Kevin J. Lamson, Appellant, vs. Mark Cohn, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

IN COURT OF APPEALS

State of Minnesota,
Respondent,
 
vs.
 
Dwight Lewis Anthony,
Appellant.

Affirmed as modified; motion denied

Kanabec County District Court

File No. K398663

Mike Hatch, Attorney General, Alison E. Colton, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

Norman J. Loren, Kanabec County Attorney, 19 North Vine Street, Mora, MN 55051 (for respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

CRIPPEN, Judge

            Appellant disputes convictions on charges of kidnapping, assault, and violating a court order, claiming an alibi during the time of the assault.  Because viewing the evidence in the light most favorable to the conviction demonstrates that there is sufficient evidence to convict, we affirm.  We modify the trial court's disposition to eliminate the sentence for violation of a protection order.

            At the time of the incident, appellant and his estranged wife each had restraining orders against the other, and each was accusing the other of being violent toward their young daughter.  Appellant's wife reported that on October 28, 1998, as she was arriving home at night from her job, appellant attacked her, threatened to kill her, attempted to kidnap her, and hit her several times with the butt of a gun.  She managed to escape as he drove away. 

Appellant was charged with kidnapping under Minn. Stat. § 609.25, subd. 1(3) (1998), second-degree assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1 (1998), and violation of a protection order under Minn. Stat. § 518B.01, subd. 14 (1998).  The jury found appellant guilty on all counts.  The trial judge sentenced appellant to concurrent sentences of 68 months for kidnapping, 36 months for the assault, and 90 days for violating a protection order.

1.         In reviewing a claim of insufficient evidence to convict, this court must analyze the record "to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did."  State v. Webb,440 N.W.2d 426, 430 (Minn. 1989) (citation omitted).  See also State v. Alton,432 N.W.2d 754, 756 (Minn. 1988) (stating test is whether jury "could reasonably conclude that a defendant was proven guilty") (citation omitted). 

Appellant claims that the evidence supported an alibi covering his whereabouts during the time of the incident.  Appellant also claims that the victim had a motive to fabricate appellant's involvement in the incident.  These matters concern witness credibility, and we cannot overturn the jury's decisions on such issues.  See State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (in matters involving witness credibility, the jury is the sole judge of the witnesses' credibility and of the weight to give witnesses' testimony).  Furthermore, a conviction may "rest upon the testimony of a single credible witness."  Id. (citation omitted).  A reviewing court must assume that the jury believed the state's witnesses, while disbelieving contradictory evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

2.         Appellant contends that he cannot be sentenced for violating the protection order along with sentences for the assault and kidnapping because these crimes arose out of the same behavioral incident.[1]  Where "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 (1998).  "Multiple punishment ‘refers not to multiple convictions but multiple sentences and any multiple sentences, including concurrent sentences, are barred if section 609.035 applies.'"  State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995) (quoting State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980)).

            At sentencing, the trial court noted that a consecutive sentence would be improper in this case because "there was basically one uninterrupted behavioral incident involving one victim."  The evidence supports this conclusion, and § 609.035 mandates that there be no concurrent sentencing for the violation of a protection order offense.  Appellant's sentences are modified to eliminate the sentence on the violation-of-the-protection-order offense.  There is no merit to the state's position that the evidence shows the crime of violating the protection order occurred at a distinctly different time and place from the other two crimes or that appellant had a different criminal objective in committing the crimes.

            We deny respondent's motion to strike materials in appellant's pro se brief, finding them both cumulative of matters of record and irrelevant to our decision in this case.

Affirmed as modified; motion denied.

[1] Appellant concedes that he may be sentenced for both the assault and the kidnapping, as this is permissible under Minn. Stat. § 609.251 (1998) ("a prosecution for or conviction of the crime of kidnapping is not a bar to conviction of or punishment for any other crime committed during the time of the kidnapping").