                          This opinion will be unpublished and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
                                     A15-1143

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                Sedne Bonitaz Williams,
                                      Appellant.

                                   Filed May 16, 2016
                                        Affirmed
                                   Klaphake, Judge *

                                Clay County District Court
                                File No. 14-CR-14-1949


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

Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa V. Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Jesson, Presiding Judge; Kirk, Judge; and Klaphake,

Judge.




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                         UNPUBLISHED OPINION

KLAPHAKE, Judge

       Appellant challenges his convictions of two counts of first-degree criminal sexual

conduct, arguing that he was deprived of his constitutional right to effective assistance of

counsel when the district court failed to inquire into defense counsel’s conflict of interest.

Appellant also asserts that the district court erred by sentencing him on both convictions

because Minn. Stat. § 609.035 (2014) prohibits multiple sentences for conduct arising out

of a single behavioral incident. We affirm.

                                      DECISION

                                              I.

       Appellant Sedne Bonitaz Williams argues that he was deprived of his constitutional

right to effective assistance of counsel because his court-appointed attorney had

represented the victim, A.S., at a juvenile court proceeding, and thus had a conflict of

interest. A criminal defendant has the right to effective assistance of counsel; counsel is

ineffective if (1) his or her performance is deficient, and (2) the defendant was prejudiced

by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). In addition to assistance of counsel, a criminal defendant has a Sixth-

Amendment “right to representation that is free from conflicts of interest.” Wood v.

Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981). According to Minn. R. Prof.

Conduct 1.7(a),

              a lawyer shall not represent a client if the representation
              involves a concurrent conflict of interest. A concurrent conflict
              of interest exists if:


                                              2
                     (1) the representation of one client will be directly
              adverse to another client; or
                     (2) there is a significant risk that the representation of
              one or more clients will be materially limited by the lawyer's
              responsibilities to another client, a former client or a third
              person, or by a personal interest of the lawyer.

For purposes of demonstrating ineffective assistance of counsel, “[a] lawyer’s performance

is deficient if he represents a client despite having a conflict of interest.” State v. Paige,

765 N.W.2d 134, 140 (Minn. App. 2009).

       A defendant who raises no objection at trial has the burden of demonstrating that

defense counsel had a conflict that affected counsel’s performance. Id. But “when an

attorney informs the district court of a probable risk of conflict, and the court fails to take

adequate steps to ascertain whether an impermissible conflict exists, the defendant’s

conviction must be reversed without inquiry into prejudice resulting from the alleged

conflict.” Id. at 140-41 (quotation omitted).

       Here, after the jury was selected but before trial began, defense counsel informed

the district court that he had briefly represented A.S. at one or two delinquency proceedings

when he was assigned to courtroom duty and he had not recognized her name until he saw

her father in the courthouse. His explanation suggests that he made a pro forma appearance

as A.S.’s counsel and the matter was either resolved or handed over to a different attorney

in the public defender’s office. Defense counsel affirmed that this would not affect his

ability to zealously represent Williams. The district court questioned Williams, who stated

that he wanted defense counsel to proceed. Our review of the transcript confirms that




                                                3
defense counsel was well-prepared, made pertinent objections, and cross-examined the

state’s witnesses, including A.S., thoroughly.

       A theoretical or potential conflict is not sufficient to mandate reversal; instead, there

must be “an actual conflict of interest . . . that affected counsel’s performance – as opposed

to a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 122

S. Ct. 1237, 1243 (2002) (emphasis omitted) (quotation omitted). In State v. Stephani, the

defendant was represented by a public defender; shortly before trial, appointed counsel

discovered that another attorney in the same office had represented the victim in an

unrelated criminal case. 369 N.W.2d 540, 549 (Minn. App. 1985), review denied (Minn.

Aug. 20, 1985). This court concluded that “[t]he record fails to show an actual conflict of

interest that deprived appellant of his Sixth Amendment right to counsel.” Id. “[U]ntil a

defendant shows that his counsel actively represented conflicting interests, he has not

established the constitutional predicate for his claim of ineffective assistance.” Cuyler v.

Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719 (1980).

