                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0689

                                   State of Minnesota,
                                       Respondent,

                                            vs.

                                Jason David Fredrickson,
                                       Appellant

                                   Filed May 4, 2015
                                       Affirmed
                                     Worke, Judge

                              Mower County District Court
                                File No. 50-CR-13-349

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St.
Paul, Minnesota; and

Kristen Nelson, Mower County Attorney, Austin, Minnesota (for respondent)

Eric J. Nelson, Douglas V. Hazelton, Halberg Criminal Defense, Bloomington,
Minnesota (for appellant)

       Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and

Worke, Judge.

                        UNPUBLISHED OPINION

WORKE, Judge

       Appellant challenges his criminal-vehicular-homicide convictions, arguing that

(1) the district court erred by declining to suppress his blood-test results when his blood
was drawn without a warrant; (2) the evidence that he was the driver was insufficient;

(3) the district court abused its discretion by admitting evidence; (4) the district court

erred by denying his motion for a judgment of acquittal; and (5) the district court abused

its discretion by imposing consecutive sentences. We affirm.

                                        FACTS

      On February 24, 2012, husband and wife, L.U. and S.U., spent the evening with

J.M. and his wife, M.M., and appellant Jason David Fredrickson and his wife. S.U.

agreed to serve as designated driver and drove the group to a restaurant where they

consumed approximately four rounds of drinks. The group returned to L.U. and S.U.’s

home around midnight.

      Back at the residence the men stayed in the garage. As the women walked into the

house, Fredrickson told S.U. that “he was going to take [J.M.] for a ride into town.” She

told him that he was not, and he said that he was kidding. Around 1:30 a.m., the women

saw a vehicle leave the driveway. They attempted to contact their husbands. When they

received no response, they left to find them. The women reached a point where they saw

emergency lights and the road blocked. M.M. then received a call that J.M. had been in

an accident.

      On February 25, at approximately 2:00 a.m., Austin police officers, the Mower

County Sheriff’s Department, and the Minnesota State Patrol responded to a call of a

single-vehicle accident. The vehicle registered to Fredrickson’s wife had been moving at

120 miles per hour and struck objects in its path before its three occupants were ejected.

L.U. was found deceased behind the vehicle.        Fredrickson was found by the front


                                            2
passenger’s corner of the vehicle, and J.M. was found on the same side of the vehicle,

toward its rear. Fredrickson and J.M. were transported to the hospital. J.M. died at the

hospital. Fredrickson was transported to another hospital 40 miles away.

      At approximately 3:00 a.m., officers learned that alcohol consumption may have

contributed to the accident. Around 3:45 a.m., State Trooper Garrett Bondhus was sent to

obtain Fredrickson’s blood sample. He did not obtain a warrant because procedure at the

time involving a criminal vehicular homicide was to obtain the driver’s blood sample

without a warrant. Fredrickson was unconscious and taken to the critical-care unit where

the trooper was not immediately allowed access to him. A phlebotomist arrived about

25-30 minutes later.    Because of the difficulties the phlebotomist experienced in

obtaining a sample, Fredrickson’s blood was not drawn until 5:18 a.m. The test result

indicated an alcohol concentration (AC) of .06. Retrograde extrapolation conducted on

the sample determined that at 3:21 a.m., Fredrickson’s AC would have measured between

.081 and .111. Fredrickson moved to suppress the blood-test evidence because his blood

was drawn without a warrant.      The district court concluded that the totality of the

circumstances established an exigency making the warrantless blood draw reasonable and

denied the motion.

      At Fredrickson’s jury trial, process server Joel Solomonson testified that he was

hired to serve Fredrickson and his wife with a summons and complaint in a wrongful-

death action. Solomonson personally served Fredrickson. Solomonson told Fredrickson

that it appeared that it might concern a matter involving a car accident and that




                                           3
Fredrickson’s wife was driving. Fredrickson replied that he was driving, then paused and

said “well, we really don’t know who was driving.”

       Sergeant Mark Inglett reconstructed the accident. He testified that the crash was

significant and looked like an explosion. Sergeant Inglett saw no indication that the

vehicle rolled. He believed that the damage to the vehicle and the damage to the utility

pole that it hit indicated that the vehicle was airborne and rotated clockwise.

