State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0926

State of Minnesota,
Respondent,

vs.

Marlow Vincent Labatte, Jr.,
Appellant.

Filed April 15, 2019
Affirmed
Smith, Tracy M., Judge

Yellow Medicine County District Court
File No. 87-CR-17-263

Keith Ellison, Attorney General, Mi chael Everson, Assistant Att orney General, St. Paul,
Minnesota; and

Keith R. Helgeson, Yellow Medici n e C o u n t y A t t o r n e y , G r a n i t e F a lls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbr ooks, Presiding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Following a bench trial, appellant Marlow Labatte Jr. was conv icted of two counts
of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) and

2
(e)(i) (2016). In this direct appeal, Labatte contends that the district court abused its
discretion by permitting a pretrial amendment of the complaint and by allowing the state
to impeach him with seven prior felony convictions, and that th e district court erred by
convicting him based on conduct not specifically alleged in the complaint and by imposing
consecutive sentences. We affirm.
FACTS
Labatte and M.R. began dating around August 2016, and, shortly thereafter, Labatte
moved into M.R.’s house in Granite Falls with her and her two y oung children. Not long
after their relationship began, L abatte became abusive toward M .R., hitting her once late
in 2016, then beating her and breaking one of her ribs in February 2017. His physical abuse
escalated. In March 2017, while arguing with M.R. over the titl e to a car, he choked her,
lifting her off the floor by the neck and asking her repeatedly if she wanted to die.
Labatte’s violence peaked in late May and early June 2017. On May 25, Labatte hit
M.R. in the back of the head with a plastic insulated cup, caus ing a deep gash that would
eventually require two staples to close. M.R. did not seek medi cal attention at the time of
the injury because Labatte threatened to kill her and himself if she did. Several days later,
Labatte beat M.R. into unconsciousness. In the course of the be ating, Labatte re-opened
M.R.’s head wound, caused a cataract in her right eye, broke her jaw, broke one of her ribs,
and caused extensive bruising ov er much of her body. M.R. remai ned unconscious until
the following day.
When M.R. awoke, Labatte forced her and her two young children to leave their
home and check into a local hotel in an attempt to keep anyone from discovering the extent

3
of her injuries. They checked into the hotel on June 1, 2017. L abatte occasionally joined
them there over the following days.
On June 3, Labatte called M.R. and instructed her to drive into town and pick him
up, threatening to beat her if she didn’t. M.R. gathered her ch ildren and drove into town
and picked him up. Eventually, Labatte directed M.R. to drive t hem to a secluded area on
Dike Road near a gravel pit. At the gravel pit, Labatte directe d M.R. to get out of the car
and walk with him toward the pit, leaving the children in the car. He threatened to kill her
with a rock from the pit and broke her phone. He demanded oral sex, and, when M.R. told
him she could not open her mouth, he forcibly orally penetrated her. Labatte stopped when
a truck drove by. They got back in the car and stopped at a par k, where M.R.’s children
played and Labatte continued demanding oral sex. They eventuall y left the park and
returned to the hotel.
At the hotel, Labatte threatened M.R. with a small pocket knife because he believed
that she had taken a screw out of the plate holding the safety chain to the hotel door. After
telling her to turn on cartoons for her children, Labatte told M.R. that he intended to “hate-
f-ck” her. Then, despite her verbal refusal and attempts to res ist him, Labatte penetrated
M.R. both anally and vaginally. Labatte left the hotel room, and M.R. went to her cousin’s
house and then to the emergency room, where she received medica l care and reported the
physical and sexual assaults.
Labatte was arrested and charged in two different complaints. O ne alleged several
physical assaults against M.R. The other, at issue here, charge d two counts of sexual

4
assault.1 Count one was for first-degree criminal sexual conduct—penetra tion/fear of
imminent great bodily harm, in violation of Minn. Stat. § 609.3 42, subd. 1(c), and count
two was for third-degree criminal sexual conduct—penetration/fo rce or coercion, in
violation of Minn. Stat. § 609.3 44, subd. 1(c) (2016). The stat ement of probable cause
generally described the events at Dike Road, including Labatte’s demand for oral sex and
M.R.’s statement that she was unable to comply because of the pain from her broken jaw.
However, the statement of probable cause did not mention penetration at Dike Road. The
statement of probable cause also described the sexual assault a t the hotel, including
penetration. Two weeks before trial, the state amended the complaint, adding a third count
of sexual assault. Count three alleged first-degree criminal se xual conduct—
penetration/injury/use of force or coercion, in violation of Mi nn. Stat. § 609.342,
subd. 2(a). The statement of probable cause remained unchanged.
At trial, M.R. testified to forci ble penetration at Dike Road a nd at the hotel. The
district court made conclusions of law with respect to all thre e counts based on both
assaults. It concluded that the state had proved all three counts beyond a reasonable doubt
based on the Dike Road assault. It concluded that the state had also proved counts two and
three based on the assault at the hotel, but that the hotel assault did not satisfy all elements
of count one.2

