text:
    STATE of Iowa, Appellee, v. Roger Hinton, Defendant, Twynette CAIN d/b/a Superbondsman, Surety, Appellant.
    No. 98-1783.
    Supreme Court of Iowa.
    March 22, 2000.

      Gary J. Shea of Shea Law Offices, Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Denver Dillard, County Attorney, and Jeffrey Clark, Assistant County Attorney, for appellee.
   SNELL, Justice.

This is an appeal by Twynette Cain, doing business as Superbondsman, from the district court’s decision forfeiting the appeal bond posted for defendant, Roger Hinton. Cain argues the county jail’s policy with regard to the recommitment of prisoners was illegal and frustrated her attempt to surrender defendant in a timely manner. We agree. The decision of the district court is reversed. We remand for appropriate proceedings.

I. Background Facts and Proceedings

On March 15, 1996, defendant, Roger Hinton, was sentenced to an indeterminate fifteen-year term of imprisonment for second-degree theft as an habitual offender. The court of appeals affirmed Hinton’s conviction, and defendant subsequently filed an application for further review. On May 8, 1997, Twynette Cain, owner of Superbondsman and agent of the Noble Insurance Company, posted Hinton’s bail in the amount of $75,000.

Hinton’s application for further review was unsuccessful, and on Friday, June 6, 1997, the Iowa Court of Appeals issued procedendo. The following night Hinton was arrested on new charges stemming from the operation of a motor vehicle, including operating while intoxicated. Defendant was arraigned in the Linn County courthouse on Sunday morning, June 8. Bill Benefield, a Superbondsman employee, happened to be present in the courthouse and saw the arraignment proceedings on closed-circuit television. At that time, Benefield did not know Superbonds-man had posted the $75,000 appeal bond for Hinton. Benefield heard the judge set the bond on the new charges at $5,000.

Benefield went back to the office of Su-perbondsman and told Tracy Andrew, the office manager, of these events. They decided to tell Cain that Hinton was in custody at the jail.

Around 1:00 p.m., Benefield and Andrew called Cain. Cain promptly instructed Benefield to revoke Hinton’s bond first thing Monday morning. Cain later testified that she would have effectuated the revocation that Sunday, but could not do so without a certified copy of the bond instrument. This is because at that time, the Linn County jail followed a policy by which it refused to recommit defendants without this document. The clerk of court’s office, the office charged with the responsibility of certifying bond instruments, is not open on evenings and weekends.

Superbondsman was familiar with this policy and had encountered difficulty when attempting to surrender prisoners in the past. Cain had in fact previously complained of the practice only to be told that her privileges at the Linn County facility would be revoked if she did not comply.

Nevertheless, Benefield called the jail on Sunday afternoon to confirm Hinton was still in custody, and to inform the jailer of his intent. When Benefield phoned again on Monday morning, he was told that Hinton had already been released by posting a new bond.

That same morning, June 9, at 11:44 a.m., the procedendo was received and file-stamped by the Linn County clerk’s office. On July 3, the district court ordered Hinton to surrender to serve his sentence, or for his surety to surrender him within ten days. On July 11, Superbondsman applied for an order revoking Hinton’s appeal bond and exonerating Superbondsman. When Hinton failed to submit himself into custody, the court ordered the forfeiture of his appeal bond. In accordance with Iowa Code section 811.6 (1997), the sheriff was instructed to give Hinton and his sureties ten days notice to appear and show cause why judgment should not be entered for the amount of the bond.

On July 21, Superbondsman appealed and objected to the forfeiture. A combined hearing on the motions, applications and appeals was not held until September 2, 1997. At that time Cain delineated her efforts to locate Hinton, and objected to the jail’s procedures regarding the surrender of prisoners on weekends.

On October 4, Hinton was captured by Davis County sheriffs officers after a gun battle in which Hinton sustained numerous wounds. He was taken to University Hospitals in Iowa City, where he remained unguarded and in serious condition. Representatives of Superbondsman arrived at the hospital three days later and formally requested the Davis County sheriffs office to accept delivery.

On October 13, the court rejected Super-bondsman’s arguments against forfeiture. Another hearing was held on February 25, 1998, whereupon the court entered judgment on the bond in the amount of $60,000.

Superbondsman now appeals on numerous grounds, the first of which is that the policy of the Linn County jail was illegal and was enforced to appellant’s detriment. We agree with Superbondsman’s first contention and therefore decline to address the other issues presented.

II. Scope of Review

The decision to enter judgment for the amount of bail in a forfeiture proceeding is discretionary with the court. State v. Costello, 489 N.W.2d 735, 738 (Iowa 1992); State v. Shell, 242 Iowa 260, 264, 45 N.W.2d 851, 854 (1951). Therefore our review is for abuse of discretion. Costello, 489 N.W.2d at 738. This standard is breached when a district court exercises its discretion on grounds that are clearly untenable, or to an extent clearly unreasonable. State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999).

III. Analysis

Superbondsman alleges the policy of the jail, whereby a surety was not permitted to surrender a defendant without a certified copy of the bond, was contrary to Iowa Code section 811.8. Superbondsman argues that the jail’s failure to abide by the strictures of the statute frustrated its attempts to perform its obligation, thereby-relieving it of any future responsibility for Hinton’s nonappearance. Iowa Code section 811.8 provides as follows:

1. At any time before the forfeiture of the undertaking, the surety may surrender the defendant, or the defendant may surrender, to the officer to whose custody the defendant was committed at the time of giving bail, and such officer shall detain the defendant as upon a commitment and must, upon such surrender and the receipt of a certified copy of the undertaking of bail, acknowledge the surrender of a certificate in writing.
2. Upon the filing of the undertaking, and the certificate of the officer, or the certificate of the officer alone if money has been deposited instead of bail, the court or clerk shall immediately order return of the money deposited to the person who deposited the same, or order an exoneration of the surety.
3. For the purpose of surrendering the defendant, the surety, at any time before finally charged and at any place within the state, may arrest the defendant, or, by a written authority endorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so.

The State concedes the jail’s policy violated section 811.8. Moreover, evidence at the forfeiture hearings indicates jail personnel knew, or should have known, the policy was illegal. In October of 1993, an Assistant Linn County Attorney contacted the jail via e-mail to inform authorities that they were required to accept the surrender of prisoners at any time of the day or night, with or without a certified copy of the bond instrument. Michael Carr, the Linn County Jail Administrator, testified he was unaware of the communique until August of 1997, at which point the policy was amended.

