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This opinion will be unpublished and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
A18-1699

State of Minnesota,
Respondent,

vs.

Xieng Khan Lee,
Appellant.

Filed September 9, 2019
Affirmed in part, reversed in part, and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-CR-17-14097

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Devona L. Wells, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Joseph P. Tamburino, Kayla K. We ngronowitz, Caplan & Tamburino Law Firm, P.A.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Cochr an, Presiding Judge; Schellhas, Judge; and Kirk,
Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Xieng Khan Lee challenges his convictions of engagin g in prostitution
under Minn. Stat. § 609.324, su bd. 1(b)(2) (2016), and electron ic solicitation of a child
under Minn. Stat. § 609.352, su bd. 2a(1) (2016). Lee argues th at the evidence was not
sufficient to support either convi ction and that the district c ourt failed to make necessary
findings of fact. Lee also maintains that the district court erred by imposing sentences for
both convictions in violation of Minn. Stat. § 609.035 (2016). Because we conclude that
the evidence was sufficient, we affirm the convictions. But because the district court erred
by imposing multiple sentences, we reverse the imposition of mu ltiple sentences and
remand with instruction to vacate the sentence for the solicitation conviction.
FACTS
The Maple Grove Police Department placed an advertisement on Ba ckpage.com
(Backpage) as a part of the Guardian Angel Operation—an operation targeting individuals
seeking and soliciting minors to engage in prostitution. Prost itutes frequently place
advertisements on Backpage. The title of the advertisement that police placed in this case
was “Like kissing on hump day – 18.” The advertisement was wri tten under the alias
“[R]ayann,” who, according to the advertisement, was 18 years old. A Maple Grove police
officer familiar with Backpage testified at trial that Backpage “will pull” an advertisement
from the site if the company dete rmines that the advertisement was posted by a person
under the age of 18.

3
The advertisement used sex-indust ry jargon such as “gfe” (meani ng “girlfriend
experience”) and “in only” (meaning that the patron hiring the prostitute would travel to
the prostitute’s location), and contained sexually suggestive l anguage (for example, the
fictitious person indicated that she was “hottt and reddy to play” and “likes it wild”). Police
testified at trial that the language used in this advertisement is similar to language used in
real prostitution advertisements on Backpage and that individua ls seeking prostitutes
would typically understand the jargon. The advertisement conta ined a phone number for
the fictitious person.
Appellant Xieng Khan Lee called the number in the advertisement . Police did not
answer the call. Instead, an officer posing as the fictitious “Rayann” replied to Lee with a
text message that read, “hi i missed ur call r u lookin for dat today?” Lee responded with
two messages that read, “Where are you located for incal? What ’s your donation[].”
According to law enforcement testimony, “in call” means that a sex-industry patron will
go to where the prostitute is located. “Donation” is a word co mmonly used in the
sex-trafficking industry to mean the cost of sexual services. The fictitious person
responded that she was in an apartment in Maple Grove and provided prices for an hour or
a half hour of her time. Lee asked whether the fictitious person was “open at 11,” and the
fictitious person responded, “ye s condom is required tho I only do bb for bj’s[ 1] but im
open minded to anal and fetish if u hv one.” Lee sent a text m essage that said, “Ok that’s
fine,” asked for the fictitious p erson’s address, and asked whe ther she had a condom for

1 “bb” means engaging in a sexual act without using a condom. “bj” means oral sex.

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him. The fictitious person asked for Lee’s name and age. Lee falsely stated that his name
was Steve and said that he was 32 years old.
The fictitious person said that she had condoms but preferred i t when patrons
brought their own. Lee responded, “I’ll just use of your yours.” Following that message,
the fictitious person sent a text message that read, “nice to meet u steve im glad ur not old.
im rayann im 15 and i want to make sure ur ok with that cause I don’t want any truble.”
The fictitious person also said that Lee could use her condom. Lee’s response to the
fictitious person revealing her age was a message that said, “Y ou’re young,” followed by
a message asking the fictitious person where she lived.
The fictitious person said that she was in an apartment in Maple Grove and told Lee
that she was alone and that they would have “complete privacy.” Lee sent another series
of messages asking for the fictitious person’s address so that he could come to her
apartment. Lee asked the fictitious person what would happen if he came and the fictitious
person was not who she said she was and asked the fictitious person for a picture. Police
did not send Lee a picture. The fictitious person gave Lee the address to an apartment
building in Maple Grove and told Lee that she would provide the security code to enter the
building when Lee arrived. Lee asked, “Sure it’s you and is it safe?” The fictitious person
said that she was who she claimed to be and indicated that it was safe.
After rescheduling to later that afternoon, Lee appeared at th e fictitious person’s
apartment building. He texted the fictitious person, who provi ded Lee with the security
code to the building. When Lee entered, police arrested him. Lee had about $400 with
him. Another officer interviewed Lee on the scene. During the interview, Lee admitted

