A24-0781

This opinion is nonprecedential except as provided by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
A24-0774
A24-0781

State of Minnesota,
Respondent,

vs.

Jacob Carl Smith,
Appellant.

Filed June 2, 2025
Affirmed
Wheelock, Judge

Rice County District Court
File Nos. 66-CR-22-2350, 66-CR-22-2443

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

Brian M. Mortenson, Rice County Attorney, Sean R. McCarthy, Assistant County
Attorney, Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Greg Scanlan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Bjorkman, Judge; and
Halbrooks, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In these consolidated appeals, appellant challenges numerous convictions for
violations of domestic-abuse no-contact orders prohibiting contact with two different
victims, arguing that the distric t court (1) erred by determining that each violation was a
separate behavioral incident and (2) abused its discretion by imposing permissive
consecutive sentences because they exaggerated the criminality of his conduct. We affirm.
FACTS
The parties do not dispute the following facts. Appellant Jacob Carl Smith was in
jail on domestic-assault charges in September 2022 for hitting Y.S.R. with a helmet and
throwing objects at her. While he was in jail, law-enforcement officers monitored his
phone calls and identified 16 individual phone and video calls in which Smith and Y.S.R.
had contact. Law enforcement knew that Smith was prohibited from talking with Y.S.R.
because the district court had imposed a domestic-abuse no-contact order (DANCO)
prohibiting Smith from having contact with Y.S.R. Respondent State of Minnesota
charged all 16 calls as individual DANCO violations pursuant to Minn. Stat. § 629.75,
subd. 2(d)(1) (2022) (collectively, Y.S.R. DANCO violations).
Law enforcement also observed that, while he was in jail, Smith was in contact with
another person, S.L.B., via phone. A separate DANCO prohibited Smith from having
contact with S.L.B. except during counseling sessions. Law enforcement identified
26 individual calls between Smith and S.L.B., and the state charged each as an individual
DANCO violation pursuant to Minn. Stat. § 629.75, subd. 2(d)(1) (collectively, S.L.B.
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DANCO violations). The state later amended its complaint charging Smith with the S.L.B.
DANCO violations, dismissing ten of these counts and leaving 16 counts.
The two complaints charging Smith with DANCO violations proceeded before two
different district court judges. The parties were scheduled for a jury trial in the S.L.B.
DANCO-violation case, but they reached a resolution, and Smith pleaded guilty to all
16 counts. In the Y.S.R. DANCO-violation case, Smith agreed to plead guilty to eight of
the 16 counts. Thus, Smith pleaded guilty to a total of 24 counts of DANCO violations.
Smith was sentenced in the Y.S.R. DANCO-violation case first. Although the state
sought consecutive sentencing for each of the eight convictions, the district court imposed
concurrent sentences. Smith was then sentenced in the S.L.B. DANCO-violation case.
The state urged the district court to sentence three of Smith’s 16 convictions to run
consecutively and the remaining 13 convictions to run concurrently. The state argued that
sentencing Smith concurrently for all 16 convictions would not “honor[] or fulfill[] . . . the
purpose of the sentencing guidelines” given Smith’s criminal-history score and the severity
of the offenses. In arguing against consecutive sentencing, Smith first noted that it was
within the district court’s discretion to consecutively sentence him without departing from
the sentencing guidelines, and then, relying on Minnesota Sentencing Guidelines comment
2.F.01 (2022), he argued that consecutive sentencing should be reserved for offenses more
severe than the offenses he committed.
The district court that sentenced Smith in the S.L.B. DANCO- violation case
acknowledged that both parties had made good arguments at the sentencing hearing but
stated that it was “persuaded by the State’s argument” regarding consecutive sentencing.
4
The district court thus granted the state’s motion for consecutive sentencing as to three of
the S.L.B. DANCO-violation convictions, imposing three 12-month-and-one-day
consecutive sentences for them, and, as to Smith’s remaining 13 convictions, imposing
concurrent 12-month-and-one-day sentences for each of them. Ultimately, Smith was
sentenced to 75 total months of imprisonment.1
Smith appeals in both cases, and we consolidated the appeals.
DECISION
I. The district court did not err by determining that each of Smith’s offenses was
a separate behavioral incident pursuant to Minn. Stat. § 609.035, subd. 1
(2022).
Smith argues that, in both the Y.S.R. case and the S.L.B. case, the state did not prove
that each of his DANCO violations was a separate behavioral incident pursuant to Minn.
Stat. § 609.035, subd. 1, and thus that we must reverse all but two of his 24
DANCO-violation convictions— specifically leaving only one conviction for violating the
Y.S.R. DANCO and one conviction for violating the S.L.B. DANCO. In making this

