State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A18-1000

Court of Appeals Gildea, C.J.

State of Minnesota,

Respondent,

vs. Filed: April 8, 2020
Office of Appellate Courts
James Martin Alger, Sr.,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, Saint Paul, Minnesota, for appellant.

________________________

S Y L L A B U S
1. The multiple-victim rule applies to appellant’s violation of an order for
protection.
2. Permissive consecutive sentences do not unfairly exaggerate the criminality
of appellant’s behavior.
Affirmed.

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O P I N I O N
GILDEA, Chief Justice.
The question presented in this case is whether multiple sentences are permitted for
contacting two persons in violation of an order for p rotection (OFP), when the OFP
violations arise from a single behavioral incident. A temporary OFP prohibited appellant
James Martin Alger, Sr. , from contacting either his infant son, J.A., or his son’s mother,
K.B. After Alger had contact with both J.A. and K.B. at a local hotel, the State charged
Alger with two counts of violating an OFP under Minn. Stat. § 518B.01, subd. 14(d)(1)
(2018). The district court accepted Alger’s guilty plea to both counts and sentenced him
to two permissive consecutive sentences. The court of appeals affirmed. Because the
multiple-victim rule authorizes two sentences, and because the consecutive sentences do
not unfairly exaggerate the criminality of Alger’s behavior, we affirm.
FACTS
On February 9, 2018, K.B. petitioned for an emergency (ex parte) temporary OFP
from the Mille Lacs Band of Ojibwe Court of Central Jurisdiction, restraining Alger from
contacting K.B. or their infant c hild, J.A . K.B. alleged that Alger had “a history of
aggressive and violent behavior,” citing bodily in jury she suffered on February 6, 2018.
The Mille Lacs Band Tribal Court granted the petition. The temporary OFP provided that
Alger “shall not have any contact with [K.B. ], or minor children in the home, whether in
person, with or through other persons, by telephone, mail, email, through electronic
devices, social media or by any other means except as required for court hearings.” The

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OFP was effective for 14 days from the date of service. The OFP was served on Alger on
February 10, 2018 and was therefore effective through February 24, 2018.
On February 21, a social services worker requested that law enforcement conduct a
welfare check on K.B. and J.A. A Crow Wing County Sheriff’s deputy found K.B. and
J.A. at a local hotel. Also present, and i n violation of the OFP, was Alger. Alger later
claimed that he was trying to help K.B. and J.A. find a place to stay the night. The deputy
arrested Alger for violating the OFP.
The State charged Alger with two felony counts of violating an OFP under
Minn. Stat. § 518B.01, subd. 14(d)(1), one for coming into contact with K.B. and the other
for coming into contact with J.A . The statute provides that a “person is guilty of a
felony . . . if the person violates [an OFP] . . . within ten years of t he first of two or more
previous qualified domestic violence -related offense convictions . . . .” Minn. Stat.
§ 518B.01, subd. 14(d)(1).1
After his arrest, Alger repeatedly contacted K.B. On February 22, while at the jail,
he called K.B. and told her to have the temporary OFP “dropped.” Between February 27
and March 12, he sent K.B. 87 text messages , violating a Domestic Abuse No Contact
Order issued on February 23, 2018 . Based on Alger’s post -arrest conduct , the State
amended the complaint to include two counts for stalking under Minn. Stat. § 609.749,
subd. 4(b) (2018).

1 Alger’s charges were felonies because he had two prior convictions for domestic
assault, one on May 1, 2008, and another on April 8, 2012.

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Prior to trial, the parties reached a plea agreement. Alger agreed to plead guilty to
the two felony-OFP counts and the State agreed to dismiss the two felony-stalking counts.
In the plea agreement, the parties also agreed to recommend that Alger receive two
sentences: a sentence of 24 months for the first OFP violation (count 1), and a consecutive
sentence of 12 months and 1 day for the second OFP violation (count 2). Consistent with
the plea agreement, Alger pleaded guilty to the two OFP counts. The district court accepted
Alger’s guilty plea and sentenced Alger to 36 months and 1 day, as the parties
recommended in the plea agreement.
Alger appealed his sentences, and the court of appeals affirmed. See State v. Alger,
928 N.W.2d 770 (Minn. App. 2019) . The court of appeals determined that the
multiple-victim rule applies because Alger contacted “two protected parties in violation of
the no-contact provisions of an OFP. ” Id. at 777. Accordingly, the court held that Minn.
Stat. § 609.035, subd. 1 (2018), did not prohibit the district court from imposing multiple
sentences for crimes that were committed during a single behavioral incident. Alger,
928 N.W.2d at 770.
We granted Alger’s petition for review.
ANALYSIS
On appeal, Alger argues that the district court violated Minn. Stat. § 609.035 when
the court sentenced Alger on both OFP counts. We review de novo “[w]hether an offense
is subject to multiple sentences under Minn. Stat. § 609.035.” State v. Ferguson ,
808 N.W.2d 586, 5 90 (Minn. 2012) (citing State v. Skipintheday , 717 N.W.2d 423, 426
(Minn. 2006)).