1 The charges were separated into two complaints because the phy sical assaults occurred
in Chippewa County while the sexual assaults occurred in Yellow Medicine County.

2 Specifically, the district court concluded that M.R. reasonabl y feared great bodily harm
during that assault, but that her fear was not of imminent great bodily harm.

5
The district court entered a conviction on count one, based on the Dike Road sexual
assault, and sentenced Labatte to 360 months’ imprisonment, plu s ten years conditional
release. The district court also entered a conviction on count three, based on the hotel sexual
assault. In deciding whether to impose a sentence for count thr ee, the district court found
that there was both a break in time and a break in Labatte’s conduct between the assault at
Dike Road and the assault at the hotel and concluded that the two assaults were not part of
the same behavioral incident. The district court also concluded that consecutive sentencing
was appropriate because Labatte lacked remorse or empathy, had engaged in escalating
criminal behavior, and was a threat to public safety. The distr ict court sentenced Labatte
on count three to 172 months’ imprisonment, to be served consecutively to count one, plus
lifetime conditional release. Because count two was a lesser in cluded offense of count
three, the district court neither convicted nor sentenced Labatte on that count.
Labatte appeals.
D E C I S I O N
I. The district court did not abuse its discretion by permittin g the state to amend
the complaint before trial.
Labatte argues that the district court abused its discretion when it allowed the state
to amend the complaint two weeks before trial. He contends that Minn. R. Crim. P. 17.05
governed the amendment.
Under rule 17.05, a complaint may be amended at any time before a v e r d i c t o r
finding so long as “no additional or different offense is charg ed and if the defendant’s
substantial rights are not prejudiced.” But Minn. R. Crim. P. 17.05 applies to amendments

6
to a complaint only after trial has begun. State v. Alexander, 290 N.W.2d 745, 748 (Minn.
1980) (holding that rule 17.05 did not apply to an amendment af ter a mistrial and before
the start of a second trial); State v. Mickelson, 378 N.W.2d 17, 20 (Minn. App. 1985) (“The
supreme court has interpreted Rule 17.05 to apply only to motio ns to amend after t h e
commencement of trial.”), review denied (Minn. Jan. 23, 1986). When a complaint is
amended before trial, the releva nt standard is contained in Min n. R. Crim. P. 3.04.
Alexander, 290 N.W.2d at 748. Under that standard, the district court “is relatively free to
permit amendments,” even if the amendments charge additional of fenses, so long as the
court grants continuances as needed. State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990).
Here, the state amended the complaint before trial, so rule 3.0 4 governs, not rule
17.05. Thus, the district court was free to allow the amendment as long as it granted a
continuance if Labatte needed one. See id. Labatte’s attorney did not identify any prejudice
from the amendment, stated that there was no other investigatio n that he would do or
witnesses that he would call, and declined to challenge probable cause for the charge before
the start of trial. Labatte did not require, or even request, a continuance. The district court
did not abuse its discretion by permitting the amendment.
II. The district court did not plainly err by constructively am ending the
complaint.

Labatte argues that the distric t court erred by “constructivel y amending” the
complaint after trial had begun by finding him guilty of crimin al sexual conduct at Dike
R o a d a l t h o u g h t h e s t a t e m e n t o f p robable cause in the complaint did not describe
penetration at Dike Road.

