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This opinion will be unpublished and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
A19-0184

State of Minnesota,
Respondent,

vs.

Rick Alan Larson,
Appellant.

Filed February 3, 2020
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Anoka County District Court
File No. 02-CR-17-1321

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

Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Melissa Sheridan, Assistant Public Defender, Eagan, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Larkin, Judge; and Slieter,
Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Rick Alan Larson challenges his controlled-substance convictions based
upon insufficient evidence and argues that the district court erred by imposing two

2
sentences.1 Because direct evidence supports Larson’s conviction s, we affirm his
convictions. However, the district court erred by sentencing Larson on two counts of
second-degree controlled-substance crime (sale) because the conduct was part of the same
behavioral incident . We therefore reverse and remand with instructions for the district
court to vacate the sentence for count three.
FACTS
Larson proceeded to a bench trial on five controlled -substance offenses occurring
within a park zone. The state dismissed two of the counts at the end of trial.
The district court found that o n February 24, 2017, members of the Blaine Police
Department and members of the Anoka -Hennepin Drug Task Force executed a search
warrant at a residence in Blaine. The district court also found that Larson rented a room in
the basement of the residence. During the search of the basement, law enforcement seized
baggies containing a white crystalline substance from a waste basket next to Larson’s bed.
The white crystalline substance tested positive for methamphetamine and weighed

1 Larson filed a pro se supplemental brief raising a number of issues, which include
challenging: (1) probable cause for the search warrant; (2) proof of his residence; (3) proof
of the sale; (4) proof of the possession of controlled substances; (5) proof of the park zone;
(6) testimony of witnesses; and (7) lack of DNA evidence. Larson’s claims are either not
preserved because he failed to raise those issues through pretrial motion or he failed to cite
authority or the record to make a legal argument . Initially, Larson did not challenge the
search warrant through pretrial motions and therefore the probable-cause claim was
forfeited and is not properly before us on appeal. See Roby v. State, 547 N.W.2d 354, 357
(Minn. 1996) (holding that a party cannot raise a new issue on appeal). The remaining
issues raised by Larson failed to cite legal authority or the record and we therefore do not
address those issues. See State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558
N.W.2d 480, 480 (Minn. 1997) (recognizing that appellate courts decline to address matters
inadequately briefed).

3
7.6 grams. The district court found that the baggies were “in the waste basket underneath
other waste material ,” which it determined was “consistent with an attempt to hide the
controlled substances at the time law enforcement announced their presence when
executing the search warrant.”
The district court also received testimony from two individuals, S.S. and L.L., who
were stopped by law enforcement leaving the residence before the search warrant was
executed. S.S. and L.L. admitted that they purchased methamphetamine from Larson in
the basement of the residence immediately before leaving the residence. The district court
found that S.S. and L.L. went to Larson’s room to purchase what they believed was four
grams of methamphetamine in exchange for $200. The district court credited the testimony
from these two witnesses about the sale “that it was [Larson] who sold them the
methamphetamine that was found in [L.L.’s] purse.”
Based on testimony from the Anoka County Surveyor, the district court found that:
The land survey confirms that [the park], an established city
park platted at the time of [the] subdivision, is located less than
300 feet from any part of the residence including the basement
area of the home. From this, the Court can conclude that
[Larson’s] living quarters were within a “park zone” as defined
by Minnesota Statutes section 152.01, subd. 12a.
The district court found Larson guilty of two separate counts of second-degree
controlled-substance crime (sale), in violation of Minn. Stat. § 152.022, subds. 1(7)(ii),
3(b) ( 2016); and one count of third-degree controlled -substance crime (possession), in
violation of Minn. Stat. § 152.023, subds. 2(a)(6), 3(a) (2016). At the sentencing hearing,
the district court noted that the two counts of second -degree controlled-substance crime