Nevertheless, the State argues that the jail’s violation of section 811.8 did not make it impossible for Superbondsman to perform its obligations. This point is not in serious dispute. Superbondsman could have posted guards outside the jail, or have maintained a certified copy of the bond instrument on file. More importantly, Superbondsman had approximately thirty-five days between June 9 and July 13, in which to surrender defendant and retain its bond. The real question, however, is whether the jail’s policy should serve as an excuse for Superbondsman’s failure to effect a surrender of Hinton at the jail on Sunday prior to his release on bond on the new charges.

Several well-established principles have been set forth to guide us when reviewing forfeiture proceedings. In Costello, we noted that

[a] court admits a defendant to bail in order to assure his appearance in court. In assuming the position of bail the surety becomes obligated to produce the accused in open court when his presence is required. Stated otherwise, when the State releases a defendant from confinement it commits him to the exclusive custody of his surety, who becomes “the jailer of his own choosing.” If the surety fails to produce its principal at the appointed time, a judgment shall be entered by the court.

Costello, 489 N.W.2d at 737-38 (quoting State v. Zylstra, 263 N.W.2d 529, 531 (Iowa 1978)).

Forfeiture and judgment on the bond may be avoided when the surety shows some reasonable excuse for failing to produce the defendant. Id. at 738; Shell, 242 Iowa at 266, 45 N.W.2d at 854. When a satisfactory explanation for the defendant’s failure to appear has been established, the court may refuse to enter judgment and may set aside the forfeiture. Costello, 489 N.W.2d at 738; State v. Thomason, 226 Iowa 1057, 1062-63, 285 N.W. 636, 638-39 (1939).

To that end it has been noted that the proceedings for forfeiture of bail and judgment are civil actions, which may only be enforced in rigid compliance with the statutes. Costello, 489 N.W.2d at 738; Zylstra, 263 N.W.2d at 531. These statutes are strictly construed against forfeiture and liberally toward those opposing it. Shell, 242 Iowa at 264, 45 N.W.2d at 853; State v. Dodd, 346 N.W.2d 42, 42 (Iowa App.1984).

Superbondsman avers that had the State complied with section 811.8, Hinton would have been returned to custody on Sunday, June 8, 1997, thereby eliminating the need for any further proceedings. The State, however, contends the record is inadequate to determine whether Hinton was still in custody when Benefield phoned the jail on Sunday afternoon. The State asserts that if Hinton had already been released by the time Benefield called, the jail’s illegal procedure with respect to section 811.8 would have been irrelevant.

Although we cannot confirm Hinton was still in custody when Superbondsman’s agent contacted the jail that afternoon, our record of the conversation indicates that this was likely so. Presumably, if Hinton had already been released when Benefield called and expressed his intention to revoke defendant’s bail, the jailer would have indicated as much.

In construing the statute, the facts, and the circumstances attendant to this case liberally toward those opposing forfeiture, we are led to conclude that Hinton would have been recommitted on Sunday June 8 had the jail acted in accordance with Iowa Code section 811.8. Anything that took place subsequent to the events of that day is of no legal consequence. The judgment of the district court is reversed. This case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED

All justices concur except CARTER, J., who takes no part.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Ricky Lee WEAVER, Appellant.
    No. 98-1214.
    Supreme Court of Iowa.
    March 22, 2000.

      Gaylen V. Hassman of Engelbrecht, Ackerman & Hassman, Waverly, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik and Charles N. Thoman, Assistant Attorneys General, and Mark R. Cozine, County Attorney, for appellee.
   LARSON, Justice.

Ricky Lee Weaver was convicted of second-degree sexual abuse. See Iowa Code §§ 709.1(3), 709.3(2) (1997). The conviction was reversed by the court of appeals, and we granted the State’s application for further review. We vacate the court of appeals decision and affirm the judgment of the district court.

I. Facts.

Ramona Weaver’s daughter, Kendra, was the alleged victim of sexual abuse. This defendant, charged with the abuse, was married to Kendra’s mother, but he is not the father of Kendra. The victim was born in December 1992. Ramona and the defendant are the parents of Kendra’s half-sister, J.W., who was born in 1996. Weaver, Ramona, and the two daughters lived together in a modular home near Cherokee. The court found the following facts surrounding the event.

When Ramona returned home from work on Friday, May 16,1997, Weaver was there with the girls, whom he had brought home from their baby-sitter. Ramona took the girls four-wheeling in the country, followed by an outing in a pizza restaurant. Ramona testified that the victim appeared to be normal at that time; any pelvic injury would be readily apparent, according to her. Ramona put the girls to bed at 9 p.m. When she put Kendra to bed, she did not see anything unusual about her and specifically saw no vaginal bleeding. Weaver returned home at 10 or 11 p.m.

The next day Ramona got up about 6 or 6:30 a.m. and left for work. The defendant was left with the girls. Ramona came home from work about 3 p.m. When she came home, her half-sister, Sheila, Sheila’s husband, and Sheila’s daughter were at the trailer with Weaver and Ramona’s two daughters, including Kendra. Sheila and her family, who had been there since about 2 or 2:30 p.m. left soon after Ramona came home. About 4:30 p.m., Weaver told Ramona that Kendra had been bleeding from the vaginal area but said he had done nothing to cause it. He left immediately for his parents’ farm.

Ramona observed vaginal bleeding and blood on Kendra’s underpants. She changed Kendra’s clothes and went to look for Weaver. When she found him, she asked him what had happened, and he said he did not know. When Weaver came home, he and Ramona took Kendra to a hospital in Cherokee, then to a hospital in Sioux City. A sexual assault evidence collection kit revealed Kendra had been the victim of sexual abuse. DNA tests were done on Weaver and the victim.

Dr. Michael Jung, medical director of the Marian Health Center’s child protection center, had been involved in at least 800 cases of sexual abuse evaluations. He examined Kendra in the Sioux City hospital and observed fresh blood in Kendra’s genital area, with continued bleeding. His examination revealed a complete tear through the hymen to the muscle that closes the sphincter. The tear was over an inch long and required sutures to repair. Dr. Jung testified that in his opinion the tear was caused by a penetrating object large enough to cause the tear. He testified the object would have been at least two fingers or an erect adult penis. In his opinion, the injury was fresh, occurring within the previous twenty-four hours.

Weaver was arrested and examined by a doctor. Blood samples and penile swabs were obtained. Pursuant to a warrant, officers searched Weaver’s home, and Weaver’s underpants were obtained from the county jail where he was in custody. Blood stains were found on Weaver’s sweatpants and underwear. Blood stains were also found on the swab of Weaver’s penis.

