STATE оf Minnesota, Respondent, v. Thomas Joseph BOOKWALTER, petitioner, Appellant.
No. C7-93-366.
Supreme Court of Minnesota.
Dec. 8, 1995.
541 N.W.2d 290
Hubert H. Humphrey, III, Atty. Gen., Margaret H. Chutich, Asst. Atty. Gen., St.
OPINION
ANDERSON, Justice.
Defendant, Thomas Joseph Bookwalter, was charged by complaint with seven criminal offenses. He pleaded guilty to two counts of criminal sexual conduct in the first degree, kidnapping, and theft of a motor vehicle. After a trial, the jury returned a verdict finding Bookwalter guilty of attempted first-degree murder, attempted second-degree murder, assault in the second degree, assault in the third degree, aggravated robbery and simple robbery. A third count of criminal sexual conduct was dismissed by the court. A sentencing hearing was held and the court imposed three consecutive sentences—for attempted murder in the first degree, criminal sexual conduct in the first degree, and kidnapping. On appeal, Bookwalter challenged the sentences imposed by the court.
The Minnesota Court of Appeals held that the trial court did not err by imposing multiple sentences for attempted murder and criminal sexual assault and by imposing those sentences consecutively, but the court of appeals did conclude that the trial court erred by imposing the kidnapping sentence consecutively and remanded for resentencing on the kidnapping offense. Bookwalter appeals, maintaining that the trial court may not impose multiple sentences for the attempted murder and the criminal sexual conduct. We affirm.
On May 12, 1992, at approximately 9:20 p.m. in Stacy, Minnesota, complаinant left her home to go to work. She was driving her full conversion van. Complainant stopped on her way to work to buy gas for the van at a service station located approximately one block from her home. After complainant paid for the gas, she returned to the van and drove to County Road 19 where she headed east.
Complainant drove east on County Road 19 for approximately five miles to the intersection of County Road 19 and County Road 77. She turned south on County Road 77, toward Chisago City, Minnesota. While complainant drove, she felt something touch her left leg, brushed it away, and then thought that she saw something behind her. Complainant believed that she was alone in the van, but as she started to turn her head to look behind her, defendant, Thomas Joseph Bookwalter, who was in the back of the van, commanded, “Don‘t turn аround.” Bookwalter, who at the time was living with his sister in a home near that of complainant, had been in the back of the van since complainant left her home. He would later testify that he had originally entered the van looking for property to steal. Complainant obeyed Bookwalter‘s command, faced forward, and continued driving.
Bookwalter next instructed complainant to turn the van around in a driveway located on the right-hand side of the road. Complainant begged Bookwalter to let her out of the van, saying, “Please let me out. You can take the van.” Bookwalter responded, “You want to have sex?” Complainant continued driving, now heading north on County Road 77. Upon arriving once again at the intersection of County Road 77 and County Road 19, complainant followed Bookwalter‘s instruction and headed west on County Road 19. While she was driving, Bookwalter fondled one of complainant‘s breasts and also tried to put his penis in one of her hands. In an attempt to signal another driver for help, complainant stopped the van by slamming on the brakes and flashed the van‘s headlights several times. But complainant‘s signal attempt was unsuccessful. Complainant told Bookwalter that she would not move until one of them got out of the van. Bookwalter, who was holding a knife, responded that he would let complainant go if she drove to an area where no cars were around.
Complainant drove approximately a mile to a mile and a half farther down County Road 19, at which point Bookwalter instructed her to turn right onto an isolated dirt road named Ivywood Trail. After complainant turned onto Ivywood Trail, Bookwalter in-
Complainant again asked Bookwalter to let her out, but Bookwalter took the keys from the ignition and pulled complainant to the back of the van, where he sexually assaulted her. During the attack, Bookwalter penetrated complainant‘s vagina with both his penis and his fingers. He also had oral sex with her and touched her breasts with his hands and mouth. After the sexual assault, complainant attempted to put her clothes back on. Bookwalter pushed her down and told her not to dress. Nevertheless, complainant continued to put on her clothes. Bookwalter would later testify that it was during the ride in the van when he got the idea to sexually assault complainant.
