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This opinion will be unpublished and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
A18-0228

State of Minnesota,
Respondent,

vs.

Samantha Dione Zornes,
Appellant.

Filed November 5, 2018
Affirmed
Worke, Judge

Beltrami County District Court
File Nos. 04-CR-17-1774, 04-CR-16-1327, 04-CR-17-1142

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, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.

2
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 by imposing sentences for fifth-degree
controlled-substance crime and driving while impaired (DWI) because the offenses were
part of a single behavioral incident. We affirm.
FACTS
On June 20, 2017, Deputy Nohre stopped appellant Samantha Dione Zornes for
driving through a closed area in a construction zone. After making contact, Deputy Nohre
observed that Zornes’s pupils were constricted and not reacting to light. When Deputy
Nohre learned that Zornes had an ou tstanding warrant, he informed her that he w ould be
taking her into cust ody. Zornes exited the vehicle, and Deputy Nohre observed a spoon
containing a white residue and a small piece of cotton on the floor of the driver’s side of
the vehicle. Based on hi s training and exper ience, the deputy believed that Zornes was
using heroin. Deputy Nohre and other officers searched the vehicle and found Suboxone,
a Schedule II controlled substance, and a sma ll bindle of suspected heroin. After failing
field sobriety tests, Zornes was also arrested for DWI.
Zornes pleaded guilty to fifth -degree controlled -substance crime —possession of
Suboxone and fourth-degree DWI. Zornes stated that she used Suboxone and heroin the
“morning before” her arrest and believed that at least one of the controlled substances was
still in her bloodstream when she was driving. The district court sentenced Zornes to a stay
of imposition for the felony fifth -degree controlled -substance-crime conviction and 90
days in jail for the DWI conviction. This appeal followed.

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D E C I S I O N
Zornes argues that the district court erred by imposing sentences for both her
Suboxone-possession and DWI convictions because the offenses occurred during the same
behavioral incident. When the facts are not in dispute, as is the case here, we review de
novo “whether multiple offenses form part of a single behavioral act.” State v. McCauley,
820 N.W.2d 577, 591 (Minn. App. 2012) (quotation omitted), review denied (Minn. Oct.
24, 2012).
“[I]f 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). For the
purpose of determining whether the offenses are part of a single behavio ral incident, the
parties agree that fifth-degree controlled-substance possession is an intentional crime and
DWI is a nonintentional crime. See State v. Bauer, 792 N.W.2d 825, 827-28 (Minn. 2011)
(stating that an analysis of whether offenses arise from a single behavioral incident depends
first on whether any of the crimes have an intent element); State v. Clement, 277 N.W.2d
411, 412-13 (Minn. 1979) (stating that DWI is a nonintentional crime for purposes of Minn.
Stat. § 609.035); State v. Ali, 775 N.W.2d 914, 918 (Minn. App. 2009) (stating that fifth -
degree controlled-substance crime is treated as an intentional crime), review denied (Minn.
Feb. 16, 2010). When the offenses include intentional and nonintentional crimes, this court
looks at whether the offenses “(1) occurred at substantially the same tim e and place and
(2) arose from a continuing and uninterrupted course of conduct, manifesting an indivisible
state of mind or coincident errors of judgment.” State v. Bauer , 776 N. W.2d 462, 478
(Minn. App. 2009) (quotation omitted), aff’d, 792 N.W.2d 825.

4
Zornes contends that the offenses occurred at substantially the same time and place
because both occurred on June 20, 2017, in her car. Zornes also contends that her actions
to “possess, use, and drive under the influence of Suboxone were part of a continuous
course of conduct.” She argues that the state failed to present evidence that the offenses
arose from distinct behavioral incidents . See State v. Williams , 608 N.W.2d 837, 841 -42
(Minn. 2000) (stating that the state has the burden of establishing by a preponderance of
the evidence that offenses did not occur as part of a single behavioral incident).
Zornes relies on State v. Guscette, in which this court determined that a district court
erred by imposing sentences for both fifth -degree possession of methamphetamine and
DWI. See No. A13-2402, 2015 WL 506363, at *6-7 (Minn. App. Feb. 9, 2015), review
denied (Minn. Apr. 14, 2015). 1 In that case, when an officer made contact with Guscette
after finding her asleep in the driver’s seat of a vehicle, he believed that she was exhibiting
signs of intoxication. Id., at *1. After Guscette failed a field sobriety test, officers searched
her purse and found a clear glass pipe with a white substance on the inside, which tested
positive for methamphetamine. Id., at *1 -2. Guscette was convicted of fifth -degree
controlled-substance crime and DWI, and the district court impose d sentences for bo th
offenses. Id., at *2. This court concluded that the state failed to present evidence regarding
where Guscette first took possession of the pipe; thus, there was no evidence to support a
finding that the offenses were committed at different ti mes. Id., at *7. This court stated
that the facts of the case were similar to a case in which the defendant was convicted of

1 Guscette, an unpublished opinion, is not binding authority. See Minn. Stat. § 480A.08,
subd. 3(c) (2016) (“Unpublished opinions of the Court of Appeals are not precedential.”).

5
DWI and an open-bottle violation and the supreme court stated that the two offenses were
part of the same behavioral incident. Id.; see City of Moorhead v. Miller, 295 N.W.2d 548
(Minn. 1980).
Guscette does not support Zornes’s argument that her offenses are part o f a single
behavioral incident. While there was no evidence in Guscette regarding where Guscette
took possession of the pi pe, here, Zornes stated that she used heroin and Suboxone the
“morning before,” and believed that at least one of the controlled substances was still in
her bloodstream when she was stopped for driving in the restricted area. The record shows
that Zornes had possession of the Suboxone before she was driving under the influence,
indicating that the two offenses did not occur at substantially the same time and place. And
even if the possession of Suboxone occurred at substantially the same time and place as
the DWI, there was not a continuing course of conduct because Zornes admitted to also
using heroin, which could have been the controlled substance in her bloodstream when she
was driving. The record indicates that the possession of Suboxone and the DWI w ere not
part of a single behavioral incident because Zornes was likely under the influence of
Suboxone and/or heroin when she was driving.
Zornes also relies on Miller, the case cited in Guscette, in which the supreme court
determined that a DWI and an open-bottle violation arose from the same behavioral
incident. See 295 N.W.2d at 550. But the combination of controlled-substance-possession
and DWI offenses is distinguishable from the combination of open -bottle and DWI
offenses because, while a controlled-substance-possession offense can occur independent
of a vehicle, an open-bottle crime can occur only in a vehicle.

6
The record shows that Zornes possessed the Suboxone at least a day before she
drove under the influence and used it the “morning before” the day she was arrested. Thus,
her decision to acquire the Suboxone and her decision to use it and heroin before driving
are two separate decisions that occurred at different times and manifest distinct errors in
judgment. Further, Zornes’s possession of Suboxone was illegal the moment she acquired
it, not when she was later stopped by police while driving impaired by it. Thus, again, the
criminal acts occurred at different times and manifested distinct errors in judgment.
Finally, the two offenses did not occur in a continuous course of conduct because Zornes
used the controlled substances the day before her arrest for personal use and she committed
the DWI offense the following night and was driving for reasons unconnected to the drug
possession. The police reports, which Zornes reviewed and agreed were “essentially true
and correct,” indicated that Zornes was driving “to help” one of the vehicle’s occupants
who had been “dealing with a lot of things .” The other occupa nts denied knowledge of
any illegal drug use in the vehicle. Because there is evidence that the offenses did not
occur at the same time and place and did not arise from a continuing and u ninterrupted
course of conduct, the district court did not err by imposing two sentences.
Affirmed.