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This opinion will be unpublished and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
A18-1863

State of Minnesota,
Respondent,

vs.

Jeffrey Darin Bean,
Appellant.

Filed September 23, 2019
Affirmed
Bratvold, Judge

Polk County District Court
File No. 60-CR-18-196

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Halbrooks, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this direct appeal from final judgments of conviction and sentence s for three
controlled-substance crimes, appellant argues that two of his sentences must be reversed
2
and remanded for resentencing because the district court erroneously calculated his
criminal-history score. Because we conclude that the district court did not abuse its
discretion, we affirm.
FACTS
On May 31, 2018, appellant Jeffrey Darin Bean pleaded guilty to two counts of
third-degree controlled-substance sale (counts three and four) and one count of fifth-degree
possession (count five) in exchange for the state dismissing two other charges and a
guidelines sentence. The parties did not discuss Bean’s criminal-history score at the plea
hearing, with the exception that defense counsel stated that he intended to address the score
at the sentencing hearing.1 The district court accepted Bean’s pleas, ordered a presentence
investigation (PSI), and scheduled a sentencing hearing.
Probation prepared a PSI report, which calculated Bean’s criminal-history score as
five. This score was based on six prior convictions; three were Minnesota convictions from
November 2006: (1) second-degree assault , dangerous weapon (one and one-half points);
(2) second-degree assault, dangerous weapon (one and one-half points); (3) felony fleeing
a peace officer in a motor vehicle (one-half point). And two were out-of-state convictions
from January 2007: (4) felon y fleeing in a motor vehicle (one-half point); (5) felony
criminal mischief, equivalent to first-degree criminal damage to property , risk of bodily

1 The preplea investigation had reported Bean’s criminal-history score as five. Bean
disputed this score when the preplea investigation was filed, and wrote a letter to the district
court disputing his criminal-history score before he pleaded guilty.
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harm (one point). Appellant also had a fifth-degree controlled-substance crime, possession
(one-half point), from March 2013.2
Before the sentencing hearing, Bean disputed the PSI ’s calculation of his
criminal-history score, relying on two memoranda stating that his criminal-history score
was three. Bean argued that his criminal-history score for convictions one, two, three, four,
and five was “based on multiple convictions, in Minnesota and North Dakota, from one
single date, August 24, 2006.” The state filed a memorandum that agreed with the PSI.
At the sentencing hearing, Bean testified that, on August 24, 2006, in the early
morning hours, he was in Grand Forks, North Dakota, and had three drinks at two different
restaurants. Bean left the second restaurant in his van to go to his home in East Grand
Forks, Minnesota. Bean was speeding and a police officer attempted to pull him over, but
Bean fled. In Grand Forks, law enforcement attempted to stop Bean by pulling in front of
his van; Bean hit a total of five squad cars in North Dakota and continued driving. He drove
across the bridge from Grand Forks to East Grand Forks while police continued in pursuit.
After he entered Minnesota, Bean hit two more squad cars before he stopped and was
arrested. The entire chase lasted around four minutes.
In November 2006, Bean was convicted in Minnesota of two counts of
second-degree assault, fleeing a peace o fficer in a motor vehicle, and refusal to test. In
January 2007, Bean was convicted in North Dakota of “fleeing in a motor vehicle, five

2 The total is actually five-and-one-half points, but the guidelines state that if “the sum of the
weights results in a partial point, the point value must be rounded down to the nearest whole
number.” See Minn. Sent. Guidelines 2.B.1.i. (2017).
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counts of reckless endangerment, and one count of criminal mischief (known in Minnesota
as criminal damage to property).”
Bean argued that, under the Minnesota Sentencing Guidelines, he was “supposed to
accrue the points for the two most serious offenses” from August 24, 2006. Bean asserted
that he should receive one and one-half points “for each of the [s]econd [d]egree [a]ssault
charges” (i.e., convictions one and two), because these offenses were the most serious, and
that, with no points for convictions three, four, and five, his criminal-history score should
be three and one-half , “which would round down to 3.” Bean as serted that convictions
three, four, and five arose “out of the same single course of conduct,” because they were
motivated by “a desire to obtain a single criminal objective . . . to flee from law
enforcement.”
The state argued that the PSI underreported Bean’s criminal-history score, but
accepted the calculation for sentencing in this case. The state asserted that, under Minn.
Stat. § 609.035 (2016), a fleeing offense “that spans multiple counties, involves damage or
assaults against different officers, [is] deemed to be separate behavioral incidents.” Thus,
the state contended that Bean’s criminal-history score was five.
The district court ruled at the hearing that the state had proven the August 24, 2006,
offenses did not arise from a single course of conduct. The court reasoned that Bean “could
have stopped after” each particular assault but chose to continue to flee; there were seven
separate victims from different collisions; the chase took place in two states and over a
two- to three-mile distance; and it “view[ed] [Bean’s] conduct no different than if he had
stopped to fire a gun at five different officers in the City of Grand Forks.” Thus, the district
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court concluded that Bean’s criminal- history score was five. The district court sentenced
Bean to the presumptive 51-month sentence on count three (third-degree sale), a concurrent
57-month presumptive sentence on count four (third-degree sale), and a concurrent 21
months on count five (fifth-degree possession). Bean appeals.
D E C I S I O N
On appeal, Bean argues that the district court erred in computing his
criminal-history score. More specifically, Bean argues that the district court erred by
including points from “five convictions committed during the same course of
conduct . . . instead of including points for only the two most serious of those
convictions.”3 The state contends that the district court did not abuse its discretion because
Bean’s prior “convictions did not arise from the same behavioral incident,” and requests
that this court affirm Bean’s sentence.
We will not reverse a district court’s criminal-history -score calculation absent an
abuse of discretion. See State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), review
denied (Minn. Aug. 20, 2002). Whether multiple offenses arose from a single course of
conduct involves factual determinations that this court reviews for clear error. State v.
O’Meara, 755 N.W.2d 29, 37 (Minn. App. 2008). But when the facts are not disputed,
whether multiple offenses arose from a single course of conduct presents a question of law,
which is reviewed de novo. See State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App.

