This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Scott Edward Cannady,
Filed April 18, 2006
Affirmed in part, reversed in part, and remanded
Concurring in part, dissenting in part, Shumaker, Judge
Ramsey County District Court
File No. K7-04-1025
Mike Hatch, Attorney General, 1800
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Jeffrey C. Dean, Dean Law Office, 700 Lumber Exchange
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
Appellant challenges his conviction of and sentence for possession of child pornography, arguing that (1) the possession-of-child-pornography statute is unconstitutional because it shifts the burden of production of an element of the offense to the defense; (2) his illegal possession of pornographic images on his home computer did not constitute separate behavioral incidents for which separate sentences could be imposed; and (3) the court erred by imposing an upward dispositional departure. While we affirm the constitutionality of the statute and the finding of separate behavioral incidents, we reverse and remand appellant’s sentence for resentencing consistent with Blakely.
After police discovered more than 1,500 still and 50 video images of child pornography on his home computer, appellant Scott Edward Cannady was charged with 25 counts of possession of child pornography in violation of Minn. Stat. § 617.247, subd. 4 (2004). The offenses were alleged to have occurred “on or about November 20, 2003.” Appellant invoked the affirmative defense in Minn. Stat. § 617.247, subd. 8 (2004), contending that the pertinent pornographic works featured only adults 18 years of age or older.
moved to dismiss the complaint, arguing that Minn. Stat. § 617.247 (2004) is
unconstitutional because it violates the Due Process Clauses of the Minnesota
and United States Constitutions by shifting the burden of proof of the element
of age to the defendant. Citing this
court’s opinion in State v. Myrland, 644 N.W.2d 847 (
Appellant waived his right to a jury trial and agreed to a trial on stipulated facts, admitting that the pictures underlying the 25 counts were stored on his home computer. The district court made very detailed findings of fact, noting the precise date and time each file was created, last written to appellant’s computer, and last accessed. Each file was either created or last accessed within 43 days of November 20, 2003, the date “on or about” which the offenses were alleged to have occurred. The district court found him guilty of 23 counts of possessing child pornography on or about November 20, 2003, and ruled that the convictions constituted 18 separate behavioral incidents. The court ranked each count as a level 4 offense and imposed concurrent executed sentences totaling 30 months plus one day on counts 1-5 and 7-8 and a consecutive sentence of one year and one day on count 9. The court also sentenced appellant to one year and one day on each of counts 10 and 12-18, but stayed that portion of the sentence. Finally, the court imposed consecutive stayed sentences of one year and one day for counts 19-20 and 21-25. (The aggregate executed sentence is, therefore, 42 months and two days.)
The sentences for counts 1-4 represent dispositional departures. The district court cited the following judicially found aggravating factors in support of the departures: the vulnerability of the victims, the fact that there were multiple victims, the level of planning appellant employed in committing the crimes, and the period of time over which the offenses were committed. This appeal follows.
argues that Minn. Stat. § 617.247, subd. 8 (2004), is unconstitutional because
the affirmative defense shifts the burden of production to the defense on an
essential element of the crime. “
The statute at issue here prohibits knowingly possessing “a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type, containing a pornographic work.” Minn. Stat. § 617.247, subd. 4(a) (2004). “Pornographic work” is defined as
(1) an original or reproduction of a picture, film, photograph, negative, slide, videotape, videodisc, or drawing of a sexual performance involving a minor; or
(2) any visual depiction, including any photograph, film, video, picture, drawing, negative, slide, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means that:
(i) uses a minor to depict actual or simulated sexual conduct;
(ii) has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct; or
(iii) is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexual conduct.
For the purposes of this paragraph, an identifiable minor is a person who was a minor at the time the depiction was created or altered, whose image is used to create the visual depiction.
Minn. Stat. § 617.246, subd. 1(f) (2004); see Minn. Stat. § 617.247, subd. 2(a) (2004) (adopting the definition of “pornographic work” in section 617.246 for section 617.247). A “minor” is a person under the age of 18. Minn. Stat. § 617.246, subd. 1(b) (2004). The affirmative defense at issue provides: “It shall be an affirmative defense to a charge of violating this section that the pornographic work was produced using only persons who were 18 years or older.” Minn. Stat. § 617.247, subd. 8.
State v. Myrland,we
upheld the constitutionality of this statutory provision because it “imposes on
defendants only the burden of production regarding the age of the persons on
the pornographic work.” 644 N.W.2d 847,
851 (Minn. App. 2002), review denied (
urges this court to reconsider its decision in Myrland, arguing that it
was clearly erroneous. Appellant cites
the Minnesota Supreme Court’s decision in State v. Burg, 648 N.W.2d 673
appellant notes, a court may “revisit prior decisions of its own or of a
coordinate court in any circumstance, although as a rule courts should be loathe
to do so in the absence of extraordinary circumstances.” Kornberg v. Kornberg, 525 N.W.2d 14,
also argues that Minn. Stat. § 617.247, subd. 8, violates the Due Process
Clause of the Minnesota Constitution because the affirmative defense shifts the
burden of production to the defense on an essential element of the crime. But appellant fails to present any legal or factual
support for the proposition that the Due Process Clause of the Minnesota
Constitution should be construed differently from the United States
Constitution on this point. Of course,
the Minnesota Constitution can be interpreted “to afford greater protections of
individual civil and political rights than does the federal constitution.” Kahn v.