5
that the fictitious person identified herself as 15 and then sa id, “I know it’s wrong.” He
also stated that he thought she was an escort. He later told p olice that he was not sure
whether the fictitious person was lying when she said that she was 15 years old. He claimed
that he was only seeking a massage when he contacted the fictitious person, but he agreed
that he said he would use the fictitious person’s condom. He also expressed remorse about
going to the apartment and stated that it was a mistake. He agreed that the fictitious person
asked for $100 and that he brought $100.
The state charged Lee with enga ging in prostitution under Minn. Stat. § 609.324,
subd. 1(b)(2), and electronic solicitation of a child under Minn. Stat. § 609.352, subd. 2a(1).
At a bench trial, Lee testified that he was only seeking a mass age when he responded to
the Backpage advertisement. He admitted, however, that he had used Backpage on other
occasions to solicit prostitutes and that he understood the lan guage used in the
advertisement. He stated that he did not believe that the fict itious person was under
18 years old because she may have been lying and that he was going to “see who she was”
before agreeing to anything. Lee claimed that he would only ha ve sex with a prostitute
who is over the age of 21. The district court found Lee guilty as charged and entered
convictions on both counts. The district court stayed imposition of sentence on both counts
for two years, concurrent to each other.
Lee appeals.
D E C I S I O N
Lee first argues that the eviden ce introduced at trial is insu fficient to support his
convictions. Next, he contends that the district court failed to make a necessary finding of

6
fact regarding his conviction of electronic solicitation of a c hild under Minn.
Stat. § 609.352, subd. 2a(1). Finally, he maintains that the district court erred in imposing
multiple sentences in violation of Minn. Stat. § 609.035. We address each issue in turn.
I. The evidence is sufficient to support both convictions.
Lee maintains that the evidence introduced at trial is insufficient to prove beyond a
reasonable doubt that he is guilty of either offense. The state contends that the evidence is
sufficient to support each conviction. We first consider the appropriate standard to employ
in reviewing the sufficiency of the evidence and then address each charge separately.
A. We review the sufficiency of the evidence under the traditio nal standard of
review.

The parties disagree over whether the traditional direct-eviden c e s t a n d a r d o r t he
heightened circumstantial-eviden ce standard applies to this cou rt’s review of the
sufficiency of the evidence. Lee argues that the circumstantial-evidence standard applies
because the state relied on circumstantial evidence. The state urges us to apply the
traditional standard because direct evidence presented by the state supports the convictions.
The circumstantial-evid ence standard is appropriate when the co nviction is based on
circumstantial evidence, meaning that proof of the offense, or a single element of the
offense, is based solely on circumstantial evidence. State v. Fairbanks, 842 N.W.2d 297,
307 (Minn. 2014). Circumstantial evidence is “evidence from which the [fact-finder] can
infer whether the facts in dispute existed or did not exist.” State v. Harris , 895 N.W.2d
592, 599 (Minn. 2017) (quotation omitted). Direct evidence, on the other hand, is evidence