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Minnesota Statutes § 609.035 provides:
Except [for subdivisions that do not apply to this case], if a person’s conduct
constitutes more than one offense under the laws of this state, the person may
be punished for only one of the offenses and a conviction or acquittal of any
one of them is a bar to prosecution for any other of them.

Minn. Stat. § 609.035, subd. 1. The purpose of section 609.035 is “to limit punishment to
a single sentence where a single behavioral incident result[s] in the violation of more than
one criminal statute.” State v. Bookwalter , 541 N.W.2d 290, 293 (Minn. 1995) (citation
omitted) (internal quotation marks omitted) . The statute bars multiple sentences because
it “contemplates that a defendant will be punished for the most serious of the offenses
arising out of a single behavioral incident .” Ferguson, 808 N.W.2d at 589 (c itation
omitted) (internal quotations marks omitted). And “ imposing up to the maximum
punishment for the most serious offense will include punishment for all offenses.” Id.
We have clarified , however, that section 609.035 does not bar multiple sentence s
when the defendant commits crimes against multiple victims. As we recently explained,
“behavior that harms one victim is not the same ‘conduct’ for purposes of [section 609.035]
as behavior that harms multiple victims.” Munt v. State , 920 N.W.2d 410, 419 (Minn.
2018). This is so because “the legislature did not intend in every case to immunize
offenders from the consequences of separate crimes intentionally committed in a single
episode ag ainst more than one individual. ” Stangvik v. Tahash, 161 N.W.2d 667, 672
(Minn. 1968). Therefore, “behavior resulting in c rimes against multiple victim s . . . does
not trigger application of the statute.” Munt, 920 N.W.2d at 419.

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This rule, which we first announced in Stangvik, is called the multiple-victim rule.2
Munt, 920 N.W.2d at 419 . Under that rule, “courts are not prevented from giving a
defendant multiple sentences for multiple crimes arising out of a single behavioral incident
if: (1) the crimes affect multiple victims; and (2) multiple sentences do not unfairly
exaggerate the criminality of the defendant’s conduct.” Skipintheday, 717 N.W.2d at 426.
The court of appeals relied on the multiple-victim rule in affirming the district court.
Alger, 928 N.W.2d at 774. Alger argues that this was error. Specifically, he argues that
the multiple-victim rule should not be applied to OFP violations . And Alger argues that,
even if the rule could apply in the context of OFP violations, it should not be applied here
because the imposition of two consecutive sentences unfairly exaggerate s the criminality
of his behavior. We consider each argument in turn.
I.
Alger contends that the multiple-victim rule should not be applied to OFP violations
for two reasons . First, he argues that the multiple -victim rule applies only when the
elements of a crime require either (1) intent to harm the victim or (2) actual harm to the
victim. Second, Alger argues that the multiple-victim rule does not apply to OFP crimes
because OFP viol ations are crimes against judicial administration , not crim es against
victims.

2 In previous opinions, we have called this rule the “multiple-victim exception,” see
Munt, 920 N.W.2d at 418, 418 n.4, but the correct terminology is “multiple -victim rule.”
See id. at 419.

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A.
Alger argues that the multiple-victim rule does not apply because the elements of
an OFP violation do not require either (1) intent to harm the victim or (2) actual harm to
the victim. Alger cites Ferguson, 8 08 N.W.2d 586 , to support his argument that the
absence of certain elements of a crime limits application of the multiple-victim rule.3
But Ferguson does not stand for that proposition. In Ferguson, we distinguished
the crime of drive-by shooting at an occupied building from other crimes. See 808 N.W.2d
at 590–92. Ferguson involved a drive-by shooting at a building occupied by eight people.
Id. at 588. The defendant was found guilty of and sentenced on one conviction for drive-
by shooting at an occupied building and eight convictions for assault. Id. at 589, 590–92.
The court of appeals vacated the assault sentences and remanded for resentencing only on
the drive -by shooting conviction, concluding tha t section 609.035 prohibited multiple
sentences arising from a single course of conduct.4 See id. at 589–90.
We reversed. Id. at 589–92. We explained that “a single count of drive-by shooting
at an occupied building does not constitute a crime against each building occupant.” Id. at
590. To be sure, we discussed the elements of the crime , but we explicitly rejected the
defendant’s argument that the multiple-victim rule applies only when the elements include

3 Alger also cites State v. Hodges, 386 N.W.2d 709 (Minn. 1986), for this proposition.
But Hodges analyzes Minn. Stat. § 609.04 (2018), which addresses convictions, n ot
sentencing. 386 N.W.2d at 710–11. Nonetheless, Hodges is similar to Ferguson: it stands
for the proposition that multiple-assault convictions are appropriate “if a burglar ass aults
three different people after entering a house.” Id. at 711.
4 Ferguson involved other procedural history tha t is not relevant here. See
808 N.W.2d at 589.