7
At trial, Labatte’s counsel never objected to the state’s use of the Dike Road assault
as a basis for finding guilt on the three counts alleged in the complaint. Labatte therefore
argues, and we agree, that the proper standard for review is plain error. See State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998) (stating that unobjected-to as sertions of error are
reviewed for plain error). Under this standard, an appellant must show (1) error, (2) that is
plain, and (3) that affects substantial rights. State v. Kelley, 855 N.W.2d 269, 273-74 (Minn.
2014). “If the appellant satisfies the first three prongs of th e plain-error doctrine, [an
appellate court] may correct the error only if it seriously aff ects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 274 (quotation omitted).
Labatte’s argument implicates Minn. R. Crim. P. 17.05. That rule generally applies
prospectively, when the state asks to amend a complaint after trial has begun. But appellate
courts have also applied it retrospectively, when a defendant claims to have been convicted
of a crime that was not charged in the complaint. For example, in State v. DeVerney, the
supreme court applied rule 17.05 in analyzing the appellant’s a rgument that the district
court “improperly instructed the jury on a theory of vicarious liability which was not
included in the indictment.” 592 N.W.2d 837, 845 (Minn. 1999). The supreme court
reasoned that, although “the indi c t m e n t w a s n e v e r f o r m a l l y a m e nded pursuant to Rule
17.05,” analysis under that rule was appropriate because the appellant argued that the jury
instruction “resulted in an impermissible variance” from the in dictment. Id. at 845-46.
Labatte makes a similar argument here. We therefore apply the r ule 17.05 analysis to his
argument.

8
Again, under rule 17.05, a complaint may be amended as long as (1) no additional
or different offense is charged and (2) the defendant’s substantial rights are not prejudiced.
Minn. R. Crim. P. 17.05; see also DeVerney, 592 N.W.2d at 846-47 (applying both prongs).
Labatte contends that neither prong was met.
As to the first prong, Labatte c ites indirectly to this court’s decision in State v.
Guerra to argue that the district court constructively amended the complaint by convicting
him of an offense that was additional to or different from thos e charged in the complaint.
562 N.W.2d 10 (Minn. App. 1997). In Guerra, a complaint charged Javier Guerra with
possession of a stolen firearm and two counts of possession of a short-barreled shotgun.
562 N.W.2d at 11. The statement of probable cause described two thefts of firearms, one
involving the taking of seven shotguns, the other involving the taking of seven handguns.
Id. The probable-cause statement asserted that the person who stol e the handguns said he
gave them to “an Hispanic male named Javier” and also described how three of the stolen
shotguns were found in Guerra’s home during the execution of a search warrant. Id.
Statements on the record indicated that, at the beginning of tr ial, the court, the defendant,
and the state all believed that all of the charges related only to the shotguns, not the
handguns. Id. at 11-12. But, during trial, the court re-interpreted the comp laint so that the
count alleging possession of a stolen firearm related to Guerra ’s possession of the stolen
handguns. Id. at 12. The jury convicted Guerra of possession of a stolen fir earm and
acquitted him of possession of the short-barreled shotguns. Id. This court reversed, holding
that the district court had violated Minn. R. Crim. P. 17.05 by constructively amending the
complaint to charge a different offense after trial had begun. Id. at 14. It noted specifically

9
that, even though the category of offense was the same, “the object of the offense, the date,
and the alleged facts underlying each offense were all differen t,” as was the evidence of
possession. Id. at 13.
Though the facts of Guerra are in some ways analogous to the facts of this case, we
are not persuaded that the distri ct court plainly added a new o r different offense. The
complaint in Guerra alleged that the crimes had occurred “[o]n or about January 30,” but
the possession of the handguns had allegedly occurred in Decemb er of the previous year,
indicating that the handguns were not the subject of the charge s. Id. at 11 (alternation in
original). Moreover, the record in Guerra contained several specific statements that the
charges related only to the shotguns. Id. at 11-12. Here, in contrast, although the
complaint’s statement of probable cause did not specifically re ference penetration in its
description of the sexual conduc t at Dike Road, the charge desc riptions adequately
described that offense, stating th at Labatte “engaged in sexual penetration” in a manner
that violated the law “[o]n or a bout June 3, 2017.” In this sit uation, it is not plain that the
criminal sexual conduct at Dike Road constituted an “additional or different offense” from
the allegations in the complaint.
As to the second prong, Labatte a rgues that inclusion of the in cident at Dike Road
as a basis for finding criminal sexual conduct prejudiced his substantial rights because he
was not prepared to defend against it. The opportunity to prepare a defense against criminal
charges is a substantial right. DeVerney, 592 N.W.2d at 846. In DeVerney, the complaint
alleged that the defendant aided and abetted a murder under one subdivision, but the court
instructed the jury on another subdivision as well. 592 N.W.2d at 845. The supreme court