4
(sale) would “merge”2 and the judge thereafter imposed a single sentence of 92 months’
imprisonment. The district court entered a conviction but did not pronounce a sentence for
third-degree controlled-substance crime (possession).
This appeal follows.
D E C I S I O N
I. The state presented sufficient evidence that Larson’s criminal conduct
occurred within a park zone.
When appellate courts evaluate the sufficiency of the evidence, they “‘carefully
examine the record to determine whether the facts and the legitimate inferences drawn from
them would permit the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he [or she] was convicted.’” See State v. Griffin,
887 N.W.2d 257, 263 (Minn. 2016) (quoting State v. Boldman , 813 N.W.2d 102, 106
(Minn. 2012)). “The evidence must be viewed in the light most favorable to the verdict,
and it must be assumed that the fact -finder disbelieved any evidence that conflicted with
the verdict.” Id. “The verdict will not be overturned if the fact-finder, upon application of
the presumption of innocence and the State’s burden of proving an offense beyond a
reasonable doubt, could reason ably have found the defendant guilty of the charged
offense.” Id. “[Appellate courts] use the same standard of review in bench trials and in
jury trials in evaluating the sufficiency of the evidence.” See State v. Palmer, 803 N.W.2d
727, 733 (Minn. 2011).

2 “Counts, convictions, or sentences cannot ‘merge’ or ‘combine,’ and the district court
should avoid using such unclear language during sentencing.” State v. Walker, 913 N.W.2d
463, 469 (Minn. App. 2018).

5
Larson’s sole argument challenging the sufficiency of the evidence of all three
counts is whether the state proved that the controlled-substance offenses occurred in a park
zone. See Minn. Stat. §§ 152.022, subd. 1(7)(ii), 152.023, subd. 2(a)(6). The parties agree
that the park near the residence where Larson was living qualifies as a park subject to Minn.
Stat. § 152.01, subd. 12a (2016).
Pursuant to Minn. Stat. § 152.022, subd. 1(7) (2016), a person may be found guilty
of second-degree controlled-substance crime (sale) if
the person unlawfully sells any of the following in a school
zone, a park zone, a public housing zone, or a drug treatment
facility:
. . . .
(ii) one or more mixtures containing methamphetamine
or amphetamine . . . .

Similarly, a person may be found guilty of third -degree controlled -substance crime
(possession) if a “person unlawfully possesses one or more mixtures containing
methamphetamine or amphetamine in a school zone, a park zone, a public housing zone,
or a drug treatment fa cility.” Minn. Stat. § 152.023, subd. 2(a)(6). A park zone fo r both
of these statutes means
an area designated as a public park by the federal government,
the state, a local unit of government, a park district board, or a
park and recreation board in a c ity of the first class. “Park
zone” includes the area within 300 feet or one city block,
whichever distance is greater, of the park boundary.
Minn. Stat. § 152.01, subd. 12a.
Larson argues that the state offered no evidence “as to the design and dimensions of
the basement or the foundation of the house relative to the footprint of the above -ground

6
part of the structure.” Larson contends that th e district court’s finding s related to the
residence fail to “account for the lack of any evidence as to the design or dimensions of the
house’s foundation and the basement itself, all of which could have extended outside the
300-foot radius.” This is a question that can be addressed by examining the direct evidence
in the case. See State v. Horst , 880 N.W.2d 24, 4 0 (Minn. 2016) (applying an elements -
based approach to a sufficiency -of-the-evidence claim in determining whether to apply
direct or circumstantial evidence).
“[D]irect evidence is [e]vidence that is based on personal knowledge or observation
and that, if true, proves a fact without inference or presumption.” State v. Harris ,
895 N.W.2d 592, 599 (Minn. 2017) (second alteration in original) (quotation omitted). The
state presented direct evidence that the sale and possession of a controlled substance
occurred in Larson’s bedroom in a residence located within a park zone.
First, the district court found credible the testimony of two individuals who
purchased a controlled substance from Larson on the same day that the search warrant was
executed. In the dist rict court’s findings of fact, t he district court made the following
finding regarding their testimony.
Upon arrival at the home, [S.S.] and [L.L.] went downstairs to
[Larson’s] living quarters. [The three] were all sitting on the
couch. [Larson] handed an amount of methamphetamine
believed by [the two women] to be 4 grams to [S.S.], who in
turn handed the methamphetamine to [L.L.]. [L.L.] handed the
purchase price of $200 to [S.S.] who in turn handed the money
to [Larson].