Kendra’s DNA was found on the sweatpants but swabs of Weaver’s penis and Kendra’s underwear were not sufficient to identify the DNA on them. The doctor’s visual examination of Weaver revealed no sign of injuries that could have caused his own bleeding.

Weaver was charged with second-degree sexual abuse. He waived his right to a jury trial, and the case was tried to the court. The court, in a detailed ruling, found the State had proven the elements of the offense beyond a reasonable doubt.

Weaver attacks his conviction on seven grounds: (1) the court’s denial of his application to depose the victim, (2) sufficiency of the evidence to support the conviction, (3) admission of out-of-court statements by the victim’s mother, (4) admission of statements by the defendant, (5) admission of testimony by a sheriffs deputy explaining why he had not taken fingernail scrapings from the defendant, (6) admission of “verbal and nonverbal” statements of the victim, and (7) admission of DNA evidence.

II. The Deposition Issue.

The court denied Weaver’s pretrial application to take the deposition of the victim. His application for authority to take the deposition is unclear as to the basis for it; it simply stated:

3. There is an additional witness who is not listed in the minutes that possess[es] evidence both material and favorable to the defendant which is not merely cumulative.
6. The information sought by way of deposition cannot adequately be obtained by a bill of particulars or voluntary statements due to the fact that [the] witness’s credibility is a major factor in the preparation of defense of this case.
7. It would be in the interest of justice considering the special circumstances herein for the witness to be deposed by the defendant.

The statement in paragraph three of the application (that the proposed deponent was not listed as a witness in the minutes of testimony) suggests Weaver was relying on Iowa Rule of Criminal Procedure 12(2) under which a court may authorize the deposition of witnesses not listed in the minutes under “special circumstances.” However, Weaver does not expressly state in his application that rule 12 is the basis for his application. Nor does he mention any of the specific constitutional claims he now asserts. His attorney merely alluded to the United States Constitution in his oral argument in support of his application. Although we have serious reservations about Weaver’s preservation of most of the arguments he now presents, we address the merits of his four assignments of error based on the court’s refusal to order pretrial discovery of the victim.

Weaver challenges the court’s refusal to allow pretrial discovery on four bases: (1) Iowa Rule of Criminal Procedure 12, (2) the Compulsory Process Clause, (3) the Confrontation Clause of the Sixth Amendment to the United States Constitution, and (4) the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

A. Iowa Rule of Criminal Procedure 12. Iowa Rule of Criminal Procedure 12 allows for a criminal defendant to take the depositions of certain individuals. Subsection 1 provides a defendant the right to depose “all witnesses listed by the state on the indictment or information.” This proposed deponent, the victim, was not listed in the minutes of testimony, so rule 12(1) is inapplicable. Subsection 2 of rule 12 provides for depositions of witnesses not listed in the minutes. Rule 12(2) provides:

a. Whenever the interests of justice and the special circumstances of a case make necessary the taking of the testimony of a prospective witness not included in subsection 1 or 3 of this rule, for use at trial, the court may upon motion of a party and notice to the other parties order that the testimony of the witness be taken by deposition and that any designated book, paper, document, record, recording, or other material, not privileged, be produced at the same time and place. For purposes of this subsection, special circumstances shall be deemed to exist and the court shall order that depositions be taken only upon a showing of necessity arising from either of the following:
(1) The information sought by way of deposition cannot adequately be obtained by a bill of particulars or voluntary statements.
(2) Other just cause necessitating the taking of the deposition.

Subsection 2 is inapplicable in this case because the rule itself makes it clear it is to be used to perpetuate testimony, not for discovery as Weaver sought to use it. Rule 12(2) allows testimony of a witness “not included in subsection 1 [a witness listed in minutes] or 3 [disclosure of defense witnesses] of this rule, for use at trial .... ” (Emphasis added.)

In discussing rule 12(2), we have also said:

To trigger the right of compulsory process, a defendant must make a plausible showing the testimony of the individual otherwise unavailable to the defendant was both material and favorable to his defense. This requirement is embodied in Iowa Rule of Criminal Procedure 12, which, although allowing a defendant to depose all witnesses listed by the State on its trial information, requires a defendant to establish the necessity for deposing other persons.

State v. Wagner, 410 N.W.2d 207, 213 (Iowa 1987) (citation omitted) (emphasis added).

In this case, the defendant did not claim the victim was unavailable to testify, and his general statement in his application for discovery that “the interest of justice” requires an order for deposition is insufficient to justify a discovery order under rule 12.

B. The Sixth Amendment issues. Weaver’s attorney alluded to his client’s Sixth Amendment rights at the hearing on his application for discovery, although it was not a part of his application. Assuming the issues were adequately raised, we proceed to discuss them.

1. Compulsory process. The United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor ....

U.S. Const, amend. VI.

Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), discussed the scope of the Compulsory Process Clause.

The right to compel a witness’ presence in the courtroom could not protect the integrity of the adversary process if it did not embrace the right to have the witness’ testimony heard by the trier of fact. The right to offer testimony is thus grounded in the Sixth Amendment even though it is not expressly described in so many words:
“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019[, 1023] (1967).
The right of the defendant to present evidence “stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States.” Id. at 18, 87 S.Ct. at 1923[, 18 L.Ed.2d at 1022-23].

Taylor, 484 U.S. at 409, 108 S.Ct. at 653, 98 L.Ed.2d at 810-11.

Whether the Compulsory Process Clause guarantees the right to pretrial discovery is not clear. In Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 1000-01, 94 L.Ed.2d 40, 56 (1987), the Supreme Court said it had “never squarely held that the Compulsory Process Clause guarantees the right to discoverfy],” and it declined to decide the issue in that case. Rather, it noted such issues were ordinarily evaluated under the broader scope of the Due Process Clause of the Fourteenth Amendment and elected to resolve the issue under a due-process analysis. Ritchie, 480 U.S. at 56, 107 S.Ct. at 1001, 94 L.Ed.2d at 57.

Because Weaver also raises a due-process argument, we do not resolve his claim under the compulsory-process provision of the Constitution. We discuss the due-process claim in a later division.

2. The Confrontation Clause. The United States Constitution provides that:

In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ....

U.S. Const, amend. VI; see also Iowa Const, art. I, § 10.

