(dissenting).
I respectfully dissent. I conclude the actions and intentions of appellant are a single behavioral event barring multiple prosecutions.
If the two offenses are motivated by one criminal objective, are substantially similar in time and place, arise from continuous and uninterrupted conduct, and manifest an indivisible state of mind, then the offenses must be one behavioral incident. State v. O’Hagan, 474 N.W.2d 613, 622 (Minn.App.1991), pet. for rev. denied (Minn. Sept. 25, 1991). Another consideration is whether one offense was committed to facilitate the other. Hawkins, 511 N.W.2d at 14.
Appellant’s actions and intentions at the Sunrise Apartments and in the car driving through St. James were identical: to store, possess, transport, and sell marijuana. The acts of possession and transportation cannot be isolated from appellant’s overall actions and intentions concerning the marijuana. Appellant had some marijuana stored in a' storage locker and some in his car. Appellant had the intent to sell all the marijuana, regardless of the two locations in which he had possession. Appellant was arrested only 26 miles away and 90 minutes after he left Sunrise Apartments. Appellant stored the marijuana in the locker to facilitate his singular goal of selling it. The two acts are intimately connected and should not be divided into separate incidents to “create” two separate crimes.
Thus, his conviction in Brown County should have been barred as a serial prosecution since he was charged for the same thing in Watonwan County. To allow another prosecution on the same behavioral incident allows manipulation by the state, exposing appellant to future prosecution.
The underlying policy of this statute is to protect against double punishment
and at the same time insure that punishment for a single incident of criminal behavior involving a multiplicity of violcv-tions is commensurate with the criminality of defendant’s misconduct.
State v. Johnson, 273 Minn. 394, 399, 141 N.W.2d 517, 521-22 (1966) (emphasis added). The facts show multiple violations in a single criminal behavioral incident. I find Minn. Stat. § 609.035 applies and the serialized prosecution in Brown County is barred.
Further, the legal proceedings in Waton-wan County comprise an equitable estoppel to prosecution in Brown County for the same crime. In Watonwan County the prosecutor, after the jury was impaneled and sworn, agreed to diversion for appellant, but with consequences should he run afoul of the law. The period of diversion or informal probation was not over and thus appellant was still under the gun in Watonwan County at the time Brown County charged him anew. It is technically correct that § 609.035 talks about conviction or acquittal, but when the state prevents a conviction or acquittal by agreeing to a diversion program holding the charge open over the defendant’s head as a lever to induce good behavior, I suggest the state is stopped from stating “I am sorry, but diversion isn’t technically an acquittal or a conviction. Therefore, all other counties having jurisdiction can prosecute you for the same offense.”
I would reverse and enter judgment in favor of appellant.