1 The district court Hernandized Smith’s sentences, increasing his criminal-history score
upon the imposition of each subsequent sentence. “Hernandizing” is a method of
sentencing whereby district courts, when sentencing a criminal defendant for multiple
felony convictions at the same time, use each of the defendant’s convictions —assuming
the convictions are not part of the same behavioral incident —to cal culate each ensuing
criminal-history score for presumptive sentencing under the guidelines. State v.
Hernandez, 311 N.W.2d 478, 479 (Minn. 1981). The implication of Hernandizing is that
the presumptive sentence may increase for the later-sentenced convictions.

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argument, Smith urges us not to follow our nonprecedential opinion in State v. Willis.
No. A21-0402, 2022 WL 90249 (Minn. App. Jan. 10, 2022).2
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 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.” A person’s conduct “is limited to acts committed during a single behavioral
incident.” State v. Branch, 942 N.W.2d 711, 713 (Minn. 2020). Whether an offense was
committed as “part of a single behavioral incident is a mixed 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 cases
with undisputed facts, “the [separate-incident] determination is a question of law subject
to de novo review.” State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).
Appellate courts “determine whether separate intentional crimes formed part of a
single behavioral incident by considering (1) whether the offenses occurred at substantially
the same time and place and (2) whether the conduct was motivated by an effort to obtain
a single criminal objective.” State v. Degroot, 946 N.W.2d 354, 365 (Minn. 2020).
Caselaw informs us that multiple criminal acts can occur within a short span of time.
Id. at 365-66 (affirming that a 45- minute break in time supported a conclusion that two
behavioral incidents of criminal acts occurred). In State v. Barthman, the supreme court
reaffirmed that, when determining whether separate intentional crimes formed part of a

