This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jesse Duane Jacobs,
Filed April 17, 2007
Redwood County District Court
File No. K4-04-562
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michelle A. Dietrich,
Redwood County Attorney, 250 South Jefferson,
John M. Stuart, State
Public Defender, Leslie J. Rosenberg, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Dietzen, Judge; and Collins, Judge.*
Appellant challenges his conviction and subsequent sentence of possession of child pornography, arguing that the district court erred by (1) denying his motion to suppress the evidence recovered from his home in violation of the United States and Minnesota Constitutions; (2) assigning a severity level “IV” to an unranked offense under the sentencing guidelines, in violation of Blakely v. Washington; and (3) imposing multiple sentences for offenses that arose out of the same behavioral incident, in violation of Blakely and Minn. Stat. § 609.035, subd. 1. Because the district court properly applied the law and did not abuse its discretion, we affirm.
In June 2004, the Redwood Falls police department, acting on a tip from the Pennsylvania state police that appellant Jesse Duane Jacobs might be in possession of child pornography, obtained and executed a search warrant for appellant’s home that resulted in the seizure of ten computer disks containing hundreds of images of child pornography. Appellant was subsequently charged with ten counts of possessing child pornography, in violation of Minn. Stat. § 617.247, subd. 4 (2004).
Appellant moved to suppress the evidence seized from his home, arguing that the seizure violated the state and federal constitutions. Before the district court ruled on the motion to suppress, appellant waived his right to a jury trial, and the parties agreed that the evidence received in the bench trial would provide the record for the court’s ruling on appellant’s motion to suppress.
At trial, a Pennsylvania police
officer testified that he was assigned to investigate computer crimes involving
child pornography and that while searching for child pornography on Kazaa P2P,
a software program that allows people to share and exchange computer files over
the Internet, he observed that a particular computer with an IP (Internet
protocol) address was offering to share images of child pornography. The officer then determined that the Internet
service provider, Mediacom Communications Corporation, had the name and address
of the user and obtained a court order requiring Mediacom to provide that
information to him. When the officer
recovered the information from Mediacom, he forwarded it to the
Following the combined omnibus hearing and bench trial, the district court denied appellant’s motion to suppress and found him guilty of nine separate offenses. The district court imposed concurrent sentences on three counts: a stayed 18-month sentence on Count I; a stayed 21-month sentence on Count II; and an executed 24-month prison term on Count III. This appeal followed.
D E C I S I O N
Appellant argues that the officer’s
acquisition of his identity and address from a third-party Internet service
provider violated his reasonable expectation of privacy and was an unreasonable
search under the United States and Minnesota Constitutions. “[W]hen reviewing a pre-trial order
suppressing evidence where the facts are not in dispute and the trial court’s
decision is a question of law, the reviewing court may independently review the
facts and determine, as a matter of law, whether the evidence need be
suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (
The Fourth Amendment to the United
States Constitution ensures “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. “A ‘search’ occurs when an expectation of
privacy that society is prepared to consider as reasonable is infringed.”
Appellant argues that because he had installed certain software programs on his computer and turned his file-sharing option to the “off” position, the officer’s use of software to discover his IP address was a violation of his reasonable expectation of privacy and was a “search” similar to the one in United States v. Kyllo, 533 U.S. 27, 29-30, 121 S. Ct. 2038, 2041 (2001). We disagree.
In Kyllo, police used
special thermal-imaging technology to peer into defendant’s home and obtain
proof that he was growing marijuana.
Appellant argues for the first time
on appeal that article I, § 10 of the Minnesota Constitution affords broader
protection of individual rights than does the United States Constitution. We will consider constitutional claims in the
interests of justice if the parties had adequate briefing time and the issues
were implied in the district court. Tischendorf v. Tischendorf, 321 N.W.2d
405, 410 (
Our supreme court recently stated:
It is axiomatic that a state supreme court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution. Indeed, as the highest court of this state, we are “‘independently responsible for safeguarding the rights of [our] citizens.’” State courts are, and should be, the first line of defense for individual liberties within the federalist system.
State v. Carter, 596 N.W.2d 654, 657 (
Appellant argues that in two cases, the Minnesota Supreme Court has
afforded defendants greater protection under the Minnesota Constitution against
unreasonable searches and seizures than provided by the Fourth Amendment. See In re
Welfare of E.D.J., 502 N.W.2d 779 (Minn. 1993) (applying objective test, on
the basis of whether a reasonable person would determine that he or she was
free to go, to determine whether a seizure had occurred); Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183 (Minn. 1994)
(temporary roadblocks to investigate driving under the influence struck down,
on the basis that police need reasonable, articulable suspicion before making
an investigative stop). In these cases
our supreme court concluded that earlier decisions by the United States Supreme
Court were a “sharp departure” from
In State v. Gail, our
supreme court considered whether a defendant had a legitimate expectation of
privacy in cell-phone records. State v. Gail, 713 N.W.2d 851, 860 (
Appellant argues that the district
court’s assignment of a severity level “IV” to his offense was an upward
departure from the presumptive sentence made in violation of his constitutional
right to a jury trial. We review a
constitutional claim involving the right to a jury trial de novo. State v.
