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This opinion will be unpublished and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
A19-1865

State of Minnesota,
Respondent,

vs.

Derek Lee Enderle,
Appellant.

Filed August 17, 2020
Affirmed
Segal, Chief Judge

Sherburne County District Court
File No. 71-CR-18-1621

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

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Daniel P. Repka, Repka Law, LLC, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Segal, Chief Judge; and Smith,
Tracy, M., Judge.
U N P U B L I S H E D O P I N I O N
SEGAL, Chief Judge
In this direct appeal from the judgment of conviction for third- and fourth-degree
criminal sexual conduct, appellant argues that the district court erred in imposing separate

2
sentences for these offenses because his con duct constituted a single behavioral incident
pursuant to Minn. Stat. § 609.035 (2016). We affirm.
FACTS
On May 15, 2018, C.K. went to the ho me of appellant Derek Lee Enderle for a
cookout. Enderle’s wife and three daughters we re also present. C.K. is Enderle’s niece
through marriage and had a close relationship with the Enderle family. After the cookout,
Enderle took C.K. and the children on a four-wheeler ride and had a bonfire. Enderle and
C.K. consumed alcohol throughout the evening and both became heavily intoxicated. At
some point while they were outside, C.K. flashed her breasts at Enderle. One of Enderle’s
daughters eventually suggested that he take C.K. inside due to her high level of
intoxication. Enderle walked C.K. inside and took her to a couch in the basement, where
his daughters’ bedrooms were located. C.K. flashed her breasts at Enderle a second time
and he then reached his hand under her clothing and touched her vagina. This occurred at
approximately 11:00 p.m.
Enderle’s wife saw him with C.K. in th e basement and confronted him about his
behavior. She did not see him touch C.K. but she knew that he was “doing something” to
her. They went outside and argued for appr oximately forty minutes. After the argument,
his wife went back inside and Enderle continued to consume alcohol by the fire. He later
went inside to eat a burger and watch television, became sick , went to the bathroom and
vomited. He eventually passed out on the couch in the living room. At some point, Enderle
woke up, went back downstairs and had sexual intercourse with C.K. She was asleep when
Enderle initiated intercourse and woke up to him penetrating her vagina. C.K. fell back

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asleep. She woke up again at approximately 5:00 a.m. and went home. She told her mother
what had happened, and her mother took her to the hospital for a sexual-assault
examination. A vaginal swab revealed a DNA specimen that was a match for Enderle.
Respondent State of Minnesota charged En derle with one count of third-degree
criminal sexual conduct and one count of fourth-degree criminal sexual conduct. The third-
degree charge was based on Enderle’s conduct in sexually penetrating C.K., and the fourth-
degree charge was based on his conduct ear lier in the evening when he reached under
C.K.’s clothing and touched her vagina.
Enderle pleaded guilty to bot h charges. Enderle provide d a factual basis for the
fourth-degree sexual contact charge, admitting that he touched C.K .’s vagina when he
brought her inside to the couch in the baseme nt. On the third-degree sexual penetration
count, Enderle claimed he could not recall anything after falling asleep on the couch in the
living room, but entered a Norgaard plea, in which he acknowledged that the prosecution
has sufficient evidence to obtain a conviction but, because of a lack of recall, could not
admit to the factual basis for the charge. State ex rel. Norgaard v. Tahash , 110 N.W.2d
867, 871 (Minn. 1961). The district court accepted Enderle’s guilty pleas.
At the sentencing hearing, Enderle moved for a downward sentencing departure.
The district court denied the motion and imposed sentences for both offenses after
determining that the offenses did not arise from a single behavi oral incident. The district
court sentenced Enderle to 24 months in prison for fourth-degree criminal sexual conduct
and 54 months in prison for third-degree criminal sexua l conduct, to be served
concurrently. Enderle appeals.

