Multiple Sentences For Drive By Shooting of Occupied Building and Assault is Upheld

State v. Ferguson, Minn.S.Ct., 1/11/2012.  Okay, Mr. Ferguson is a former client of mine.  Mr. Ferguson provided the gun that one of his brothers used to shoot up a house (over an argument about a dog) in which there were a total of eight people, including kids.  For this, the state charged him with one count of drive-by shooting at an occupied building, and when he wouldn’t plead guilty to this the stated  piled on eight counts of second degree assault.  Mr. Ferguson got convicted on all of those charges.  After successfully appealing his first sentence, go here, the trial court sentenced him on the drive-by shooting and on all eight assault convictions.  Mr. Ferguson appealed that sentence, first to the court of appeals and then to the supreme court.

Minnesota prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single behavioral incident.  Minn.Stat. 609.035.  An exception to this rule is when there are multiple victims.  Even for crimes arising out of a single behavioral incident, multiple sentences for multiple victims is permissible so long as doing so does not unfairly exaggerate the criminality of a defendant’s conduct, and there is only one sentence per victim.

The court of appeals had reasoned that the single count of drive-by shooting covered, if not the waterfront then all of the occupants of the house.  Under that rationale, to permit sentencing on the assault convictions would violate the one sentence per victim rule.  Justice Meyer, in a 4-3 opinion, says that the drive-by count is not a crime against any of the building’s occupants.  (Justice Meyer says this shortly after observing that Mr. Ferguson and his brothers “intentionally” caused eight persons to fear immediate bodily harm.)  If that’s not reason enough, then the majority also concludes that a single sentence for the conduct here was not commensurate with Mr. Ferguson’s culpability, the aforementioned use of a dangerous weapon to intentionally cause eight persons to fear immediate bodily harm.

Justice Paul Anderson dissents, in an opinion joined by Justices Page and Stras.  Justice Anderson observes that shooting into an occupied building is not a victim-less crime; moreover, the majority can’t logically apply the multiple victim exception to multiple sentences when there are, according to the majority, no victims.