                           This opinion will be unpublished and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
                                      A14-0624

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Peter William Warren,
                                        Appellant.

                                  Filed May 26, 2015
                    Affirmed in part, reversed in part, and remanded
                                      Minge, Judge

                              Redwood County District Court
                                  File No. 64-CR-13-99


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Steven S. Collins, Redwood County Attorney, Redwood Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and Minge,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

MINGE, Judge

      On appeal from his convictions of and sentences for second-degree unintentional

murder and ten counts of first-degree arson, appellant argues that (1) the circumstantial

evidence was insufficient to prove beyond a reasonable doubt that he intended to damage

any of the individual apartment units in the complex; (2) he is entitled to a new trial as a

result of prejudicial prosecutorial misconduct and erroneously admitted evidence; (3) the

district court erred by convicting and sentencing him for the arson of the entire building

because it was an included offense of the second-degree murder conviction; and (4) the

district court erred by sentencing him for the arson of the victim’s apartment because the

offense was committed as part of the same behavioral incident as the second-degree murder

conviction. We affirm in part, reverse in part, and remand for resentencing.

                                          FACTS

      Shortly before 7:00 p.m. on January 24, 2013, a fire was reported in Redwood Falls

at the Lakeside Manor, a five-story apartment building with a total of 56 rental units. When

firefighters arrived at the scene, black smoke was pouring out of the windows on each of the

building’s four above-ground floors. Firefighters were able to safely evacuate all of the

residents except Gene Gilland, who lived in apartment 101 on the first floor. Gilland was

found unconscious in his apartment, and died a short time later of carbon monoxide toxicity.

      The fire caused flame damage to the building’s first floor and smoke damage

throughout much of the remainder of the building. Subsequent investigation determined

that the fire’s origin was a large closet located in the common dining area in which mealtime


                                             2
supplies such as foam cups, disposable plates and utensils, and tables and chairs were

stored. The fire marshal also determined that the fire was not accidental but that it had been

started through the introduction of an open flame to the combustible materials inside the

closet.

          In February 2013, appellant Peter William Warren was charged with one count of

second-degree unintentional murder, one count of third-degree murder, one count of second-

degree manslaughter, and ten counts of first-degree arson. At trial, R.L., a resident of

Lakeside Manor, testified that he was in the first-floor community TV room adjacent to the

dining room at the time the fire occurred. According to R.L., he was watching TV when

appellant walked through the room. R.L. testified that he asked appellant to bring “some of

his movies down,” that appellant replied that he would “in a while,” and that appellant then

left the room walking toward “the rest room areas,” but returned about 45 minutes later and

told R.L. that he would get a movie from his apartment. R.L. testified that within a few

seconds of appellant leaving the room, he heard the fire alarm and saw smoke and flames

inside the dining area.

          The state also admitted surveillance videos from the apartment complex showing

appellant getting off an elevator on the first floor of the apartment complex at 6:48 p.m. and

walking into the dining room area. At about 6:53 p.m., the video shows appellant leaving

the TV room and heading toward a stairwell. Two minutes later, the video shows R.L.

leaving the TV room and entering the stairwell, followed by a large plume of smoke.

          Special Agent Derek Woodford of the Minnesota Bureau of Criminal Apprehension

testified that he interviewed appellant as part of the investigation of the fire.      Agent


                                              3
Woodford testified that during the interview, appellant claimed he had been in the dining

room just prior to the start of the fire “[l]ooking for deer” out a window. Appellant stated

that he did not smell smoke or see any flames while he was on the first floor and denied

starting the fire.

       A jury found appellant guilty of all charged offenses except third-degree murder.

Appellant was then sentenced to 68 months for count 4, arson of Lakeside Manor. He also

received sentences, concurrent to count 4, the prior Lakeside Manor arson count, and to

each other, of: 88 months for count 5, arson of apartment 101; 98 months for count 6, arson

of apartment 102; and 98 months for each of counts 7-10, arson of apartments 103, 104,

212, and 325. He further received 48-month sentences, consecutive to one another and to all

prior pronounced sentences, for counts 11-13, arson of apartments 327, 439, and 557.

Finally, the district court imposed a consecutive sentence to all previous sentences of 150

months for count 1, second-degree unintentional murder.            The multitude of counts,

convictions, and sentences is complex. But, the total aggregate term of appellant’s sentence

was 392 months. This appeal followed.

                                      DECISION

                                              I.

