State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A23-1437

State of Minnesota,
Respondent,

vs.

Eric Anthony Klaysmat,
Appellant.

Filed July 8, 2024
Affirmed
Smith, John, Judge*

St. Louis County District Court
File No. 69HI-CR-21-538

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

Kimberly J. Maki, St. Louis County Attorney, Jeffrey Vlatkovich, Assistant County
Attorney, Hibbing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larson, Presiding Judge; Cochran, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm the convictions of appellant, Eric Anthony Klaysmat, for fleeing a peace
officer in a motor vehicle, test refusal, and carrying a BB gun in a public place because
there was sufficient evidence to prove beyond a reasonable doubt that he committed the
three of fenses1 and the district court did not err in imposing sentences for driving after
cancellation and carrying a BB gun in a public place .
FACTS
On July 14, 2021, Klaysmat was arrested after he failed to pull his car over when a
police deputy initiated a traffic stop. The state charged him with fleeing a peace office r in
a motor vehicle, see Minn. Stat. § 609.487, subd. 3 (2020), second -degree test refusal, see
Minn. Stat. § 169A.20, subd. 2( 1) (2020), gross misdemeanor driving after cancellation,
see Minn. Stat. § 171.24, subd. 5 (2020), and carrying a BB gun in a public place, see Minn.
Stat. § 624.7181, subd. 2 (2020). A one-day jury trial was held .2
The state’s first witness was the deputy who initiated the traffic stop and
subsequently arrested Klaysmat for failing to stop. The deputy testified that on the day in
question, Klaysmat drove past her in his mother’s red Dodge Durango. She had
encountered Klaysmat previously, so she was able to identify him as he drove past. She

1 Klaysmat was also convicted of driving after cancellation, but he does not challenge that
conviction on a sufficiency basis.
2 For reasons not relevant to this appeal, Klaysmat did not attend his trial. The district court
found “his absence . . . voluntary” and decided to “proceed in his absence.” The court did,
however, appoint Klaysmat stand -by counsel who was present and involved at trial.
3
also was aware that the car he was driving belong ed to his mother. The deputy explained
that she immediately pulled her car onto the road behind Klaysmat because she knew he
had active warrants out for his arrest. She was driving a fully marked squad car and once
she was behind Klaysmat she activated her car’s emergency lights and sirens, indicating to
Klaysmat that he should pull over.
The deputy then testified that Klaysmat did not pull over, slow down, or stop after
she activated her lights and siren . Instead, he merely kept driving, m aintaining a speed of
around 30 miles per hour , which was the speed limit. According to the deputy, after she
initiated the stop , Klaysmat made a right turn, drove one block, blew through a stop sign
and “failed to yield to oncoming traffic” at the next intersection, turned right again, drove
three blocks, and then turned left and finally pulled over in front of his mother ’s house.
The deputy explai ned that “[Klaysmat] had multiple areas that were safe for him to stop
during the route of the travel that he took on his way back home after my emergency lights
and sirens were activated.”
Given the circumstances, the deputy testified that once Klaysmat was parked at his
mother’s house she initiated a “felony style traffic stop.” She positioned her squad car at a
slight angle behind Klaysmat’s car so she could “exit [the] driver’s side door [] and take
cover behind the doors and the frame of the vehicle while [ she] beg [a]n [giving] verbal
commands.” The deputy explained that she “advised Mr. Klaysmat to turn the vehicle off.
Set the keys on the dash. To put his hands out the window.” Klaysmat complied with these
commands and was arrested “without a ny further incident.”
4
While the deputy was transporting Klaysmat to jail, she grew suspicious that he was
under the influence of some substance. She testified that during the 20-minute interaction,
Klaysmat had “slurred deliberate speech,” also known as “ thick tongue or thick speech,”
and was “very argumentative” and belligerent. The deputy—who was a trained “drug
recognition evaluator ”—explained to the jury that th ese symptoms were consistent with
those seen in people who have consumed alcohol and as a re sult have an impaired central
nervous system. She then expanded on her training, stating that only 300 officers out of
over 10,000 in Minnesota were drug recognition evaluators and that as one, she could
accurately determine what controlled substance someo ne was under the influence of about
80% of the time.
Finally, the deputy testified that she did not conduct any field sobriety tests because
Klaysmat was already in custody and in the backseat of her squad car . She instead
“explained to [Klaysmat] [her] concerns of his impairment and . . . offered him a
preliminary breath test” or PBT, which he refused. Based on his behavior, refusal of the
PBT, and her training, the deputy believed “Klaysmat was under the influence of alcohol
and unsafe to be operating a motor vehicle ,” and she “began the process” of reading
Klaysmat the implied consent advisory. A recording of the deputy reading the advisory
was played for the jury. On the recording, the deputy can be heard reading the advisory
twice. Klaysmat can then be heard slurring his words, talking slowly, refusing to answer
any of the deputy’s questions, repeatedly stating that she did not have authority over him,
and claiming that he could not take the test because it went against his religion. After about
19 minutes of this behavior from Klaysmat, the deputy can be heard warning Klaysmat that
5
his behavior indicated to her that he was refusing to take a chemical or breath test. Klaysmat
continued to refuse the test for ten additional minutes. After the recording was finished, the
deputy explained to the jury that Klaysmat “essentially refused to answer the questions or
make a determination as to whether he would [or would not] give a breath test,” and that
she interpreted this to be “refusal [to test] by conduct.”
The state then called the police officer who was present when Klaysmat was arrested
to testify. The officer testified that he heard on the radio that the deputy was attempting to
pull over a red Dodge Durango, so he followed along in case she needed assistance. After
Klaysmat was arrested, the officer searched Klaysmat’s car and found a “rifle style d BB
gun” in the front passenger seat. According to the officer, t he gun was “made up [of]
primarily plastic” and rattled when it was picked up, which indicated that there were “BBs
inside of it.” The officer also found a “package of BBs for the BB gun” on the driver’s seat.
Finally, while the officer testified that “BBs are a certain size,” he admitted that he did not
measure the diameter of the BBs seized from the car.
The jury found Klaysmat guilty of all four charged counts and he now appeals.
DECISION
I. The evidence presented by the state was sufficient to uphold Klaysmat’s
convictions.