       Sergeant Inglett believed that L.U. was the left-rear passenger based on his final

resting spot. He stated that a body ejected from a vehicle will travel in a straight line. He

believed that L.U. was ejected when the vehicle hit the tree; his body was found to have

taken a relatively straight path. Fredrickson and J.M. had significant injuries to their left

sides, which was consistent with them being in the front of the vehicle and being thrown

to the left when the vehicle struck the tree. Fredrickson’s left-side injuries were far more

severe than J.M.’s. Sergeant Inglett testified that because the vehicle moved clockwise,

the passengers, none wearing a seatbelt, moved forward and to the right. The first person

ejected would be the right-front passenger because the driver would have to come out

from behind the steering wheel, over the center console, and over the top of the passenger

in order to be ejected first. Inglett believed that J.M. was the right-front passenger

because he was found toward the rear of the vehicle.

       A brown shoe was found near the brake pedal. The shoe was initially inaccessible

because the “dash was crushed around it.” Fredrickson’s clothing from the hospital

included only one brown shoe. Sergeant Inglett testified that the brown shoe was found

“kind of up under the brake pedal” and encapsulated by the car. He testified that it is


                                              4
common for drivers to lose a shoe because of the impact. Sergeant Inglett also noted that

the driver-side airbag deployed.       The Bureau of Criminal Apprehension (BCA)

determined that a pattern on Fredrickson’s shirt could have been caused by the airbag.

Additionally, Fredrickson’s right ankle was fractured, which is a common injury to a

driver because his right foot is on the brake pedal as his muscle tenses, or his foot gets

entangled between the brake pedal and the accelerator.

       Sergeant Paul Skoglund assisted in the reconstruction and also concluded that

Fredrickson was the driver. Daniel Lofgren testified as the defense expert for accident

reconstruction. He believed that the vehicle moved in a counterclockwise direction and

did a barrel roll. Because the vehicle rolled, he could not conclude who was where in the

vehicle and could not eliminate Fredrickson as the driver.

       The jury found Fredrickson guilty of two counts of criminal vehicular homicide—

alcohol concentration .08 or more, and two counts of criminal vehicular homicide—

negligent operation of a vehicle under the influence of alcohol. The jury found him not

guilty of criminal vehicular homicide—grossly negligent operation of a vehicle.

Fredrickson moved for judgment of acquittal, arguing that the evidence was insufficient

that he was the driver and the verdicts were legally inconsistent. The district court denied

the motion. Fredrickson then moved for a downward dispositional departure or for

concurrent sentences. The district court stated:

              [T]here is no responsibility being taken by [Fredrickson] for
              these deaths. Remorse is comprised of two separate factors:
              One of which is, obviously, grief, and I do not doubt . . . that
              there is a great deal of grief that has been suffered by . . .
              Fredrickson, both for himself and for the victims . . . .


                                             5
              However, the second component of remorse is
              responsibility . . . . I can at least give some service to
              counsel’s statement that lawyering up and instructions from
              lawyers may have prevented contact. That explanation does
              not in any way eliminate the total incongruity of a man who
              claims that he cannot remember anything about what
              happened, but is prepared in a civil deposition to accuse one
              of the decedents of being the driver. He is also prepared in
              the course of the presentence investigation to make two
              statements which, I guess if I were part of the victims’ family
              or the extended group, I would find just extremely hurtful.
              Statements that I took note of: In describing the offense, Was
              in my wife’s car with friends, one of them was driving, and it
              crashed. Second statement in the presentence investigation:
              What lesson did you learn from this incident? Don’t let
              someone else use your car. That is not taking responsibility.

       Regarding consecutive sentences, the court stated:

              This is a tragedy and there is not any good result, but the debt
              that is owed is to two individuals, two families . . . . I don’t
              have any belief whatsoever that Fredrickson is going to be a
              repeat criminal; although, I have some serious concerns with
              regard to his attitude toward chemical dependency and his
              willingness to blame others . . . . It is a series of bad decisions
              that resulted in two deaths. The [c]ourt never takes pleasure
              in issuing a sentence that radically changes the life of the
              defendant and the defendant’s family, but I am compelled to
              do so in this case.

The district court sentenced Fredrickson to two 48-month sentences, served

consecutively for 96 months in prison. This appeal follows.