       When reviewing the sufficiency of evidence to support a conviction, this court

conducts “a painstaking analysis of the record to determine whether the evidence, when

viewed in the light most favorable to the conviction,” is sufficient to allow jurors to reach a

verdict of guilty. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted).

We assume that “the jury believed the state’s witnesses and disbelieved any evidence to the


                                              4
contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We

“will not disturb the verdict if the jury, acting with due regard for the presumption of

innocence and the requirement of proof beyond a reasonable doubt, could reasonably

conclude that the defendant was guilty of the charged offense.” Ortega, 813 N.W.2d at 100.

       A conviction for arson in the first degree is warranted when one “unlawfully by

means of fire or explosives, intentionally destroys or damages any building that is used as a

dwelling at the time the act is committed.” Minn. Stat. § 609.561, subd. 1 (2012). Any

“separately secured or occupied” unit within a building “shall be deemed a separate

building” for purposes of the arson statutes. Minn. Stat. § 609.556, subd. 3 (2012).

       Here, appellant was charged with ten counts of first-degree arson under Minn. Stat.

§ 609.561, subd. 1.    Of these ten counts, the initial and predicate charge was for the

Lakeside Manor building itself and the other nine counts were for each of the most heavily

damaged apartments, including the apartment in which Gilland died.            In this appeal,

appellant challenges only the sufficiency of the evidence for his convictions relating to the

nine separate apartment units.

       “By definition, arson is a specific intent crime.” State v. Battin, 474 N.W.2d 427,

431 (Minn. App. 1991), review denied (Minn. Oct. 23, 1991). Arson convictions, however,

often rely on circumstantial evidence because typically no one is at the scene when the fire

is discovered. State v. Jacobson, 326 N.W.2d 663, 665 (Minn. 1982). “A conviction based

on circumstantial evidence . . . warrants heightened scrutiny.” State v. Al-Naseer, 788

N.W.2d 469, 473 (Minn. 2010). “Circumstantial evidence must form a complete chain that,

in view of the evidence as a whole, leads so directly to the guilt of the defendant as to


                                              5
exclude    beyond    a    reasonable    doubt       any   reasonable   inference     other   than

guilt.” Id. (quotation omitted).    This court will not overturn a circumstantial-evidence

conviction based on “mere conjecture.” Id. (quotation omitted). Instead, we apply a two-

step analysis when examining the sufficiency of circumstantial evidence. State v. Silvernail,

831 N.W.2d 594, 598-99 (Minn. 2013).

       “The first step is to identify the circumstances proved.             In identifying the

circumstances proved, we defer to the jury’s acceptance of the proof of these circumstances

and rejection of evidence in the record that conflicted with the circumstances proved by the

[s]tate.” Id. (citation and quotation omitted). The jury “is in the best position to determine

credibility and weigh the evidence.”      Al-Naseer, 788 N.W.2d at 473.            Therefore, the

circumstances proved are identified “in the light most favorable to the verdict.” State v.

Pratt, 813 N.W.2d 868, 874 (Minn. 2012).

       Here, viewing the evidence in the light most favorable to the verdict, the

circumstances proved at trial are as follows: (1) the fire was intentionally started in a closet

in the dining room igniting the combustible materials in the closet, and it burned very hotly

and spread quickly; (2) appellant was familiar with Lakeside Manor, having lived in the

building for approximately one year with his girlfriend and occasionally helped out with

minor chores in the building; (3) a week before the fire, appellant attended an informational

meeting held by the fire department in the common room of Lakeside Manor at which

evacuation procedures in the event of a fire in the building were explained; and (4) appellant

was in the dining room area for five minutes by himself before the fire started, and within




                                                6
two minutes of appellant leaving the dining room, smoke was observed emanating from that

area.

        “The second step is to determine whether the circumstances proved are consistent

with guilt and inconsistent with any rational hypothesis except that of guilt.” Silvernail, 831

N.W.2d at 599 (quotation omitted). In making this determination, we do not “review each

circumstance proved in isolation,” but instead we consider the circumstances as a whole.

State v. Andersen, 784 N.W.2d 320, 332 (Minn. 2010). “The [s]tate does not have the

burden of removing all doubt, but of removing all reasonable doubt.” Al-Naseer, 788

N.W.2d at 473. We independently examine the reasonableness of the possible inferences

and give “no deference to the fact finder’s choice between reasonable inferences.” Id. at

473-74 (quotation omitted).      To ensure that there is no reasonable doubt as to the

defendant’s guilt, there must be no reasonable inference inconsistent with guilt. Id. at 474.

