1
STATE OF MINNESOTA

IN SUPREME COURT

A18-1055

Court of Appeals Gildea, C.J.
Dissenting, Thissen, J.
State of Minnesota,

Respondent,

vs. Filed: May 6, 2020
Office of Appellate Courts
Deveon Marquise Branch,

Appellant.

________________________

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica May Surges, Assistant
Public Defender, Saint Paul, Minnesota, for appellant.

________________________

S Y L L A B U S
Because Minn. Stat. § 609.035 (2018) does not prohibit sentences for both drive-by
shooting at an occupied vehicle and second-degree assault of a victim outside the vehicle,
the district court did not err in sentencing appellant on both offenses.
Affirmed.

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O P I N I O N
GILDEA, Chief Justice.
The question presented in this case is whether appellant Deveon Marquise Branch
can receive sentences for both drive-by shooting at an occupied vehicle and second-degree
assault, when the crimes arise from a single behavioral incident. The district court imposed
two sentences to run concurrently: 48 months for drive-by shooting at an occupied vehicle
and 36 months for second -degree assault. The court of appeals affirmed the sentences.
State v. Branch, 930 N.W.2d 455 (Minn. App. 2019). Consistent with our decision in State
v. Ferguson, 808 N.W.2d 586 (Minn. 2012), we conclude that Minn. Stat. § 609.035 (2018)
does not prohibit the sentences. We therefore affirm.
FACTS
The facts are undisputed. On April 27, 2017, Branch met the mother of his child in
a South Minneapolis neighborhood to drop off the child . After Branch gave the child to
mother, she and the child, along with mother’s adult male friend, got into mother’s vehicle.
Another adult male , C.L.G., wa s standing outside and next to the vehicle. Branch and
C.L.G. began to argue. Branch pulled out a handgun and shot in C.L.G.’s direction, but
the bullet struck the front passenger door of mother’s vehicle.
The State c harged Branch with one count of drive-by shooting at an occupied
vehicle under Minn. Stat. § 609.66, subd. 1e(b) (2018), one count of second-degree assault
under Minn. Stat. § 609.222, subd. 1 (2018), and one count of reckless discharge of a
firearm within a municipality un der Minn. Stat. § 609.66, subd. 1a(a)(3) (2018) . The
complaint identified the mother of Branch’s child, who was sitting inside of the vehicle, as

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the victim of the second-degree assault. The complaint did not identify any specific victims
for the drive-by-shooting charge.
Branch entered a straight guilty plea to all three counts wit h no agreement on
sentencing. During the plea hearing, Branch admitted that he pulled out a handgun and
fired a single gunshot in the direction of C.L.G. with the intention to “scare,” but not harm,
C.L.G. He confirmed that C.L.G. was “[s]tanding next to the vehicle that was ultimately
struck with the bullet.” Branch conceded that discharging “the firearm toward [C.L.G.]
and toward that motor vehicle . . . was reckless” and “by shooting in the direction of
[C.L.G.], that was an assault on that person.” He also agreed that “there were occupants
inside that vehicle” when it “was struck by the bullet.” The district court accepted Branch’s
plea and convicted him of all three charges.
The district court sentenced Branch to 48 months in prison for drive -by shooting
and 36 months for second -degree assault, with the sentences to be served concurrently .1
The court did not impose a sentence for the reckless-discharge-of-a-firearm conviction.

1 The sentences were presumptive sentences under the Minnesota Sentencing
Guidelines. The presumptive sentencing range for the crime of drive -by shooting at an
occupied vehicle for a defendant with Branch’s criminal history score is 41 –57 months.
Minn. Sent. Guidelines 4.A. The presumptive stayed sentence for second -degree assault
for a defendant with Branch’s criminal history score is 27 months. Id. But because Branch
committed the assault with a firearm, the presumptive minimum sentence is 3 years. Minn.
Stat. § 609.11, subd. 5(a) (2018) (“[A]ny defendant convicted of an offense listed in
subdivision 9 in which the defendant . . . had in possession or used . . . a firearm . . . shall
be committed to the commissioner of corrections for not less than three years, nor more
than the maximum sentence provided by law.”); see also Minn. Sent. Gui delines 2.E.1
(“The presumptive duration of the prison sentence is the mandatory minimum sentence in
statute or the duration provided in the appropriate cell on the applicable Grid, whichever is
longer.”).

