                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A14-2187

Court of Appeals                                                                Dietzen, J.
                                                                  Took no part, Chutich, J.

State of Minnesota,

                      Respondent,

vs.                                                                Filed: August 17, 2016
                                                                Office of Appellate Courts
August Latimothy Fleming,

                      Appellant.
                                   ______________________


Lori Swanson, Minnesota Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant Hennepin
County Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant State
Public Defender, Saint Paul, Minnesota, for appellant.

                                   ______________________

                                       SYLLABUS

       1.     Minnesota Statutes § 244.10, subd. 5a(b) (2014), allows the district court to

impose a sentence beyond the presumptive range based on any aggravating factor, even if

the aggravating factor is part of the same course of conduct as another offense.

       2.     The district court did not abuse its discretion in imposing an upward

durational departure because the firing of a gun six times in a park with many children
present made appellant’s illegal possession of the gun significantly more serious than that

typically involved in the commission of the offense, even if the firing of the gun was part

of the same course of conduct as an assault offense.

       Affirmed.

                                      OPINION

DIETZEN, Justice.

       Appellant August Latimothy Fleming pleaded guilty to possession of a firearm by

an ineligible person and second-degree assault. The district court imposed an upward

durational sentencing departure for the possession conviction because Fleming fired the

gun six times in a park filled with children, thereby creating a greater-than-normal danger

to the safety of other people. Fleming appealed, arguing that the firing of the gun related

only to the assault conviction and that conduct underlying the assault conviction could not

be used to support an upward departure for the possession conviction. The court of appeals

affirmed, explaining that the plain language of Minn. Stat. § 244.10, subd. 5a(b) (2014),

allowed the district court to impose an upward departure for Fleming’s possession

conviction based on the greater-than-normal danger that Fleming caused to the safety of

other people, where the greater danger arose from the same course of conduct as his illegal

possession of a firearm. Because we conclude that the upward departure was authorized

by the plain language of section 244.10, subdivision 5a(b), we affirm.

                                            I.

       Fleming’s conviction and sentence arose out of a shooting that occurred on the

evening of October 3, 2012, at Folwell Park in north Minneapolis. The incident was
                                         2
captured on a video surveillance camera in the park. Ten young men, including Fleming

and the person who Fleming shot (John Doe), were playing pick-up basketball at the park.

The park is located near a busy street. There were other people present on the basketball

court and in the immediate vicinity, including several younger children. As the players

moved to one end of the court, the younger children moved to the other end of the court to

play. Shortly thereafter, the cameras captured a scuffle in the pick-up game and a brief

chase between Fleming and Doe. Doe appeared to have a disagreement with one of

Fleming’s teammates or possibly Fleming. Doe then walked to the end of the basketball

court, picked up a knife, walked toward Fleming, and stabbed Fleming in the left cheek.

Fleming backed away and moved across midcourt toward the baseline, and Doe briefly

pursued him. The standoff appeared to be ending, but then one of Fleming’s friends

retrieved a backpack and walked over to Fleming. Although the backpack belonged to the

friend and not Fleming, Fleming knew that there was a handgun inside. Fleming withdrew

the handgun from the backpack, brandished the handgun, advanced toward Doe, and

deliberately fired the handgun six times in the direction of the quickly retreating Doe.

       Although Doe was not struck by any of the bullets, the shots were fired toward the

street and in the direction of children and young people, placing them in danger. The entire

incident—from Doe’s assault of Fleming to Fleming’s discharge of the firearm—took less

than 2 minutes. Fleming went to the hospital and received four stitches for the stab wound

in his left cheek.




                                             3
       The State charged Fleming with one count of possession of a firearm by an ineligible

person, Minn. Stat. § 624.713, subd. 1(2) (2014), 1 along with one count of second-degree

assault, Minn. Stat. § 609.222, subd. 1 (2014). The State also filed a notice of intent to

seek an upward sentencing departure, alleging that the crimes posed a greater-than-normal

danger to others, were committed in a public park, and were committed in the presence of

children.