This defendant alludes to his right of confrontation but provides no authority to support an argument he was deprived of that right here. In fact, in State v. Froning, 328 N.W.2d 333 (Iowa 1982), we rejected the argument now made, saying:

“The Confrontation Clause does not provide the defendant with any right to pre-trial or in-trial discovery of the state’s evidence. The purpose of the Confrontation Clause is to provide the defendant with the opportunity to challenge the testimony introduced by the state against the accused at trial by means of cross-examination of the de-clarant of the testimony.... The petitioner has not cited, and this court has not discovered anything in the English or American history of the Confrontar tion Clause, or in any decision of the Supreme Court interpreting that clause, which suggests in the slightest that the Confrontation Clause is in any way concerned with discovery. Accepting the petitioner’s argument would transform the Confrontation Clause from a device designed to prevent trial by affidavit into a guarantee of the right to demand trial by affidavit.”

Id. at 336-37 (quoting Martin v. Blackburn, 521 F.Supp. 685, 699 (E.D.La.1981)).

For the reasons discussed in Froning, we reject the defendant’s confrontation-clause argument.

3. The due-process claim. We have held the right to present a defense is so fundamental and essential to a fair trial that it is accorded the status of an incorporated right through the Fourteenth Amendment’s Due Process Clause. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998).

Here, the defendant’s due-process argument is very brief. He merely says he “has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” He submits no authority to support the argument he was denied due process.

We have said:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Id. at 921 (quoting Washington, 388 U.S. at 19, 87 S.Ct. at 1923, 18 L.Ed.2d at 1023).

Here, the defendant was not denied the right to present a defense. He was only denied the opportunity to present a defense that suited his own strategy under which he did not even attempt to call the victim as a witness at trial. We reject his due-process argument.

III. Sufficiency of the Evidence.

Weaver contends the evidence was insufficient to support the conviction. We review a trial court’s findings in a jury-waived case as we would a jury verdict: If the verdict is supported by substantial evidence, we will affirm. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993).

In this case, the elements of second-degree sexual abuse are the defendant’s (1) commission of a sex act (2) against a child under twelve. Iowa Code §§ 709.1(3), 709.3(2). A “sex act” means sexual contact including contact between the genitalia of one person and the genitalia or anus of another or contact between the finger or hand of one person and the genitalia or anus of another. Iowa Code § 702.17.

Weaver does not seriously challenge the State’s proof that a sex act was committed. His focus is on the State’s proof regarding the identity of the perpetrator. He strongly attacks the credibility of his 'wife, Ramona, the victim’s mother. He contends her testimony “is improbable, her actions absurd, and her claims about the [defendant’s blood-stained] sweatpants impossible.” The district court, however, had a different view of her credibility, making an express finding that “[t]he court finds Ramona Weaver to be a very credible person.” Determinations of credibility are in most instances left for the trier of fact, who is in a better position to evaluate it. State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986). We defer to the court’s assessment of credibility here; there is substantial evidence to support the court’s finding.

In addition, the guilt of the defendant was strongly supported by the physical evidence on which the court relied. Blood stains were found on the defendant’s underwear. Blood stains were found on the front crotch area and back leg area of the defendant’s sweatpants. The blood stains on the sweatpants contained the victim’s DNA. Swabs of the defendant’s penis revealed blood stains, and according to the doctor’s examination, this was not the defendant’s blood. We conclude the verdict was supported by substantial evidence.

IV. The Evidence Rulings.

Weaver claims error in the court’s admitting (1) a statement by the victim’s mother concerning her belief that Weaver had committed the sexual abuse; (2) testimony by the victim’s aunt, Michelle Weaver, about a statement made to her by Weaver; (3) “verbal and nonverbal” evidence by the victim; (4) testimony by an officer as to why he had not taken fingernail scrapings of the defendant; and (5) the DNA evidence. The State responds that, as to some of the assignments of error, the defendant had failed to preserve error; and there is no merit to any of the objections in any event. Also, because this was a trial to the court, the rules of evidence are less stringent. See State v. Farnum, 397 N.W.2d 744, 746 (Iowa 1986) (while rules of evidence are applicable both to bench and jury trials, there is less need for strict application of evidence rules in a bench trial). (There is no suggestion in the court’s ruling that it relied on any of the disputed evidence except that concerning DNA.)

A. The mother’s testimony. Ramona Weaver testified on direct examination that she believed Weaver had committed the assault on Kendra. Weaver objected on relevancy grounds, but the State argued the testimony was proper to meet the defendant’s expected attempt to show bias (the possible use of the sexual abuse matter by Ramona to gain an advantage for her in her pending dissolution action against Weaver). The State argues it merely had attempted to preempt any testimony by the defendant on cross-examination as to the possible bias of the witness. The court was within its discretion in allowing this evidence.

B. The aunt’s testimony. Sheila Weaver, the victim’s aunt, was called as a witness on behalf of the defendant. On the State’s cross-examination of her, she was asked if the defendant had made a statement to her about the event. Weaver objected that the statement was hearsay, a denial of his right of confrontation, and beyond the scope of direct examination.

Q. [MR. THOMAN (Prosecutor):] Do you remember what he said to you when he did that? He came around and sat down next to you and said, “Kendra’s saying I put my fingers in her. I didn’t do it.”
MR. MCCULLOUGH [Defense Counsel]: That’s objected to as not only hearsay but going beyond the scope of direct examination.
MR. THOMAN: Your Honor, it’s not hearsay, it’s a statement by a party opponent, and I’m asking this witness about it. It’s not hearsay if the defendant said it. Furthermore, this is still within the general framework. She talked with the defendant once. This is still within the area of cross-examination.
THE COURT: Well, it’s not hearsay. My concern is going beyond the scope of direct. I’m going to allow the question.
MR. THOMAN: Do you remember that one? Okay. Let me ask — when he sat down next to you, “Kendra is saying that I put my fingers in her and I didn’t.”
THE WITNESS: Okay.
Q. He said that to You? A. Yes.

We agree with the district court that Weaver’s statement was an admission because it tended to show he was aware of how the crime had been committed. It was therefore properly received by the court. As to the defendant’s confrontation clause argument, he failed to raise the issue at trial and has therefore waived it on appeal. As to the defendant’s argument the cross-examination exceeded the scope of direct examination, we give considerable discretion to the trial court in ruling on such matters, and that discretion was not abused here.

C. The victim’s “statements.” One witness who had been present at the hospital testified (1) the victim appeared to be happy to find out her mother was at the hospital, (2) the victim wondered where her younger sister was, and (3) she was upset that Weaver might be present at the hospital.

To be hearsay, an out-of-court utterance must be a “statement.” Iowa R. Evid. 801(c). A statement is defined as an oral or written assertion or conduct intended to be an assertion. Iowa R. Evid. 801(a).

A great many out-of-court utterances fall within such categories as greetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions of joy, annoyance, or other emotion, etc. Such utterances are not intentional expressions of facts or opinions. They are not assertions, at least for purposes of the hearsay rule. Thus they are not hearsay.