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Branch appealed, arguing that the sentence for second -degree assault should be
vacated because his co nvictions for the assault and the drive -by shooting arose out of a
single behavioral incident , were motivated by a single criminal objective , and were
committed against only one victim. Branch, 930 N.W.2d at 457. The court of appeals
affirmed the sentences. Id. at 459. Relying on our decision in Ferguson, 808 N.W.2d 586,
the court of appeals determined that the offense of drive-by shooting at an occupied vehicle
does not constitute an offense against each occupant of the vehicle. Branch, 930 N.W.2d
at 459. The court of appeals concluded that the district court therefore “did not err by
imposing sentences for drive -by shooting and second -degree assau lt, even if both
convictions arose out of a single behavioral incident involving the same victim.” Id.
We granted Branch’s petition for review.
ANALYSIS
We must decide if Branch’s second-degree assault sentence violates Minn. Stat.
§ 609.035. Whether Branch’s sentence violates section 609.035 is a question of law that
we review de novo. See Ferguson, 808 N.W.2d at 590.
Section 609.035 states:
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. All the offenses,
if prosecuted, shall be included in one prosecu tion which shall be stated in
separate counts.

Minn. Stat. § 609.035, subd. 1. In applying section 609.035, we have recognized that a
person’s “conduct,” as used in the statute, is limited to acts committed during a single

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behavioral incident and does no t include acts that were committed as part of a separate
behavioral incident. State v. Johnson , 141 N.W.2d 517, 524 –25 (Minn. 1966); see also
Munt v. State, 920 N.W.2d 410, 416–17 (Minn. 2018) (“[A]cts that lack a unity of time and
place or are motivated by different criminal objectives do not constitute a single behavioral
incident, and therefore, are not ‘conduct,’ for purposes of section 609.035.”). We have
also determined that “acts committed against separate victims are not ‘conduct’ for
purposes of section 609.035.” Munt, 920 N.W.2d at 417. Taken together, a person may
be punished for only one of the offenses that result s from acts committed during a single
behavioral incident and that did not involve multiple victims.
Branch contends that under section 609.035, the district court should have imposed
a single sentence for his most serious offense, the drive-by shooting at an occupied vehicle.
See Minn. Stat. § 609.035. The parties do not dispute that Branch committed the offenses
during a single behavioral incident: Branch firing a single gunshot .2 Discharging the
firearm resulted in three criminal offenses—the drive -by shooting, the second -degree
assault, and the reckless discharge of a firearm within a municipality. According to Branch,
the drive-by shooting is the most serious offense because it has a severity level of eight and
second-degree assault has a severity level of six . Minn. Sent. Guidelines 5.A; see also

2 The drive -by shooting and the second -degree a ssault occurred as a result of a
continuous and uninterrupted course of conduct —Branch firing the gun. See Johnson ,
141 N.W.2d at 525 (“[V]iolations of two or more . . . statutes result from a single
behavioral incident where they occur at substantially the same time and place and arise out
of a continuous and uninterrupted course of conduct, manifesting an indivisible state of
mind or coincident errors of judgment.”). We therefore agree with the parties that Branch
committed the offenses during a single behavioral incident.

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State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006) (“[W]e have implicitly approved the
use of the sentencing guidelines’ severity-level rankings as a method for determining which
of multiple felony offenses is the most serious.”). He argues that the second-degree assault
sentence therefore violates section 609.035 because the district court should have imposed
punishment for only his most serious offense —the drive-by shooting at an occupied
vehicle. We disagree.
In Ferguson, we concluded that section 609.035 does not prohibit multiple
sentences for the crime of drive -by shooting when the same conduct—the shooting—also
constitutes assault. 808 N.W.2d at 588, 592. In Ferguson, the defendant was involved in
a drive-by shooting at an occupied building, which was a house with eight people inside.
Id. at 588. Ferguson was convicted of one count of drive -by shooting at an occupied
building and eight counts of second -degree assault, one count for each person inside the
house. Id. The district court in Ferguson imposed nine sentences: one sentence for th e
conviction for drive-by shooting at an occupied vehicle and eight sentences for the second-
degree assault convictions, one sentence for each victim inside the house. Id. at 589. The
court of appeals vacated the second-degree assault sentences, holding that the district court
could se ntence Ferguson on only the drive -by-shooting conviction. Id. The court of
appeals reasoned that “[t]he most serious offense against each victim was the drive -by
shooting,” and therefore “the district court erred by imposing sentence on all nine
convictions.” State v. Ferguson, 786 N.W.2d 640, 645 (Minn. App. 2010). We reversed
the court of appeals ’ decision and upheld the sentence s imposed by the district court.
Ferguson, 808 N.W.2d at 592. We held that “for purposes of the rule that a district court