                                      DECISION

Warrantless blood test

       Fredrickson argues that the district court erred in failing to suppress his blood test

because his blood was drawn without a warrant. When reviewing a pretrial ruling on the

suppression of evidence, when the facts are not in dispute and the district court’s decision


                                              6
is a question of law, we independently review the facts and determine as a matter of law

if suppression is required. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

       Under the Fourth Amendment, a warrantless search is reasonable only if it falls

within a recognized exception to the warrant requirement. Missouri v. McNeely, 133 S.

Ct. 1552, 1558 (2013). The state bears the burden of establishing the existence of an

exception to the warrant requirement. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).

       The presence of exigent circumstances is a recognized exception to the warrant

requirement. McNeely, 133 S. Ct. at 1558. “‘[E]xigency in the drunk-driving context

must be determined case by case based on the totality of the circumstances.’” State v.

Stavish, 852 N.W.2d 906, 908 (Minn. App. 2014) (brackets omitted) (quoting McNeely,

133 S. Ct. at 1556), review granted (Minn. Nov. 18, 2014). While the natural dissipation

of alcohol in the bloodstream alone is not an exigent circumstance, it is a factor

considered in a determination of exigency. McNeely, 133 S. Ct. at 1561. Other relevant

factors include the suspect’s need for medical care, transport across county lines, and

time pressure created by the need to take action within two hours of the time of driving.

Stavish, 852 N.W.2d at 908-09. An additional “important factor” that contributes to an

exigency is “the gravity of the underlying offense.” Id. at 909.

       In Schmerber v. California, the United States Supreme Court considered whether a

driver’s Fourth Amendment rights were violated because of a warrantless blood draw.

384 U.S. 757, 766-72, 86 S. Ct. 1826, 1833-36 (1966). Schmerber got into an accident

causing his and his companion’s injuries. Id. at 758 n.2, 86 S. Ct. at 1829 n.2. At the

hospital, Schmerber’s blood was drawn for testing, which revealed that he was


                                             7
intoxicated. Id. at 758-59, 86 S. Ct. at 1829. Schmerber argued that the blood draw

violated his right to be free from unreasonable searches and seizures under the Fourth

Amendment. Id. at 759, 86 S. Ct. at 1829. The Court held that under the circumstances,

the police officer “might reasonably have believed that he was confronted with an

emergency, in which the delay necessary to obtain a warrant . . . threatened the

destruction of evidence.” Id. at 770, 86 S. Ct. at 1835 (quotation omitted).

       In Stavish, police officers responded to a single-vehicle accident at 10:28 p.m.

852 N.W.2d at 907. Officers found beer cans in and around the vehicle, a deceased

individual, and Stavish, who needed medical attention. Id. Stavish was transported ten

miles to a hospital. Id. The officer instructed to obtain Stavish’s blood sample learned

that Stavish might be airlifted to another hospital. Id. When the officer arrived at the

hospital, Stavish was conscious and receiving care. Id. Stavish’s blood was drawn at

11:18 p.m., his AC measured .20. Id.

       Among other charges, the state charged Stavish with criminal vehicular operation.

Id. The district court granted Stavish’s motion to suppress the blood-test result. Id. But

this court reversed and remanded after concluding that the totality of the circumstances

showed that exigent circumstances justified the warrantless search. Id. at 909. This court

relied on the following circumstances: (1) the criminal-vehicular-homicide charge;

(2) Stavish’s need for medical treatment; (3) Stavish’s transport to a hospital in another

county and the possibility that he might be airlifted to a third county; (4) the time

pressure to measure Stavish’s AC; and (5) the possibility that medical treatment could

affect or invalidate Stavish’s AC. Id. at 908-09.


                                             8
       Fredrickson argues that the state failed to establish that exigent circumstances

justified the warrantless blood draw. But the district court determined that a warrant was

not required because: (1) the time of the accident, 2:00 a.m., and the limited availability

for magistrate review; (2) the coordination of three groups of law enforcement; (3) the

need for prompt accident-scene investigation, which delayed consolidation of evidence;

(4) lack of knowledge about alcohol consumption for a significant amount of time; (5) the

unconscious and critical condition of Fredrickson; (6) the transport of Fredrickson to

another hospital; (7) the medical difficulties associated with obtaining Fredrickson’s

blood; and (8) the dissipation of alcohol in Fredrickson’s blood. The record supports the

district court’s findings, which support the conclusion that the totality of the

circumstances established that an exigency made the warrantless blood draw objectively

reasonable.