        Appellant does not dispute that the evidence was sufficient to prove that he started

the fire, but instead argues that “[b]ecause the circumstantial evidence did not exclude the

rational alternative hypothesis that [he] intended to damage only the common area of the

building, the evidence was not sufficient to prove his guilt for any of the nine counts of

arson relating to the individually damaged apartments.” To support his claim, appellant

points to several factors that he asserts indicate his lack of intent to destroy the nine

individual units: (1) he called 911; (2) he lived on the second floor, directly above the dining

room; (3) the lack of evidentiary support for the state’s claim that he had an abnormal




                                               7
fascination with firefighting;1 and (4) the state failed to allege a motive for destroying all the

apartment units.

       In examining the statute and caselaw, motive is not an element of first-degree arson;

it is separate from the specific intent that is an element of this offense. See State v. Ness,

707 N.W.2d 676, 687 (Minn. 2006) (“Motive is not an element of most crimes . . . .

[M]otive concerns external facts that create a desire in someone to do something, whereas

intent is a state of mind in which an act is done consciously, with purpose.” (citation

omitted)). The statute requires the state to prove intent by showing “that the defendant acted

with the purpose of destroying or damaging the building, or with the belief that the act

would cause the building to be destroyed or damaged.” 10A Minnesota Practice, CRIMJIG

18.02 (2010); see Minn. Stat. §§ 609.561, subd. 1, .02, subd. 9(3) (2014) (providing that the

use of “intentionally” in a criminal statute “means that the actor either has a purpose to do

the thing or cause the result specified or believes that the act performed by the actor, if

successful, will cause that result”). The fact-finder “may infer that a person intends the

natural and probable consequences of his actions and a defendant’s statements as to his

intentions are not binding on the jury if his acts demonstrated a contrary intent.” State v.

Cooper, 561 N.W.2d 175, 179 (Minn. 1997) (citation omitted).

       Here, the fire marshal testified that the fire was intentionally started in a closet in the

dining area, and that based upon the combustible materials in the closet, the fire was very


1
  Appellant’s claim that the state asserted at trial that appellant had an abnormal fascination
with firefighting is not supported by the record. As the state points out, the “evidence which
allegedly pointed to an ‘abnormal fascination with firefighting’ was never introduced by the
[s]tate after appellant objected.”

                                                8
hot and spread rapidly.        The record indicates that the individual apartments were

immediately adjacent to or above the cafeteria. The logical inference from this evidence is

that appellant started the fire where he would be unnoticed but where it would spread

rapidly thereby damaging the entire building. In other words, the natural consequence of

starting a fire in such a place is that the entire building would be damaged by the fire. This

evidence is sufficient to prove that appellant intended to damage the entire building because

a jury can infer that appellant intended the natural consequences of his actions. See id.

Moreover, evidence of motive was not necessary to prove that appellant intended to destroy

the individual apartment units at Lakeside Manor. Finally, the fact that appellant lived in

the building and called 911 does not promote a reasonable inference other than guilt;

instead, the manner in which appellant started the fire—in a relatively central location with

highly combustible materials—excludes the alternative hypothesis that appellant intended to

damage only the common area of the building. Accordingly, the evidence was sufficient to

sustain all of appellant’s convictions of first-degree arson.

                                               II.

       Appellant argues that (1) the prosecutor committed prejudicial misconduct by

attempting to “elicit otherwise inadmissible evidence”; and (2) the district court erred by

failing to, sua sponte, redact appellant’s second interview with police to exclude questioning

about this interest in firemen and firefighting. Appellant argues that even if each individual

error is not sufficiently prejudicial to grant a new trial, the cumulative effect of these errors

deprived him of his right to a fair trial.




                                                9
       A.     Prosecutorial misconduct

       This court reviews claims of prosecutorial misconduct that were objected to at trial

under a two-tiered harmless-error test. State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009).

Cases involving claims of “unusually serious” prosecutorial misconduct are reviewed for

“certainty beyond a reasonable doubt that misconduct was harmless,” while claims of less-

serious prosecutorial misconduct are reviewed “to determine whether the misconduct likely

played a substantial part in influencing the jury to convict.” Id.