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may not sentence a defendant for more than one crime for each victim, a single count of
drive-by shooting at an occupied building does not constitute a crime against each building
occupant.” Id. at 590.
We reached the conclusion in Ferguson for two reasons. Id. at 591. First, the crime
of drive -by shooting at an occupied building “require[s] only a reckless discharge of a
firearm at or toward an occupied building.” Id. (citation omitted) (internal quotation marks
omitted); see also Minn. Stat. § 609.66, subd. 1e (“Whoever, while in or having just exited
from a motor vehicle, recklessly discharges a firearm at or toward . . . a building is guilty
of a felony . . . .” (emphasis added)). Therefore, the act of recklessly discharging a firearm
at an occupied building does not , by itself, support eight separate drive -by-shooting
convictions. Ferguson, 808 N.W.2d at 591 (explaining that the number of convictions for
a drive-by shooting at an occupied building does not depend on the number of building
occupants “[j]ust as entry into a single building occupied by three persons does not support
three separate burglary convictions”).
Second, “the drive -by shooting statute does not require that the occupants of the
building be injured, put in f ear, or even be aware of the shooting” by the defendant. Id.
(citing Minn. Stat. § 609.66, subd. 1e). This feature distinguishes a drive-by shooting from
an assault, which requires a defendant to have specific “intent to cause fear in another [,]”
Minn. Stat. § 609.02, subd. 10 (2018); see also Ferguson, 808 N.W.2d at 591.
Accordingly, we c oncluded in Ferguson that Minn. Stat. § 609.035 did not prohibit the

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district court from imposing one sentence for the drive-by shooting plus eight additional
sentences for second-degree assault, one for each building occupant.3 808 N.W.2d at 590.
With our holding in Ferguson in mind, we must first decide whether it extends to
the offense of a drive-by shooting at an occupied vehicle. We expressly limited our
decision in Ferguson “to the offense of drive -by shooting at an occupied building, and
express[ed] no opinion about who could be victims of a drive-by shooting at a person or at
an occupied vehicle[,] ” because those questions were not before us. 808 N.W.2d at 590
n.1. The plain language of the drive -by-shooting statute compels the conclusion that our
holding in Ferguson should apply to the offense of a drive-by shooting at an occupied
vehicle.
The elements of the crimes of a drive-by shooting at an occupied building and a
drive-by shooting at an occupied vehicle are essentially identical. See Minn. Stat. § 609.66,

3 Multiple assault sentences were consistent with the multiple -victim rule. See State
ex rel. Stangvik v. Tahash, 161 N.W.2d 667, 672 (Minn. 1968) (recognizing that “multiple
crimes against multiple victims permit the impos ition of more than one sentence ”). This
rule allows “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 defend ant’s conduct.” State v. Skipintheday ,
717 N.W.2d 423, 426 (Minn. 2006) . A defendant, however, “may not be sentenced for
more than one crime for each victim” when the defendant has “a single criminal objective.”
State v. Prudhomme, 228 N.W.2d 243, 245 (Minn. 1975). Branch argues that the result in
Ferguson (and in this case if we follow Ferguson) effectively creates a new exception to
Minn. Stat. § 609.035. If the Legislature disagrees with our holding in Ferguson, the
Legislature can, of course, pass new legislation to change the sentencing parameters for
drive-by-shooting cases. See Taylor v. State, 670 N.W.2d 584, 589 (Minn. 2003) (“[I]t is
the legislature that defines the conduct that constitutes a criminal offense and fixes the
punishment.”); State v. Meyer , 37 N.W.2d 3, 9 (Minn. 1949) (“The legislature can, and
always has, fixed and determined the punishment that shall be imposed for a violation of
law and the limits of discretion vested in the courts in the imposition of the sentence.”).