State v. Rawlings, 402 N.W.2d 406, 409 (Iowa 1987) (quoting Binder, Hearsay Handbook 15 (2d ed.1983)) (emphasis added). In this case the victim’s inquiry about her sister was not hearsay because it was not an assertion. The same is true as to her appearance of excitement about her mother being at the hospital; because her appearance of happiness was not an assertion for hearsay purposes, it was properly admitted.

Weaver also claims error in the admission of evidence that the victim appeared to be upset about Weaver possibly being at the hospital. It is not clear whether the witness discerned this uneasiness from something the victim said or by her actions. If the latter, it was not a statement for hearsay purposes because it was not an assertion. If the witness concluded the victim was upset about Weaver’s presence because of something the victim said, it would clearly be admissible as an excited utterance under Iowa Rule of Evidence 803(2). The district court did not elaborate on its reasons for overruling the hearsay objection. However,

we will affirm a ruling which admits evidence over a hearsay objection on any proper ground appearing in the record, even if it was not raised below.

Rawlings, 402 N.W.2d at 409. We reject this assignment of error.

Another witness testified that the victim lifted the dress on her younger sister and appeared to examine her pelvic area. The defendant objected on hearsay grounds, arguing this suggested the victim was reenacting an act by the defendant. The district court overruled the objection, presumably because the child’s nonverbal action in lifting the dress was not intended to be an assertion under Iowa Rule of Evidence 801(a). In any event, even if the act were an assertion for hearsay purposes, its admission was harmless; it is clear from the court’s findings in this jury-waived trial that it did not rely on this evidence. See Farnum, 397 N.W.2d at 746 (rules of evidence less stringently applied in jury-waived trial).

D. The officer’s testimony about why he had not taken fingernail scrapings from the defendant. On rebuttal, the State called officer Stubbe and inquired why he did not take fingernail scrapings from Weaver. This witness testified, over relevancy and materiality objections, that he did not do so because he initially had no knowledge that there would have been any evidence in the fingernail area of Weaver’s hands.

Rebuttal evidence is evidence that explains, repels, controverts, or disproves evidence produced by the opposing party. Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996). The trial court has considerable discretion in admitting rebuttal evidence, including the discretion to include evidence that could have been offered as a part of the case in chief. We will only disturb such a ruling on a showing of clear abuse of discretion. Id. The rebuttal evidence was properly allowed.

On the defendant’s cross-examination of an Iowa Division of Criminal Investigation agent, the agent testified that he analyzed no fingernail scrapings from Weaver. Officer Stubbe’s testimony was offered to rebut the defendant’s implication that the State had failed to preserve important evidence, and this rebuttal evidence was therefore clearly relevant.

E. The DNA evidence. Weaver’s last assignment of error concerns the court’s admission of DNA evidence. While Weaver had filed a pretrial motion to suppress and a motion in limine regarding the evidence, at trial his counsel stated he had no objection to the DNA testimony. He objected only to the admission of the physical exhibits. Under these circumstances, we have held any objection raised in pretrial motions is waived. See State v. Terry, 569 N.W.2d 364, 369 (Iowa 1997). We reject his argument the DNA testimony was erroneously received.

We find no merit in any of the defendant’s assignments of error and therefore vacate the decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except CARTER, J., who takes no part.


author: STREIT, P.J.

text:
    STATE of Iowa, Appellee, v. Edward J. HOLLINRAKE, Appellant.
    No. 99-637.
    Court of Appeals of Iowa.
    Jan. 12, 2000.

      John A. Pabst, Albia, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, William S. Owens, County Attorney, and Harold Young, Special Assistant Attorney General, for appellee.
    Heard by STREIT, P.J., VAITHESWARAN, J., and HAYDEN, S.J.

       Senior judge assigned by order pursuant to Iowa Code § 602.9206 (1999).

   STREIT, P.J.

“Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944, 960 (1928) (Brandéis, J., dissenting). Sheriff Edward Hollinrake became a law unto himself, as Justice Brandéis feared, when he falsified public documents in order to obtain money for unauthorized purposes. After his guilty plea, the court ordered Hollinrake to pay restitution which included the costs of an audit of the sheriffs records. The audit was necessary to verify the extent of Hollinrake’s misdeeds and restore public confidence. Hol-linrake appeals this order. Because we find the county could recover the cost of the audit under a civil-based theory of recovery, the plan was appropriate, and we affirm.

I. Background Facts and Proceedings.

According to Edward Hollinrake, the Monroe County Sheriff, the county board of supervisors denied him the funds needed to eradicate the influx of drugs into Monroe County. Claiming a higher call of justice, Hollinrake improperly sold a department firearm for $450 and issued a $420 false receipt for tires on one of the department’s patrol cars to finance his alleged crusade. After admitting his misdeeds, the State charged him with falsifying a public document. Hollinrake’s admissions shook the fiscal integrity of the sheriffs department. To alleviate fears that Hollinrake’s mismanagement of county funds was not limited to the two admitted instances, the county ordered an independent audit of the sheriffs department. The audit did not unearth any other major discrepancies, thus restoring the public’s confidence.

Hollinrake pled guilty to falsifying a public document and agreed to resign from his position and make restitution to Monroe County in the amount of $870. At sentencing the State requested Hollinrake pay an additional $4,085.23 in restitution, the cost of the special audit. The State argued the cost of the audit constituted additional pecuniary loss and was therefore recoverable under the restitution statute. The district court accepted Hollin-rake’s plea, suspended his sentence, and ordered restitution in the amount of $4,975.33.

Hollinrake appeals, claiming restitution for an audit may only be ordered in theft cases and there was no causal nexus between his acts and the audit.

II. Standard of Review.

We review restitution orders for errors of law. State v. Watts, 587 N.W.2d 750, 751 (Iowa 1998).

III.The Merits.

Iowa Code sections 910.1 and 910.2 (1997) require offenders to compensate their victims for all pecuniary damages suffered as a result of the offenders’ criminal activity. Pecuniary damages are

all damages to the extent not paid by an insurer, which a victim could recover against the offender in a civil action arising out of the same facts or events, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium.

Id. § 910.1(3). Hollinrake claims the trial court erred in ordering his restitution plan include the cost of the audit because falsifying a public document has no civil equivalent, thus removing the costs associated with the audit from the purview of section 910.1(3). Section 910.1(3), however, does not mandate the crime committed specifically equate to a recognized civil action. Rather, the statute permits the restitution plan to include pecuniary damages if the victim could recover against the offender under any civil-based theory of recovery “arising out of the same facts or events.” Id. Therefore, if the events surrounding Hollinrake’s crime could support a civil claim for damages, the trial court was proper in adopting the restitution plan.