Klaysmat argues that the state failed to present sufficient evidence to prove beyond
a reasonable doubt that he was guilty of fleeing a peace officer in a motor vehicle, that he
refused to test, and was carrying a BB gun in a public place.
6
In a criminal case, due process requires that the state present sufficient evidence to
prove every element of the charged crime beyond a reasonable doubt. State v. Culver, 941
N.W.2d 134, 142 (Minn. 2020). “When evaluating the sufficiency of the evidence,
appellate courts 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 defenda nt was guilty beyond a reasonable doubt of the offense of which he was
convicted.” State v. Griffin , 887 N.W.2d 257, 263 (Minn. 2016) (quotation omitted).
Evidence is 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 level of
scrutiny review ing courts apply depends on whether the elements of an offense are
supported by direct or circumstantial evidence. State v. Silvernail, 831 N.W.2d 594, 598
(Minn. 2013).
“[D]irect evidence is evidence that is based on personal knowledge or observation.”
State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). When an element
is supported by direct evidence, our sufficiency review is limited to “a painstaking analysis
of the record to determine whether the evidence, when viewed in the light most favorable
to the conviction, is sufficient to allow the jurors to reach the verdict that they did.” State
v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) ( quotation omitted).
Circumstantial evidence is “evidence from which the fact[-]finder can infer whether
the facts in d ispute existed or did not exist.” Harris, 895 N.W.2d at 599. This type of
evidence “always requires an inferential step to prove a fact that is not required with direct
evidence.” Id. When reviewing the sufficiency of circumstantial evidence, appellate cou rts
7
apply a two- step process. Silvernail, 831 N.W.2d at 598 (stating that the level of scrutiny
a reviewing court applies depends on whether the elements of an offense are supported by
direct or circumstantial evidence). First, an appellate court identifie s the circumstances
proved. Id. at 598-99. “In identifying the circumstances proved, we defer to the jury’s
acceptance of the proof of these circumstances and rejection of evidence in the record that
conflicted with the circumstances proved by the State.” Id. Second, an appellate court
“determine[s] whether the circumstances proved are consistent with guilt and inconsistent
with any rational hypothesis except that of guilt.” Id. at 599. During this step, a reviewing
court does not defer to the fact -finder’s choice between reasonable inferences. State v.
Andersen, 784 N.W.2d 320, 329- 30 (Minn. 2010).
A. The state presented sufficient evidence to prove beyond a reasonable
doubt that Klaysmat fled from the police.