       Fleming subsequently pleaded guilty to both charges and waived his right to have a

jury decide whether aggravating factors existed to support an upward departure in his

sentence. See State v. Jones, 745 N.W.2d 845, 851 (Minn. 2008) (stating that a defendant

is entitled to a jury determination of facts relevant to an aggravated sentence). The district

court found the existence of several aggravating factors. Specifically, Fleming’s conduct

was more egregious than the typical offense, which normally involves simple possession.

Moreover, Fleming put a large number of individuals in real and significant danger of

bodily harm as a result of firing a handgun six times during a time of peak usage of the

park by the public. The court noted that young children and young adults froze during the

shooting and then “ran in shock and horror to find each other.” Based on its findings, the

district court sentenced Fleming to serve 90 months in prison for the possession conviction,

which was an upward durational departure from the 60-month presumptive sentence. See

Minn. Stat. § 609.11, subd. 5(b) (2014); Minn. Sent. Guidelines 2.E.1. The district court



1
      Fleming was adjudicated delinquent for the theft of a firearm in October 2009 and
was therefore prohibited from possessing a firearm.

                                              4
also sentenced Fleming to serve a concurrent presumptive 36-month prison term for the

assault conviction. 2   The court, however, stayed execution of both sentences for 8

years. Minn. Stat. § 609.11, subds. 5(a), 9 (2014); Minn. Sent. Guidelines 2.D.1. The stay

of execution was a downward dispositional departure. The court justified the downward

dispositional departure on the grounds that Fleming cooperated with the police, displayed

remorse for his actions, and was amenable to probation.

       When Fleming later violated the terms of his probation, the district court executed

his sentence. Fleming appealed the sentence imposed by the district court, 3 arguing that

the firing of the gun related only to the assault conviction and that conduct underlying the

assault conviction could not be used to support an upward departure for the possession

conviction. The court of appeals affirmed, explaining that the plain language of Minn. Stat.

§ 244.10, subd. 5a(b), allowed the district court to impose “an upward durational

sentencing departure for Fleming’s firearm-possession conviction based on the greater-

than-normal danger that Fleming caused to the safety of other people in Folwell Park,

where the greater danger arose from the same course of conduct as his illegal possession


2
        Fleming concedes that he properly received “more than one criminal sentence for
conduct involving a single behavioral incident and a single victim” because Minn.
Stat. § 609.035, subd. 3 (2014), provides that “[n]otwithstanding section 609.04, a
prosecution for or a conviction of a violation of section 609.165 or 624.713, subdivision 1,
clause (2), is not a bar to conviction of or punishment for any other crime committed by
the defendant as part of the same conduct.”
3
       Fleming’s appeal was timely under State v. Fields, 416 N.W.2d 734, 736
(Minn. 1987) (holding that a defendant may wait until probation is revoked before
challenging his or her sentence); see also State v. Losh, 721 N.W.2d 886, 892 (Minn. 2006)
(holding that Minn. Stat. § 244.11, subd. 3 (2014), which imposes a time limit on
sentencing appeals, is unconstitutional).
                                              5
of a firearm.” State v. Fleming, 869 N.W.2d 319, 330 (Minn. App. 2015). We granted

Fleming’s petition for review.

                                             II.

       Fleming argues the district court erred when it imposed the upward departure

because the law limits the imposition of an aggravated sentence to those situations in which

the offense of conviction is committed in a particularly serious way, the firing of the gun

related solely to the assault offense, and conduct underlying the assault conviction cannot

be used to impose an upward departure for the possession conviction. The State counters

that Minn. Stat. § 244.10, subd. 5a(b), allowed the district court to impose an upward

departure based on any aggravating factor arising from the same course of conduct.

       We review a district court’s departure from a presumptive sentence for an abuse of

discretion. State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009). If the district court’s

reasons for departure are legally improper or inadequate, the departure will be reversed.

Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003). To determine whether the district

court’s reasons were legally proper in Fleming’s case, we must interpret the language of

Minn. Stat. § 244.10, subd. 5a(b). Issues of statutory interpretation present questions of

law that we review de novo. State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002).

       Fleming was convicted of possession of a firearm by an ineligible person, Minn.