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intent to harm the victim. Id. at 591 n.2. We explained that we had “rejected that
contention [in State v. Gartland , 330 N.W.2d 881 (Minn. 1983)], holding that ‘[t]he fact
that defendant may not have intended to hurt anyone should not make a difference’ as to
whether that defendant could be sentenced once per victim.” Id. (quoting Gartland,
330 N.W.2d at 883). We concluded that the crime of drive -by shooting at an occupied
building, for the purposes of sentencing a defendant in accord with the multiple -victim
rule, does not attach to a victim. Id. at 590–91. And we held that the district court was not
precluded from sentencing the defendant on eight assault counts, one assault for each
victim. Id. at 592.
In sum, Ferguson does not support Alger’s contention that the multiple-victim rule
applies only to crimes with the elements of either (1) intent to harm the victim or (2) actual
harm to the victim. In fact, Ferguson explicitly rejects the “intent to harm” argument.
Rather than focusing on the elements of the crime, our precedent confirms that we
examine the facts and circumstances of the crime to determine whether the multiple-victim
rule applies. See Gartland, 330 N.W.2d at 883; see also State v. Rieck , 286 N.W.2d 724,
726 (Minn. 1979) (focusing on the facts of the case to determine that the multiple -victim
rule applied). In Gartland, the defendant was charged with criminal negligence resulting
in death—a crime that required harm to the victim (death) as an element. See Minn. Stat.
§ 609.21 ( 1982). We concluded that the multiple -victim rule applied because the
defendant’s criminal n egligence led to the death of two people (meaning there were two
victims). Gartland, 330 N.W.2d at 883. The defendant argued that the multiple -victim
rule does not apply if the statute “does not require a showing of intent.” Id. We rejected

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that argument, explaining that “[t]he significant fact is that defendant intentionally drove
his car at an outrageously high rate of speed in a residential area knowing that it was
possible and even likely that he might injure or kill one or more innocent people.” Id. Our
analysis focused on the facts of the case, not simply on the elements of the crime.5
We followed a similar approach in Skipintheday, 717 N.W.2d 423. In Skipintheday,
we said that “the crime of bei ng an accomplice after -the-fact . . . is a crime against the
administration of justice.” 717 N.W.2d at 425. We explained that, because the act
underlying the crime was giving “false statements to police,” id., it merely helped the
offenders evade the law and did not further victimize the crime’s victims. See id. at 427.
Accordingly, we concluded that the crime of being an accomplice after -the-fact was not a
multiple-victim crime. Id. But we limited our conclusion to the facts presented in that
case, explaining that the crime could have had victims depending on the “manner in which
the crime of accomplice after-the-fact was perpetrated.” Id. at 427 n.5. Put differently, our
analysis did not turn on whether the crime’s elements included intent to harm or actual
harm to the victim; instead, we focused on the facts.
Alger’s argument cannot be squared with this precedent. In other words, his
argument fails because application of the multiple-victim rule does not apply only when
the crime’s elements include either an intent to harm the victim or actual harm to the victim.
We focus instead on the facts and circumstances of the crime. Looking to the facts and
circumstances here, it is clear that there were two victims. The OFP precluded Alger from

5 Of course, if the crime at issue requires the State to prove intent or actual harm to a
victim, the State must prove those elements in order to secure a conviction.

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having contact with two different protected people, K.B. and J.A. And Alger violated the
OFP twice, once for each protected person.
B.
In urging a different result, Alger argues that an OFP violation is a crime “against
judicial administration” and therefore does not have victims. We are not persuaded.
The tribal court issued the order for protection i n accordance with the Domestic
Abuse Act, Minn. Stat. ch. 518B (2018).6 We have recognized that the purpose of this
statute is “to provide an efficient remedy for victims of abuse.” State v. Errington ,
310 N.W.2d 681 , 682 (Minn . 1981); see also Rew v. Bergstrom , 8 45 N.W.2d 764, 791
(Minn. 2014) (explaining that “the Legislature enacted Minn. Stat. § 518B.01 . . . to protect
victims of domestic abuse from their abusers”). And the ver y purpose of an OFP is “to
protect the victim and members of the victim’s family and household from domestic
abuse.” Rew, 845 N.W.2d at 792. Given this statutory context, the violation of an OFP
obviously affects the protected person because the violation undermines the very protection
sought and the protection that the statutory remedy is designed to provide. See Baker v.
Baker, 494 N.W.2d 282, 285 (Minn. 1992) (noting that the Domestic Abuse Act “may be
thought of as a ‘band -aid,’ designed to curtail the harm one household member may be
doing to the other in the short term”). It simply makes no sense to conclude that the
violation of an order for protection impacts only the court, as Alger argues. To the contrary,

6 “A valid foreign protective order has the same effect and shall be enforced in the
same manner as an order for protection issued in this state.” Minn. Stat. § 518B.01,
subd. 19a(e) (2018).