Klaysmat first contends that the state presented insufficient evidence to prove that
he was fleeing from the deputy after she initiated the traffic stop . A defendant is guilty of
fleeing a peace officer in a motor vehicle if they “flee[] or attempt[] to flee a peace officer
who is acting in the lawful discharge of an official duty, and the perpetrator knows or
should reasonably know the same to be a peace officer.” Minn. Stat. § 609.487, subd. 3. A
person “flees” if they “increase speed, extinguish motor vehicle headlights or taillights,
refuse to stop the vehicle, or use other means with intent to attempt to elude a peace officer
following a signal given by any peace officer to the driver of a motor vehicle.” Id., subd. 1
(2020). “With intent to” means that an “actor either has a purpose to do t he thing or cause
the result specified or believes that the act, if successful, will cause that result.” Minn. Stat.
8
§ 609.02, subd. 9(4) (2020). And while “elude” is not defined by statute, dictionaries define
it as “to avoid or escape,” see Bryan A. Garner, Garner’s Dictionary of Legal Usage 47
(3d ed. 2011) (defining “elude”), or “to evade or escape from,” see The American Heritage
Dictionary of the English Language 581 (5th ed. 2018) (defining “elude”) . See also
State v. Prigge, 907 N.W.2d 635, 638 (Minn. 2018) (“If a statute does not define a word or
phrase, we give that word or phrase its plain and ordinary meaning. To determine plain
meaning, we look to the dictionary definitions of th[e] words and apply them in the context
of the statute. ” (quotations omitted)).
Klaysmat argues that the evidence does not support the conclusion that he “engaged
in driving tactics intended to help him escape from the police.” A defendant’s intent or
state of mind is usually proven through circumstantial evidence , so we apply the two- step
heightened standard of review . See State v. McAllister, 862 N.W.2d 49, 53 (Minn. 2015)
(“It is rare for the State to establish a defendant ’s state of mind through direct evidence.”).
The circumstances proved are as follows: on the day of the incident, the deputy was
driving a fully marked police squad car that had working emergency lights and a working
siren. The deputy saw Klaysmat drive past her and recognized him based on past
encounters. She also recognized the car he was driving as one that belonged to his mother.
The deputy knew that Klaysmat had an active warrant , so she pulled directly behind him
and initiated a traffic stop by activating her lights and siren. Klaysmat did not immediately
pull his car over after the dep uty initiated the stop, despite it being safe to do so in the area
where he was driving . Klaysmat took at least two turns and drove approximately five
blocks before he stopped and parked in front of his mother’s house . He drove the speed
9
limit and did not increase or decrease his speed . After the deputy initiated the stop,
Klaysmat drove through a stop sign without slowing down or stopping. Once he was
parked, Klaysmat was arrested without incident.
Whe n viewed in the light most favorable to the verdict, see Griffin, 887 N.W.2d at
263, the only reasonable inferences that can be drawn from these circumstances are
consistent with guilt. The deputy was in a marked squad car and activated her lights and
siren while she was driving directly behind Klaysmat. From this, we can infer that
Klaysmat knew he was being followed by a police officer and that a traffic stop had been
initiated. Then, despite having multiple safe places to pull over, Klaysmat kept dri ving.
Given that Klaysmat must have been aware a police officer was trying to stop him, his
failure to stop gives way to the inference that he intentionally chose not to pull over. And
finally, committing a moving violation by failing to stop at a stop sign creates a reasonable
inference that Klaysmat was attempting to flee and evade arrest by returning home. See
Minn. Stat. § 609.487, subd. 1 (stating that a person “flees” if they “increase speed,
extinguish motor vehicle headlights or taillights, refuse to stop the vehicle , or use other
means . . .” (emphasis added) ).
Klaysmat argues that it is reasonable to infer he “was not attempting to escape the
police, but rather was attempting to park his mother’s car at her house, presumably so she
would have a car to drive after he was taken into custody.” Yet, this hypothesis is not
inconsistent with guilt and therefore not persuasive. Even if we assume Klaysmat continued
driving after the deputy initiated the stop because he wanted to drop the car off at his
mother’s house , his behavior still meet s the definition of “flee ” because he intentionally
10
refused to stop for a peace officer. See id. And our caselaw does not support the proposition
that a person is exempt from pulling over when an officer initiates a tr affic stop simply
because they want to park their car at home before being arrested. See State v. Dahm, 394
N.W.2d 589, 591 (Minn. App. 1986) (“Appellant testified that he knew the police wanted
him to stop, but that he refused to do so because he wanted t o get his car home. Based on
this and the officers ’ testimony that he increased his speed while being pursued, a jury
could reasonably conclude that appellant was intending to ‘flee’ the officers within the
meaning of the statute.”). Accordingly, because the reasonable inferences are only
consistent with guilt, we conclude that the state presented sufficient evidence to prove
beyond a reasonable doubt that Klaysmat fled from the police.
B. The state produced sufficient evidence to prove beyond a reasonable
doubt that Klaysmat was guilty of test refusal.