       The gravity of the charge, the need for medical treatment, and the transport to

another hospital for treatment are similar to Stavish. But unlike Stavish, in which officers

immediately saw beer cans in and around the vehicle, the officers here were not

immediately aware that alcohol consumption contributed to the accident. Thus, the

timeframe in which to obtain a sample was even more limited. Fredrickson argues that

time constraints did not create an exigency because the blood draw occurred outside of

the two-hour window.        But the phlebotomist encountered difficulties because of

Fredrickson’s condition; therefore, it was not for lack of trying that Fredrickson’s blood

was not drawn within two hours of driving.         Also unlike Stavish, Fredrickson was

unconscious and in critical condition. A trooper testified that it would have been difficult


                                             9
to obtain a warrant because he would have had to leave the hospital, contact an on-call

prosecutor, get approval for a warrant, draw up the warrant, locate a judge to sign the

warrant, and return to the hospital and serve the warrant. Medical staff could have taken

Fredrickson to the operating room at any time, at which point the trooper would have lost

contact until treatment was completed. Based on the trooper’s experience, access to an

individual is generally lost once he or she is taken to the operating room. On this record,

we conclude that the district court did not err in declining to suppress the blood-test

evidence.

Sufficiency of the evidence

       Fredrickson next argues that the evidence was insufficient to establish that he was

the driver. “Whe[n] there is a challenge to the sufficiency of the evidence, this court

reviews the evidence in the light most favorable to the verdict to determine if the

evidence was sufficient to permit the jury to reach the verdict it did.” State v. Ford, 539

N.W.2d 214, 225 (Minn. 1995). We assume that the jury believed the state’s witnesses

and disbelieved contrary evidence. State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).

       If a jury considered circumstantial evidence, this court applies a heightened

standard of review. State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013). This

standard includes a two-step analysis to determine whether the evidence was sufficient to

support the conviction. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). First, this

court “identif[ies] the circumstances proved.” Id. Then we “examine independently the

reasonableness of the inferences that might be drawn from the circumstances proved,”

and “determine whether the circumstances proved are consistent with guilt and


                                            10
inconsistent with any rational hypothesis except that of guilt.” Id. (quotations omitted).

The evidence is considered as a whole, not each piece in isolation. State v. Andersen, 784

N.W.2d 320, 332 (Minn. 2010).

       It is not this court’s role to interpret the evidence, State v. Stein, 776 N.W.2d 709,

714 (Minn. 2010), because the jury is in the best position to evaluate the evidence and has

already done so. See Moore, 846 N.W.2d at 88. Accordingly, when determining the

circumstances proved, this court “assume[s] that the jury resolved any factual disputes in

a manner that is consistent with the jury’s verdict.” Id. “There may well be testimony on

behalf of the defendant as to inconsistent facts and circumstances, not conclusively

proved, and which the jury may have a right to and do reject as not proved.” State v.

Tscheu, 758 N.W.2d 849, 858 (Minn. 2008) (quotation omitted).

       Viewed in the light most favorable to the verdict, the evidence shows that: (1) the

vehicle was registered to Fredrickson’s wife; (2) Fredrickson stated that he was going to

drive to town; (3) Fredrickson’s shoe was found by the brake pedal encapsulated by the

vehicle; (4) Fredrickson’s injuries, including his fractured ankle and severe left-side

injuries, were consistent with him being the driver; (5) two accident reconstructionists

opined that Fredrickson was the driver; and (6) the driver-side airbag may have caused

the pattern on Fredrickson’s shirt. These circumstances proved are inconsistent with any

rational hypothesis except that of guilt especially because there is no explanation how

Fredrickson’s shoe would have gotten to where it was found if he had been a passenger.

Additionally, Fredrickson’s admission to the process server is direct evidence that he was

the driver. The evidence is sufficient to show that Fredrickson was the driver.


