Joseph Thomas Saari, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0431

Joseph Thomas Saari, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 13, 2021
Affirmed
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CR-18-4166

Joseph Thomas Saari, Rush City, Minnesota (pro se appellant)

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

Kimberly Maki, St. Louis County Attorney, Vi ctoria Wanta, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Considered and decided by Smith, Tracy M ., Presiding Judge; Segal, Chief Judge;
and Bjorkman, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this appeal from the district court’s de nial of his motion to correct his sentence,
appellant Joseph Saari argues that the distri ct court erred by (1) imposing separate
sentences for domestic assault and witness tampering because the offenses were committed
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as part of the same behavioral incident; (2 ) sentencing him for both domestic assault and
witness tampering because the o ffenses are included o ffenses of engaging in a pattern of
stalking; and (3) using the Hernandez method of sentencing. Because the district court did
not err in its denial of Saari’s motion, we affirm.
FACTS
The facts of this case are described in greater detail in our previous decisions
addressing Saari’s direct appeal. See State v. Saari , No. A19-1102, 2020 WL 3172657
(Minn. App. June 15, 2020), rev’d (Minn. Feb. 16, 2021); State v. Saari, A19-1102, 2021
WL 2645818 (Minn. App. June 28, 2021). For purposes of this appeal of the denial of his
motion to correct his sentence, the following facts are relevant.
Saari was charged with, a nd a jury found him guilty o f, eight counts of criminal
offenses against his former girlfriend (the victim). One count wa s for felony domestic
assault, which was based on his physical assault against the victim on September 2, 2018.
A second count was for aggravated witness tampering, which was based on threats he made
to the victim during the peri od November 16, 2018, throu gh December 12, 2018, before
his jury trial. A third count was for pattern of stalking, which was based on the September
domestic assault and his actions against the victim that occurred during the same period as
the witness-tampering count.
Before sentencing, respondent State of Minnesota dismissed several counts––
including the pattern-of-stalking count––to avoid multiple convictions for offenses arising
out of the same behavioral incident. The dist rict court then convicted Saari of domestic
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assault and aggravated witness tamp ering and sentenced him for both. 1 The district court
imposed an executed sentence of 27 months for domestic assault and a concurrent executed
sentence of 158 months for aggravated tamp ering with a witness. In calculating the
sentence for the aggravated-w itness-tampering offense, th e district court used the
conviction for domestic assault to add a cr iminal-history point, thus increasing the
presumptive sentence.
Saari moved to correct his sentence under Minn. R. Crim. P. 27.03, subd. 9, and the
district court denied the motion.
This appeal follows.
DECISION
I. The two sentences are not precluded by Minn. Stat. § 609.035 (2018).

Saari argues that the district court erred by sentencing him for one count of domestic
assault and one count of witness tampering be cause it resulted in multiple sentences for a
single behavioral incident.
Under Minn. Stat. § 609.035, subd. 1, “i f a person’s conduct constitutes more than
one offense . . . 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.” This means
that, as a general rule, a court can only sentence a defendant once for offenses occurring in
a “single behavioral incident.” State v. Williams , 608 N.W.2d 837, 841 (Minn. 2000).

1 Saari was also convicted of and sentenced for two counts of nonconsensual dissemination
of private sexual images. These convictions were the subject of Saari’s direct appeal, and
we have remanded them for sentencing. They are not at issue on this appeal.
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Offenses occurred in a single behavioral incident if they “occurred at substantially the same
time and place and were motivated by a single criminal objective.” State v. Jones , 848
N.W.2d 528, 533 (Minn. 2014). We review the district court’s factual findings for clear
error and the application of law to facts de novo. Id.
The district court did not err when it found that Saari’s domestic-assault and
witness-tampering offenses were not a part of the same be havioral incident. These two
offenses did not occur at substantially the same time because they occurred months apart.
Id. Further, the domestic assault was a physic al attack on the victim, and the witness
tampering concerned threatening electronic me ssages. Additionally, the offenses did not
share the same criminal objective: the domes tic assault was related to a disagreement
between Saari and the victim, whereas the w itness tampering was linked to the victim’s
willingness to testify against Saari at trial for the domestic assault.
Saari contends, though, that the offenses arose from the same behavioral incident
because they were both part of the pattern-o f-stalking count agains t him. But the state
dismissed the pattern-of-stalking charge prio r to sentencing. Therefore, the relevant
question under section 609.035 is whether the domestic-a ssault and witness-tampering
offenses arose from the same behavioral incide nt. As explained above, they did not. The
district court therefore did not err by sentencing Saari for both offenses.
II. The two sentences are not precluded by Minn. Stat. § 609.04 (2018).