Klaysmat also argues that the evidence offered at trial was insufficient to support
his conviction for second -degree test refusal. “The implied consent law provides that any
person who drives a motor vehicle consents to a chemical test to determine the presence of
alcohol.” Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 258 (Minn. App. 2000). Under
Minnesota Statutes section 169A.20, subdivision 2 (1), “[i]t is a crime for any person to
refuse to submit to a chemical test . . . of the person’s breath under [Minnesota Statutes]
section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure;
revocation of license).” “[S]ection 169A.20, subdivision 2, in turn, incorporates the
requirement from section 169A.51 that an officer may request that a person submit to a
chemical test [only] when the officer ‘has probable cause to believe the person was driving,
11
operating, or in physical control of a motor vehicle’ while impaired.” State v. Koppi, 798
N.W.2d 358, 362 (Minn. 2011) (quoting Minn. Stat. § 169A.51, subd. 1(b) (2010)).
“[R]efusal to submit to chemical testing includes any indication of actual unwillingness to
participate in the testing process, as determined from the driver’s words and actions in light
of the totality of the circumstances.” State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App.
2010), rev. denied (Minn. Mar. 15, 2011). At issue here is Klaysmat’s refusal to submit to
a breath test.
Test refusal can be established by direct or circumstantial evidence. Id. The
evidence offered here—the deputy’s personal observations of Klaysmat —is direct
evidence. See Horst, 880 N.W.2d at 40 (stating that a sufficiency review of d irect evidence
is limited to “a painstaking analysis of the record to determine whether the evidence, when
viewed in the light most favorable to the conviction, is sufficient to allow the jurors to
reach the verdict that they did” ).
Here, the jury was told that to find Klaysmat guilty of test refusal, it had to find that
the evidence proved the following s even elements beyond a reasonable doubt: (1) a peace
officer had probable cause to believe that the defendant drove, operated, or was in physical
control of a motor vehicle while they were under the influence of alcohol; (2) a peace
officer placed the defendant under lawful arrest for driving while impaired , if an officer
has reason to believe the defenda nt was in violation of the law and can explain why they
believed that, the arrest is lawful; (3) a defendant was given the breath test advisory by the
officer; (4) a peace officer requested that t he defendant submit to a chemical test of the
defendant’s breath; (5) the defendant refused to submit to the test ; (6) the defendant has a
12
qualified prior driving incident within the ten years immediately prior to the current
offense; and (7) the defendant’s act took place on or about the date alleged by the state. See
Minn. Stat. § 169A.51; see also 10A Minnesota Practice, CRIMJIG 25.09 (2020).
On appeal, Klaysmat contests only the evidence offered in support of the first and
second element s. He contends that the evidence did not support that the deputy had
probable cause to believe that he was operating a motor vehicle while under the influence
of alcohol and that the state did not establish that he was under lawful arrest for driving
while impaired before the implied consent advisory was given.
i. Probable cause that Klaysmat was under the influence
“Probable cause under section 169A.51, subdivision 1(b), exists whenever there are
facts and circumstances known to the officer which would warrant a prudent man [to
believe] that the individual was driving or was operating or was in physical control of a
motor vehicle while impaired.” Koppi, 798 N.W.2d at 362 (quotation omitted). This is an
objective inquiry. Id. at 363. But “because an officer ’s training and experience is the l ens
through which the fact -finder must evaluate the reasonableness of an officer ’s
determination of probable cause, probable cause incorporates the individual characteristics
and intuitions of the officer to some extent.” Id. at 362.
We conclude that the e vidence was sufficient to prove beyond a reasonable doubt
that the deputy had probable cause to believe Klaysmat was under the influence. She spoke
with and observed Klaysmat for 20 minutes while she was driving him to jail. During this
time, the deputy observed that Klaysmat’s speech was slow and slurred, and that his affect
was argumentative and belligerent . S he explained that her training as a drug recognition
13
evaluator taught her that these symptoms were consistent with alcohol use. See id. (stating
that a determination of the existence of “probable cause incorporates the individual
characteristics and intuitions of the officer to some extent”). And we are not persuaded by
Klaysmat’s argument that the deputy’s observations about his speech patterns are not
enough to create probable cause because “[a]n officer needs only one objective indication
of intoxication to constitute probable cause to believe a person is under the influence.”
State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004) (quotat ion omitted).
Moreover, the deputy’s observations about Klaysmat’s speech came on the heels of
her watching him flee from the police , run through a stop sign, and refuse to take a PBT.
The totality of these circumstances is sufficient to prove beyond a r easonable doubt that
probable cause existed as to whether Klaysmat was under the influence of alcohol. Cf.
State v. Mellett, 642 N.W.2d 779, 788 (Minn. App. 2002) (affirming test-refusal conviction
where the defendant committed one traffic violation —drivin g the wrong way down a one -
way street—and then refused to perform field sobriety tests or a PBT).
ii. Lawful arrest for driving while impaired
We are also not persuaded by Klaysmat’s assertion that the evidence is insufficient
to prove he was under lawful arrest for driving under the influence before the implied
consent advisory was read to him. Factors that can indicate that a person is under arrest
include being handcuffed, searched, placed in a squad car, and being told they are under
arrest. See State v. Olson, 634 N.W.2d 224, 229 (Minn. App. 2001) (reasoning that an
officer told the defendant “that he was ‘under arrest,’ handcuffed him, and began a pat -
down search in anticipation of placing [defendant] in his squad car,” and that “a reasonable
14
person in [the defendant’s] circumstances would have believed that he was formally under
arrest”), rev. denied (Minn. Dec. 11, 2001) ; State v. Moorman, 505 N.W.2d 593, 599
(Minn. 1993) (concluding that a defendant was under arrest after an offic er handcuffed
him, “led him to the squad car and searched him”).
Here, Klaysmat was already handcuffed and in custody for the other offenses he
committed when the driving under the influence charge was communicated to him. On the
recording played at trial, the deputy stated : “I believe you [meaning Klaysmat] have been
driving, operating, or controlling a motor vehicle in violation of Minnesota’s DUI laws and
you have been placed under arrest for this offense .” (E mphasis added) . Klaysmat
immediately asked the deputy if she was “arresting [him] for a DUI,” and she replied ,
“[a]long with your other charges, yes.” About three minutes later, the deputy again t old
Klaysmat that he had been placed under arrest for driving under the influence. A reasonable
person who was handcuffed in the back of a police car and told three times that they were
under arrest for a DUI would understand that they were, in fact, under arrest for DUI. And
as for Klaysmat’s claim that the deputy placed him under arrest for a DUI after she read
him the implied consent advisory, this argument is not supported by the record. Prior to
telling Klaysmat he was under arrest for DUI, the only information the deputy
communicated to hi m was her belief that he had driven under the influence. Only after
placing him under arrest for a DUI did the deputy explain that refusing a chemical or breath
test was a crime.
Therefore, because the evidence is sufficient to prove that the deputy had probable
cause to believe Klaysmat was under the influence and that she placed him under lawful
15
arrest prior to reading the implied consent advisory, we affirm Klaysmat’s conviction for
second-degree test refusal.
C. Klaysmat’s conviction of carrying a BB gu n in a public place was
supported by sufficient evidence .