Stat. § 624.713, subd. 1(2) (providing that “a person who has been convicted of, or

adjudicated delinquent or convicted as an extended jurisdiction juvenile for committing, in

this state or elsewhere, a crime of violence” is ineligible to possess a firearm), and second-

degree assault, Minn. Stat. § 609.222, subd. 1 (“Whoever assaults another with a dangerous
                                              6
weapon may be sentenced to imprisonment for not more than seven years or to payment of

a fine of not more than $14,000, or both.”). 4 As previously indicated, the district court

found the existence of aggravating factors and sentenced Fleming to 90 months in prison

for the possession conviction, which was an upward durational departure from the

presumptive sentence of 60 months, and a concurrent 36-month sentence for the assault

conviction.

       To resolve the dispute between the parties regarding the sentence imposed, we must

first determine whether section 244.10, subdivision 5a(b), allows a district court to impose

a sentence beyond the presumptive range based on any factor that makes the sentenced

offense significantly more serious, even if the aggravating factor is part of the same course

of conduct as another offense. If so, we must next consider whether the firing of the gun

six times in a park filled with children made the illegal possession of the gun more serious.

We will address each issue in turn.

                                             A.

       The power to define the conduct that constitutes a criminal offense and to fix the

punishment for the offense lies with the Legislature. Minn. Const. art. 3, § 1; State v.

Olson, 325 N.W.2d 13, 17-18 (Minn. 1982); State v. Meyer, 228 Minn. 286, 293,

37 N.W.2d 3, 9 (1949). But the imposition of a sentence in a particular case within the




4
        Under Minn. Stat. § 609.02, subd. 10 (2014), “assault” is defined as “(1) an act done
with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional
infliction of or attempt to inflict bodily harm upon another.”

                                              7
limits set by the Legislature is a judicial function. Minn. Const. art. 3, § 1; Misquadace,

644 N.W.2d at 68.

         The Legislature created the Minnesota Sentencing Guidelines Commission to

establish, among other things, “the circumstances under which imprisonment of an

offender is proper” and “[a] presumptive . . .sentence for offenders for whom

imprisonment is proper.” Minn. Stat. § 244.09, subd. 5(1)-(2) (2014). The primary

consideration of the Commission in establishing or modifying the sentencing guidelines is

public safety. Id. Additionally, by establishing the Commission, the Legislature has

adopted a policy of maintaining uniformity, proportionality, rationality, and predictability

in sentencing. Id. Thus, a court must impose the presumptive sentence—that is, a sentence

within the applicable disposition and range—“unless there exist identifiable, substantial,

and compelling circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1.;

accord Edwards, 774 N.W.2d at 601. The guidelines allow the district court to depart from

the presumptive sentence if the court finds the presence of mitigating or aggravating factors

that justify a departure in a specific case. The guidelines set forth a nonexclusive list of

mitigating and aggravating factors that may be used to depart. Minn. Sent. Guidelines

2.D.3.

         The Legislature has enacted laws to limit the sentence that may be imposed in

certain circumstances.    For example, the Legislature has limited the punishment a

defendant may receive when the criminal conduct in question constitutes more than one

offense under Minnesota law. Minn. Stat. § 609.035 (2014). Under section 609.035, if an

offender’s conduct constitutes more than one offense, the person may only be punished for
                                            8
one of the offenses, subject to certain exceptions. State v. Banks, 331 N.W.2d 491, 493

(Minn. 1983); State v. Zuehlke, 320 N.W.2d 79, 81 (Minn. 1982). The Legislature has also

enacted laws to limit the scope of judicially created rules regulating sentencing. For

example, in Vickla v. State, we acknowledged that, by enacting Minn. Stat. § 609.1095,

subd. 2 (2014) (the dangerous-offender statute), the Legislature had carved out an

exception to the judicially created rule that had required greater-than-double departures to

be supported by a “severe” aggravating factor. 793 N.W.2d 265, 271 (Minn. 2011).

Specifically, we noted that section 609.1095 provides that a court has the discretion to

impose a greater-than-double departure without finding severe aggravating factors. Id.

(citing Neal v. State, 658 N.W.2d 536, 545-46 (Minn. 2003)).

       With these principles in mind, we turn to the question of whether Minn.

Stat. § 244.10, subd. 5a, allows a court to upwardly depart from the presumptive sentence

for any aggravating factor that makes the sentenced offense significantly more serious,

even if the aggravating factor is part of the same course of conduct as another offense.