3 In his brief to this court, Bean argues that his sentences for the two third-degree
controlled-substance crimes should have been 39 months and 45 months, and states that
his 21-month sentence for the fifth-degree controlled-substance crime is correct.
6
2001). “The State bears the burden of proof at sentencing to show that a prior conviction
qualifies for inclusion within the criminal-history score.” Williams v. State, 910 N.W.2d
736, 740 (Minn. 2018).
The Minnesota Sentencing Guidelines govern the determination of a presumptive
sentence. See Rushton v. State, 889 N.W.2d 561, 564-65 (Minn. 2017). Under the
Minnesota Sentencing Guidelines, presumptive sentences are determined by a grid with
two axes, one for the severity of the current offense and a second axis for the defendant’s
criminal-history score. See Minn. Sent. Guidelines 2.C.1 (2017). Generally, calculating a
defendant’s criminal-history score involves determining the severity level of each prior
felony and adding up the points. Minn. Sent. Guidelines at 2.B.1.a (2017). There is an
exception to this rule where “multiple sentences” were impo sed for crimes committed
during a single course of conduct. Id. at 2.B.1.d (2017). The exception states: “When
multiple offenses arising from a single course of conduct involving multiple victims were
sentenced, include in criminal history only the weights from the two offenses at the highest
severity levels.” Id. at 2.B.1.d(2), see also State v. McAdoo, 330 N.W.2d 104, 107 (Minn.
1983). Thus, to decide this appeal, we must consider whether the district court abused its
discretion in determining that Bean’s convictions from his conduct on August 24, 2006,
did not arise from a single course of conduct.
Based on our review, the state’s brief misconstrues the issue on appeal. The state
argues that Minn. Stat. § 609.035, subd. 1, which prohibits multiple sentences for conduct
arising from a single-behavioral incident, does not apply to this case because it does not
apply to offenses committed in another state. But Bean does not argue that he could
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not be sentenced for the North Dakota offenses. Instead, Bean argues that, because
these convictions arose from a single course of conduct, the Minnesota Sentencing
Guidelines, not section 609.035, provide that the convictions cannot be included in his
criminal-history-score calculation. As Bean correctly states, the guidelines provide that
convictions from other states must be considered in calculating a defendant’s
criminal-history score. Minn. Sent. Guidelines cmt. 2.B.502 (2017) (“The Commission
concluded that convictions from other jurisdictions must, in fairness, be considered in the
computation of an offender’s criminal history score.”). At issue in this appeal is whether
five of Bean’s prior convictions may be included in his criminal-history score, not whether
he was properly sentenced for those offenses. Thus, we consider whether Bean’s prior
convictions arose from a single course of conduct on August 24, 2006, under the Minnesota
Sentencing Guidelines.
“Whether multiple offenses arose out of a single behavior incident depends on the
facts and circumstances of the particular case.” State v. Bookwalter, 541 N.W.2d 290, 294
(Minn. 1995). 4 In considering whether multiple offenses constitute a single course of
conduct, courts look at factors such as “time, place, and whether the offenses were
motivated by a desire to obtain a single criminal objective.” State v. Gould, 562 N.W.2d
518, 521 (Minn. 1997). This “is not a mechanical test” but rather an analysis of all the
relevant facts and circumstances. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).