Next, Klaysmat contends that the evidence presented at trial does not support a
finding that the gun found in the car was a BB gun. Because the evidence offered in support
of this conviction—the officer’s personal observations of the item found in the car —is
direct evid ence, see Harris, 895 N.W.2d at 599, our review is limited to “a painstaking
analysis of the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they
did,” Horst, 880 N.W.2d at 40 (citation omitted).
Minnesota Statutes section 624.7181, subdivision 2 provides that “[w]hoever carries
a BB gun, rifle, or shotgun on or about the person in a public place is guilty of a gross
misdemeanor.” “BB gun” is defined as “a device that fires or ejects a shot measuring .18
of an inch or less in diameter.” Minn. Stat. § 624.7181, subd. 1(a) (2020). Klaysmat argues
that “the state made no effort to prove the diameter of the ammunition that could be fired
from the dev ice found in Klaysmat’s car,” which means “there was no information before
the jury that would permit them to conclude that the device was a BB gun as defined” in
section 624.7181, subdivision 1(a).
Klaysmat is correct that no evidence showing the diameter of the BBs found in his
car was presented at his trial, but this does not mean we are required to reverse his
conviction. The jury heard testimony that a rifle style gun was found on the passenger seat,
16
that the gun was “primarily plastic,” that it rattled when it was picked up, which indicated
to the officer that there were “BBs inside of it,” that a packet of BBs was found on the
driver’s seat, and that BBs are all a certain size. It also saw pictures of the evidence that
the officer found in Klaysmat’s car. T his evidence —particularly the officer’s testimony
that BBs are all a “certain size” —is sufficient to allow the jury to reasonably infer tha t
what was found in the car that day was in fact a BB gun.
II. The district court did not err by imposing sentences for both driving after
cancellation and carrying a BB gun in a public place.