Although not charged with criminal theft, Hollinrake’s actions nonetheless constituted its civil equivalent — conversion. See State v. Taylor, 506 N.W.2d 767, 768 (Iowa 1993). Conversion is the intentional exercise of control over property “which so seriously interferes with the right of another to control it that the actor may justly be required to pay ... the full value of the chattel.” Restatement (Second) of Torts § 222A(1) (1964). Conversion may be committed by obtaining the chattel through fraud or by using a chattel, properly within one’s control, in an unauthorized manner. Id. §§ 221(b), 228. Not only must Hollinrake’s actions meet the elements of conversion, but there must also be a causal connection between his actions and the damage to the victim. See State v. Ihde, 532 N.W.2d 827, 829 (Iowa App.1995). Finally, the damages sought must be compensable under the law. Normally, expenses incurred in preparation of trial are not recoverable. Taylor, 506 N.W.2d at 768. In conversion cases, however, “the reasonable and necessary expenses incurred in recovering the property are a proper element of damage.” Id.

The events surrounding Hollin-rake’s criminal misconduct support a civil claim for conversion. Hollinrake, through the fraudulent falsification of public documents and an abuse of his authorization as sheriff, permanently dispossessed tax dollars from the people of Monroe County. He improperly converted those funds regardless of his motivation or the money’s intended use. Conversion only requires intentional dispossession; it does not contemplate the actor’s motivation. Furthermore, Hollinrake’s actions directly caused the need for the independent audit. “A reasonably foreseeable consequence of defendant’s taking' of money from the county was that the county would need to conduct a thorough audit to be sure that it had uncovered all the defendant’s defalcations.” State v. Whitaker, 110 N.M. 486, 797 P.2d 275, 284 (App.1990). Hollinrake’s actions shook the fiscal integrity of the sheriffs office and left open the question of further criminal conduct. The only means to adequately uncover the extent of the damage was through an audit. See Taylor, 506 N.W.2d at 769. Simply because Hollinrake was cooperative with investigators and the audit did not unearth evidence of further impropriety does not negate the need for independent confirmation. Whitaker, 797 P.2d at 283-84. Finally, the costs of the audit were reasonable expenses incurred by the county in recovering the misappropriated funds. See Taylor, 506 N.W.2d at 769. Because the State proved the acts surrounding Hollinrake’s criminal conduct met all the tort-based prerequisites for recovery of pecuniary loss due to conversion, the trial court properly included the costs of the audit in the restitution plan. Hollinrake’s sentence is affirmed.

AFFIRMED.

      . Hollinrake’s criminal act, falsifying a public document, directly caused the damages incurred in seeking the return of the mishandled money. This is in stark contrast to State v. Starkey, where there was "no evidence ... that Starkey’s act of leaving the scene [of an accident], the basis of the charge, either caused or aggravated the victim’s injuries." State v. Starkey, 437 N.W.2d 573, 575 (Iowa 1989). Because the victim’s injuries in Starkey occurred as result of the accident, not the defendant's act of leaving that accident, the only possible inference was the injuries occurred before the defendant committed the crime. Id.


author: STRINGER, Justice.

text:
    STATE of Minnesota, Respondent, v. Hakim Jamal WILLIAMS, a/k/a Merrall Lee Norton, Appellant.
    No. CX-98-820.
    Supreme Court of Minnesota.
    March 2, 2000.

      John Garrett Westrick, St. Paul, for appellant.
    Stephen L. Redding, Minneapolis, for respondent.
    Robert D. Miller & Associates, Robert D. Miller, Minneapolis, amicus curiae for appellant.
    Michael Hatch, Office of the Attorney General, St. Paul, amicus curiae for respondent.
   OPINION

STRINGER, Justice.

On February 10, 1998 Hakim Jamal Williams, appellant, was convicted by a jury in Hennepin County of attempted first-degree murder, first-degree criminal sexual conduct, and first-degree burglary, among other offenses, in connection with an incident on August 8, 1996 in which appellant broke into C.R.’s apartment and sexually assaulted and attempted to kill her. See Minn.Stat. §§ 609.185(1) (1998); 609.17 (1998); 609.342, subd. 1(d), (e)(i) (1998); 609.582, subd. 1(b), (c) (1996). Relying on 15 aggravating factors the trial court departed upwardly from the Minnesota Sentencing Guidelines on each sentence but did not identify the particular aggravating factors applicable to each sentence. The court also concluded the sexual assault and attempted murder did not constitute a single behavioral incident and sentenced appellant separately for each offense. The court of appeals affirmed. We granted review on the sentencing issue only. We reverse and remand for resen-tencing.

C.R., the victim, lived alone in her apartment in Minneapolis, Minnesota when, in the early morning of August 8, 1996, appellant broke in and assaulted her. She testified that when she went to bed at about 10:30 p.m. the previous evening, she left the door onto her second-floor balcony open but probably locked the screen. She was awakened by appellant placing his hand on her shoulder and asking her for money. She said she had none because she was a student. Appellant pulled her onto the floor and when she screamed, he placed a sleeping bag over her head. He pinned her to the floor and as he removed her clothing, he showed her a knife from her kitchen and said to her “don’t make me use this.” He penetrated her anally. He then attempted to drag her into the bathroom but she resisted. She testified that in the hallway the situation escalated into a “full intense state of struggling for [her] life.” Appellant asked the victim repeatedly to defecate on the floor in the hallway near the living room - eventually she was able to comply and he “wiped her bottom” with her shirt.

At this point the victim attempted to escape as she screamed and ran for the door, but appellant prevented her from reaching it. She knew she was choking and believed she was dying but did not remember receiving the stab wounds she suffered in the incident. Eventually she lost consciousness and her next memory was seeing a police officer.

A neighbor of the victim testified that she was awakened at 2:40 a.m. by the voice of a woman in a nearby apartment repeatedly saying “no” and a man with a “sickening laugh.” She called 911 and Officers Ted Fisher and Rick Lindner arrived at approximately 2:50 a.m. They heard nothing when they arrived at the victim’s door, but after knocking, they heard a “metal railing being * * * struck heavily,” and then scratching and a “gurgling” sound. At this point the officers concluded that “someone was dying.” They were unable to kick the door in, so Officer Lindner remained at the door while Officer Fisher ran outside and climbed onto the victim’s balcony. Officer Fisher noticed the victim’s screen door had an L-shaped cut and someone had placed a pair of scissors on top of an air conditioner to the left of the door. The victim had left the scissors on the balcony earlier that day.