4 Nonetheless, we rely on caselaw analyzing Minn. Stat. § 609.035’s same-
behavioral-incident rule in our consideration of this issue. According to the Minnesota
Sentencing Guidelines, “[l]egal authorities use the terms ‘single course of conduct’ and
‘single behavioral incident’ interchangeably.” Minn. Sent. Guidelines cmt. 2.B.116 (2017).
8
The state must prove by a preponderance of the evidence that the offenses did not occur
as part of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841- 42 (Minn.
2000).
First, five of Bean’s felony offenses took place on August 24, 2006, in the “early
morning hours.” Based on Bean’s testimony, the entire incident lasted “[ p]robably four
minutes.” Second, three offenses occurred in Minnesota (convictions one, two, and three)
and two offenses occurred in North Dakota (convictions four and five). The August 24
offenses began in Grand Forks, North Dakota and ended in East Grand Forks, Minnesota.
Bean’s conduct occurred over a two- to three-mile distance. In concluding that the offenses
took place in different places, the district court relied on the fact that Bean crossed a state
line during the chase. See generally State v. Beard, 380 N.W.2d 537, 543 (Minn. App.
1986) (concluding two convictions arose from separate behavioral incidents, in part,
because one “arrest occurred in Alabama and the other occurred in Georgia”), review
denied (Minn. Mar. 3, 1986). 5 And, as this court has held before, merely because the
“crimes were committed within a short time span and within the same area does not mean

5 Bean argues that “the district court was relying on an Eighth Circuit opinion cited by the
state,” Levering v. United States, 890 F.3d 738 (8th Cir. 2018), when it found relevant that
his offenses occurred in two separate states. In Levering, the Eighth Circuit concluded that
a defendant committed two violent felonies “on occasi ons different from one another,” to
qualify as an armed career criminal under federal law, when he committed assaults in “two
different counties at different times against different victims.” 890 F.3d at 741. We agree
with Bean that Levering is not relevant or persuasive here because it interprets a
federal sentencing statute, not the Minnesota Sentencing Guidelines. See id.; Jendro v.
Honeywell, Inc., 392 N.W.2d 688, 691 n.1 (Minn. App. 1986) (stating that while statutory
interpretation of federal law by federal courts “is entitled to due respect,” this court is bound
only by the statutory interpretations of the Minnesota Supreme Court and United States
Supreme Court), review denied (Minn. Nov. 19, 1986).
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the single behavioral incident prohibition is violated.” State v. Thomas, 352 N.W.2d 526,
529 (Minn. App. 1984), review denied (Minn. Oct. 11, 1984).
Third, and most importantly, we consider whether Bean’s offenses were motivated
by a desire to obtain “a single criminal objective.” Bookwalter, 541 N.W.2d at 294. Bean
argues that we should conclude that all five offenses were committed with the same
objective, namely, to avoid apprehension. But the district court found that Bean was not
motivated by a single criminal objective because he “could have stopped after” hitting each
squad car, and instead made the decision to continue driving. The record supports the
district court’s findings. In particular, during cross-examination at the sentencing hearing,
Bean acknowledged that, at least five times during the pursuit, he “could have stopped”
but chose not to. Bean also acknowledged that the circumstances changed after each
collision. At the beginning of the chase, only one squad car pursued Bean, but by the time
he “got over into East Grand Forks” he was followed by several officers in many squad
cars from two different states. This testimony supports the district court’s conclusion that
Bean was not motivated by a single criminal objective.
Still, Bean cites caselaw that has held that, where a defendant commits a crime and
then flees the scene to avoid apprehension, the flee offense arises from a single course of
conduct, which includes the original offense. See State v. Gibson, 478 N.W.2d 496, 497
(Minn. 1991) (“In a series of decisions —the avoidance-of-apprehension cases—we have
held that multiple sentences may not be used for two offenses if the defendant, substantially
contemporaneously committed the second offense in order to avoid apprehension for the
first offense.”); see also State v. Boley, 299 N.W.2d 924, 925-26 (Minn. 1980). But we
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conclude that Bean’s case is distinguishable from the “avoidance- of-apprehension cases”
because, in those cases, the original offense and the fleeing offense were committed
“contemporaneously,” and the fleeing offense was committed in “order to avoid
apprehension for the first offense.” Gibson, 478 N.W.2d at 497. Here, Bean’s offenses
occurred within a short time frame on August 24, 2006, but were committed sequentially,
not “contemporaneously.” In addition, in Gibson, the defendant committed the fleeing
offense in order to keep his identity hidden from law enforcement. See id. Here, however,
law enforcement was already in pursuit of Bean and saw him commit the original speeding
offense.
The circumstances in Bean’s August 24, 2006 offenses are more similar to those in
cases holding that an appellant’s “conduct is divisible” because the appellant could have
committed each offense without committing the others. See Marchbanks, 632 N. W.2d at
732 (concluding that the appellant’ s conduct was divisible because he “could unlawfully
possess a firearm without possessing any crack cocaine, and conversely, he could possess
crack cocaine without possessing a firearm”); see also State v. Butcher, 563 N.W.2d 776,
784 (Minn. App. 1997) (holding offense of possessing uncased firearm was separate from
illegal taking of deer and driving after cancellation because, although committed in same
time frame, the offenses did not share “an indivisible state of mind”), review denied (Minn.
Aug. 5, 1997); Thomas, 352 N.W.2d at 529 (holding assault, although occurring within the
same time frame as a cocaine sale, did not “further the completion of the sale” and “separate
criminal objectives were intended”).
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While this is a close question and the record may have supported a different
conclusion, we are not convinced that the district court abused its discretion in concluding
that Bean’s offenses from August 24, 2006, did not occur in a single course of conduct.
Therefore, we affirm the district court’s calculation of Bean’s criminal-history score.
Affirmed.