State v. Ojohn, A19-2039

State of Minnesota, Respondent, v. Milo Calvin Ojohn, Appellant.

A19-2039

STATE OF MINNESOTA IN COURT OF APPEALS

February 1, 2021

This opinion is nonprecedential except as provided by Minn.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

Affirmed in part, reversed in part, and remanded

Johnson, Judge

Lyon County District Court

File No. 42-CR-18-1311

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and

Rick Maes, Lyon County Attorney, Marshall, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Bjorkman, Judge.

NONPRECEDENTIAL OPINION

JOHNSON, Judge

Milo Calvin Ojohn confined a woman in a hotel room for three days, during which time he repeatedly sexually and physically assaulted her. A Lyon County jury found him guilty of kidnapping, third-degree assault, and two counts of first-degree criminal sexual conduct. We conclude that the district court did not plainly err by not giving the jury a specific-unanimity instruction. But we conclude that the district court erred by convicting and sentencing Ojohn on both count 2 and count 8, by assigning him two and one-half criminal-history points based on multiple prior convictions from the state of Colorado, and by imposing a lifetime term of conditional release. Therefore, we affirm in part, reverse in part, and remand for further proceedings, as described below in parts I, III, and IV.

FACTS

In early November 2018, Ojohn met M.E. at a bus depot in Denver, Colorado. They boarded the same bus traveling eastward. Both drank alcoholic beverages at the bus depot and on the bus. They got off the bus together in Marshall, Minnesota, obtained more alcoholic beverages, and rented a hotel room.

M.E. testified at trial as follows: After checking into their hotel room, Ojohn smoked methamphetamine. He told her that he "always carried," which she understood to mean that he had a gun with him in the hotel room. Ojohn threw M.E. on the bed, choked her, and penetrated her vagina with his penis without her consent. M.E. was terrified because Ojohn was a "big guy." For approximately 48 hours, Ojohn used force and threats of force to sexually assault her multiple times. He also punched her in the face and stomach, choked her, pulled out clumps of her hair, and told her that he would hunt her down and kill her if she left the hotel room.

On November 6, 2018, the day they were scheduled to check out, a hotel employee attempted to obtain payment for an additional night. M.E. went to the front desk to facilitate the payment and sought assistance from the hotel employee, who called thepolice. When police officers searched the hotel room, they found numerous blood stains on the bed, blood on the wall, and a clump of hair on the bed with roots attached. M.E. was taken to a hospital, where she was treated for her injuries. An emergency-room physician testified at trial that M.E. had "signs of trauma with swelling . . . and bruising on her face" and "bruising on her wrists and ankles," a fractured ankle, a fractured nasal bone, and a lung contusion. After Ojohn was arrested, he told a detective that all sexual conduct was consensual, that he hit M.E. on only one occasion after she hit him, and that all of her other injuries were caused by a seizure.

The state charged Ojohn with multiple offenses. In an amended complaint, the state charged Ojohn, in counts 1, 2, 3, 7, 8, and 9 with six counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342 (2018), for various acts on various dates and date ranges. In addition, the state charged Ojohn in count 4 with kidnapping, in violation of Minn. Stat. § 609.25, subd. 1(2) (2018); in count 5 with third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (2018); and in count 6 with threats of violence, in violation of Minn. Stat. § 609.713, subd. 1 (2018).

The case was tried to a jury on three days in July 2019. The jury found Ojohn guilty of the offenses charged in count 2 (first-degree criminal sexual conduct), count 4 (kidnapping), count 5 (third-degree assault), and count 8 (first-degree criminal sexual conduct). The district court imposed concurrent prison sentences of 201 months on count 2, 57 months on count 4, 24 months on count 5, and 360 months on count 8. The district court also imposed a ten-year term of conditional release on count 2 and a lifetime term of conditional release on count 8. Ojohn appeals.