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subd. 1e(b) (“Any person who violates this subdivision by firing at or toward a person, or
an occupied building o r motor vehicle , may be sentenced to imprisonment for not more
than ten years or to payment of a fine of not more than $20,000, or both.” (emphasis
added)). The statute does not distinguish between the two offenses. Id. Nor do the parties
assert that a meaningful factual or legal distinction exists between shooting at an occupied
building and shooting at an occupied vehicle. We therefore conclude that a single count of
drive-by shooting at an occupied vehicle does not constitute a crime against each vehicle
occupant.
The State argues that under our analysis in Ferguson, the district court properly
imposed multiple sentences in this case. We agree. In Ferguson, we affirmed the district
court’s imposition of eight sentences for second -degree assault —one for each building
occupant—plus one sentence for drive -by shooting. 808 N.W.2d at 592. Here, Branch
similarly received one sentence for the second-degree assault against C.L.G and one
sentence for the drive-by shooting at an occupied vehicle. The sentences comply with our
holding in Ferguson that a single count of drive -by shooting is effectively a victimless
crime: Branch received one sentence for his victimless conduct, plus one sentence for his
offense against a victim, C.L.G. The district court’s decision to impose two sentences in
this case is consistent with Ferguson.4

4 The d issent asserts that “our decision in Munt v. State , 920 N.W.2d 410 (Minn.
2018), fundamentally undermined the legal justification for our decision in Ferguson[.]”
In Munt, we clarified that “behavior resulting in crimes against multiple victims does not
constitute ‘conduct’ for purposes of section 609.035, and therefore that behavior does not
trigger application of [section 609.035].” 920 N.W.2d at 419. Put differently, when a

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In urging us to reach the opposite conclusion, Branch asserts that our holding in
Ferguson—allowing a court to impose sentences for drive-by shooting and second-degree
assault—applies only when the crimes are committed against multiple victims . In
Ferguson, Branch notes, there were multiple assault victims. But in this case, the
complaint charged that Branch committed second -degree assault against only one victim.
To permit multiple sentences when, as here, there are not multiple victims, Branch argues,
violates the rule that a sentence for the most serious offense includes punishment for all
offenses. See State v. Franks, 765 N.W.2d 68, 78 (Minn. 2009) (holding that the district
court must impose a sentence for the pattern of harassing conduct offense rather than the
four violations of an order for protection because it was the most serious offense against
the single victim); Kebaso, 713 N.W.2d at 322 (concluding that the court of appeals did
not err in imposing a sentence for domestic assault, rather than for interference with a 911

defendant is charged with crimes committed against multiple victims, a separa te analysis
under section 609.035 is conducted for each victim. When viewed in the clarifying light
of Munt, the nine separate sentences imposed in Ferguson did not violate section 609.035.
Applying a separate 609.035 analysis to each victim in Ferguson, the defendant committed
only one offense against each victim (namely second -degree assault) because drive -by
shooting at a n occupied building is a victimless crime. The defendant’s behavior in
Ferguson involved separate and distinct conduct under section 609.035: the eight assaults
each involved separate conduct and the victimless crime of drive -by shooting at the
occupied building involved an additional separate conduct. The ninth sentence was
therefore warranted based on the defendant’s victimless conduct.
Applying this reasoning to the facts in this case, Branch ’s behavior involved
separate and distinct conduct under section 609.035: (1) the assault committed against
C.L.G., and (2) the separate victimless crime of drive -by shooting at an occupied vehicle.
Section 609.035 therefore does not prohibit sentences for both the drive -by shooting and
the second-degree assault.