Bookwalter then sat in the drivеr‘s seat of the van and began driving down Ivywood Trail, back toward County Road 19. Complainant moved to the van‘s sliding side door intending to jump out of the van while it was moving, but Bookwalter prevented her escape by grabbing the back of her shirt while he drove. At about that point, complainant discovered Bookwalter‘s knife on the floor of the van. She picked up the knife and told Bookwalter that she would stab him if he did not let her out of the van; but complainant could not bring herself to stab him, and they grappled briefly over the knife. During the struggle, Bookwalter momentarily lost control of the van, causing it to go into the ditch, but he was able to regain control and to drive the van out of the ditch. Bookwalter stated again that he would release complainant when no cars were around, and he turned the van onto County Road 19. As Bookwalter drove the van heading west on County Road 19, complainant told him that she wanted to get out immediately. Bookwalter continued to drive for approximately a mile and a half to two miles and eventually stopped the van.
Bookwalter then moved toward complainant, who was still in the back of the van, and asked her for the knife. She refused to give the knife to him. After they briefly scuffled for possession of the knife, complainant threw the knife out the van‘s sliding side door, which had been opened during the scuffle. Bookwalter then commanded complainant to get out of the van by the side door, but complainant insisted on exiting through the driver‘s side. As complainant stepped out of the van on the driver‘s side, she collapsed to the pavement. Bookwalter pulled complainant back onto her feet, and according to cоmplainant, Bookwalter then told her that he was going to kill her.
Bookwalter forcefully led complainant to the edge of some woods that were located approximately 20 feet from the van. He then pulled complainant another 25 to 30 feet into the woods. Bookwalter began choking complainant, but she was able to knock him away. Complainant fell to the ground after Bookwalter attempted to choke her in various ways. After complainant fell to the ground, Bookwalter punched her twice on the side of her head. He then began hitting her head several times with a stick that he had found in the woods, repeatedly telling her to “shut up.” Complainant put her face into the ground, covered her head with her arms, and did not respond to Bookwalter because she wanted him to believe that she was dеad. Bookwalter hit complainant until she was quiet, and at that point, returned to the van and drove to Stacy where he abandoned the van. Complainant managed to walk to the home of an acquaintance, who then called the police and an ambulance.
Bookwalter was charged with kidnapping, criminal sexual conduct in the first degree, attempted first-degree premeditated murder, attempted second-degree intentional murder, assault in the second and third degree, aggravated robbery, simple robbery and theft of a motor vehicle. He was allowed to plead guilty to kidnapping, criminal sexual conduct in the first degree, and theft of a motor vehicle, leaving for jury decision the question whether he attempted to kill complainant when he attacked her in the woods or “merely” committed sоme less serious crime or crimes such as assault and robbery. Both Bookwalter and the state claimed that Bookwalter‘s conduct in the woods was for the purpose of facilitating an attempt to escape and avoid apprehension for kidnapping and
Bookwalter was convicted of and sentenced for kidnapping, criminal sexual assault in the first degree and attempted murder. The trial court imposed three consecutive sentences—240 months for murder in the first degree, 86 months for criminal sexual conduct in the first degree, and 48 months for kidnapping. At the sentencing hearing, the trial court judge stated that “these are different behavioral incidents,” and that Bookwalter “formed a separate, independent intent which was to commit murder, and proceeded to attempt to execute that intent.” The judge also stated the motivation for the attempted murder never became clear, and that the judge understood it was Bookwalter‘s position that he never intended to kill the complainant.
In an unpublished opinion, the Minnesota Court of Appeals held that the trial court did not err by imposing multiple sentences for the two offenses of criminal sexual conduct and attempted murder and held that the trial court did not abuse its discretion in imposing these sentences consecutively because it found the acts of criminal sexual conduct had been committed with particular cruelty. Because the record failed to show confinement of the complainant beyond that connected with the attempted murder and criminal sexual conduct offenses, the court of appeals held that the trial court erred by imposing a consecutive sentence for the kidnapping offense and remanded for resentencing on the kidnapping offense. Bookwalter appeals, claiming that under the facts and circumstances of this case,
I.
Minnesota Statutes sеction 609.035 contains two types of protection for criminal defendants, one against serialized prosecution, the other against multiple punishment. State v. Johnson, 273 Minn. 394, 400, 141 N.W.2d 517, 523 (1966). The present case concerns the protection against multiple punishment. The statute provides:
CRIME PUNISHABLE UNDER DIFFERENT PROVISIONS.
Except as provided in sections 609.251, 609.585, 609.21, subdivisions 3 and 4, 609.2691, and 609.856, 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. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
The purpose of this statute is “to limit punishment to a single sentence where a single behavioral incident result[s] in the violation of more than onе criminal statute.”