DECISION

I. Multiple Convictions and Sentences

We begin by addressing Ojohn's argument that the district court erred by convicting him and sentencing him on both count 2 and count 8, both of which alleged first-degree criminal sexual conduct. He contends that the state did not prove that the conduct underlying both convictions and sentences was not a single behavioral incident.

In general, a person "may be convicted of either the crime charged or an included offense, but not both." Minn. Stat. § 609.04, subd. 1 (2018). The statute includes a definition of the term "included offense." Id. In determining whether an offense is an "included offense" for purposes of section 609.04, it is appropriate to examine "the elements of the offense instead of the facts of the particular case." State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). This court applies a de novo standard of review to a district court's application of section 609.04. State v. Chavarria-Cruz, 839 N.W.2d 515, 522 (Minn. 2013).

Similarly, "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." Minn. Stat. § 609.035, subd. 1 (2018). This statute "generally prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single behavioral incident." State v. Ferguson, 808 N.W.2d 586, 589 (Minn. 2012) (quotation omitted). If there are two intentional crimes, "we determine whether the crimes were 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 aneffort to obtain a single criminal objective." State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016) (citations and quotations omitted). The state bears the burden of proving by a preponderance of the evidence that the conduct underlying multiple offenses was not part of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000). This court applies a clear-error standard of review to a district court's findings of fact and a de novo standard of review to a district court's ultimate decision concerning multiple sentences. State v. Barthman, 938 N.W.2d 257, 265 (Minn. 2020).

Ojohn contends that the state did not prove that the conduct underlying the two convictions of and sentences for first-degree criminal sexual conduct was not a single behavioral incident. He explains that, in both counts, the state sought to prove that Ojohn penetrated M.E.'s vagina with his penis between November 4 and 6, 2018, but the amended complaint, jury instructions, and verdict forms do not describe the particular act underlying each count, and M.E.'s testimony was lacking in specifics about what occurred on the days in question. In response, the state agrees that the evidentiary record does not reveal separate behavioral incidents, and the state concedes that the district court erred by convicting and sentencing Ojohn on both count 2 and count 8.

The state's concession is consistent with the caselaw. In Bixby v. State, 344 N.W.2d 390 (Minn. 1984), the defendant was convicted of two counts of third-degree criminal sexual conduct, but the supreme court held that "there was just one basic incident of wrongdoing that took place at two different locations in one evening." Id. at 391-93. In State v. Grampre, 766 N.W.2d 347 (Minn. App. 2009), review denied (Minn. Aug. 26, 2009), the defendant invaded a woman's home and assaulted her in her bedroom, and thiscourt concluded that only one conviction of criminal sexual conduct was appropriate. Id. at 349, 354. The state's concession also is consistent with the evidentiary record. M.E.'s testimony is lacking in specifics about which of the particular acts of criminal sexual conduct were committed on which dates. See Barthman, 938 N.W.2d at 266-67 (analyzing whether appellant was properly sentenced on two counts of criminal sexual conduct).

Thus, the district court erred by convicting and sentencing Ojohn on both count 2 and count 8. Therefore, we reverse and remand to the district court with instructions to vacate one of the two convictions. The finding of guilt on the count corresponding to the vacated conviction should remain intact but not adjudicated. See State v. Walker, 913 N.W.2d 463, 469 (Minn. App. 2018).

II. Unanimity Instruction

Ojohn also argues that the district court erred by not giving the jury a specific-unanimity instruction with respect to both count 2 and count 8. He argues that the absence of such an instruction, in combination with the manner in which the state charged the case and presented its evidence, violated his right to a unanimous verdict. We review Ojohn's argument in light of our conclusion that he may not be convicted and sentenced on both count 2 and count 8. See supra part I. In light of that conclusion, the narrower question is whether his conviction on either count 2 or count 8 violated his right to a unanimous verdict.

The district court gave the jury a "general unanimity" instruction, as follows: "In order for you to return a verdict, whether guilty or not guilty, each juror must agree with that verdict. Your verdict must be unanimous." Ojohn argues that this instruction wasinadequate and that the jury should have been instructed that it must unanimously agree on the...