Because there is no indication that the particular facts or circumstances of this case warrant an interpretation of the state’s Due Process Clause that is more strict than that of the federal Constitution’s, we adhere to Myrland and hold that the statutory provision in question does not violate the Minnesota Constitution.
Appellant argues that the district court erred by determining that
appellant’s convictions constitute 18 separate behavioral incidents.
determining whether multiple offenses arise from a single behavioral incident,
this court must look at the particular facts and circumstances of the
case. State v. Hawkins, 511
N.W.2d 9, 13 (
Appellant argues that the instant case is similar to Bertsch. There, we determined that the state did not meet its burden of proving that all 19 counts of possession of child pornography constituted more than a single behavioral incident. Bertsch, 689 N.W.2d at 284-86. The supreme court agreed, noting that the state had not shown that the charged acts “took place at significantly different times or with significantly different criminal objectives.” Bertsch, 707 N.W.2d at 666. But this case is distinguishable from Bertsch in that the state did prove by a preponderance of the evidence that there were separate behavioral incidents.
Bertsch, the record did not demonstrate when the acts of possession took
place. Bertsch, 689 N.W.2d at
285-86. And we specifically noted that
the record was unclear about when the illegal pornography files were
downloaded: “Our review of the record reveals a brief discussion during the sentencing
hearing addressing the question of when files were downloaded onto appellant’s
computer. . . . It is possible that the downloads were seconds apart, minutes
apart, hours apart, or days apart. The
record is not clear.”
To conclude that appellant’s illegal possession of pornographic materials constituted a single behavioral incident would mean that illegal possession of pornographic materials is a single crime regardless of the clearly distinguishable times when the files were created or last accessed; that is a proposition with which we do not agree.
Appellant argues that the district
court erred by imposing an upward dispositional departure in appellant’s
sentence for counts 1-4. The sentencing
guidelines dictate a stayed presumptive sentence of 21 months plus one day for
the four counts, but the district court departed upwardly based on judicially determined
factors and imposed an executed sentence of that duration instead. In so doing, the district court acted in
reliance on this court’s decision in State v. Hanf, in which we ruled that Blakely v.
Because the factors on which the district court relied as the grounds for its departure were not based on facts admitted by appellant or found by a jury, the district court’s sentencing procedure did not comply with Blakely and is therefore invalid. Accordingly, we reverse appellant’s sentence and remand to the district court for resentencing consistent with this opinion.
Finally, we acknowledge the
dissent’s contention that 20 counts of the verdict are not supported by the district
court’s findings because, as the dissent argues, “the court did not find
Cannady guilty of any activity on any date other than November 20, 2003.” The district court found appellant guilty of
the charges alleging conduct “on or about November 20, 2003”; the use of that
language broadened the time of the offenses beyond the single date of November
20, 2003. Such language is generally
permissible because “the precise date is an essential element of the crime only
where the act done is unlawful during certain seasons, on certain days or at
certain hours of the day.” State v. Becker,
351 N.W.2d 923, 927 (
More importantly, the “on or about” language is critical to the analysis of whether the crimes constituted a single behavioral incident. Section III, supra. It was permissible and necessary for the district court to go beyond the “on or about” time of the offense stated in the verdict and look at the specific dates and times of file creation and last access for purposes of determining how many sentences could be imposed. See Bertsch, 707 N.W.2d at 664 (holding that time is a factor to be considered in determining whether multiple offenses arise from a single behavioral incident) (quotation omitted).
We conclude that the district court’s ultimate conclusion that appellant was guilty of possessing child pornography “on or about November 20, 2003” is supported by the district court’s detailed findings that the images were either accessed or created within 43 days of November 20, 2003.
Affirmed in part, reversed in part, and remanded.
SHUMAKER, Judge (concurring in part, dissenting in part)
I concur with the majority’s determinations as to the constitutional and sentencing-departure issues, but I respectfully dissent as to the issue relating to separate behavioral incidents.
In its “Verdicts,” the district court found Cannady guilty of 25 counts of possession of pornography depicting minors, all “on or about November 20, 2003.”
The verdicts are purportedly supported by the court’s Findings of Fact. Those findings delineate 37 separate dates during an 11-month period from December 2002 to November 2003 on which Cannady engaged in some act of illegal possession of pornography. The findings describe three types of illegal activity: (1) creating a computer file; (2) writing to that file; and (3) accessing the file. There were 75 incidents of illegal activity of one or another of the three types.
The first problem is that only in Counts 21 through 25 did any illegal activity occur on the verdict date of November 20, 2003. Thus, the findings fail to support 20 counts of the verdict.
The court could have found Cannady guilty of an illegal activity on each of the 35 dates on which some activity occurred. Or the court could have found him guilty of illegal activity occurring at various times between December 2002 and November 2003. In either case, the findings would have supported the verdict. However, the court did not find Cannady guilty of any activity on any date other than November 20, 2003.
The second problem is that, because all offenses
of which Cannady was found guilty are expressly stated in the verdicts as
having occurred on the same date, Cannady’s multiple offenses constitute a
single behavioral incident. When
multiple offenses occur at substantially the same time and location and are the
product of a single criminal objective, the offenses are generally treated as a
single behavioral incident warranting only a single punishment. State
v. Bertsch, 707 N.W. 2d 660, 664 (
In my view, the district court erred in rendering verdicts on Counts 1 through 20 without support in its own findings, and in not treating all offenses for which Cannady was found guilty as a single behavioral incident. I would reverse and direct that the court vacate the convictions in Counts 1 through 20 and resentence the remaining counts in compliance with Minn. Stat. § 609.035, subd. 1.