But the prohibition against multiple punishment contained in
In this case, we deal directly with the statute‘s protection against multiple punishment. If the statute applies, then under the express terms of the statute, Bookwalter may be sentenced for the kidnapping and for one, but not more than one, of the other offenses committed as part of the same behavioral incident, i.e., for either the attempted murder or the sexual assault, but not both.
The seminal case interpreting
In the present case, Bookwalter‘s crimes of criminal sexual conduct and attempted murder are both intentional crimes. See
The facts of the present case clearly reveal that Bookwalter‘s sexual assault of complainant and his attempt to murder her occurred at two distinct times and places. The divisibility of both time and place is evinced by the sequence of events involved with the crimes. Bookwalter had complainant drive the van to a secluded area and then sexually assaulted her in the back of the van. After the assault, he took control of the van and drove it to a different location. While driving the van, he pushed complainant down when she attempted to dress, but nevertheless complainant was able to dress herself. Complainant was able to gain possession of Bookwalter‘s knife and they struggled over possession of the knife. Bookwalter made numerous promises to free complainant when no cars were around, but did not do so and, in fact, grabbed her by hеr shirt when she attempted to escape from the moving van after she had succeeded in opening the side door. Once he had stopped the van, Bookwalter again struggled with complainant for possession of the knife. After the struggle, complainant exited the van and fell to the pavement. Bookwalter pulled complainant to the edge of some woods that were located approximately 20 feet away from the van. He then pulled complainant another 25 to 30 feet into the woods. Once in the woods, Bookwalter attempted to murder complainant by choking her in various ways and by repeatedly beating her with a stick that he had found in the woods. This sequence of events demonstrates the divisibility of the sexual assault and the attempted murder, in both time and in place, and is a significant factor suрporting the conclusion that the two crimes did not arise out of a single behavioral incident.5
Further, it is clear that the two offenses did not arise out of a single behavioral incident because a single common criminal objective fails to underlie both offenses. Although the focus of the statute is primarily on the defendant‘s conduct rather than the elements
Beyond the elements of the offenses, the record reveals and the trial court concluded that Bookwalter‘s crimes were not part of a premeditated plan or prearranged program of events. Bookwalter admitted that he had originally entered complainant‘s van looking for something to steal. He testified that he decided to sexually assault complainant only after she entered the van, drove to the service station, purchased gas, and resumed driving on her way to work. The sexual assault was not a necessary prelude to any other crime. Instead, the sexual assault was an end in itself. No evidence exists in the record to suggest that Bookwalter‘s perverse sexual impulses motivated his attempt to murder complainant.7 After Bookwalter sexually assaulted complainant, he told complainant that he would release her when no cars were around. He further testified that he could have dropped complainant off in tоwn. Instead, he stopped the van in an area where he saw no homes and where it was “very, very dark.” Bookwalter testified that when he stopped the van, he intended to get out; however, as an apparent afterthought, he decided to murder complainant. Cf. Effinger, 380 N.W.2d at 483; Krampotich, 282 Minn. at 187, 163 N.W.2d at 776.
In summary, based upon the facts and circumstances of this case, which show events disparate as to time, place and criminal objective, we are satisfied that the multiple sentencing of Bookwalter for criminal sexual conduct and attempted murder does not unfairly exaggerate the criminality of his conduct and is not barred by the statute.
II.
Bookwalter further contends that he may not be sentenced for both the sexual assault and for the attempted murder because he attempted to murder complainant substantially contemporaneously with the sexual assault in an effort to avoid being apprehended for the sexual assault. Bookwalter asserts that the facts and circumstances of his case mandate a determination that the attempted murder was committed in order to avoid apprehension for the contemporaneously committed sexual assault and therefore, based upon well-established case law in Minnesota, the offenses are part of the same behavioral incident and only one sentence may be imposed. We disagree. Where a defendant‘s second offense is committed in an attempt to avoid apprehension for the first offense, an analysis similar to that set forth in State v. Johnson is required to determine whether the offense committed in avoidance of apprehension was “substantially contemporaneous” оr was a “single behavioral incident” with the first offense. Hawkins, 511 N.W.2d at 9, 13; State v. Gibson, 478 N.W.2d 496, 497 (Minn.1991).
As noted in numerous earlier cases, the determination of whether there is a “single behavioral incident” or whether the offenses were committed “substantially contemporaneously” turns on the particular facts and circumstances of each case and the resolution is not always simple. In State v. Murphy,
This killing falls within the same continuous criminal act as the rape and thus falls within the scope of our felony-murder statute. 380 N.W.2d at 771.