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D E C I S I O N
Enderle’s sole argument on appeal is that the district court erred in entering separate
sentences for the third-degree and fourth-degree criminal sexual conduct offenses because
they are part of a single behavioral incident. Pursuant to Minn. Stat. § 609.035, subd. 1,
“if a person’s conduct constitutes more than one offense under the laws of this state, the
person may be punished for on ly one of the offenses.” The statute prohibits multiple
sentences, including concurrent ones, for offenses that were committed as part of a single
behavioral incident. State v. Ferguson, 808 N.W.2d 586, 589 (Minn. 2012). “Whether the
offenses were part of a single behavioral incident is a mixe d question of law and fact, so
we review the district court’s findings of fact for clear error and its application of the law
to those facts de novo.” State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016).
“In determining whether multiple offenses arise from a single behavioral incident,
this court must consider the defendant’s singleness of purpose, i.e., whether the defendant
was motivated by a desire to obtain a sing le criminal objective . . . [and] whether the
offenses (1) arose from a continuous and unin terrupted course of conduct, (2) occurred at
substantially the same time and place, and (3) manifested an indivisible state of mind.”
State v. Johnson , 653 N.W.2d 646, 651- 52 (Minn. App. 2002) (citations omitted). The
analysis of whether offenses were committed as part of a single behavioral incident
“depends heavily on the facts and circum stances of the particular case.” State v. Bauer ,
792 N.W.2d 825, 828 (Minn. 2011).
Here, there is no dispute that both offenses occurred in the basement of Enderle’s
home and thus were committed in the same place. The district court determined, however,

5
that the offenses were committed at different times because they were separated by “at least
hours.” The district court also determined that the two offenses were not a “continuous
and uninterrupted course of conduct” and that there was a “significant break, not just in
time but also in actions by the defendant,” and that there were “separate intents, separate
states of mind.”
As support for its determination that the two offenses were not part of a single
behavioral incident, the district court cited the Minnesota Supreme Court decision in State
v. Stevenson, 286 N.W.2d 719 (Minn. 1979). In Stevenson, the defendant was convicted
of two separate counts of third-degree criminal sexual conduct involving a 15 year old girl
who was kidnapped and driven by the defendant and his wife to an abandoned farmhouse.
The girl was raped twice by the defendant wh ile at the farmhouse, but the two offenses
were separated by five hours. Id. at 719-20. The supreme court upheld sentencing the
defendant for two separate crimes due to the break in time of five hours and that “neither
act bore any essential relationship to the other.” Id. at 720.
This case also involves a break in time between offenses of “at least hours.” At the
plea hearing, Enderle testified that the fo urth-degree criminal sexual conduct offense
occurred around 11:00 p.m. He and his wi fe then argued outsid e for approximately 40
minutes. After the argument, Enderle contin ued to drink outside by the fire for an
unspecified amount of time. He then went inside, ate a burger, watched television, became
sick, went to the bathroom and vomited before passing out on the livi ng room couch. At
some point he woke up, we nt downstairs and committed th ird-degree criminal sexual
conduct. It is not clear at exactly what time the third-degr ee offense occurred, but C.K.

6
woke up and left the home at approximately 5:00 a.m. The record, thus, supports the
district court’s determination that the offe nses were separated by a period of hours, not
minutes.1
With regard to the district court’s conclu sion that the offenses were not part of a
continuous and uninterrupted course of conduct, there were a number of intervening events
between the first sexual contact offense and the second sexual penetration offense. These
included the 40-minute argument between En derle and his wife, additional drinking
outside, eating a burger, watching television, vomiting and falling asleep on the living room
couch. It was only after all of these non-cr iminal intervening even ts that Enderle went
back down to the basement where C.K. was sleeping and committed the sexual penetration
offense.
Enderle argues that he had a single criminal objective – to have sexual intercourse
with C.K. – and that he formed this intent earlier when they were drinking outside and C.K.
flashed her breasts at him for the first time . Whether conduct was motivated by a single
criminal objective is a subjective test that depends on the facts of the particular case. State
v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). And “[b]road statements of criminal purpose
do not unify separate acts into a single course of conduct.” State v. Jones , 848 N.W.2d
528, 533 (Minn. 2014); see also State v. Barthman , 938 N.W.2d 257, 267 (Minn. 2020)
(determining that the broad criminal objectiv e of “sexual gratific ation” did not unify

1 This is in contrast to cases such as State v. Spears , 560 N.W.2d 723, 727 (Minn. App.
1997), in which this court found that three acts of sexual assault of the same victim that all
took place in defendant’s car within a 45-minute timeframe constituted a single behavioral
incident.