7
“based on personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” Id. (quotation omitted).
In this case, the state relied on both direct and circumstantia l evidence. But, we
conclude that Lee’s convictions were sufficiently proven by dir ect evidence alone. The
text messages that Lee sent to the fictitious person and Lee’s statements to police in the
post-arrest interview constitute direct evidence of Lee’s intent and beliefs. This evidence
reflects Lee’s personal knowledge about the fictitious person and his mental state. Taken
at face value, this evidence is sufficient to demonstrate Lee’s intent and belief without
inference or presumption. See id. at 599 (defining direct evidence). Consequently, we
review the sufficiency of the evidence in this case under the t raditional direct-evidence
standard. State v. Horst , 880 N.W.2d 24, 39 (Minn. 2016) (noting that the traditional
standard applies “when a disput e d e l e m e n t i s s u f f i c i e n t l y p r o v en by direct evidence
alone”).
Under the traditional direct-evidence standard, the appellate c ourt limits its review
to a “painstaking analysis of th e record to determine whether t he evidence, when viewed
in a light most favorable to the conviction, was sufficient to permit the [fact-finder] to reach
the verdict which [it] did.” Id. at 40 (quotation omitted). We assume that “the [fact-finder]
believed the state’s witnesses a nd disbelieved any evidence to the contrary.”
State v.Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). Appellate courts
“will not disturb the verdict if the [fact-finder], acting with due regard for the presumption
of innocence and the requirement of proof beyond a reasonable d oubt, could reasonably

8
conclude that the defendant was guilty of the charged offense.” State v. Ortega ,
813 N.W.2d 86, 100 (Minn. 2012).
B. The evidence is sufficient to s u p p o r t L e e ’ s c o n v i c t i o n o f e ngaging in
prostitution under Minn. Stat. § 609.324, subd. 1(b).

A person is guilty of engaging i n prostitution if the person in tentionally “hires or
offers or agrees to hire an individual who the actor reasonably believes to be under the age
of 16 years but at least 13 years to engage in sexual penetration or sexual contact.” Minn.
Stat. § 609.324, subd. 1(b)(3) (2016). Lee argues that the evidence is not sufficient to prove
that he reasonably believed that the fictitious person was unde r the age of 16 years but at
least 13 years, and that the evidence is also insufficient to p rove that he offered or agreed
to hire the fictitious person to engage in sexual penetration or sexual contact.
Lee first argues that the evidence is insufficient to prove that he reasonably believed
the fictitious person was 15 years old. Viewing the evidence i n a light most favorable to
the conviction, we conclude that the evidence is sufficient. When the fictitious person told
Lee that she was 15 years old, Lee’s response was an affirmativ e statement: “You’re
young.” At no point in his communications with the fictitious person did Lee inquire about
her age or indicate that he was un interested in receiving services from someone that was
15 years old. Instead, Lee went to the apartment to meet her t hat afternoon. And, when
interviewed by police, Lee agreed that the fictitious person id entified herself as 15.
Viewing this evidence in the light most favorable to the convic tion, we conclude that the
evidence is sufficient to permit the fact-finder to conclude beyond a reasonable doubt that
Lee reasonably believed that the fictitious person was 15 years old.

9
Lee’s argument that the evidence is insufficient to prove this element is
unpersuasive. He argues that his testimony and statements prov e that he did not actually
believe that the fictitious person was underage because people often lie on the internet. But
we disregard Lee’s own testimony that contradicts the verdict, because the district court
did not find it credible. See State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989) (“The
weight and credibility of the te stimony of individual witnesses is for the [fact-finder] to
determine.”); see also Caldwell, 803 N.W.2d at 384. Lee’s statements requesting a picture
from the fictitious person and asking the fictitious person whether she really was who she
purported to be, viewed in a light most favorable to the convic tion, were not sufficient to
preclude the fact-finder from reasonably finding, beyond a reas onable doubt, that Lee
believed that the fictitious person was 15 years old. We defer to the fact-finder’s
assessment of the weight of this evidence and conclude that the direct evidence of Lee’s
belief that the fictitious person was 15 years old is sufficient to prove this element beyond
a reasonable doubt. See Moore, 438 N.W.2d at 108.
Lee also argues that the evidence is not sufficient to prove th at he intentionally
offered or agreed to hire the fictitious person for sexual penetration or sexual contact within
the meaning of Minn. Stat. § 609.324, subd. 1. He maintains th at he was only seeking a
massage from the fictitious pers on, not sexual penetration or s exual contact. He also
contends that the evidence is not sufficient to prove that he a greed to hire the fictitious
person because his statements and conduct were ambiguous. We are not persuaded.
“‘Intentionally’ means that the actor either has a purpose to d o the thing or cause
the result specified or believes that the act performed by the actor, if successful, will cause