On the other hand, in State v. Stevenson, 286 N.W.2d 719 (Minn.1979), we held that even though both offenses involved coerced sexual intercourse and occurred in the same general place, the five-hour time separation and lack of relationship between the two offenses rendered each a separate crime for purposes of sentencing. We note that if the second offense in Stevenson had been committed for the purpose of avoiding apprehension, the same analysis would have applied and in all likelihood we would not consider it to have been committed “substantially contemporaneously” with the first offense. It, too, would have constituted a separate crime for purposes of sentencing.
In Hawkins, we held that an attempted murder which occurred at about the same time and in the same place as a robbery, and where the defendant did not have an opportunity to make a safe escape and leave the scene without being harmed or apprehended, was committed for the purpose of avoiding apprehension. Accordingly, the attempted murder and the robbery constituted a single behavioral incident and the defendant was afforded the protection of the statute. 511 N.W.2d at 13-14.
Given the multiplicity and disjointed nature of events between the sexual assault and the attempted murder—factors that formed the basis of our conclusion that the sexual assault and attempted murder were not one behavioral incident—the facts here are more analogous to those in Stevenson than those in Murphy and Hawkins. We have already concluded that the disparity of time and place based on the sequence of events in this case is sufficient to preclude determination of a single behavioral incident. We note that Bookwalter‘s testimony indicates that, unlike the defendant in Hawkins, he had numerous opportunities to make a safe escape. Further, the trial court noted that Bookwalter‘s motivation for the attempted murder never became clear. Accordingly, we conclude that the attempted murder was not substantially contemporaneous with the sexual assault nor did it constitute part of a single behavioral incident. The trial court may therefore impose multiple sentences on Bookwalter for the crimes of attempted murder and criminal sexual conduct. The matter is remanded in the kidnapping matter in conformity with the court of appeals’ decision.
Affirmed.
COYNE, Justice (dissenting).
I respectfully dissent. This is a relatively uncomplicated case involving the application of a settled, long-standing doctrine, the so-called “avoidance-of-apprehension doctrine.” Pursuаnt to that doctrine, if a criminal defendant “substantially contemporaneously” commits one crime in order to avoid apprehension for another crime against the same victim, then under
State v. Hawkins, 511 N.W.2d 9 (Minn. 1994) is illustrative of the doctrine. In that case defendant and an accomplice decided to “rip off” an undercover narcotics officer who arrived at a predetermined location with $3,000 in cash to buy narcotics from them. The men began beating the officer as part of their plan to take the money from him. In order to alert a surveillance team, the officer shouted that he was a police officer. When the officer reached for his gun, defendаnt said, “He‘s got a gun. There is nothing we can do now, man. Get the gun. We‘ve got to do him.” The officer fended off the attempts by defendant and his accomplice to get his gun until the surveillance officers arrived and arrested them. The defendant was convicted of aggravated robbery for taking the money from the officer‘s pocket and
There are two issues in this case relating to the application of the avoidance-of-apprehension doctrine. The first is whether defendant committed the attempted murder to avoid apprehension for the rape. This is partly a factual question, on which the state has the burden of proof. State v. Kemp, 305 N.W.2d 322, 326 (Minn.1981). State v. Zuehlke, 320 N.W.2d 79, 82 (Minn.1982). In view of the way in which this case was tried and submitted to the jury, it is clear both as a factual and as a legal matter that defendant‘s attempt to kill the complainant cannot be explained without necessary reference to the fact that he had just raped the complainant. See State v. Banks, 331 N.W.2d 491, 494 (Minn.1983). As the prosecutor‘s closing argument and the defendant‘s testimony clearly demonstrate and as the majority concedes, this case was tried by both the state and the defendant on the theory that the defendant attempted to kill the complainant in order to avoid apprehension for the rape. To put it another way, the state did not even attempt to prove that the defendant‘s attempt to prevent his victim from identifying him was a separate behavioral incident. On the evidence before it and guided by the face the prosecutor put on that evidence, it is clear that when it found the defendant guilty of attempted first-degree murder, the jury found that the defendant tried to kill the complainant in аn effort to avoid being identified as the rapist and, thus, to avoid apprehension for the rape.
The second question relating to the application of the avoidance-of-apprehension doctrine to the facts of this case is whether it may be said that defendant committed the rape and the attempted murder “substantially contemporaneously.”