The apartment was dark when Officers Lindner and Fisher entered but with a flashlight they saw the victim lying naked on the floor near the front door. She had a scarf tied tightly around her neck, her head was purple and the remainder of her body was white. With some difficulty Officer Lindner cut the scarf from her neck, the victim gasped for breath a couple of times and then told the officers “he tried to kill me.” She suffered hemorrhages in and around her eyes caused by choking and had multiple lacerations and open rug burns.

On the night of the assault appellant was staying with his friend Audrene Houston who lived on the third floor of the victim’s apartment building. At 2:50 on the morning of the assault Houston was awakened by flashing lights outside the building and a tapping at her bedroom door. Appellant was at her door. She let him in and they looked out her window and saw flashing lights and yellow police tape. At about 7:00 or 7:30 a.m. Houston drove appellant to his mother’s home.

Later in the morning of August 8 a neighbor found a set of keys outside the victim’s apartment building. The victim identified them as hers and testified that she had left them in her kitchen the evening before. The keys provided access to the exterior door to the building and the interior door leading to the third floor where Houston’s apartment was located.

A carpet sample removed from the victim’s apartment contained semen that matched appellant’s DNA profile in the Bureau of Criminal Apprehension database. Based on this evidence a warrant issued on February 19, 1997 and appellant was arrested the next day. DNA testing of appellant’s blood sample confirmed that his DNA type matched both the semen found in the carpet sample and a rectal swab taken from the victim.

The state charged appellant with attempted first-degree murder, two counts of first-degree criminal sexual conduct, two counts of first-degree burglary, first-degree aggravated robbery, and two counts of kidnapping. See Minn.Stat. §§ 609.185(1); 609.17; 609.342, subd. 1(d), (e)(i); 609.582, subd. 1(b), (c); 609.245, subd. 1 (1996); 609.25, subd. 1(2), (3) (1998). On February 10, 1998 a jury in Hennepin County found appellant guilty on all counts.

In sentencing, the trial court concluded that the conduct underlying appellant’s sexual assault and attempted murder convictions did not constitute a single behavioral incident and therefore he could be sentenced separately for each offense. The court also concluded that appellant was a patterned sex offender pursuant to Minn.Stat. § 609.108 (1998). A sentence of 480 months was imposed on the criminal sexual conduct conviction, the statutory maximum pursuant to section 609.108, and of 240 months on the attempted first-degree murder conviction, also the statutory maximum. The court also sentenced appellant to 96 months for one count of first-degree burglary, twice the presumptive sentence, and ordered that the three sentences be served consecutively. The trial court identified 15 aggravating circumstances supporting its departures from the Minnesota Sentencing Guidelines but did not identify which factors it relied on to depart on each sentence.

Appellant argued to the court of appeals that the trial court abused its discretion in sentencing and that the jury selection violated his right to equal protection. See State v. Williams, 1999 WL 10256, at *1 (Minn.App. Jan.12, 1999). The court of appeals affirmed, concluding that the sexual assault and attempted murder did not arise from a single behavioral incident and that the trial court therefore did not err in imposing multiple sentences. See id. at *3. The court then addressed the factors cited by the trial court supporting the sentencing departures. It concluded that infliction of terror and particular vulnerability supported a departure on the burglary sentence; physical injury, gratuitous violence, psychological injury, and fleeing the scene supported a departure on the attempted murder sentence; and particular vulnerability, particular cruelty, and prior felony convictions supported a departure on the criminal sexual conduct sentence. See id. at *4. The court therefore held that the trial court did not abuse its discretion in the sentencing departures. See id.

I. Departures in sentencing

We first address the trial court’s departures from the Minnesota Sentencing Guidelines as to duration and by imposing consecutive sentences.

As to the durational departures, in State v. Evans we held that “generally in a case in which an upward departure in sentence length is justified, the upper limit will be double the presumptive sentence length.” 311 N.W.2d 481, 483 (Minn.1981). Where severe aggravating factors exist however, a departure of up to the statutory maximum may be appropriate. See State v. Glaraton, 425 N.W.2d 831, 834 (Minn.1988); State v. Stumm, 312 N.W.2d 248, 249 (Minn.1981). Further, factors must be severe to support both a double durational departure and a departure as to consecutive sentencing. See State v. Mortland, 399 N.W.2d 92, 94 (Minn.1987); State v. Wellman, 341 N.W.2d 561, 566 (Minn.1983).

The purpose of the guidelines in imposing sentencing departures is to achieve consistency and fairness in sentencing, but unless the trial court states with particularity what aggravating factors it is relying on to justify each departure the rationale for the departure is unknown and effective appellate review is denied. We have held that the trial court may not rely on conduct underlying one conviction to support departure on a sentence for a separate conviction, see State v. Spaeth, 552 N.W.2d 187, 196 (Minn.1996), and conduct underlying proof of the offense itself cannot be relied upon to justify an upward departure, see State v. Peterson, 329 N.W.2d 58, 60 (1983).

The trial court relied on 15 aggravating factors to justify, in the aggregate, upward departures on the three sentences. In summary, the court referenced appellant’s patterned sex offender status, prior sexual assault, prior felony involving personal injury, particular cruelty, permanent injury, invasion of the victim’s zone of privacy, the victim’s particular vulnerability, psychological trauma, humiliation suffered by the victim, the aggravated nature of the offenses, appellant’s dangerousness, use of a weapon, fleeing the scene, lack of remorse, and sophistication and planning.

Our concern with the trial court’s failure to provide separate justifications for each sentence is that a separate analysis of the reasons for departure as to each sentence may have led to a different sentencing result, would have informed the appellant as to the rationale for each sentence, and of course would have provided a clear record for review. Requiring separate justification for each departure is consistent with the intent of the Minnesota Sentencing Guidelines Commission as noted in the comments to the sentencing guidelines that where a judge departs both duration-ally and dispositionally in sentencing the judge must provide separate reasons for each departure. See Minnesota Sentencing Guidelines II.D.02 comment. A further concern is that factors supporting departure on one sentence may not justify a departure on another sentence. For example, the victim’s vulnerability due to the fact she was asleep when appellant entered her apartment supports a departure on the criminal sexual conduct sentence but does not justify a departure on the attempted murder sentence because the victim was awake at the time of that offense. Thus, we hold that the trial court erred in not separately identifying the aggravating factors supporting each sentencing departure.