       A prosecutor “is a minister of justice whose obligation is to guard the rights of the

accused as well as to enforce the rights of the public,” and to ensure that a defendant

receives a fair trial.   State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006) (quotation

omitted). A prosecutor may not intentionally elicit inadmissible testimony from a state’s

witness.    State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978).            When the state

intentionally elicits impermissible testimony, a reviewing court is much more likely to find

prejudicial misconduct. State v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695

(1974).

       Here, while examining the chief of the Redwood Falls Fire Department, the

prosecutor asked if he “had any interaction with [appellant] in any other fires that you’ve

been involved with?” Appellant immediately objected and the objection was sustained.

Nonetheless, appellant argues that “[t]his attempt to elicit otherwise inadmissible evidence

of [appellant’s] other acts was prosecutorial misconduct because of its tendency to lead the

jury to convict [him] based upon the insinuation that he was a firebug, rather than upon the

strength of the state’s legitimate evidence.”


                                                10
       We disagree. The question asked by the prosecutor did not directly implicate any

inadmissible character evidence. Although appellant claims the question insinuates that he

is a “firebug,” appellant’s claim is speculative. The record reflects that after appellant

objected to the question, a sidebar was held where the district court inquired as to the

relevance of the question. The prosecutor replied: “just for him to - - that’s how he knows

him, that he’s seen him before.” And there is nothing more in the record indicating that the

prosecutor was attempting to elicit inadmissible character evidence. Thus, appellant has not

established that the prosecutor committed misconduct by asking the question.

       B.      Redaction

       Appellant also claims that the district court erred by failing to redact questioning

about his peculiar interest in firefighters from his second interview with law enforcement.

Appellant, however, never requested that this line of questioning be redacted. “Failure to

object to the admission of evidence generally constitutes waiver of the right to appeal on

that basis.”    State v. Tscheu, 758 N.W.2d 849, 863 (Minn. 2008).          Nonetheless, an

unobjected-to error can be reviewed on appeal “if it constitutes plain error affecting

substantial rights.” Ramey, 721 N.W.2d at 297. An error is “plain” if it is “clear or

obvious” in that it “contravenes case law, a rule, or a standard of conduct.” State v. Jones,

753 N.W.2d 677, 686 (Minn. 2008). An error affects substantial rights “if the error was

prejudicial and affected the outcome of the case.” State v. Griller, 583 N.W.2d 736, 741

(Minn. 1998).

       The record reflects that during his January 31, 2013 interview with police, appellant

was asked twice whether he liked firemen and whether he wished he could have been a


                                             11
fireman. Police also asked him about his “fire sweatshirts” and Redwood Falls fire coat that

he used to own. Appellant claims that the district court should have sua sponte redacted

these questions and answers because they were irrelevant, and the answers would “only

have constituted inadmissible character evidence.”

         Appellant’s argument is without merit.       As the state points out, the parties

specifically discussed the recording with the district court, and appellant never questioned

the admissibility of these questions and answers. Appellant’s decision not to object to the

admissibility of these questions and answers could have been strategic; he may have

considered this information as showing an aversion to fire and relevant to his defense. If the

district court had sua sponte redacted these questions and answers, the court might have

infringed upon appellant’s trial strategy. We conclude that the district court did not err by

failing to redact appellant’s second interview with law enforcement.

         C.    Cumulative impact of any alleged errors

         When “the number of errors and the seriousness of some of them” render us “unable

to determine whether the jury based its verdict on the admissible evidence and the

reasonable inferences derived therefrom,” we may determine that the defendant was

deprived of a procedurally fair trial. State v. Mayhorn, 720 N.W.2d 776, 792 (Minn. 2006).

To find cumulative error, we must find multiple errors that, when combined, are more

prejudicial than each of the errors separately. State v. Penkaty, 708 N.W.2d 185, 200 (Minn.

2006).

         Here, even if we were to determine that the prosecutor committed misconduct at trial

and that the district court erred by failing to sua sponte redact appellant’s second interview


                                              12
with law enforcement to exclude questioning about his particular interest in firefighters,

appellant must demonstrate that he was prejudiced by the cumulative errors. The fire

marshal testified that the fire was not accidental, that it began in a closet in the dining room,

and that the combustible material in the closet caused the fire to burn very hot. Moreover,

eyewitness testimony placed appellant alone in the dining room within minutes of when the

fire began. Surveillance video corroborated the eyewitness testimony, and showed appellant

leaving the dining area minutes before smoke was seen emanating from that area on the

video. And appellant’s interviews with police were admitted into evidence in which he

claimed that he was in the dining room looking out the window at deer, even though he

admitted that he was able to see the deer from his apartment window, which was above the

dining area. Here, the alleged errors and misconduct were minor and likely had very little

impact on the jury when considered in conjunction with the state’s evidence as a whole.