10
that result.” Minn. Stat. § 609.02, subd. 9(3) (2016). Sexual contact means “the intentional
touching by an individual of a prostitute’s intimate parts” or “the intentional touching by a
prostitute of another individual’s intimate parts.” Minn. Stat. § 609.321, subd. 10 (2016).
Sexual penetration means sexual intercourse, oral sex, or anal intercourse. Id., subd. 11
(2016).
We conclude that there is sufficient evidence to prove beyond a reasonable doubt
that Lee was seeking sexual penetr ation or sexual contact and n ot a massage. Again, we
disregard Lee’s statements and testimony that are contrary to t he verdict because the
fact-finder found them not credible. See Moore, 438 N.W.2d at 108; Caldwell, 803 N.W.2d
at 384. The text message conversation between Lee and the fict itious person clearly
establish that Lee was seeking sexual services. Lee, who had used Backpage in the past to
solicit prostitutes and understood sex-industry jargon, responded to an advertisement that
specifically used sex-industry jargon, contained suggestive language, and made no mention
of a massage. Lee’s first two text messages to the fictitious person also used sex-industry
jargon, asking where the fictitious person was located for “in call” and what the fictitious
person’s “donation” was. Lee discussed condom use with the fic titious person, and
ultimately stated that he would use the fictitious person’s con dom. Moreover, in the
post-arrest interview, Lee admitted that he believed the fictitious person was an escort. The
evidence is clearly sufficient to prove that Lee sought sexual penetration or sexual contact
and not a massage.
We also conclude that there is s ufficient evidence to prove bey ond a reasonable
doubt that Lee offered or agreed to hire the fictitious person to engage in sexual penetration

11
or sexual contact. Lee maintains that he never agreed to sexua l contact and that he was
free, at all times, to change his mind. The state argues that Lee’s conduct and statements
demonstrate his intent to engage in sexual contact.
In a prostitution case, an offer or agreement need not be explicit, and may be implied
by the words and actions of a defendant taken in context. State v. Bennett, 258 N.W.2d
895, 897 (Minn. 1977). Further, we do not interpret whether the defendant made an offer
or agreement to hire a prostitute using contract-law principles; rather, an offer to engage in
sexual conduct for hire is an inchoate activity “requir[ing] ne ither completed sexual
conduct nor a substantial act in furtherance of the endeavor.” Id.
Here, there is evidence that Lee asked the fictitious person ho w much she would
charge for sexual services—he as ked the fictitious person what her “donation” was in
response to an advertisement that used sex-industry jargon and suggestive language. Lee
then asked whether the fictitious person was available at a specific time, discussed condom
use with the fictitious person, and asked for the fictitious pe r s o n ’ s a d d r e s s . A f t e r t h e
fictitious person revealed that she was 15 years old, Lee affir matively stated, “You’re
young,” and then sent messages that read, “We[]ll text me your address[,] [s]o I can come.”
He ultimately appeared at the address provided by the fictitious person with enough money
to pay the fictitious person the price she identified. We conclude that this evidence, when
viewed in a light most favorable to the conviction, is sufficie nt to prove beyond a
reasonable doubt that Lee inten tionally offered to hire the fic titious person, who he
reasonably believed to be 15 years old, to engage in sexual contact.

12
Lee argues that he never discussed sexual conduct with the fict itious person once
she revealed that she was 15 yea rs old, and consequently, the e vidence is insufficient to
prove that he intentionally offered or agreed to hire someone t hat he reasonably believed
to be 15 years old. We disagree. Immediately after learning that the fictitious person was
15 years old and stating, “You’re young,” Lee continued to request the fictitious person’s
address. And, when he told the fictitious person that he had t o reschedule, he even
“promised” that he would be “right back shortly.” He then appeared at the location under
the belief that the fictitious person was 15 years old. Considering the evidence as a whole,
we reject Lee’s contention that the evidence is not sufficient to prove this element beyond
a reasonable doubt.
Viewing the evidence in the light most favorable to the verdict , we conclude there
is sufficient evidence to support Lee’s conviction because a fa ct-finder could reasonably
conclude that he was guilty, beyond a reasonable doubt, of engaging in prostitution under
Minn. Stat. § 609.324, subd. 1.
C. The evidence is sufficient to support Lee’s conviction of el ectronic solicitation
of a child under Minn. Stat. § 609.352, subd. 2a(1).