       We are satisfied from our review of the record that no active conflict of interest

prevented defense counsel from zealously representing Williams, and, therefore, he was

not deprived of effective assistance of counsel.

                                              II.

       Williams argues that the district court erred by imposing sentences on both first-

degree criminal sexual conduct convictions. Under Minn. Stat. § 609.035, subd. 1 (2014),

“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.” An appellate court must determine


                                               4
whether multiple offenses occurred during a single course of conduct, in which case a

defendant may be sentenced for only one of the offenses. State v. Jones, 848 N.W.2d 528,

533 (Minn. 2014). “Whether a defendant’s offenses occurred as part of a single course of

conduct is a mixed question of fact and law.” Id. We review the district court’s findings

for clear error and its application of law to the facts de novo. Id. The state has the burden

of proving by a preponderance of the evidence that the actions underlying multiple offenses

did not occur as part of a single behavioral incident or course of conduct. State v.

McCauley, 820 N.W.2d 577, 591 (Minn. App. 2012), review denied (Minn. Oct. 24, 2012).

       When a defendant has been found guilty of multiple intentional offenses, 1 a court

considers whether (1) there is a unity of time and place; and (2) whether defendant’s

conduct was “motivated by an effort to obtain a single criminal objective.” State v. Bauer,

792 N.W.2d 825, 828 (Minn. 2011) (quotation omitted). “The application of this test

depends heavily on the facts and circumstances of the particular case.” Id.

       According to the record evidence, Williams spent several hours with A.S., whom

he knew was 12 years old. Williams drove A.S. from Fargo, North Dakota, where he

picked her up, to Dilworth, Minnesota, where he had her engage in oral sex while in his

car. Williams then drove A.S. to an apartment in Moorhead, Minnesota, where the two

visited Williams’ friend and the friend’s mother. During this visit, Williams and A.S.


1
  Criminal sexual conduct crimes are crimes of general intent: the defendant must intend
to do the act that constitutes the crime. State v. Hart, 477 N.W.2d 732, 736 (Minn. App.
1991), review denied (Minn. Jan. 16, 1992); see also State v. Wenthe, 865 N.W.2d 293,
302 (Minn. 2015) (stating that “[g]enerally, criminal sexual conduct offenses require only
an intent to sexually penetrate, unless additional mens rea requirements are expressly
provided”).

                                             5
smoked marijuana; the length of the visit is not certain from the record, but it lasted at least

20-30 minutes and trial testimony suggests that the visit was longer than that. After leaving

the apartment, Williams had sexual intercourse with A.S. in the car, which was parked

inside a garage.

       In State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989) (quotation omitted),

review denied (Minn. May 24, 1989), this court concluded that in a case involving criminal

sexual conduct, “[t]he conduct involved must be motivated by a desire to obtain a single

criminal objective” and “[t]he offenses must occur at substantially the same time and place,

arise in a continuous and uninterrupted course of conduct and manifest an indivisible state

of mind.” The conduct here does not share unity of time and place. The criminal acts were

interrupted by the visit to Williams’ friend’s apartment, and although they occurred in

Williams’ car, the car was parked at different locations. Williams had a broad criminal

objective: sexual activity with A.S., but his conduct escalated in seriousness over the course

of time he spent with A.S. In State v. McLemore, 351 N.W.2d 927, 928 (Minn. 1984), the

supreme court concluded that three acts of sexual contact with a child that occurred over

the course of a weekend were not part of a single behavioral incident despite the unity of

place and the relatively short time period. Likewise, the supreme court concluded that two

incidents of sexual contact with the same victim occurring five hours apart but in the same

place, were not a part of the same behavioral incident, reasoning that “neither act bore any

essential relationship to the other.” State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979).

The supreme court commented, “[T]he underlying purpose of [Minn. Stat.] § 609.035 is to

prevent punishment which is disproportionate to the culpability of the defendant. Here, we


                                               6
are satisfied that multiple punishment of defendant is not barred by the statute and is

consistent with the purpose of the statute.” Id.

          We similarly conclude that Williams’ conduct does not have the unity of time, place,

and criminal objective that are the features of a single behavioral incident, and we therefore

affirm.

          Affirmed.




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