Accordingly, we conclude that appellant is not entitled to a new trial.

                                              III.

       “Upon prosecution for a crime, the actor may be convicted of either the crime

charged or an included offense, but not both.” Minn. Stat. § 609.04 (2012). Whether an

offense is a lesser-included offense of another offense is a legal question that appellate

courts review de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).

       Appellant argues that the district court erred by convicting and sentencing him for

first-degree arson of Lakeside Manor because that offense was an included offense of the

second-degree murder conviction. The state concedes that the district court “should not

have convicted and sentenced appellant of the first-degree arson [of the building]” because


                                               13
second-degree murder was a felony murder charge and the arson charge was a necessary

included offense under Minn. Stat. § 609.04, subd. 1(4). The record reflects that the arson

of Lakeside Manor was the predicate offense because the jury instructions state that for the

jury to find appellant guilty of second-degree unintentional murder under Minn. Stat.

§ 609.19, subd. 2(1) (2012), the jury had to find that Gilland’s death was caused while

appellant committed or attempted to commit the specified offense of first-degree arson of

Lakeside Manor. Because the first-degree arson of Lakeside Manor was an included offense

of the second-degree murder offense, we vacate appellant’s conviction of the arson of

Lakeside Manor.     Cf. State v. Bertsch, 707 N.W.2d 660, 666 (Minn. 2006) (vacating

conviction and sentence for possession of child pornography when it was an included

offense of dissemination of child pornography and arose from same behavioral incident as

dissemination offense).

                                            IV.

      Finally, appellant argues that his sentence for the arson of apartment 101 should be

vacated because it is part of the same behavioral incident as second-degree murder.2 Minn.

Stat. § 609.035, subd. 1 (2012), provides that a person whose conduct “constitutes more

than one offense” may be punished for only one of them. The test is whether the offenses

are part of “a single behavioral incident.” Effinger v. State, 380 N.W.2d 483, 488 (Minn.

1986). Whether multiple offenses form part of a single behavioral act is a question of fact.

See id. at 489 (reviewing district court’s finding of two separate behavioral acts under

2
  Note that this sentencing issue does not extend to appellant’s conviction of arson of
apartment 101. Appellant does not argue that this arson charge was a predicate offense to
the murder conviction and that the apartment 101 conviction should be vacated.

                                            14
clearly erroneous standard). “But where the facts are established, the determination is a

question of law subject to de novo review.” State v. Marchbanks, 632 N.W.2d 725, 731

(Minn. App. 2001).

      The supreme court, in State v. Bookwalter, analyzed the issue of whether two crimes

arose from the same behavioral incident, using arson and murder as an example. 541

N.W.2d 290, 294 (Minn. 1995). The court explained that “[f]or example, when arson is the

means by which the defendant commits a murder, the defendant may not be sentenced both

for the murder and for the arson, because the time and place of the offenses coincide and

because the defendant is motivated by an effort to obtain a single criminal objective.” Id.

Therefore, under Bookwalter, we conclude that the arson of apartment 101 and the second-

degree murder offense arose from the same behavioral incident.

      The state argues that appellant’s sentence was appropriate under the multiple-victim

exception to the single-behavioral-incident rule. Under the multiple-victim exception, a

district court may impose “multiple sentences for multiple crimes arising out of a single

behavioral incident if: (1) the crimes affect multiple victims; and (2) multiple sentences do

not unfairly exaggerate the criminality of the defendant’s conduct.” State v. Skipintheday,

717 N.W.2d 423, 426 (Minn. 2006).

      In this case, the arson offense of Lakeside Manor had multiple victims because many

units involving many different people were affected by the fire. But for purposes of

appellant’s argument, the offenses at issue are the arson of apartment 101 and second-degree

murder. Because Gilland was the only victim of that particular unit, there were not multiple

victims of the arson of apartment 101. And Gilland was the only victim of the felony


                                             15
murder offense. Therefore, because the arson of apartment 101 and the felony murder

offense arise out of the same behavioral incident, and because the multiple-victim exception

is not applicable to that offense, we remand to the district court with instructions to vacate

appellant’s sentence for the arson of apartment 101.

       Affirmed in part, reversed in part, and remanded.




                                             16
