenses took place at substantially the same time is consistent with the record.

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The district court concluded, however, that the two offenses were not motivated by
a single criminal objective. Rodriquez argues that this conclusion is not supported by the
record and is inconsistent with Minnesota caselaw.
In State v. Rivers , the defendant was convicted of burglary, domestic assault,
violation of an order for protection (OFP), assault, and child -endangerment domestic
assault. 787 N.W.2d 206, 208-09 (Minn. App. 2010), review denied (Minn. Oct. 19, 2010).
Rivers argued that the district court erred in sentencing him for both violating the OFP as
well as assault. Id. at 213. This court agreed, noting that a determination of whether two
offenses arose out a single behavioral incident depends upon “whether the segment of
conduct involved was motivated by an effort to obtain a single criminal objective.” Id.
(quotation omitted). This court concluded that “violation of the [OFP] was the means by
which Rivers was able to assault [the victim].” Id. Therefore, both offenses occurred “as
part of a continuous and uninterrupted course of conduct involving one victim.” Id.
Here, the record demonstrates that Rodriq uez entered A.L.’s apartment and
assaulted her. It appears that the DANCO violati on was the means by which Rod riquez
was able to assault A.L. The state attempts to distinguish Rivers by arguing that “[u]nlike
the defendant in Rivers, who arrived at the victim’s residence for the sole purpose of
assaulting the victim, the record in th is case establishes that [Rodriquez] went to A.L.’s
apartment simply to meet with her in violation of the DANCO.” But Rivers does not clearly
articulate that the defendant arrived at the residence for the sole purpose of assaulting the
victim. Rather, that opinion states that af ter a hearing on the victim’s petition to make a
temporary order for protection permanent, “[the defendant] entered [the victim]’s

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apartment uninvited and assaulted her while she was holding their one-year-old daughter.”
Id. at 208.
Furthermore, the reco rd here does not support t he state’s assertion that Rodriq uez
went to A.L.’s apartment simply to meet with her. Instead, the complaint asserted that
Rodriquez “walked into [A.L.’s] apartment and assaulted her.” The complaint contains no
representation as to why Rodriquez went to A.L.’s apartment. Similarly, during the plea
colloquy, Rodriquez admitted that he violated the DANCO and struck A.L., but he did not
address why he went to her apartment. Rodriquez admitted only that he contacted A.L.,
they argued, and he struck her.
The record does not contain any facts suggesting that the DANCO violation was not
the means by which Rodriquez assaulted A.L. Therefore, because the state bore the burden
of proof to demonstrate that the two crimes were not part of a single behavioral incident,
we conclude that the district court clearly erred by sentencing Rodriquez on both counts.
We reverse and remand to the district court with instructions to v acate the less serious of
Rodriquez’s sentences. See State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006) (stating
that “an appellate court vacating a sentence . . . pursuant to section 609.035 should look to
the length of the sentences actually imposed . . . to ascertain which offense is the most
serious, leaving the longest sentence in place”).
Reversed and remanded.