       Minnesota Statutes § 244.10 covers a broad range of topics, including which

procedures should be followed at a sentencing hearing, when deviations from the

sentencing guidelines are permissible, and which aggravating factors may be considered

by a sentencing court. Minn. Stat. § 244.10, subds. 1, 2, 5a. The specific provision at issue

in this case was enacted in 2009 and provides:




                                             9
       Notwithstanding section 609.04[ 5] or 609.035, or other law to the contrary,
       when a court sentences an offender for a felony conviction, the court may
       order an aggravated sentence beyond the range specified in the sentencing
       guidelines grid based on any aggravating factor arising from the same course
       of conduct.

Minn. Stat. § 244.10, subd. 5a(b) (emphasis added). When interpreting a statute, we give

words and phrases their plain and ordinary meaning. State v. Struzyk, 869 N.W.2d 280,

284 (Minn. 2015). If the Legislature’s intent is clear from the plain and unambiguous

statutory language, we do not engage in any further construction. 6 State v. Leathers, 799

N.W.2d 606, 608 (Minn. 2011).

       Subdivision 5a(b) contains two phrases that are important to our analysis. The

relevant phrases are “notwithstanding . . .609.035” and “any aggravating factor arising

from the same course of conduct.” The phrase “notwithstanding . . .609.035,” plainly

carves out the application of section 609.035 from the circumstances set forth in section

244.10, subdivision 5a(b). We have previously said that “[t]he word ‘notwithstanding’ is



5
       Minnesota Statutes § 609.04 (2014) provides that a defendant may not be convicted
for both a crime and its lesser included offense. This statute is not at issue in this case.
6
       Fleming also argues that the legislative history of Minn. Stat. § 244.10, subd. 5a(b),
establishes that the Legislature enacted the statute as a direct response to our decisions in
State v. Jones, 745 N.W.2d 845 (Minn. 2008), and State v. Jackson, 749 N.W.2d 353
(Minn. 2008). According to Fleming, the Legislature merely intended to empower district
courts to consider aggravating factors that also constitute elements of uncharged or
unsentenced conduct. Thus, Fleming contends that we should rely on our more recent
decision of State v. Edwards, 774 N.W.2d 596 (Minn. 2009). Because Minn. Stat.
§ 244.10, subd. 5a(b), is unambiguous as applied to Fleming’s sentence, we decline to
consider the legislative history of the statute. And we need not rely on our case law when
a controlling statute resolves the issue before us.


                                             10
the equivalent of the words ‘in spite of.’ ” Governmental Research Bureau, Inc. v. Borgen,

224 Minn. 313, 322, 28 N.W.2d 760, 765 (1947). Section 609.035 states that “if a person’s

conduct constitutes more than one offense . . .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.” In determining whether section 609.035 applies, we have considered

whether the offenses were committed as part of the same course of conduct. 7 Zuehlke, 320

N.W.2d at 82. Thus, the plain meaning of the phrase “notwithstanding . . .609.035” is that

the limitation in Minn. Stat. § 609.035 does not prevent a district court from imposing an

aggravated sentence under the circumstances set forth in section 244.10, subdivision 5a(b).

       The second phrase, “any aggravating factor arising from the same course of

conduct,” is equally plain. According to Minn. Stat. § 244.10, subd. 5a(a), aggravating

factors “include, but are not limited to” fourteen situations enumerated in that subdivision,

all of which are situations in which a defendant’s conduct may be deemed significantly

more serious than that typically involved in the commission of the sentenced offense.

Moreover, this definition of “aggravating factor” is consistent with our case law, see, e.g.,

Tucker v. State, 799 N.W.2d 583, 586 (Minn. 2011), and Minn. Sent. Guidelines 2.D.3.b.