Minn. Stat. § 609.352, subd. 2a(1), provides that “[a] person 18 years of age or older
who uses . . . an electronic co mmunications system . . . [to so licit a child or someone the
person reasonably believes is a child to engage in sexual conduct], with the intent to arouse
the sexual desire of any person, is guilty of a felony.” A “ch ild” means a person 15 years
of age or younger. Id., subd. 1(a) (2016).

13
Lee does not dispute that the evi dence is sufficient to prove that he was 18 years of
age or older or that he used an electronic communications system to communicate with the
fictitious person. Instead, Lee argues that the evidence is not sufficient to prove, beyond a
reasonable doubt, that he solicited the fictitious person when he believed that she was
15 years old, that he intended to engage in sexual conduct with the fictitious person, or that
he acted with the intent to arouse the sexual desire of any person.
For the reasons discussed above, we conclude that the evidence is sufficient to prove
that Lee intended the fictitious p erson to engage in sexual con duct with him and that Lee
reasonably believed that the fictitious person was 15 years old once she revealed her age.
We focus our analysis on the other challenged elements.
Lee argues that the evidence is insufficient to prove that he “solicited” the fictitious
person because the fictitious person, and not Lee, attempted to persuade Lee into engaging
in sexual conduct. The state maintains that the evidence is sufficient because Lee sent the
fictitious person numerous text messages using prostitution jargon, discussed the use of a
condom, and responded to explicit messages relating to sex acts and fetishes.
To “solicit” means “commanding, entreating, or attempting to p ersuade a specific
person in person, by telephone, by letter, or by computerized o r other electronic means.”
Minn. Stat. § 609.352, subd. 1(c) (2016). In State v. Koenig, the supreme court clarified
the definition of “solicit” used in the statute:
“Solicit” is defined as “commanding, entreating, or attempting
t o p e r s u a d e a s p e c i f i c p e r s o n . ” M i n n . S t a t . § 6 0 9 . 3 5 2 ,
subd. 1(c) (2002). The dictionary definition of “solicit” is “[t]o
seek to obtain by persuasion, ent reaty, or formal application.”
The American Heritage Dictionary 1163 (2d College ed.

14
1982). While we do not rely on this definition of solicit
because the statute provides a definition, we note that the
statute’s definition appears to be in accord with the general
understanding of the word “solic it.” “Entreat” is defined as
“[t]o make an earnest request of.” Id. at 457. “Earnest” is
defined as “[m]arked by or showing deep sincerity or
seriousness.” Id. at 434. Regarding an attempt to persuade, an
“attempt” is defined as “[a]n effort or try.” Id. at 139.
“Persuade” means “[t]o cause ( someone) to do something by
means of argument, reasoning, or entreaty.” Id. at 926.
“Command” means “[t]o direct with authority; give orders to.”
Id. at 296. The statute requires that the acts of commanding,
entreating, or attempting to per suade be directed at a specific
person. Minn. Stat. § 609.352, subd. 1(c).

666 N.W.2d 366, 373 (Minn. 20 03) (footnote omitted). “Solicita tion, like the offer to
engage in sexual conduct for hire , is an inchoate activity whic h permits application of
Minn. Stat. § 609.352 to conduct that is in some degrees ambigu ous.” State v. McGrath,
574 N.W.2d 99, 102 (Minn. A pp. 1998) (quotation omitted), review denied ( M i n n .
Apr. 14, 1998). Sending electro nic messages to a person with t he aim of engaging that
person in sexual activity may constitute a solicitation. State v. Coonrod, 652 N.W.2d 715,
723 (Minn. App. 2002), review denied (Minn. Jan. 21, 2003).
Viewing the evidence in the light most favorable to the convic tion, we conclude that
the evidence is sufficient to pr ove beyond a reasonable doubt t hat Lee solicited the
fictitious person. Although the fictitious person discussed sexual acts in her text messages
to Lee, Lee’s text messages inquir ing about the price, location , and availability of the
fictitious person for sexual conduct, in context, support the district court’s finding that Lee
solicited the fictitious person. These messages constituted an e a r n e s t r e q u e s t t h a t t h e
fictitious person engage in sexual conduct. As noted above, th e term “solicit” is defined