At the one extreme, obviously if defendant had choked the complainant and attempted to kill her while in the act of raping her, it would be easy to conclude that he committed the two crimes “substantially contemporaneously.” State v. Hawkins, supra, clearly supports this conclusion. At the other extreme, it seems obvious that if defendant had released the complainant and then later attempted to kill her in order to silence her, it would be easy to conсlude that he did not commit the two crimes “substantially contemporaneously” and that therefore the two crimes were not committed as part of a single behavioral incident.
The difficulty in some cases in making the determination of whether two crimes are committed “substantially contemporaneously” in the context of
On the other hand, in Herberg, the defendant twice raped the same victim but the first rapе was separated from the second by an interval during which defendant drove the victim to a different location so that he could accomplish the second offense without detection. We held, inter alia, that under section 609.035 the trial court could sentence the defendant for one rape, not two.
In deciding whether the attempted murder in this case was committed “substantially contemporaneously” with the rape, it must be remembered that we do not decide appeals in a jurisprudential vacuum. What we decide today in a particular context is influenced by prior decisions in different but related contexts and may bear on future decisions in different but related contexts.
Specifically, in deciding whether defendant committed the attempted murder “substantially contemporaneously” with the rape, we must bear in mind that our decision is influenced by (a) our prior decisions dealing with the issue of substantial contemporaneousness in the context of the prosecution of a defendant for attempted first-degree murder or completed first-degree murder in the course of committing the felony offense of rape and (b) the possible effect of our decision on future prosecutions for attempted first-degree murder or completed first-degree murder in the course of committing the offense of rape.
Formerly, in order to obtain a conviction of attempted first-degree murder or completed first-degree murder, the state had to prove premeditation. However, when the legislature adopted the Criminal Code of 1963 it provided that the state need not prove premeditation if it could prove that the defendant attempted to kill or killed the victim “while” raping the victim. See
In Minnesota, the felony-murder rule is applicable where the “felony and the killing * * * are parts of one continuous transaction.” Kochevar v. State, 281 N.W.2d 680, 686 (Minn.1979). In this case, defendant killed [the victim] immediately following the rape to conceal his crime. This killing falls within the same continuous criminal act as the rape and thus falls within the scope of our felony-murder statute.
380 N.W.2d at 771. In a footnote we added:
Most jurisdictions that recognize the felony-murder doctrine support the view that a killing by one trying to escape from or conceal a felony where there has been no break in the chain of events between the felony and the killing is within the scope of the felony-murder rule. [Citations omitted]. Thus, even though the underlying felony may be complete, the felony-murder rule may still apply. [Citations omitted].
Because it seems to me that the defendant could have been prosecuted successfully for attempted first-degree murder in the course of raping his victim, pursuant to
In summary, the state, which has the burden of proof on the issue for purposes of section 609.035, not only failed to establish that the two offenses were committed as two separate behavioral incidents, the state tried the case on the theory that defendant‘s conduct constituted one continuous behavioral incident—that he attempted murder in order to avoid apprehension for his crimes. Under the circumstances, I believe that, in addition to sentencing defendant for kidnapping, the trial court could sentence defendant for the rape or the attempted murder but not both. The state should not be permitted to have it both ways any more than should the defendant.
Here the maximum sentence that could be imposed for the attempted murder was the statutory maximum of 240 months, whereas the maximum sentence that could be imposed for the rape was 300 months or 25 years.3 The presumptive sentence for the rape, given defendant‘s criminal history score of six, was 158 months. Because defendant committed the rape in a particularly serious way, our cases support the conclusion that the trial court could have doubled the presumptive sentence up to the statutory maximum. Here, the statutory maximum is 300 months. Since the trial court clearly wanted to impose a sentence at least that long, I believe that the appropriate disposition in this case would be to remand to the trial court, with the trial court free on remand to impose a 300-month statutory maximum sentence for the rape. See, among other decisions, Herberg, 324 N.W.2d 346, 350. This would amount to a limited reduction of 26 months, or just over 16 months in actual time the defendant would have to spend in prison, assuming good behavior, from the sentence that remained after the court of appeals’ decision.
It seems to me that the majority, in order to keep this defendant in prison 16 months longer, not only has confused the heretofore clear law relating to
For the foregoing reasons I would reverse with respect to the sentence for attempted murder and rape and remand for resentencing pursuant to
KEITH, Chief Justice (dissenting).
I join in the dissent of Justice COYNE.
PAGE, Justice (dissenting).
I join in the dissent of Justice COYNE.
Notes
Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life:
* * * * + *
(2) causes the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the person or another * * *