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the purpose of the Domestic Abuse Act compels the conclusion that a person protected by
an OFP is a victim when that order is violated.
Because Alger made in-person contact with two protected persons, there were two
victims of the OFP -violation crime. Accordingly, we hold that the multiple-victim rule
applies.
II.
Alger also argues that even if we were to conclude, as we have, that the
multiple-victim rule applies to violation s of an OFP, he should not receive multiple
sentences because multiple sentences unfairly exaggerate the criminality of his behavior.7
We review a district court’s determination of whether sentences exaggerate the criminality
of the defendant’s behavior for abuse of discretion. State v Richardson, 670 N.W.2d 267,
284 (Minn. 2003); see also State v. Cruz-Ramirez, 771 N.W.2d 497, 512 (Minn. 2009).
When reviewing “whether a consecutive sentence unfairly exaggerates a
defendant’s criminality, we are guided by past sentences received by other offenders for
similar offenses.” Carpenter v. State, 674 N.W.2d 184, 189 (Minn. 2004). Alger does not
cite any decisions, and we have found none, in which defendants violated an OFP against
multiple people and received sentences less than the sentence s that Alger received. Alger
argues instead that his sentences exaggerate his criminality essentially because, if he had
just received one sentence, that sentence would have been for 24 months, which is less than

7 To the extent that Alger asserts that in-person contact with two protected persons in
this case makes him no more culpable than in -person contact wit h one protected person,
his argument ignores the well-established principle that a defendant is more culpable when
there are two victims. Ferguson, 808 N.W.2d at 590.

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the aggregate 36 months he received. But this is just another way of ar guing that the
multiple-victim rule should not apply; it is not an argument that shows that the two
sentences Alger received unfairly exaggerate the criminality of his behavior.
In fact, Alger received permissive consecutive sentences, and the sentence on each
count was the presumptive sentence for that count.8 On rare occasions, we have concluded
that presumptive sentence s unfairly exaggerated the criminality of the defendant’s
behavior. See State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988) (explaining that, although
“technically permissible,” five consecutive 60 -month sentences, added to a life sentence,
unfairly exaggerated the defendant’s criminality); see also State v. Goulette , 442 N.W.2d
793, 79 5 (Minn. 1989) (concluding similarly regarding a defendant who received five
sentences, aggregating to “the longest term possible without departing from the sentencing
guidelines”). In Norris, we reduced consecutive sentences of life imprisonment plus a
300-month term to consecutive sentenc es of life imprisonment plus a 180 -month term.
Norris, 428 N.W.2d at 71. In reaching our decision, we were concerned that five
consecutive terms were “added to a sentence of life imprisonment.” Id. In Goulette, we
reduced a total sentence of 251 months to 214 months. Goulette, 442 N.W.2d at 795. In

8 Because Alger’s crime had a severity level of 4, Minn . Sent. Guidelines 5.A, and
because Alger’s criminal history score was 4, the presumptive range for his first
felony-OFP conviction was 21 to 28 months. Minn. Stat. Guidelines 4.A. He received a
24-month sentence. For his second felony -OFP conviction, the district court imposed a
permissive consecutive sentence under Minn. Sent. Guidelines 2.F.2.a(1)(i)(a), 6.A.
Because the sentence was consecutive, the district court was required to sentence Alger
based upon a criminal history score of 0, Minn. Sent. Guidelines 2.F.2.b, and a sev erity
level of 4, Minn. Sent. Guidelines 5.A. With a criminal history score of 0, the presumptive
sentence for his second felony-OFP conviction was 12 months and 1 day, see Minn. Sent.
Guidelines 4.A, the sentence Alger received.

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doing so, we highlighted that “the trial court imposed the longest term possible without
departing from the sentencing guidelines.” Id.
Alger’s situation is strikingly different. Unlike the defendants in both Norris and
Goulette, Alger received only two sentence s. Moreover, Alger’s total sentence of
36 months is much shorter than the sentences in Norris (300 months plus life) and Goulette
(251 months). Finally, unlike Goulette, Alger did not receive the longest possible sentence
without departing from the sentencing guidelines. Rather, the district court could have
imposed a 28-month sentence—four months more than imposed—for the first felony-OFP
conviction. See Minn. Sent. Guidelines 4.A.
In short , Alger’s sentences do not exa ggerate the criminality of hi s behavior.
Accordingly, we hold that it was not an abuse of discretion for the district court to give
Alger two sentences.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.