Saari next argues that he was impe rmissibly convicted of—and therefore
erroneously sentenced for—domestic assault and witness tampering because those offenses
are lesser included offenses of engaging in a pattern of stalking.
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A defendant “may be convicted of either the crime charged or an included offense,
but not both.” Minn. Stat. § 609.04, subd. 1. A lesser included offense is “a crime
necessarily proved if the crime charged were proved.” Id. Whether an offense is a lesser
included offense is a legal question, which we review de novo. State v. Woods, 961 N.W.2d
238, 248 (Minn. 2021).
The principal flaw in Saari’s argument is that he was not convicted of engaging in
a pattern of stalking because the state dismisse d that charge. He ther efore could not have
been convicted of both that offense and of lesser included offenses.
In any event, neither domestic assault nor witness tampering is a lesser included
offense of engaging in a pattern of stalking. To be convicted of engaging in a pattern of
stalking, a defendant must have committed two or more qualifying acts within a five-year
period. Minn. Stat. § 609.749, subd. 5(b) (2018). Witness tampering is not a qualifying act
for a pattern of stalking. See Minn. Stat. § 609.749, subd. 5( a) (2018) (listing 16 types of
qualifying acts). Domestic assault may be a qualifying act for a pattern of stalking, but it
is not a required qualifying act. See id. Therefore, neither witness tampering nor domestic
assault is a necessary element of engaging in a pattern of stal king. In other words, if the
state were to prove that a defendant engaged in a pattern of stalking, the state would not
necessarily prove that the defendant also committed domestic assault or witness tampering.
For this additional reason, Saari was not convicted of—and therefore not sentenced for—
both a greater offense and a lesser included offense.
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III. Application of the Hernandez method was not error.

Saari last argues that the district court should not have used the Hernandez method
to calculate his sentence for witness tampering because the domestic-assault and witness-
tampering offenses were part of the same behavioral incident.
The Hernandez method is a term used to desc ribe a process under the Minnesota
Sentencing Guidelines for sentencing multiple convictions on the same day. See Minn.
Sent. Guidelines 2.B & cmt. 2.B.107 (2018); State v. Hernandez, 311 N.W.2d 478, 480-81
(Minn. 1981). Under this method, if a defendant is sentenced for mu ltiple convictions on
the same day, “a conviction for which the defendant is first sentenced is added to his or her
criminal-history score for another offense for which he or she is also sentenced.” State v.
Williams, 771 N.W.2d 514, 521-22 (Minn. 2009) (citation omitted). Offenses are sentenced
in the order they occurred. State v. Patterson, 796 N.W.2d 516, 531 (Minn. App. 2011),
aff’d, 812 N.W.2d 106 (Min n. 2012). However, the Hernandez method cannot be used
“when a defendant is sentenced for multiple convictions based on a single behavioral
incident.” Williams, 771 N.W.2d at 522. Because in terpretation of the sentencing
guidelines is a question of law, the court reviews this issue de novo. See id. at 520.
The district court did not err when it used the Hernandez method in sentencing Saari.
As discussed above, Saari’s domestic-assault and witness-tampering offenses were not part
of a single behavioral incident, so using the Hernandez method was permissible. Saari
analogizes his case to State v. Longo, where we held that racketeering and controlled-
substance offenses were part of a single be havioral incident because the defendant’s
controlled-substance offenses were a mean s toward “facilitating and sustaining” his
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racketeering “enterprise.” 909 N.W.2d 599, 612 (Minn. App. 2018). Saari’s case is
distinguishable because he did not use the domestic assault to further his witness
tampering, and he did not use witness tampering to further the domestic assault. These were
distinct offenses, and thus the Hernandez method was permissible.
Affirmed.