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State v. Branch

Court of Appeals of Minnesota

June 10, 2019

State of Minnesota, Respondent,
v.
Deveon Marquise Branch, Appellant.

          Hennepin County District Court File No. 27-CR-17-19914

          Keith Ellison, Minnesota Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney; and Scott Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent).

          Cathryn Middlebrook, Chief Appellate Public Defender, Veronica May Surges, Assistant Public Defender, St. Paul, Minnesota (for appellant).

          Considered and decided by Hooten, Presiding Judge; Reyes, Judge; and Kirk, Judge. [*]

         SYLLABUS

         Under the rule that a defendant may receive only one sentence for multiple offenses involving one victim committed as part of a single behavioral incident, a conviction of a single count of drive-by shooting at an occupied motor vehicle does not constitute an offense against each of the vehicle's occupants.

          OPINION

          REYES, Judge

         On direct appeal from a final judgment of conviction, appellant argues that the district court erred in imposing a sentence for second-degree assault because it arose out of the same behavioral incident as his conviction of drive-by shooting, and no "exception" to Minn. Stat. § 609.035, subd. 1 (2016), applies. We affirm.

         FACTS

         In April 2017, appellant Deveon Marquise Branch met C.R.G. at a location in Minneapolis to drop off their son. After appellant gave the child to C.R.G., another individual named J.L.T., the child, and C.R.G. entered C.R.G.'s vehicle. A fifth individual, C.L.G., stood outside, next to the vehicle. Appellant and C.L.G. started arguing. Appellant pulled out a handgun and attempted to fire a shot in C.L.G.'s direction, but the bullet struck the vehicle with C.R.G., J.L.T., and the child inside.

         The state charged appellant with one count of drive-by shooting in violation of Minn. Stat. § 609.66, subd. 1e(b) (2016), one count of second-degree assault with a dangerous weapon in violation of Minn. Stat. § 609.222, subd. 1 (2016), and one count of reckless discharge of a firearm in violation of Minn. Stat. § 609.66, subd. 1a(a)(3) (2016). The complaint named C.R.G., an occupant of the vehicle, as the victim of the second-degree-assault charge.

         Appellant pleaded guilty to all three counts with no agreement on sentencing. The district court sentenced appellant to 48 months in prison for the drive-by-shooting offense (count one) and 36 months for the second-degree-assault offense (count two). The district court did not impose a sentence on the offense of reckless discharge of a firearm. This appeal follows.

         ISSUE

         Did the district court err by imposing multiple sentences for drive-by-shooting and second-degree-assault offenses when both convictions arose out of a single behavioral incident and when the ...


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