15
broadly to include “entreating” or making an earnest request. Koenig, 666 N.W.2d at 373.
The record shows that Lee repeatedly requested the fictitious p erson’s address so that he
could appear there. That Lee did appear and brought enough money to pay the stated price
demonstrates that Lee’s request was sincere.
We are not persuaded by Lee’s argument that the evidence is in sufficient to prove
that he solicited a person he reasonably believed to be 15 year s old simply because the
fictitious person identified that she was 15 in the middle of their conversation. Though Lee
did not specifically discuss sexual conduct with the fictitious person after she revealed her
age, Lee continued to ask the f ictitious person for her address . Lee’s response to the
fictitious person’s age was merely a statement that she was you ng. There is no evidence
to suggest that Lee no longer sou g h t s e x u a l c o n d u c t w i t h t h e f ictitious person once he
learned that she was 15 years old. And Lee’s continued communications with the fictitious
person, repeated requests that the fictitious person provide her address, and appearance at
the apartment all support the district court’s finding that Lee solicited a person he
reasonably believed to be 15 years old.
Finally, Lee argues that the evidence is not sufficient to pro ve that he acted “with
the intent to arouse the sexual desire of any person” within th e meaning of Minn.
Stat. § 609.352, subd. 2a. He argues that there is no evidence that he acted with such an
intent, that he made no sexual comments, and that his responses to the advertisement and
the text messages were not done in a sexually suggestive way. The state maintains that this
element was proved with evidence of Lee’s response to the sexua lly suggestive
advertisement and the text message discussion of sex acts, price, condom use, and location.

16
The state contends that this evidence demonstrates that Lee acted with intent to arouse the
sexual desire of a person—namely himself.
As used in Minn. Stat. § 609.35 2, subd. 2a, the phrase “any pe rson” includes the
person doing the soliciting. State v. Muccio, 890 N.W.2d 914, 922 (Minn. 2017). And,
the content of text messages sent by the solicitor are relevant in determining whether he
acted “with the intent to arouse the sexual desire of any perso n” within the meaning of
Minn. Stat. § 609.352, subd. 2a. State v. Gundy, 915 N.W.2d 757, 765 (Minn. App. 2018),
review denied (Minn. Aug. 7, 2018).
We have already determined that the evidence is sufficient to prove beyond a
reasonable doubt that Lee sought s exual penetration or sexual c ontact with the fictitious
person. Considering the same evidence, we conclude that the ev idence is sufficient to
prove beyond a reasonable doubt that Lee’s ultimate goal in com municating with the
fictitious person and appearing at the apartment was to arouse his own sexual desire and
have sexual conduct or penetration with the fictitious person. We note that Lee’s statement
that he would use the fictitious person’s condom is particularl y persuasive in concluding
that the evidence is sufficient to prove this element, as it cl early demonstrated that Lee’s
goal was to engage in sexual co nduct. Consequently, we conclud e that the evidence is
sufficient to prove that Lee acted with the intent to arouse the sexual desire of a person—
himself.
In sum, when viewed in the light most favorable to the convict ion, the evidence is
sufficient to support Lee’s conviction because a fact-finder could reasonably conclude that