2 “Nonprecedential opinions . . . may be cited as persuasive authority.” Minn. R. Civ. App.
P. 136.01, subd. 1(c).
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single behavioral incident, “we ask whether all of the acts performed were necessary to or
incidental to the commission of a single crime and motivated by an intent to commit that
crime.” 938 N.W.2d 257, 267 (Minn. 2020) (quotation omitted). And in Bakken, the
supreme court observed that “the mere fact that [the defendant] committed multiple crimes
over time for the same criminal objective does not mean he committed those crimes to
attain a single criminal objective.” 883 N.W.2d at 271.
In Willis, we addressed an argument very similar to Smith’s. In that case, Willis
was charged with violation of a DANCO after officers found Willis in a car with his wife,
the person the DANCO protected. Willis, 2022 WL 90249, at *1. While in jail on that
charge, Willis remained in contact with his wife, giving rise to three more DANCO
violations. Id. The district court then issued a new DANCO, again prohibiting Willis from
contact with his wife. Id. Willis remained in contact with his wife while he was in jail ,
communicating with her multiple times a day, and the state charged Willis with 38 counts
of violating a DANCO, one count for each day he had contact with his wife in violation of
the new DANCO. Id. This resulted in 42 counts total of DANCO violations. Id. Willis
pleaded guilty to each count, and the district court sentenced Willis to 42 concurrent
30-month executed sentences. Id. On appeal, Willis argued that the record exhibited only
three behavioral incidents of him violating a DANCO. Id. This court rejected Willis’s
argument, reasoning that each violation was a separate behavioral incident because the
violations occurred “at different times and with multiple hours between” them. Id. at *2.
Smith argues that this court in Willis misapplied the single-behavioral-incident rule.
We are not persuaded. In Willis, this court relied on the supreme court’s articulation of the
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single-behavioral-incident rule in Degroot. Willis, 2022 WL 90249, at *2 (citing Degroot,
946 N.W.2d at 365). We apply the same rule here.
The state proved that each of Smith’s contacts with Y.S.R. and S.L.B. was an
independent call, eachoccurring at a different time and with a distinct beginning and end.
Thus, each of Smith’s offenses did not occur at substantially the same time and place. In
addition, the conduct here was not motivated by a single criminal objective, although it
may at times have been for the same criminal objective of contacting the individuals subject
to each DANCO’s protections; each call between Smith and either Y.S.R. or S.L.B. was
an independent event. See Bakken, 883 N.W.2d at 271. Thus, the conduct underlying each
of the 24 DANCO- violation convictions did not form mere parts of a single behavioral
incident. See Degroot, 946 N.W.2d at 365.
Because each of Smith’s contacts with Y.S.R. and S.L.B. was a separate call and
occurred at a different time, we conclude that the state met its burden of establishing that
each of Smith’s contacts with Y.S.R. and S.L.B. was a separate behavioral incident.
II. The district court did not abuse its discretion when it sentenced Smith in the
S.L.B. DANCO-violation case.
Smith next argues that the district court in the S.L.B. DANCO-violation case abused
its discretion when it sentenced him because “[t]he number of sentences imposed, the
cumulative effect on his criminal history score, and the use of consecutive sentencing” all
unfairly exaggerate the criminality of his conduct. During sentencing in each
DANCO-violation case, the state argued for consecutive sentencing. The district court
imposed concurrent sentences for all of Smith’s convictions in the Y.S.R.
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DANCO-violation case, whereas the district court in the S.L.B. DANCO-violation case
sentenced three of the 16 convictions consecutively.
A district court’s decision to impose consecutive sentences is reviewed for an abuse
of discretion. State v. Ali, 895 N.W.2d 237, 247 (Minn. 2017). The reviewing court “will
interfere with the district court’s sentencing discretion only when the sentence is
disproportionate to the offense or unfairly exaggerates the criminality of the defendant’s
conduct.” Id. (quotation omitted). In determining whether the district court abused its
discretion, “we look to past sentences received by other offenders.” Id. (quotation omitted).
“Multiple current felony convictions for crimes against persons may be sentenced
consecutively to each other, without constituting a departure from the Minnesota
Sentencing Guidelines, only when the presumptive disposition is commitment to the
Commissioner of Corrections.” State v. Rannow, 703 N.W.2d 575, 576 (Minn. App. 2005).
In the Y.S.R. DANCO-violation case, the district court sentenced Smith for his
DANCO violations in accordance with the sentencing guidelines, Hernandizing Smith’s
criminal-history score with each sentence. Smith had a criminal history prior to this
sentencing hearing, and by the time the district court had sentenced Smith for each of his