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call, because domestic assault was the most serious o ffense against a single victim) . We
disagree.
The drive-by-shooting sentence does not include punishment for the second-degree
assault committed against C.L.G . This is so because C.L.G. was standing outside of the
vehicle at the time Branch fired a single gunshot . Even if a drive-by sho oting at an
occupied vehicle could be considered to be a crime against each vehicle occupant, C.L.G.
was not a victim of the drive-by shooting because he was not a vehicle occupant. The most
serious (and only) offense against the single victim —C.L.G.—was the second -degree
assault.
Based on our analysis, we hold that the district court properly sentenced Branch for
both the drive-by-shooting conviction and the second-degree assault conviction.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

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D I S S E N T
THISSEN, Justice (dissenting).
The court’s decision relies on State v. Ferguson , 808 N.W.2d 586 (Minn. 2012).
Under that precedent, the court concludes that Minn. Stat. § 609.035 (2018) does not
prohibit the multiple sentences that the district court imposed for drive -by shooting at an
occupied vehicle under Minn. Stat. § 609.66, subd. 1e(b) (2018), and second-degree assault
under Minn. Stat. § 609.222, subd. 1 (2018), despite the fact that appellant Deveon Marquis
Branch fired only a single shot, because a drive-by-shooting crime is “victimless.” Because
our decision in Munt v. State, 920 N.W.2d 410 (Minn. 2018), fundamentally undermines
the legal justification for our dec ision in Ferguson, I would reverse the court of appeals
and remand for resentencing in accord with Minn. Stat. § 609.035.
Section 609.035, subdivision 1, provides: “Except [for certain express statutory
exceptions], 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 . . . .” Minn. Stat. § 609.035,
subd. 1. The Legislature’s directive is plain and simple: a person can be punished for only
one offense arising from a single episode of conduct.
A few years after the Legislature passed section 609.035, we explained in State v.
Johnson that the Legislature enacted the provision as a mechanism to protect a defendant
against punishment incommensurate with the defendant’s conduct in circumstances where
one act violated multiple criminal prohibitions. 141 N.W.2d 517, 523 (Minn. 1966). That
is to say, the Legislature identified a policy problem—the imposition of multiple sentences
for different offenses arising from a single course of conduct that resulted in unfairly long

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sentences—and implemented a policy solution intended to addres s the problem; namely,
prohibiting more than one sentence for an episode of conduct. In other words, the
Legislature’s response to disproportionally long sentences in cases where a single act
constituted more than one offense was to limit courts to imposing a single sentence for the
conduct. Critically, the Legislature’s solution was not to give the judiciary the discretion
to impose a sentence a judge deemed proportionate.1
Five years after the enactment of section 609.035, and two years after Johnson, we
held that multiple sentences could be imposed for a single episode of intentional conduct
when multiple victims were involved. State ex rel. Stangvik v. Tahash , 161 N.W.2d 667,
671, 673 (Minn. 1968). We ruled that three concurrent sentences —one for each of three
murder victims killed in a single, awful episode —“d[id] not offend our sense of justice.”
Id. at 673. We reasoned that because three separate victims were intentionally murdered,
“[f]rom a legal point of view [each murder was] totally unrel ated.” Id.; see also State v.
Prudhomme, 228 N.W.2d 243, 245 (Minn. 1975) (allowing three sentences for sexually

1 The conduct of the courts themselves was one impetus for the Legislature’s
perception that disproportionately long sentences and double punishments were being
imposed where one act constituted more than one crime. See Johnson, 141 N.W.2d at 522–
23. The Legislature enacted section 609.035 in 1963 in reaction to decisions of this court
that allowed multiple prosecutions and double punishments in more situations than the
Legislature intended under former Minn. Stat. § 610.21 (1961), the predecessor -statute to
section 609.035. See Johnson, 141 N.W.2d at 522–23 (discussing cases interpreting former
section 610.21). As we noted in Johnson, the Advisory Committee that drafted section
609.035 declared that the new language “was intended to broaden the scope of the statute’s
application because, except for [] two early decisions, its language was no [sic] narrowly
construed as ‘to defeat [the statute’s] purpose . . . .’ ” Id. at 523 (quoting Minn. Stat. Ann.
§ 609.035 (West 1966)). Section 609.035 was enacted to “effectuate the ‘original’
purpose” of former section 610.21. Id. at 524.