10
held that the defendant was not prejudiced because he did not i dentify “any specific way
in which his case would have been presented differently” if bot h subdivisions had been
listed in the initial complaint. Id. at 846-47.
Here, the complaint’s lack of sp ecificity as to the fact of pen etration at Dike Road
did not prejudice Labatte’s opportunity to defend himself for t he same reason as in
DeVerney. Labatte notes that his trial counsel did not cross-examine M. R. with respect to
the Dike Road assault and speculates that this may have been “because he believed it only
to be relationship evidence or, in any case, not charged and so . . . not . . . an act for which
appellant could be found guilty.” B ut this is not the same as s aying that defense counsel
would have cross-examined M.R. Labatte does not identify any way that his defense would
have differed if the complaint h ad specifically stated that pen etration occurred at Dike
Road, and we can conceive of no ne. Labatte’s defense to both as saults was based on his
own credibility; he has not expla ined how his foreknowledge of the specific claim of
penetration at Dike Road would h ave aided him in establishing h is credibility regarding
events at that location. Labatte has not shown that he was plainly prejudiced.
Because the district court did no t plainly vary from the compla int, and because
Labatte has not identified how a more specific complaint would have changed his defense,
we conclude that the district court did not plainly err by conv icting Labatte based on the
sexual assault at Dike Road.3

3 Labatte argues that his trial counsel’s failure to object to t he district court’s reliance on
the Dike Road events constituted inadequate assistance of couns el. An inadequate-
assistance claim requires a defendant to “show that counsel’s representation fell below an
objective standard of reasonableness” and to affirmatively prov e prejudice. Strickland v.

11
Labatte also argues that reversal is required under State v. Stempf, 627 N.W.2d 352,
356 (Minn. App. 2001), because the state relied on either of two acts as bases for conviction
on a single count. In Stempf, a defendant was charged with and found guilty of one count
of possession of a controlled subs tance, but the jury was prese nted with evidence
supporting several separate acts of possession. 627 N.W.2d at 354. This court held that the
district court erred by not either requiring the state to clari fy which act it relied on or
instructing the jury that it had to agree on which act the defe ndant committed. Id. at 356.
Because the district court had done neither of those things, it was possible that the jury’s
verdict was not unanimous, requiring reversal and remand. Id. at 359.
But Stempf does not hold that the state may not rely on multiple acts as the basis for
a single count. See id. at 356 (stating that the state must either elect a single act or the jury
must be instructed to agree on which act was committed). Indeed , Stempf implicitly
authorizes the use of multiple acts as bases for a single count, as long as the jury members
are instructed that they must all agree on which act was committed. See id. at 358 (“Because
the state did not elect which act of possession it was relying on . . . [,] the trial court’s
refusal to give a specific unanimity instruction violated appel lant’s right to a unanimous

Washington, 466 U.S. 668, 688, 693, 104 S. Ct. 2052, 2064, 2067 (1984). W e need not
address both prongs of Strickland’s test if one is determinative. Id. at 697, 104 S. Ct. at
2069. Because Labatte has not shown prejudice for the purposes of the plain-error analysis,
he also has not shown prejudice under Strickland, and his ineffective-assistance-of-counsel
claim fails. See State v. Rhodes, 657 N.W.2d 823, 839 n.7 (Minn. 2003) (stating that “it is
redundant to address” an ineffective-assistance-of-counsel clai m b a s e d o n a f a i l u r e t o
object and an assertion of plain error based on the same unobjected-to error).

12
verdict.”). Moreover, Labatte waived his right to a jury trial, so it is impossible for his right
to a unanimous verdict to have been violated. Stempf does not require reversal.
III. The district court did not abuse its discretion by allowin g the state to impeach
Labatte with seven past felony convictions.
Labatte argues that the district court abused its discretion by admitting seven prior
felony convictions for impeachme nt purposes because the probati ve value of all seven
convictions did not outweigh th eir cumulative prejudicial effec t. See Minn. R. Evid.
609(a)(1) (permitting admission of a felony conviction for impe achment if the court
determines that its probative value outweighs its prejudicial effect).
Under State v. Jones, district courts consider five factors when determining whether
evidence of prior convictions is admissible under rule 609:
(1) the impeachment value of the prior crime, (2) the date of
the conviction and the defendant’s subsequent history, (3) the
similarity of the past crime with the charged crime . . . , (4) the
importance of defendant’s testimony, and (5) the centrality of
the credibility issue.
271 N.W.2d 534, 538 (Minn. 1978). Labatte focuses on only the third factor, arguing that
the past crimes were similar to t he charged crimes because they were or were related to
domestic abuse and that this similarity outweighed the other Jones factors.
Labatte relies heavily on State v. Swanson , 707 N.W.2d 645 (Minn. 2006). That
reliance is mistaken. Swanson held that the district court erred “by failing to make a record
of the Jones factor analysis” but that the e rror was harmless because the district court did
not abuse its discretion in admitting the past felonies. Swanson, 707 N.W.2d at 654-55.
The supreme court acknowledged that the similarity factor weigh ed against admission of