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separate acts of criminal sexual conduct). Rather, the court considers whether the offenses
committed were “necessary to or incidental to the commi ssion of a single crime and
motivated by an intent to commit that crime.” Barthman, 938 N.W.2d at 267 (quotation
omitted).
Enderle cites to the case of State v. Herberg , 324 N.W.2d 346 (Minn. 1982), as
support for his claim. The case involved a girl kidnapped by the defendant. The defendant
drove her to one site where she was violently assaulted, sexually and physically, and then,
because he apparently feared detection at th at site, drove her to another site where he
continued his sexual and physical assa ults and acts of degradation. Id. at 347. The
defendant eventually drove he r back to the site where sh e was originally abducted and
released her. In analyzing whether the offenses were part of a single behavioral incident,
the court pointed out that the only event interrupting the course of conduct in the case was
that defendant, likely fearing detection, drove the victim to a second location to complete
his crimes; crimes that were apparently mo tivated by stories in the pornographic books
seized by police at the time of his arrest. Id. at 347, 349. In the case, the Minnesota
Supreme Court held that the defendant, who pleaded guilty to two assaults and two sex
offenses, should have received only one sentence because the offenses were all part of a
single behavioral incident.2 Id. at 349. We are not persuaded that Herberg is controlling
under the facts of this case.

2 It bears noting, however, that the court foun d this to be the “extremely rare case” that
justified a sentence greater than double the pr esumptive guidelines sentence and affirmed
the upward departure. Id. at 349-50.

8
Here, the district court’s determination th at Enderle had “separate states of mind”
when he committed the offenses is supported by Enderle’s own testimony during the plea
hearing. For example, Enderle stated that he brought C.K. inside at the request of his
daughter, who was concerned about C.K.’s level of intoxication, not because he had formed
an intent to have sexual intercourse with her. In addition, Enderle explained that he took
C.K. to the couch in the basement because, in part, that is where his daughters’ bedrooms
were located, not because of its privacy. Finally, he explained that he touched her vagina
as “a spur of the moment” reaction to her fl ashing him while she was on the couch. His
own characterization of his conduct in committing the fourth-degree offense as “a spur of
the moment” decision refutes his argument on appeal that the conduct was part of an
already-formed criminal objective of having sexual intercourse with C.K.
Finally, Enderle’s detailed description of what happened after he left the basement
does not indicate an intent to return to the ba sement to engage in sexual intercourse with
C.K. Even after the argument with his wife ended and she returned inside, Enderle stayed
outside and continued to drink, he came insi de and ate a burger, watc hed television, laid
down on the living room couch and fell asleep . And he has no reco llection of waking up
and returning to the basement to have sexu al intercourse with C.K. Thus, Enderle
remembers committing the first o ffense as a “spur of the mo ment” decision, but has no
recollection of his decision or conduct in commi tting the second offens e. This supports
the district court’s determination that he ha d different states of mind when deciding to
commit the offenses and does not establish a single criminal objective. At most, the record
establishes that both offenses were committed for the broad purpose of sexual gratification,

9
which is insufficient to establish a single criminal objective sufficient to preclude multiple
sentences. Barthman, 938 N.W.2d at 267.
On this record, the district court did not err in determining that the offenses did not
arise from a single behavioral incident. The offenses share a unity of place, but were
separated by hours and intervening events a nd did not share a single criminal objective.
The district court therefore did not err by im posing sentences for both third- and fourth-
degree criminal sexual conduct.
Affirmed.