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assaulting three victims during one incident but disallowing sentences for kidnapping
involving the same victims). Stated another way, we con sidered each intentional murder
as if it were a distinct episode of “conduct” under the statute even though each killing
happened around the same time and in the same place.
We also observed in Stangvik that our decision did not undermine the Legislature’s
interest in avoiding disproportionately long sentences because the district court reduced
two of the three charges from first -degree murder to second -degree murder and imposed
the three sentences concurrently; accordingly, the multiple sentences were not “punishment
grossly out of proportion to the gravity of the offense.” Id. Notably, our concern was not
about whether we could justify imposing a longer sentence because it would not be
disproportionate, but rather about whether imposing multiple senten ces would render the
full sentence disproportionately long. That is a critical nuance.
In the years following Stangvik, what we called (until 2019) the multiple -victim
exception to the statute evolved so as to swallow much of the plain and simple rule set forth
in Minn. Stat. § 609.035, at least where multiple victims were affected by the defendant’s
conduct. See generally Benjamin J. Butler, The Exception that Swallowed the Rule: Fixing
the Multiple-Victim Exception to Minnesota Statutes Section 609.035, 39 Wm. Mitchell L.
Rev. 1552 (2013). In particular, our understanding of the statute shifted and was
incrementally turned on its head. Rather than applying the statute as a limitation on the
power of courts to impose multiple (and thus longer) sentences for multiple crimes arising
from a single episode of conduct, we interpreted the statute as one (at least in the multiple-
victim context) that empowered courts to impose multiple sentences for a single course of

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conduct as long as the court thought that multiple sentences did not unfairly exaggerate the
punishment imposed on the defendant. See State v. Edwards, 774 N.W.2d 596, 606 & n.6
(Minn. 2009). That shift is a vast expansion of judicial discretion never contemplated by
the Legislature.
The expansion of judicial discretion in imposing multiple sentences in multiple -
victim cases reached a through-the-looking-glass apex in Ferguson where we allowed nine
sentences for the firing of approximately six shots at a building that had eight occupants:
eight sentences for assault on the eight occupants of the building and a ninth sentence for
the drive -by shooting, 808 N.W.2d at 592. We reasoned that because “the drive -by
shooting statute does not require that the occupants of the building be injured, put in fear,
or even be aware of the shooting” by the defendant, the occupants of the building were not
victims of the drive-by shooting. Id. at 591. Accordingly, we held that the defendant could
be sentenced for the “victimless” crime of drive-by shooting in addition to being sentenced
for each of the assaults against actual victims. Id. at 592. And by logical extension, if a
defendant fires a single shot at a single occupant of a building or a vehicle, that defendant
can be sentenced for two crimes arising from that single episode of conduct. Stated another
way, our multiple-victim rule no longer even needs multiple victims. We have transformed
a statute from one that provides that “if a person’s conduct constitutes more than one
offense under the laws o f this state, the person may be punished for only one of the
offenses,” Minn. Stat. § 609.035, subd. 1, into a statute that allows a person to be punished

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for two offenses arising from a single episode of conduct even if there is only one victim,2
see Ferguson, 808 N.W.2d at 597 (Anderson, Paul, J., dissenting, joined by Page, Stras,
JJ.) (“Before today’s case, we have described and applied our multiple-victim exception in
over 30 cases; but, we have never held that the multiple -victim exception can sup port an
additional sentence for a victimless crime. . . . The majority is left in the incongruous
position of using the ‘one sentence per victim’ rule implicit in the multiple -victim
exception to justify nine sentences for offenses committed against eight ‘victims’ of a
‘victimless crime.’ ”).3

2 Even on this point, our case law is somewhat inconsistent. In State v. Skipintheday,
we held that multiple sentences could not be imposed where the defendant was charged
and convicted of three counts of being an accomplice after-the-fact. 717 N.W.2d 423, 427
(Minn. 2006). Each of the counts was based on the defendant’s act of misleading the police
during an investigation into a fight where two people were injured and a third was killed.
Id. at 425. Reasoning that accomplice after -the-fact is a crime against the administration
of justice and not against the three victims, we stated tha t “to define all those who suffer
even the most indirect harm as ‘victims’ for the purpose of the multiple -victim exception
to section 609.0[3]5 would be to sweep nearly all crimes within the multiple -victim
exception, and in so doing swallow the rule.” Id. at 427.