13
the past convictions but ruled that the similarity factor did n ot outweigh the other four
factors. Id. at 655-56. Thus, Swanson is analogous to this case, but not in a way that is
favorable to Labatte. Both here and in Swanson, four of the five factors weighed in favor
of admission, and similarity is the only factor weighing agains t admission. We conclude
that, as in Swanson, district court did not abuse its discretion by admitting Laba tte’s prior
convictions for impeachment.
Labatte next contends that the district court erred in stating that there was “no danger
of unfair prejudice” in admitting the prior convictions because the trial was to the court
rather than to a jury. Labatte argues that judges are just as prone to prejudice as an ordinary
juror. While Labatte is correct t hat there is some risk of misu se of evidence by a district
court judge, given the judge’s experience and familiarity with the rules of evidence, there
is “comparatively less risk.” State v. Burrell , 772 N.W.2d 459, 467 (Minn. 2009). The
district court analyzed the Jones factors, properly determining whether the probative value
outweighed the potential for undu e prejudice. The court’s mild overstatement of its
imperviousness to unfair prejudice was not an abuse of discretion.
Labatte also argues that the district court abused its discret ion because it was
unnecessary to admit all seven prior convictions, contending th at “one prior, or, at most
two or three would have been more than sufficient.” Impeachment by prior felonies is
intended to “allow[] the factfinder ‘to judge better the credibility of a witness by affording
it the opportunity to view that person as a whole.’” State v. Hofmann , 549 N.W.2d 372,
375 (Minn. App. 1996) (quoting State v. Lloyd , 345 N.W.2d 240, 247 (Minn. 1984)).
Labatte’s convictions served th is purpose, and we cannot conclu de that the district court

14
abused its discretion by admitting all seven. See id. (holding that district court did not abuse
its discretion in admitting six recent convictions).
Finally, Labatte argues that the admission of the prior convict ions had a chilling
effect on his right to testify. See Jones , 271 N.W.2d at 538. But admission of prior
convictions is not a basis for reversal merely because it dissu ades a defendant from
testifying as a tactical matter; the admission must independently be an abuse of discretion.
State v. Newman, 408 N.W.2d 894, 899-900 (Minn. App. 1987). And in any event, Labatte
testified. It is unclear how his right to tell his side of the story was prejudiced.
The district court did not abuse its discretion by admitting La batte’s prior felony
convictions for impeachment.
IV. The district court did not err by imposing consecutive sentences.
Lastly, Labatte argues that he should not have been sentenced o n both counts one
and three, because they were part of a single behavioral incide nt. He also argues that
consecutive sentencing was improper.
A person may not be punished for more than one offense if the o ffenses were part
of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (2018); Munt v. State, 920
N.W.2d 410, 416 (Minn. 2018). Whether offenses are part of the same behavioral incident
is a mixed question of law and fact—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). When a crime contains a mens rea element, offenses
arise from a single behavioral incident if they occur at substantially the same time and place
and if the conduct was motivated by an effort to obtain a single criminal objective. Id.

