This opinion will be unpublished and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

A05-811

 

 

State of Minnesota,

Respondent,

 

vs.

 

Scott Edward Cannady,

Appellant.

 

 

Filed April 18, 2006

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge

Concurring in part, dissenting in part, Shumaker, Judge

 

 

Ramsey County District Court

File No. K7-04-1025

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

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 Building, 10 South 5th Street, Minneapolis, MN 55402 (for appellant)

 

 

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

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.   

FACTS

            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. 

            Appellant 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 (Minn. App. 2002), review denied (Minn. Aug. 6, 2002), the district court denied appellant’s motion. 

            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.

D E C I S I O N

I.

 

            Appellant 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.  “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.”  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  This court recognizes that constitutional challenges are questions of law because they require interpretations of statutes.  In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).  Therefore, we are not bound by the legal conclusions reached by the district court.  Id. 

            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.

            In 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 (Minn. Aug. 6, 2002).  That decision was based in part on the Minnesota Supreme Court’s decision in State v. Hage, in which the court held that when a “mitigating circumstance or issue disproves or negates an element of the crime charged, the greatest burden a state may [constitutionally] impose upon a defendant is that of shouldering the burden of production.”  595 N.W.2d 200, 205 (Minn. 1999).

            Appellant 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 (Minn. 2002),released after Myrland was decided.[1]  But the supreme court’s decision in that case does not conflict with this court’s decision in Myrland.  The Burg court stated that “[t]he Due Process Clause of the Fourteenth Amendment to the United States Constitution ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.’” 648 N.W.2d at 677-78 (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)).  Myrland does not relieve the state of its duty to prove the elements of its claim:  “the state is never freed of its burden to prove the age of the persons involved.”  Myrland, 644 N.W.2d at 851.

            As 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, 18 (Minn. App. 1994) (emphasis omitted) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S. Ct. 2166, 2178 (1988)), aff’d, 542 N.W.2d 379 (Minn. 1996).  That principle arises from the law-of-the-case doctrine, which generally applies in subsequent considerations of the same case.  Id.  Because this is not a subsequent Myrland proceeding, applicability of the law-of-the-case doctrine is perhaps best subordinated here to the simple doctrine of stare decisis.  “The doctrine of stare decisis directs that we adhere to former decisions in order that there might be stability in the law.”  Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn. 2000).  Because this precise argument has already been considered and rejected by this court and because appellant fails to present any compelling facts or circumstances warranting a re-evaluation of the Myrland precedent, we conclude that appellant’s argument fails.       

II.

            Appellant 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. Griffin, 701 N.W.2d 815, 828 (Minn. 2005).  But “the Minnesota Supreme Court has consistently declared that the due process protection provided under the Minnesota Constitution is identical to the due process guaranteed under the federal constitution.”  State v. Morrow, 492 N.W.2d 539, 546-47 (Minn. App. 1992). 

            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.

III.

Appellant argues that the district court erred by determining that appellant’s convictions constitute 18 separate behavioral incidents.  Minnesota law provides that “if 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[.]”  Minn. Stat. § 609.035, subd. 1 (2004).  As we have previously noted, that law broadens the protections offered by constitutional guarantees against double jeopardy, protects defendants from multiple prosecutions and sentences, and helps to ensure that punishment is appropriate.  State v. Bertsch, 689 N.W.2d 276, 284-85 (Minn. App. 2004), aff’d in part, rev’d in part,707 N.W.2d 660 (Minn. Jan. 10, 2006).  The state must prove by a preponderance of the evidence that conduct underlying multiple counts was not really a single behavioral incident.  State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).

            In 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 (Minn. 1994).  Factors include “time and place . . . [and] whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.”  Bertsch, 707 N.W.2d at 664 (quotation omitted). 

            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. 

            In 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.”  Id.  The instant case does not suffer from any such ambiguity.  Here, the district court determined that the 23 counts constituted 18 separate behavioral incidents, based on the evidence that showed the date and time each pornographic-image file was created, written to, and last accessed.  After setting forth the very test cited by the supreme court in Bertsch, the district court made detailed conclusions based upon the timing of each file’s creation, refusing to find separate incidents when “the files were created within minutes or hours of each other.”  Because of this distinction, we conclude that the district court did not err by determining that appellant’s actions constituted separate behavioral incidents because the acts indeed “took place at significantly different times.”  See Bertsch, 707 N.W.2d at 666.

            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.

IV.

 

            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. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), does not apply to dispositional departures under the sentencing guidelines.  687 N.W.2d 659, 666 (Minn. App. 2004), review granted (Minn. Dec. 14, 2004), review rev’d (Minn. Dec. 13, 2005).[2]  But the Minnesota Supreme Court has recently rejected that view, holding that a defendant’s Sixth Amendment right to have a jury decide factual issues that would increase his sentence applies to upward dispositional departures.  Allen, 706 N.W.2d at 47.  The state concedes the infirmity of appellant’s sentence in light of that supreme court decision. 

            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.

V.

            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 (Minn. 1984).  Possession of child pornography is not such a crime.  And we are not aware of any authority limiting this principle so as to exclude its application to crimes of possession.  

            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 (Minn. 2006); Minn. Stat. § 609.035, subd. 1 (2004).  It is clear that Cannady possessed all of the pornography on his computer in his home and that he had the identical criminal objective on each date of possessing pornographic images of minors.  And it is clear that the court found him guilty of all offenses—even those not supported by the findings—on only one date.  All single behavioral incident factors are satisfied.

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.