3 The decision in Ferguson was driven in part by the unique sentencing circumstances
in the case. See 808 N.W.2d at 592 n.4 (“Our analysis considers the separate and distinct
situation in which a sentence on the most serious offense unfairl y depreciates the
criminality of the defendant’s conduct.”). When Ferguson was decided , our precedent
required courts to impose the sentence for the “most serious” of the offenses arising from
a single behavioral incident. State v. Franks , 765 N.W.2d 68, 77 (Minn. 2009); State v.
Kebaso, 713 N.W.2d 317, 322 (Minn. 2006) (quoting Johnson, 141 N.W.2d at 522). That
precedent created an uncomfortable result in Ferguson because the drive -by-shooting
offense was the “most serious” offense arising from the conduct; more serious than the
second-degree assault charges. See 808 N.W.2d at 592. However, because Ferguson was
convicted on eight separate counts of second -degree a ssault (one for each victim), the
district court had the discretion to (and did in fact) impose a longer sentence for the assault
convictions (by imposing consecutive sentences) than the sentence it could have imposed
for the single drive -by-shooting convi ction. Id. at 588 –90. We concluded that, in our

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And that brings us to Munt. Munt argued that our creation and application of a
judicially created multiple-victim exception to section 609.035 violated the separation of
powers doctrine. Munt, 920 N.W.2d at 418. We rejected Munt’s argument, reasoning that
the multiple-victim rule is not an exception at all but simply an interpretation of the word
“conduct” used in the statutory language. Id. We reaffirmed that “behavior that harms one
victim is not the same ‘conduct’ for purposes of the statute as behavior that harms multiple
victims.” Id. at 419 (citing Stangvik, 161 N.W.2d at 672–73). For constitutional reasons,
we’ve come full circle, returning to the original logic of the multiple -victim rule; namely,
that an intentional act that harms one victim at the same time and place as an intentional
act that harms a second victim are two different “conduct[s]” under section 609.035.
Where does that leave Ferguson? I conclude that at the very least the imposition of
nine sentences where there are only eight potential victims is not sustainable. There simply
cannot be nine intentional acts that each harm a victim where there are only eight potential
victims. Further, Munt’s insistence in refuting a constitutional se paration-of-powers
argument that the multiple-victim rule is an exercise in statutory interpretation of the word
“conduct” rather than a judicially created exception to the statute dooms the theory
underlying Ferguson. Ferguson rests on the theory that se ction 609.035 is a grant of
discretion to courts to impose multiple sentences where multiple victims are involved as
long as the judge determines that the punishment imposed on the defendant is
commensurate with the defendant’s acts. See 808 N.W.2d at 590. In other words, the rule

judgment, a single sentence for drive-by shooting was “not commensurate with Ferguson’s
criminal liability” and so upheld the higher sentence imposed. Id. at 592.

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in Ferguson is a separate judicially created exception; something the majority
acknowledges in this case. Such an assumption of discretion by courts simply cannot be
squared with the plain language of section 609.035 and it raises once again the spectre that
the Ferguson exception, now endorsed by the court in this case, violates the separation of
powers.4
I turn now to the present case. The court upholds two sentences for the firing of a
single shot at a car that was occupied by three individuals with a fourth individual —the
target of the shot—standing outside the car: one sentence for assault on the person standing
outside the car and one sentence for drive -by shooting at the occupied vehicle. Under
Munt, separation -of-powers principles compel the conclusion that a single behavioral
incident of firing one shot can result in two sentences only if the behavior constitutes two
discrete intentionally harmful acts against separate victims. Certainly, the assault on the
person standing outside the car is such a harmful act. On the other hand, the drive -by
shooting is a victimless crime under the logic of our holding in Ferguson; the State can
prove Branch guilty of drive-by shooting without any proof that any of the car’s occupants
were “injured, put in fear, or even [] aware of the shooting ,” 808 N.W.2d at 591.
Accordingly, under the multiple -victim rule articulated in Munt and the understanding of
drive-by-shooting crimes as crimes without a victim articulated in Ferguson, secti on
609.035 allows only a single sentence to be imposed on Branch. I would reverse.

4 Notably, Branch does not argue that we should overrule Ferguson and the interplay
between Munt and Ferguson remains an open question.