The Sixth Amendment to the United States Constitution guarantees
a criminal defendant the right to a trial by jury.
In State v. Shattuck,
the Minnesota Supreme Court applied Blakely
and concluded that for felonies other than first-degree murder, the presumptive
sentence set forth in the Minnesota Sentencing Guidelines is the maximum
sentence a judge may impose without further jury findings. 704 N.W.2d 131, 141
The sentencing guidelines provide the presumptive sentence, which
“is determined by locating the appropriate cell of the Sentencing Guidelines
Grids. The grids represent the two
dimensions most important in current sentencing and releasing decisions—offense
severity and criminal history.”
Based on the framework of the sentencing guidelines, we conclude that the determination of the severity level in this case does not violate Blakely or Shattuck. First, this case does not involve an upward departure from the presumptive sentence. While the severity level is a value that goes into the calculation of the presumptive sentence, it is not a judicial finding of an aggravating factor. We do not read Blakely and Shattuck to require that the initial determination of the presumptive sentence must be made by a jury. Second, we do not view the district court’s determination of the severity level for an unranked offense to be materially different from the exercise of discretion by the guidelines commission in determining the severity level for the ranked offenses in the sentencing guidelines. Thus, we conclude that assigning a severity level to determine the presumptive sentence is not a sentencing departure and, therefore, not a violation of appellant’s right to a jury trial.
Appellant next argues that the district court abused its
discretion by ranking his conviction of possession of child pornography as a
level IV offense for sentencing purposes. We review the district court’s severity-level
determination for an abuse of discretion. State v.
Bertsch, 707 N.W.2d 660, 666 (
District courts may consider four
non-exclusive factors when selecting a severity level for an unranked offense:
(1) gravity of the conduct; (2) severity level assigned to similar offenses;
(3) severity level assigned to other offenders for the same unranked offense;
and (4) severity level assigned to other offenders who engaged in similar conduct. State v. Kenard, 606 N.W.2d 440, 443 (
The district court made findings on each of the factors. It found that the conduct was serious, as it involved more than 300 images of child pornography; that the monitoring data published by the commission reveals that a severity level of “IV” was assigned in about 30% of child pornography cases (41 out of 135 cases) (51% of the cases were assigned a severity level of “III”); and that in similar cases involving a high volume of child pornography such as State v. Bertsch, 689 N.W.2d 276 (Minn. App. 2004), aff’d in part, 707 N.W.2d 660 (Minn. 2006), and State v. Rhoades,690 N.W.2d 135 (Minn. App. 2004), a severity level IV was assigned. Thus, the record amply supports the district court’s decision to assign a severity level IV to the offense.
Appellant argues that the district court erred by imposing
concurrent sentences based on a judicial finding that multiple victims were
depicted in the pornographic images, in violation of his right to a jury trial
under Blakely. Respondent argues that Blakely applies to a defendant’s sentence and not the underlying
conviction. We review Blakely issues de novo.
Here, the district court, acting as the finder of fact, found beyond a reasonable doubt that appellant possessed pornographic images of multiple children and convicted him on all nine counts. Based on the finding of conviction and the appropriate severity level, the district court imposed three presumptive sentences to be served concurrently.
Under the sentencing guidelines, when an offender is convicted of
multiple current offenses, concurrent sentencing is presumptive, and in most
instances consecutive sentencing is permissive.
Appellant next argues that possession of multiple pieces of child
pornography arose out of the same behavioral incident and, therefore, the district
court erred in imposing multiple sentences. The district court’s
decision of whether multiple offenses are part of a single behavioral incident
is a fact determination and should not be reversed unless clearly
erroneous. State v. Carr, 692 N.W.2d 98, 101 (
Minn. Stat. § 609.035, subd. 1, provides that a person may be
sentenced for only one offense if the conduct constitutes a “single behavioral
incident.” State v. Williams, 608
N.W.2d 837, 841 (
Appellant nonetheless argues that this court should revisit its decision in State v. Rhoades, particularly the question of whether the multiple-victim exception was intended by the legislature to apply to this type of offense. We conclude that our decision in Rhoades is dispositive and decline the invitation.
Appellant also argues that his sentence
is excessive and unfairly exaggerates the criminality of his conduct. Under Minn. Stat. § 244.11, subd. 2(b),
we have authority to review and modify a sentence that is unreasonable and
excessive. And we have authority to
modify a sentence in the interests of fairness and uniformity. Bertsch,
707 N.W.2d at 668; State v. Norris,
428 N.W.2d 61, 70 (
Here, appellant has failed to establish that his sentence was excessive or unfairly exaggerates the criminality of his conduct. In its sentencing order, the district court stated that “[appellant] was found to be in possession of hundreds of these illegal works, all maintained on separate computer disks. Each of those disks contained numerous works featuring separate and distinct minor children, far greater than the number of counts (nine) [appellant] was found guilty.” On this record the district court did not abuse its discretion.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The state later dismissed Count IV when it determined that the pornographic images on that disk may not be of minors.
 As noted above, at the time of appellant’s sentence, possession of child pornography was an unranked offense. Effective August 1, 2006, it became a severity level G offense on the new sex offense grid of the Minnesota Sentencing Guidelines.