II. Single behavioral incident analysis

We turn next to the issue of whether appellant committed the criminal sexual conduct offense and attempted murder offense as part of a single behavioral incident. The trial court concluded that these offenses were separate and sentenced appellant for both.

Applying the “single behavioral incident” provision of Minn.Stat. § 609.035, subd. 1 (1996) with limited exceptions a court may only sentence a defendant once for a single behavioral incident even though it results in multiple crimes. The statute provides:

[I]f 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 and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.

Minn.Stat. § 609.035, subd. I.

The principle that only one sentence may be imposed based on a single behavioral incident protects defendants from both multiple sentences and multiple prosecutions and ensures that “punishment * * * will be commensurate with the criminality of defendant’s misconduct.” Johnson, 273 at 399, 141 N.W.2d at 520-21. In determining whether a course of conduct consists of a single behavioral incident we have considered “factors of time and place * * * [and] whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.” Id. at 404, 141 N.W.2d at 524. The state has the burden to establish by a preponderance of the evidence that the conduct underlying the offenses did not occur as part of a single behavioral incident. See State v. Griffin, 336 N.W.2d 519, 525 (Minn.1983) (concluding state has burden at sentencing hearing to prove by a preponderance of the evidence defendant’s criminal history); State v. Zuehlke, 320 N.W.2d 79, 82 (Minn.1982) (noting state has burden of proof on single behavioral incident issue).

The state argues that our decision in State v. Bookwalter, 541 N.W.2d 290 (Minn.1995), is strong support for the trial court’s conclusion. We disagree. In Bookwalter, as here, we considered whether the defendant’s criminal sexual conduct and attempted murder offenses arose from a single behavioral incident, but the circumstances in Bookwalter were quite different. Bookwalter broke into the victim’s van looking for something to steal. See id. at 291. The victim later entered the van unaware that Bookwalter was hiding in the back seat and it was only after she had driven several miles that she realized Bookwalter was in the van. See id. He ordered her to drive to an isolated area and when they arrived, he pulled her into the back of the van and sexually assaulted her. See id. at 292. Then he drove the van to another location about two miles away, told the victim to leave the van and forced her into a wooded area where he punched her, hit her head with a stick and attempted to choke her. See id. at 293. On Bookwalter’s conviction of criminal sexual conduct and attempted murder, the trial court held that the crimes were not part of a single behavioral incident and imposed sentence on each count. See id. The court of appeals affirmed, holding that the trial court did not err by imposing multiple sentences. See id. We too affirmed, concluding that the conduct underlying the offenses did not constitute a single behavioral incident because of the differences in time and place between the two offenses. See id. at 296-97. Further, different criminal objectives motivated the offenses, as Bookwalter had no “premeditated plan.” See id. at 296; cf. State v. Herberg, 324 N.W.2d 346, 349 (Minn.1982) (concluding two acts of criminal sexual conduct against the same victim in separate counties comprised a single behavioral incident because defendant drove the victim to a different location only to avoid detection and planned to continue his attack). Bookwalter testified that he decided to sexually assault his victim only after she entered the van, and after the sexual assault he drove the van to another location where he made the decision to attempt to kill her. See Bookwalter, 541 N.W.2d at 296.

In contrast, here it is not at all clear whether appellant entered the victim’s apartment with the intent to sexually assault and then to attempt to kill her, or whether he made separate decisions to commit each offense. Certainly appellant committed the sexual assault and attempted murder as part of a continuum of escalating violence beginning with his unlawful entry into the victim’s apartment and concluding with his act of tying the scarf tightly around her neck. For example, appellant threatened the victim with a knife during the sexual assault and subsequently stabbed her several times. But there is no way to reach a rational conclusion that the stabbing occurred as part of the sexual assault or the attempted murder. Unlike Bookwalter, the state has not met its burden of proving a change in appellant’s criminal objective during the course of this incident to support a break in the continuum of appellant’s criminal conduct.

We are also persuaded that there is little distinction in time and place between the sexual assault and attempted murder. The trial court emphasized that appellant committed the attempted murder subsequent to the sexual assault and in a different room, but more is needed than that the crimes occurred at a different time and place. Significant weight cannot be given to the factor of time because the record does not indicate how much time passed during these events — and it is obvious that there will always be some difference in time in a sequence of the commission of different criminal offenses. As to place, the distance between the bedroom and the living room was a matter of only a few feet, hardly justifying a conclusion that the offenses were not part of a single behavioral incident.

As respondent has failed to meet its burden of proving the sexual assault and attempted murder were separate offenses, we hold that the trial court erred in imposing sentences as to both offenses.

Reversed and remanded for resentenc-ing in accordance with the court’s ruling herein.

      . The parties stipulated that earlier in the summer of 1996 appellant had been paroled and placed in a halfway house but had absconded and a warrant issued for his arrest.

      . The state later dismissed the kidnapping charges.

      . This statute was formerly codified at Minn. Stat. § 609.1352.

      .The presumptive sentence for this offense under the Minnesota Sentencing Guidelines is 146 months, but Minn.Stat. § 609.108 requires a sentence of at least 292 months. See Minnesota Sentencing Guidelines IV; Minn. Stat. § 609.108, subd. 1.

      . The presumptive sentence is 180 months. See Minnesota Sentencing Guidelines II.G.

      . See Minnesota Sentencing Guidelines IV & V.

      .Consecutive sentencing of multiple current felonies against the same victim is a departure from the sentencing guidelines requiring aggravating factors. See Minnesota Sentencing Guidelines II.F.

      . We note that fleeing the scene is not a permissible aggravating factor. Few criminals would remain to be caught when the police arrive.

      . The statutory exceptions to section 609.035 include certain offenses where multiple sentences may be imposed, relating, for example, to the operation of a motor vehicle, causing injury or death to unborn children, possession of firearms, kidnapping, use of bullet-resistant vests and police radios in commission of crimes, use of code-grabbing devices, and solicitation of juveniles. See Minn.Stat. § 609.035. Since burglary is also included as an exception, see Minn.Stat. § 609.035; Minn.Stat. § 609.585 (1998), the trial court therefore did not err in sentencing appellant on the burglary offense even if burglary and other offenses were part of a single behavioral incident.

      .The statute "broaden[s] the protection afforded by our constitutional' provisions against double jeopardy.” State v. Johnson, 273 Minn. 394, 400, 141 N.W.2d 517, 521 (1966).

      . Significantly, the trial court sentenced appellant for a count of criminal sexual conduct requiring the use of or threat to use a weapon in causing submission to penetration. See Minn.Stat. § 609.342, subd. 1(d).