15
Labatte does not challenge specific factual findings but rather argues that the district
court erred because the findings support only one criminal obje ctive underlying both
assaults—specifically, his desire to hide M.R.’s injuries. He claims that his sexual assaults
were committed with the purpose of controlling M.R., in order to prevent her from seeking
help. Further, he argues that there was no break in the course of conduct, which is why
M.R. did not seek help until after the sexual assault at the hotel.
When there is a short break in time and place between criminal sexual acts, when
that break is motivated by a desire to avoid detection, and whe n the later act is merely a
continuation of the former, the two acts have been held to be a single course of conduct.
See Bixby v. State , 344 N.W.2d 390 (Minn. 1984); State v. Herberg , 324 N.W.2d 346
(Minn. 1982). But relatively little separation between two sexu al assaults is required for
them to be considered distinct courses of conduct. In State v. Stevenson, two sexual assaults
against a single victim “in the same general place and on the s ame day” but separated by
five hours and without any “esse ntial relationship” between them were deemed not to be
part of a single behavioral incident. 286 N.W.2d 719, 720 (Minn. 1979). Similarly, a break
of several hours between incidents of sexual conduct, when interrupted by other activities,
is sufficient to make the incidents separate. State v. Secrest, 437 N.W.2d 683, 685 (Minn.
App. 1989), review denied (Minn. May 24, 1989). This court also held in Secrest that being
motivated by “perverse sexual desires” is too broad a motive to make separate acts into a
single behavioral incident. Id.
Here, the break was likely not five hours long, and at least part of the reason for the
change of location was Labatte’s fear of detection—he stopped t he sexual assault at Dike

16
Road because the truck drove by. Further, there was testimony that, when they were at the
park, Labatte instructed M.R. to “finish what [she] started,” referring to the oral penetration
occurring at Dike Road, and that he demanded oral sex “again” when they were at the hotel.
These facts could suggest some continuity between the assaults. However, the district court
did not make findings about what happened at the park, nor did it find that Labatte and
M.R. moved from Dike Road to the park and then to the hotel sol ely as a way for Labatte
to continue the assault without de tection. And Labatte’s use of “again” suggests
consciousness of the past assaul t, but not necessarily continui ty. Finally, even if Labatte
was motivated by “perverse sexual desire,” that is not enough to connect the events. Thus,
this case is distinguishable from Bixby a n d Herberg, where the only thing intervening
between two sexual assaults was driving to another area in orde r to continue the assault.
See Bixby, 344 N.W.2d at 391; Herberg, 324 N.W.2d at 347. The district court did not err
by imposing sentences for both convictions.
Labatte also challenges the imposition of consecutive, rather t han concurrent,
sentences. The district court sentenced Labatte to consecutive terms of 360 and 172
months. Labatte challenges his consecutive sentences primarily by arguing that the
offenses arose out of a single be havioral incident, an assertio n that we have rejected. He
also asserts that consecutive sentencing was “disproportionate.”
Consecutive sentences are a permi ssible punishment for criminal sexual conduct
committed in violation of Minn. S tat. § 609.342, subd. 1. Minn. Sent. Guidelines
2.F.2(a)(1)(ii), 6 (2016). The length of these sentences is within the guidelines. See Minn.
Sent. Guidelines 4.B (2016). A district court’s decision to imp ose permissive consecutive

17
sentences will not be reversed unless the district court clearl y abused its discretion. State
v. Fardan, 773 N.W.2d 303, 322 (Minn. 2009). The district court abuses its discretion if it
imposes a sentence that is “dispr oportionate to the offense or [that] unfairly exaggerates
the criminality of the defendant’s conduct.” State v. Perleberg , 736 N.W.2d 703, 705
(Minn. App. 2007) (quotation omitted), review denied (Minn. Oct. 16, 2007). We
determine whether a sentence is disproportionate by comparing it with “sentences imposed
on other similarly situated offenders.” Id.
Labatte does not cite to any caselaw suggesting that his sentence is longer than those
of similarly situated individuals. Instead, he repeats the argument that he made below, that
he was already going to receive t he statutory maximum sentence for a single count, so
adding a consecutive sentence would make his sentence very long. But even if his sentence
is long, it is comparable to cases involving multiple counts of criminal sexual conduct that
have been punished similarly. See, e.g., State v. Barthman, 917 N.W.2d 119, 132 (Minn.
App. 2018) (holding that the distr ict court abused its discreti on by imposing two
consecutive sentences of 360 mont hs, but affirming one sentence and remanding for
resentencing on the second with an instruction that the second sentence be between 288
and 344 months), review granted (Minn. Nov. 27, 2018); Miller v. State, 714 N.W.2d 745,
746 (Minn. App. 2006) (mentioning consecutive sentences of 360 months for first-degree
criminal sexual conduct and 42 months for second-degree crimina l sexual conduct). The
district court did not abuse its discretion in sentencing Labatte consecutively.
Affirmed.