7
       The approach we follow under section 609.035 in determining whether
nonintentional crimes or a mixture of nonintentional and intentional crimes are part of the
same course of conduct is to analyze the facts and determine whether the offenses “[arise]
out of a continuing and uninterrupted course of conduct, manifesting an indivisible state of
mind or coincident errors of judgment.” Zuehlke, 320 N.W.2d at 81 (quoting State v.
Sailor, 257 N.W.2d 349, 352 (Minn. 1977)). “The approach used in determining whether
two or more intentional crimes [are] part of the same course of conduct is to focus on the
factors of time and place and also to consider whether the . . .conduct involved [is]
motivated by an effort to obtain a single criminal objective.” Id. at 81-82 (citing State v.
Johnson, 273 Minn. 394, 405, 141 N.W.2d 517, 525 (1966)).
                                             11
The phrase “aggravating factor” is preceded by the word “any.” Minn. Stat. § 244.10,

subd. 5a(b). The word “any” means “[o]ne, some, every, or all without specification.” The

American Heritage Dictionary of the English Language 81 (5th ed. 2011). The word

“conduct” generally refers to one’s acts or behavior, not the commission of a particular

crime. See id. at 384 (defining “conduct” as “[t]he way a person acts, especially from the

standpoint of morality and ethics”). And, in the context of the phrase “course of conduct,”

the word “course” means “[d]evelopment in a particular way; progress.” Id. at 419. Thus,

the phrase “any aggravating factor arising from the same course of conduct” allows a

district court to consider the entirety of a defendant’s conduct in determining whether the

defendant committed the sentenced offense in a manner that is significantly more serious

than that typically involved in the commission of the sentenced offense.

       We conclude that under Minn. Stat. § 244.10, subd. 5a(b), an aggravating factor is

conduct that renders the sentenced offense significantly more serious than typically

involved in the commission of the sentenced offense. The statute allows a court to base an

upward sentencing departure on any aggravating factor, even if the aggravating factor

relates, or arises in connection with another offense committed during the same course of

conduct.

                                            B.

       We next consider Fleming’s argument that the firing of the gun six times in a park

filled with children did not demonstrate that his illegal possession of the gun was

significantly more serious than typical cases involving possession of firearm by an

ineligible person. According to Fleming, his possession offense was complete when “he
                                          12
received the backpack from his friend and pulled out a gun” and therefore the subsequent

firing of the gun related only to the assault offense.

       Despite Fleming’s assertion to the contrary, the possession offense did not end when

he pulled the gun out of the backpack. Possession of a firearm by an ineligible person is a

continuing offense. State v. Banks, 331 N.W.2d 491, 494 (Minn. 1983); see also State v.

Lawrence, 312 N.W.2d 251, 254 (Minn. 1981) (discussing the continuing-crime doctrine).

Consequently, Fleming continued to commit the possession offense when he fired the gun

six times in a park filled with children. Moreover, the district court found the manner in

which Fleming violated the possession statute “was more egregious than the typical such

case, which normally involves simple possession.” The court emphasized “the large

number of potential victims put in real and significant danger as a result of his firing the

handgun six times in a public park during the height of its use that day.” Due to the greater-

than-normal danger to others, the court imposed a 90-month sentence, which was an

upward departure from the presumptive 60-month sentence. 8

       The district court correctly applied section 244.10, subdivision 5a(b) to the facts of

this case. The firing of the gun six times in a park filled with children made Fleming’s



8
       The aggravating factors relied on by the district court are not enumerated in the
guidelines. See Minn. Sent. Guidelines 2.D.3.b. The factors listed in the guidelines,
however, are non-exclusive, id. at 2.D.3., and courts may consider other factors that
demonstrate identifiable, substantial, and compelling reasons for departure, id. at 2.D.1.
Fleming does not contest that the aggravating factors found by the district court are an
appropriate basis for departure on the assault conviction; rather, Fleming argues that the
factors are not an appropriate basis to depart on the possession offense.


                                              13
illegal possession of the gun significantly more serious than the typical possession offense,

even if the firing of the gun was part of the same course of conduct as the assault offense.9

                                            III.

       For the foregoing reasons, we conclude that the district court did not abuse its

discretion when it imposed an upward durational sentencing departure for the possession

conviction.

       Affirmed.



       CHUTICH, J., took no part in the consideration or decision of this case.




9
      Here, Fleming’s action of taking the firearm from the backpack was immediately
followed by the aim and discharge of the firearm, which arose out of the same course of
conduct. The events occurred in a total of about 30 seconds and thus, there was a unity of
time and place. And the district court’s findings establish that Fleming would not have
possessed the firearm without his intent to discharge it.
                                             14