                                             11
Admission of evidence

       Fredrickson argues that the district court abused its discretion by admitting BCA

and autopsy reports into evidence. He cites no authority supporting his claim, asserting

only that the reports are “analogous to police reports,” contain hearsay, and are highly

technical, which likely confused the jury. “Evidentiary rulings rest within the sound

discretion of the [district] court and will not be reversed absent a clear abuse of

discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

       The district court admitted the reports because the individuals who prepared them

testified regarding their contents. The district court relied on Minn. Stat. § 634.15,

subd. 1 (2010) for the admission of the BCA reports. Section 634.15 relates to the

admission into evidence of “certain certificates of analysis and blood sample reports.”

Under subdivision 1, a certificate of analysis and blood sample report “shall be

admissible in evidence” “if it is prepared and attested by the person performing the

laboratory analysis or examination in any laboratory operated by the [BCA].” Minn. Stat.

§ 634.15, subd. 1. The district court did not abuse its discretion by admitting the BCA

reports.

       Generally, testimonial statements are not admissible when the witnesses do not

testify. See State v. Bobo, 770 N.W.2d 129, 143 (Minn. 2009). Our supreme court has

not determined whether an autopsy report is testimonial. Id. But here it does not matter

because the doctor who performed the autopsies testified.       Additionally, this court

determined that an autopsy report was admissible as a report kept in the course of

regularly conducted business activity under Minn. R. Evid. 803(6), and as a clinical


                                          12
report used by an expert as a basis for forming an opinion about the cause of death under

Minn. R. Evid. 703. State v. Morrison, 437 N.W.2d 422, 427-28 (Minn. App. 1989),

review denied (Minn. Apr. 26, 1989). The district court did not abuse its discretion by

admitting the autopsy reports.

Judgment of acquittal

       Sufficiency of the evidence

       Fredrickson argues that the district court erred by denying his motion for judgment

of acquittal. A “defendant may move for . . . a judgment of acquittal on one or more of

the charges if the evidence is insufficient to sustain a conviction.” Minn. R. Crim. P.

26.03, subd. 18(1)(a). We review the denial of a motion for judgment of acquittal de

novo. State v. McCormick, 835 N.W.2d 498, 506 (Minn. App. 2013), review denied

(Minn. Oct. 15, 2013).

       A district court may deny a motion for judgment of acquittal if “the state’s

evidence, when viewed in the light most favorable to the state, was sufficient to sustain a

conviction.” State v. Slaughter, 691 N.W.2d 70, 75 (Minn. 2005). This is the same

standard this court applies when reviewing a challenge to the sufficiency of the evidence.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We have already analyzed this issue

and concluded that the evidence was sufficient to show that Fredrickson was the driver.

The district court did not err by denying Fredrickson’s motion for judgment of acquittal

based on insufficient evidence.




                                            13
       Inconsistent verdicts

       Fredrickson also argues that the jury’s verdicts are legally inconsistent. Whether a

jury’s verdicts are legally inconsistent is a question of law that we review de novo. State

v. Leake, 699 N.W.2d 312, 325 (Minn. 2005).

       “Verdicts are legally inconsistent when proof of the elements of one offense

negates a necessary element of another offense.” State v. Cole, 542 N.W.2d 43, 50 (Minn.

1996). Generally, a defendant who is found guilty of one count of a multi-count

complaint “is not entitled to a new trial or dismissal simply because the jury found him

not guilty of the other count, even if the guilty and not guilty verdicts may be said to be

logically inconsistent.” State v. Newman, 408 N.W.2d 894, 898 (Minn. App. 1987),

review denied (Minn. Aug. 19, 1987). And a “jury in a criminal case has the power of

lenity . . . the power to bring in a verdict of not guilty despite the law and the facts.” State

v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984). “[T]he focus is not upon the

inconsistency of the acquittals, but upon whether there is sufficient evidence to sustain

the guilty verdict.” Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1987), review

denied (Minn. Aug. 12, 1987).

       The jury found Fredrickson guilty of criminal vehicular homicide—causing the

death of another as a result of operating a motor vehicle in a negligent manner while

under the influence of alcohol. Minn. Stat. § 609.21, subd. 1(2)(i) (2010). The jury

found Fredrickson not guilty of criminal vehicular homicide—causing the death of

another as a result of operating a motor vehicle in a grossly negligent manner. Id., subd.

1(1) (2010).