eight DANCO-violation convictions in the Y.S.R. DANCO-violation case, Smith’s
criminal-history score was 11 points.
In the S.L.B. DANCO-violation case, the district court sentenced Smith to a total of
69 months’ imprisonment. The district court first imposed three executed
12-month-and-one-day sentences to run consecutively. Then it imposed 13 33-month
sentences to run concurrently with Smith’s other sentences.
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Smith argues that the length of his sentences unfairly exaggerates the criminality of
his conduct, relying on State v. Goulette . 442 N.W.2d 793, 794-95 (Minn. 1989). In
Goulette, the district court sentenced the defendant to an aggregate sentence of 251 months
after imposing consecutive sentences for five identical convictions . Id. at 794. The
supreme court concluded that the defendant’s sentence unfairly exaggerated the criminality
of his conduct because the sentence imposed, although permissible, was more than double
the maximum sentence for one of the five convictions , and therefore, it reduced his
sentence from 251 months to 214 months. Id. at 795. In addressing Smith’s argument, we
observe that the defendant in Goulette was convicted of five counts of aggravated robbery
rather than DANCO violations. Id. at 794.
Smith then argues that his invocation of Goulette is persuasive by positing that his
conduct might be less severe than the defendant’s conduct in another case—State v. Alger,
941 N.W.2d 396 (Minn. 2020)—in which the supreme court’s opinion discussed Goulette.
Smith reasons that, because the supreme court declined to follow Goulette in Alger and
because Smith’s conduct is possibly less severe than the defendant’s conduct in Alger but
his sentence was greater than that in Alger, this court should follow Goulette and reduce
Smith’s sentence.
In Alger, the defendant had been in contact with two individuals protected from
contact with him by two orders for protection (OFP). 941 N.W.2d at 399. After the state
charged the defendant with two OFP violations, he repeatedly contacted one of the
protected parties. Id. Based on this behavior, the state amended its complaint against him
to include two counts of stalking. Id. The defendant pleaded guilty to two counts of felony
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violation of an OFP, and the state dismissed the two counts of felony stalking. Id. The
district court sentenced him to 36 months and one day, which was consistent with the plea
agreement. Id. He appealed his sentences; this court affirmed them. Id. at 400. The
supreme court affirmed this court, concluding that “[the defendant]’s sentences do not
exaggerate the criminality of his behavior” because, “unlike [in] Goulette, [the defendant]
did not receive the longest possible sentence without departing from the sentencing
guidelines.” Id. at 404. In so concluding, the supreme court declined to extend Goulette
to the appeal in Alger. Id.
We do not find Smith’s reliance on Goulette and Alger persuasive. Although
Smith’s conduct may be comparable to Alger’s insofar as they both violated orders
prohibiting their contact with protected persons, the defendant in Alger was convicted of
two felony OFP violations while Smith was convicted of 24 felony DANCO violations.
See id. at 399. We discern no basis on which to conclude that Smith’s conduct was less
severe than the conduct in Alger such that it can support a determination that the sentences
here exaggerated the criminality of Smith’s behavior. We further conclude that Goulette
does not compel the result Smith seeks. We agree with the supreme court’s determination
in Alger that the defendant’s situation in that case “was strikingly different” as compared
to the defendant’s situation in Goulette. Id. at 404. Here, Smith’s total sentence duration
of 75 months is substantially shorter than the 251-month sentence duration in Goulette, it
is for 24 DANCO violations rather than five counts of aggravated robbery, and unlike the
defendant in Goulette , Smith did not receive the longest possible sentence without
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departing from the sentencing guidelines for each of his 24 convictions. 3 See Goulette,
442 N.W.2d at 794-95. Although we consider past sentences received by other offenders
in determining whether the district court abused its discretion when sentencing Smith,
Goulette is distinguishable and thus we are not persuaded by Smith’s reliance on Goulette
and Alger. It is clear that the district court, particularly in the S.L.B. DANCO-violation
case, took care to impose an appropriate sentence that would not unfairly exaggerate the
criminality of Smith’s conduct when it elected to impose three executed
12-month-and-one-day sentences to run consecutively and the 13 remaining sentences to
run concurrently.
In sum, we conclude that the district court did not abuse its discretion when it
sentenced Smith consecutively for three of his S.L.B. DANCO-violation convictions.
Affirmed.

3 In the Y.S.R.-DANCO-violations case, the district court imposed the longest possible
sentence without departing from the sentencing guidelines for one of his convictions.