This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Thomas Allen Jones,
Ramsey County District Court
File No. K7011687
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)
Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Foley, Judge.*
Appellant Thomas Allen Jones challenges the upward double durational departure in his sentence for possession of child pornography. He argues that the district court abused its discretion in departing based on his receipt of the pornographic videotapes at the school where he worked, the ages of the children depicted on the videotapes, and the court’s speculation as to where appellant planned to view the videotapes. Because we conclude that there are no substantial and compelling circumstances to justify a double departure from appellant’s presumptive sentence, we reverse and remand for resentencing.
Appellant Thomas Allen Jones has been a licensed teacher for 26 years. In 1999, he was working as a speech therapist at Chippewa Middle School in the Mounds View School District when he purchased access to a pornographic website. When the website was later shut down for purveying child pornography, a postal inspector recovered several customer lists, including one with appellant’s name and work e-mail address.
In April 2001, an undercover agent with the Minnesota Internet Crimes Against Children Task Force (the “task force”) sent appellant an e-mail that included information on how to access a task-force-controlled website selling child pornography. After accessing the website, appellant and the task force exchanged several e-mails about purchasing child pornography. Appellant eventually purchased three videos. The website described one video as two 12- to 13-year-old girls and a 14-year-old boy having sexual contact, another as a 10- to 11-year-old boy and girl having sexual contact, and the third as two elderly men having sexual contact with an 11- to 13-year-old girl. Appellant asked that the videos be delivered to his work address. Based on this information, the Ramsey County Sheriff’s Office obtained a search warrant for appellant’s work area at the school.
The task force delivered the videos to the school at 8:45 a.m. on May 11, 2001, but appellant did not pick up the package until 12:45 p.m. Utilizing surveillance, the police executed the warrant and recovered the unopened package from appellant. The package contained pornographic videos depicting minors engaged in sexual conduct. The police also found some vodka and pornographic magazines in appellant’s work area.
Appellant was charged with one count of possession of child pornography in violation of Minn. Stat. § 617.247, subd. 4 (2000). Appellant pleaded guilty and the court sentenced him to an upward double departure of 24 months, with execution stayed. At the sentencing hearing, the district court found that “the place in which it was intended to be used, the place it was received and the ages of the children” were all facts justifying the departure. This appeal follows.
D E C I S I O N
We review a departure from a presumptive sentence for an abuse of the district court’s discretion and will not reverse if it is justified by “substantial and compelling circumstances” in the record. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (citation omitted). Even if the factors relied on by the district court are inappropriate, we will affirm a departure if the record otherwise supports the decision. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
Appellant disputes each of the factors relied upon by the district court. First, he asserts that there is no evidence to support the court’s finding that he intended to view the videotapes at work. Second, he contends that his receipt of the videotapes at the school does nothing to increase the severity of the crime because there was no risk that anyone else would see the material. Third, he argues that the legislature has explicitly increased the severity of certain crimes when they are committed on or around a school and the fact that it did not do so with respect to Minn. Stat. § 617.247 (2000) is indicative of a legislative choice. Finally, appellant asserts that neither the ages of the children in the videotapes nor those in the middle school are an aggravating circumstance, because the former is an element of the crime and the latter has no effect on the severity of the crime.
When determining whether or not a sentencing departure is appropriate, a district court should rely only on circumstances that make the conduct involved significantly worse than the conduct usually associated with the crime. Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989). The sentencing guidelines contain a non-exclusive list of such aggravating circumstances, one of which is the victim’s vulnerability due to age. Minn. Sent. Guidelines II.D.2.b. But courts should not rely on circumstances that are also elements of the crime. State v. Yanez, 469 N.W.2d 452, 457 (Minn. App. 1991).
Appellant pleaded guilty to Minn. Stat. § 617.247, subd. 4, which provides that “[a] person who possesses a pornographic work * * * knowing or with reason to know its content and character, is guilty of a felony.” A “pornographic work” includes “an original or reproduction of a * * * film * * * of a sexual performance involving a minor.” Minn. Stat. § 617.246, subd. 1(f)(1) (2000). The legislature’s stated purpose for this law is “to protect minors from the physical and psychological damage caused by their being used in pornographic work depicting sexual conduct which involves minors.” Minn. Stat. § 617.247, subd. 1.
This is a troubling case because of the appellant’s position combined with the address he used to receive the videotapes. But upon our close review of the record, we conclude that the district court abused its discretion in finding “substantial and compelling circumstances” to justify a double departure from appellant’s presumptive sentence. There is no evidence in the record to support the district court’s finding that appellant intended to view the videotapes at the school. Appellant was never asked anything in this regard, and we find nothing in the record that gives rise to a fair inference that he intended to watch them there. Without some evidence to support the finding, we decline to speculate about appellant’s intentions. Thus, the court inappropriately relied on this factor.
Second, while it is clear that appellant received the videotapes at the school, nothing indicates that this makes appellant’s conduct “significantly worse” than the conduct usually associated with this crime. Although appellant’s conduct is reprehensible and certainly disconcerting in light of his work with similarly aged children, we do not feel it rises to the level of a “substantial and compelling circumstance” that would warrant doubling his sentence absent explicit statutory language or evidence that appellant intended to view the pornography at the school. Thus, the court also inappropriately relied on this factor.
The final factor the court relied on was “the ages of the children.” It is generally inappropriate for courts to rely on factors that are also elements of the offense, as age is here. See State v. Robinson, 388 N.W.2d 43, 46 (Minn. App. 1986) (finding that age is not an appropriate factor to rely on in cases of first-degree intrafamilial sexual abuse when an element of the crime is that the victim be under the age of 16), review denied (Minn. July 31, 1986). But even though age is an element of the crime, it can be relied on if it is considered in conjunction with other appropriate factors. State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990). Because we have determined that the court did not rely on any other appropriate factors in departing from the presumptive sentence, we must conclude it inappropriately used age as an aggravating circumstance.
In addition to examining the factors explicitly relied upon by the district court, we also reviewed the record to see if other factors justify the district court’s departure. Because we found no such facts, there are no substantial and compelling circumstances to justify this departure from the presumptive sentence. We remand to the district court to resentence appellant in light of our decision.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.