In the alternative, Klaysmat argues that the district court erre d by imposing a
sentence for both his driving after cancellation and carrying a BB gun in public convictions
because he claims these two offenses arose out of a single behavioral incident.
“[T]he law generally prohibits multiple sentences, even concurrent sentences, for
two or more offenses that were committed as part of a single behavioral
incident.” State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016) (quotation omitted ). Under
Minnesota Statutes section 609.035, subdivision 1 (2020) , “ if 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.” This protects defendants who have been convicted of multiple
offenses “against unfair exaggeration of the criminality of his conduct.” State v. Johnson,
653 N.W.2d 646, 651 (Minn. App. 2002) . Offenses are presumed to be part of the same
behavioral incident until the state provides evidence proving the acts were part of separate
incidents. Id. at 652; see also Bakken, 883 N.W.2d at 270 ( noting that t he state has the
burden to prove that two offenses were part of different behavioral incidents to justify
17
imposing sentences for both offenses). Whether multiple offenses occurred during a single
behavioral incident “depends on the fa cts and circumstances of the case.” State v. Jones ,
848 N.W.2d 528, 533 (Minn. 2014) (citing State v. Hawkins , 511 N.W.2d 9, 13 (Minn.
1994)). This issue presents 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.” Bakken, 883 N.W.2d at 270.
The Minnesota Supreme Court has articulated two differ ent tests for determining
whether multiple offenses are part of a single behavioral incident. See State v. Johnson,
141 N.W.2d 517, 525 ( Minn. 1966); State v. Bauer, 776 N.W.2d 462, 478 (Minn. App.
2009), aff’d, 792 N.W.2d 825 (Minn. 2011). “The test to be applied depends on whether
the offenses involved are intentional crimes.” Bauer, 776 N.W.2d at 478. “Where intent is
not a factor,” like in Klaysmat’s case, “it is the singleness of the conduct or behavioral
incident itself that must be given the most significance.” Johnson, 141 N.W.2d at 525. In
this situation, courts will examine “whether the offenses (1) occurred at substantially the
same time and place and (2) arose from ‘a continuing and uninterrupted course of conduct,
manifesting an indivisible state of mind or coincident errors of judgment.’” Bauer, 776
N.W.2d at 478 (quoting State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991)).
Klaysmat’s case mirrors our previous decision in State v. Butcher, 563 N.W.2d 776
(Minn. App. 1997), rev. denied (Minn. Aug. 5, 1997) . In Butcher, a defendant had gone
hunting prior to being pulled over by the police. 563 N.W.2d at 778. Based on what was
found during that interaction, the defendant was charged and convicted of driving after
cancellation, taking big game out of season, and transporting an uncased firearm. Id. at
18
778-79. The district court imposed sentences for all three convictions despite the big game
and the uncased firearm being found in the defendant’s car after he was pulled over by
police. Id. at 779. We concluded that the district court did not err by imposing three
sentences because the three offenses were not part of a single behavioral incident. Id. at
784. We reasoned that each of the offenses “was committed and proven independently of
the others” and that “[o]ne did not necessarily give rise to another.” Id. Thus, “the charged
offenses . . . [did] not manifest an indivisible state of mind or coincident errors of
judgment. All three, although committed during the same time frame, were independent of
each other.” Id.
We acknowledge that K laysmat did commit both offense s at the same time—while
he was driving—and in the same place—his car while it was driving around Chisholm. But
like in Butcher, the offenses of driving after cancellation and carrying a BB gun in public
are not related to one other, do not involve the same type of criminal conduct, and do not
involve the same “errors of judgement.” See id. They can be proven independently of each
other. And the offense of driving after cancellation does not in any way give rise to the
offense of carrying a BB gun in public. Simply put, “the charged offenses in [Klaysmat’s]
case do not manifest an indivisible state of mind.” See id.; see also State v. Clement, 277
N.W.2d 411, 412- 13 (Minn. 1979) (concluding that a defendant’s convictions for driving
while impaired and unlawful possession of tear gas were not part of a single behavioral
incident “because the motivations underlying the nonintentional tr affic offense were

19
different from and unrelated to the motivations underlying the intentional possessory
offense”). We therefore affirm the imposition of both sentences.
Affirmed.