                                              14
       The elements of the offenses are different.     Operating a motor vehicle in a

negligent manner means “without using ordinary or reasonable care.” 10 Minnesota

Practice, CRIMJIG 11.63 (2006). Operating a motor vehicle while under the influence

of alcohol means “operating the motor vehicle when ability or capacity to operate was

impaired by [alcohol].” Id. Operating a motor vehicle in a grossly negligent manner

means “with very great negligence or without even scant care.” Id. The jury could have

found that Fredrickson was not using ordinary or reasonable care without finding that he

was greatly negligent or without “scant care.” The jury could have found that alcohol

consumption caused Fredrickson to operate the vehicle without using ordinary care

without finding that he was operating the vehicle “without even scant care.” The verdicts

are not inconsistent.

Sentence

       Fredrickson argues that the district court abused its discretion by denying his

motion for a downward departure. The district court must order the presumptive sentence

provided in the sentencing guidelines unless the case involves “substantial and

compelling circumstances” to warrant a departure. State v. Kindem, 313 N.W.2d 6, 7

(Minn. 1981). We review a district court’s decision to deny a departure request for an

abuse of discretion. Id. at 8. We will reverse imposition of a presumptive sentence only

in rare cases. Id. at 7.

       In determining whether to depart from a presumptive sentence, a district court may

consider the individual’s amenability to probation. State v. Heywood, 338 N.W.2d 243,

244 (Minn. 1983). This involves consideration of factors such as, “the defendant’s age,


                                           15
his prior record, his remorse, his cooperation, his attitude while in court, and the support

of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). The existence

of a mitigating factor does not obligate the district court to depart from the presumptive

sentence. State v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011).

       Fredrickson argued for probation, because he has no criminal history,

demonstrated his amenability to probation while on conditional release, and has support

from his family and the community. The district court stated that it did not believe that

Fredrickson was a criminal, but denied his request because he took “no responsibility.”

Fredrickson argues that he should not be faulted for not showing remorse because he

cannot recall what happened. But as the district court noted, Fredrickson claimed “that

he cannot remember anything about what happened, but is prepared in a civil deposition

to accuse one of the decedents of being the driver.” In his presentence investigation,

Fredrickson described the offense as: “Was in my wife’s car with friends, one of them

was driving, and it crashed.” He also stated that the lesson he learned from the incident

was: “Don’t let someone else use your car.” As the district court concluded, a relevant

consideration is remorsefulness, which Fredrickson failed to show.            Departing is

discretionary and the district court was within its discretion in imposing the presumptive

sentence.

       Fredrickson also argues that the district court abused its discretion by imposing

consecutive sentences. Generally, Minnesota law bars multiple sentences when offenses

are committed as part of the same behavioral incident. Minn. Stat. § 609.035, subd. 1

(2010). But multiple sentences are permissible if there are multiple victims and the


                                            16
sentences do not “unfairly exaggerate the criminality of the defendant’s conduct.” State v.

Wallace, 327 N.W.2d 85, 87 (Minn. 1982).

         Consecutive sentences are not a departure when an offender is convicted of

multiple current felony convictions for crimes against different persons. Minn. Sent.

Guidelines 2.F.2.b (Supp. 2011); Wallace, 327 N.W.2d at 87. “Consecutive sentences are

permissive . . . when the presumptive disposition for the current offense(s) is

commitment.” Minn. Sent. Guidelines 2.F.2. Criminal vehicular homicide is a level-8

offense; a sentence for such an offense is presumptively executed. Guidelines 5 (Supp.

2011).     Therefore, two convictions of criminal vehicular homicide are eligible for

permissive consecutive sentences.

         Fredrickson argues that his sentence unfairly exaggerates the criminality of his

offenses. Whether consecutive sentencing exaggerates the criminality of the offense is

determined by looking to sentences in similar cases. State v. Lee, 491 N.W.2d 895, 902

(Minn. 1992). And the supreme court has upheld consecutive sentences involving

criminal vehicular homicide or injury with multiple victims. See State v. Chaklos, 528

N.W.2d 225, 226-27 (Minn. 1995) (upholding consecutive sentencing when defendant hit

victim’s car while intoxicated, killing one woman and severely injuring another). Here,

the district court stated that “the debt that is owed is to two individuals, two families.”

The district court also weighed its concerns about Fredrickson’s “attitude toward

chemical dependency and his willingness to blame others.” The consecutive sentences

do not unfairly exaggerate the criminality of the conduct.

         Affirmed.


                                            17