7
A d etective with the Anoka-Hennepin Drug Task Force and a member of the team
executing the search warrant, indicated that the couch they found in the basement was in
the bedroom area of the basement.
Second, an Anoka County Surveyor testified that he determine d the park zone
extended s uch that it included the residence where Larson was living. The surveyor
concluded that the exterior of the residence where Larson resided was 268 feet from the
park. In furtherance of this testimony, the district court found “that [Larson’s] living
quarters were within a ‘park zone.’”
The direct evidence in this case establishes that Larson’s bedroom was in the
basement area of the residence and the residence was within 300 feet from the park zone .
Further, the direct evidence shows the controlled -substance sale and possession occurred
in Larson’s bedroom, which was in the basement of the house. We conclude that the state
presented sufficient evidence beyond a reasonable doubt to support the conviction and
therefore we affirm Larson’s convictions.
II. The district court erred by sentencing Larson on two counts of second-degree
controlled-substance crime (sale) because the criminal conduct was part of the
same behavioral incident.
“Whether the offenses were part of a single behavioral incident is a mixed question
of law and fact, so [appellate courts] review the district court’s findings of fact for clear
error and its application of the law to those facts de novo.” See State v. Ba kken,
883 N.W.2d 264, 270 (Minn. 2016). “But where the facts are established, the
determination is a question of law subject to de novo review.” State v. Grampre ,

8
766 N.W.2d 347, 354 (Minn. App. 2009) (quotation omitted), review denied (Minn. Aug.
26, 2009).
“[I]f 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. S tat. § 609.035,
subd. 1 (201 6). “Thus, the law generally prohibits multiple sentences, even concurrent
sentences, for two or more offenses that were committed as part of a single behavioral
incident.” Bakken, 883 N.W.2d at 270 (quotation omitted).
“The State bears the burden of proving, by a preponderance of the evidence, that a
defendant’s offenses were not part of a single behavioral incident.” Id. Although the state
concedes that both counts of second -degree controlled-substance crime (sale) are part of
the same behavioral incident, we independently review this claim. See State v. Hannuksela,
452 N.W.2d 668, 673 n. 7 (Minn. 1990) (recognizing that even when parties agree on
appeal, appellate courts have the responsibility to “decide cases in accordance with the law,
and that responsibility is not to be diluted by counsel’s oversights, lack of research, and
failure to specify issues or to cite relevant authorities”) (quotation omitted)).
We determine that Larson’s sentence for one of the counts of second-degree
controlled-substance crime (sale) should be vacated as part of a single-behavioral incident.
See State v. Bauer , 792 N.W.2d 825, 828 (Minn. 2011) (holding that whether two intent
crimes constitute a single -behavioral incident requires co nsideration of time, place, and
whether the conduct was motivated by an intent to obtain a single criminal objective). The
district court found Larson guilty and entered judgment of conviction for two counts of

9
selling methamphetamine to S.S. and L.L. As explained by the district court, Larson
handed the controlled substance to S.S. S.S. then handed the controlled substance to L.L.
L.L. provided the money for the purchase. Further, the district court explained that the
controlled substance was found in L.L.’s purse when law enforcement stopped the vehicle
leaving the residence. Based upon the facts found by the district court, we conclude that
the two counts of second -degree controlled-substance crime (sale) were part of a single -
behavioral incident and accordingly reverse and remand for the district court to vacate the
sentence and resentence.3
Affirmed in part, reversed in part, and remanded.

3 Although the parties did not raise an issue pursuant to Minn. Stat. § 609.04 (2016) and
whether it was appropriate to enter two convictions for both counts of second-degree
controlled-substance crime (sale), we note that the statute may have application in this case.
The district court has discretion to consider arguments regarding this issue on remand.