17
the defendant was guilty, beyond a reasonable doubt, of electro nic solicitation of a child
under Minn. Stat. § 609.352, subd. 2a(1).
II. The district court’s findings were sufficient.
Lee next argues that the district court erred by failing to mak e a finding that Lee
acted with the intent to arouse the sexual desire of any person . He argues that this court
must remand with instructions that the district court make nece ssary findings. The state
maintains that the district court made sufficient findings to support its verdict.
Minn. R. Crim. P. 26.01, subd. 2(b), requires the district cour t, following a court
trial, to make written findings of the essential facts. “An op inion or memorandum of
decision filed by the court satisfies the requirement to find the essential facts if they appear
in the opinion or memorandum.” Id., subd. 2(d). “If the court omits a finding on any issue
of fact essential to sustain the general finding, it must be de emed to have made a finding
consistent with the general finding.” Id., subd. 2(e). Moreover, “a fact found by the court,
although expressed as a conclusion of law, will be treated upon appeal as a finding of fact.”
State v. Holliday, 745 N.W.2d 556, 562 (Minn. 2008) (quotation omitted).
We conclude that the district court made sufficient findings of fact. The district
court indicated in its written memorandum that the elements of electronic solicitation of a
child included the element that the person charged have the intent to arouse sexual desire.
The district court made a general finding that Lee was guilty of electronic solicitation of a
child and found that the state proved all of the elements of th e crime. The district court
further found that Lee’s communi cations were an attempt to soli cit the fictitious person
into engaging in sexual conduct by discussing the condom use, price, location, and sexual

18
acts that could take place when he arrived. While the district court did not make an express
finding that Lee acted with the intent to arouse the sexual desire of any person, we conclude
that the district court’s findings were sufficient to support the general verdict and we deem
the district court to have found that Lee acted with the intent to arouse the sexual desire of
any person. See Minn. R. Crim. P. 26.01, subd. 2(e). Because the evidence is sufficient to
support Lee’s convictions, and because the district court made sufficient findings of fact to
support its verdict, we affirm both of Lee’s convictions.
III. The district court erred in imposing multiple sentences in v i o l a t i o n o f
Minn. Stat. § 609.035.

Lee argues that the district court erred by imposing sentences for both convictions
in violation of Minn. Stat. § 609.035. “[I]f a person’s conduc t 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 pr osecution for any other of
them.” Minn. Stat. § 609.035, subd. 1. The test in determining whether this statute applies
is whether the multiple offenses arose out of a single behavior al incident.
State v. Ferguson, 808 N.W.2d 586, 589 (Minn. 2012).
The parties agree that the district court’s decision to impose multiple sentences in
this case violates Minn. Stat. § 609.035, subd. 1. Based on our independent review of the
record, we agree. We remand to the district court to vacate on e of Lee’s sentences. See
Langdon v. State, 375 N.W.2d 474, 476 (Minn. 1985) (“Multiple punishments refers not to
convictions but sentences, and any multiple sentences, including concurrent sentences, are
barred if [Minn. Stat. § 609.035 (1984)] applies.” (footnote om itted)). On remand, the

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district court should vacate the sentence for the less serious offense. See State v. Olson ,
887 N.W.2d 692, 701 (Minn. App. 2016) (“Section 609.035 contemplates that a defendant
will be punished for the most ser ious of the offenses arising o ut of a single behavioral
incident.” (quotations omitted)). To determine the more serious offense, the supreme court
has indicated that courts may look to the length of sentence actually imposed by the district
court, the severity level of the offenses in the sentencing gui delines, and the maximum
potential sentence for each offense. State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006);
see also State v. Franks , 765 N.W.2d 68, 77-78 (Minn. 2009) (noting approval of the
comparison of severity levels and maximum sentences in determining the relative severity
of multiple offenses). Here, the district court imposed identical sentences for both offenses.
But the prostitution charge carri es higher presumptive sentence s for any given criminal
history score under the guidelines. Compare Minn. Sent. Guidelines 4.A (2016), with
Minn. Sent. Guidelines 4.B (2016). It also carries a higher maximum sentence. Compare
Minn. Stat. § 609.324, subd. 1(b ) (establishing a maximum sente nce of ten years
imprisonment), with M i n n . S t a t . § 6 0 9 . 3 5 2 , s u b d . 2 a ( 2 0 1 6 ) ( e s t a b l i s h i n g a m a x i m u m
sentence of three years imprisonment). Consequently, we affirm both of Lee’s convictions
but reverse the district court’s imposition of multiple sentenc es and remand with
instructions to the district court to vacate the sentence on the solicitation conviction.
Affirmed in part, reversed in part, and remanded.