State v. Bakken
| Decision Date | 09 November 2015 |
| Docket Number | No. A14–2057.,A14–2057. |
| Citation | 871 N.W.2d 418 |
| Parties | STATE of Minnesota, Respondent, v. Timothy John BAKKEN, Appellant. |
| Court | Minnesota Court of Appeals |
Lori Swanson, Attorney General, St. Paul, MN; and Greg Widseth, Polk County Attorney, Andrew W. Johnson, Assistant County Attorney, Crookston, MN, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, MN, for appellant.
Considered and decided by REYES, Presiding Judge; CONNOLLY, Judge; and RODENBERG, Judge.
Appellant challenges his seven sentences for possession of pornographic works involving minors. He contends that the double-jeopardy prohibition against multiple prosecutions found in Minn. Const. art. I, § 7, and the statutory protection afforded by Minn.Stat. § 609.04 (2014) prohibit his convictions of seven counts of possession of child pornography when the offenses involved continuous possession of a single computer. Alternatively, he argues that Minn.Stat. § 609.035, subd. 1 (2014), limits his punishment because his conduct arose from a single behavioral incident. We affirm.
On June 7, 2013, police executed a search warrant and seized appellant Timothy John Bakken's computer from his residence. When law enforcement later imaged appellant's hard drive, they recovered numerous pornographic pictures,1 many of which appeared to depict minors. Law enforcement documented the descriptions and the download dates and times for seven of the pornographic pictures depicting minors.
Appellant was charged with seven counts of possession of a pornographic work involving a minor in violation of Minn.Stat. § 617.247, subd. 4(a) (2014).2 The seven counts corresponded to the seven images, each of which was described and identified by the date and time that appellant received and viewed each image: Count/Image 1 on November 9, 2012 at 3:57 p.m.; Count/Image 2 on December 2, 2012 at 4:27 a.m.; Count/Image 3 on December 9, 2012 at 5:49 p.m.; Count/Image 4 on December 14, 2012 at 5:41 p.m.; Count/Image 5 on March 5, 2013 at 6:32 p.m.; Count/Image 6 on April 28, 2013 at 5:25 p.m.; Count/Image 7 on June 4, 2013 at 8:19 p.m.
Appellant pleaded guilty to all seven counts. Testifying under examination by the court, appellant admitted (1) receiving and viewing the images at the dates and times listed above, (2) that each image was of a different child, and (3) that he downloaded all of the involved images to his home computer. The district court formally accepted appellant's pleas of guilty. The district court then ordered appellant to undergo psychosexual and psychometric assessments before sentencing, and it scheduled a separate sentencing hearing.
The parties submitted written and oral arguments to the district court concerning sentencing. Appellant then raised the issues he argues on appeal, namely double-jeopardy and that the charged offenses arose from a single behavioral incident. After a two-day sentencing hearing, the district court sentenced appellant on all seven counts, as well as on separate and unrelated offenses of which a jury had convicted him.3
The district court rejected appellant's double-jeopardy and single-behavioral-incident arguments. To reject the double-jeopardy argument, the district court relied on the structure of Minn.Stat. § 617.247, subd. 4(a). Specifically, it noted that the statute prohibits possession of either (1) a computer containing a pornographic work or (2) a pornographic work itself. It concluded that each downloaded picture was a separate pornographic work. In finding separate behavioral incidents, and therefore imposing separate sentences for each conviction, the district court relied on the "significant evidence regarding each downloaded pornographic image ... includ [ing] the date and time of the download, the names of the files, [and] ... where [each] was saved." This appeal followed.
The state argues that we should not reach the merits of either appellant's constitutional double-jeopardy argument or his argument concerning section 609.04 and its prohibition against convictions for primary and lesser-included offenses because appellant waived them.4 Specifically, the state argues that appellant waived any constitutional double-jeopardy argument by making a counseled guilty plea before raising the argument at the sentencing hearing. The state also argues that appellant never raised section 609.04 and its prohibition against convictions for primary and lesser-included offenses. Accordingly, the state maintains that we should only reach the merits of appellant's section 609.035 argument.
Concerning whether appellant forfeited his constitutional double-jeopardy argument by failing to assert his double-jeopardy challenge before pleading guilty while represented by counsel, Minn. R.Crim. P. 10.01, subd. 2, provides that a counseled defendant waives all non-jurisdictional defects by entering a guilty plea. State v. Jeffries, 806 N.W.2d 56, 64 (Minn.2011). The Minnesota Supreme Court has yet to determine whether a defendant forfeits his double-jeopardy protections by failing to file a timely and proper pretrial motion to dismiss. State v. Sahr, 812 N.W.2d 83, 93 (Minn.2012). In Jeffries, however, the supreme court noted that "a counseled guilty plea does not bar a defendant from raising a double-jeopardy claim on appeal if that claim can be decided on the existing record at the time the defendant pleads guilty." 806 N.W.2d at 65.
The state argues that Jeffries does not apply here. We disagree. The record of appellant's guilty plea is clear and sufficient to resolve this issue on appeal. The complaint described the seven digital images and detailed the dates and times that appellant downloaded each one. At the guilty-plea hearing, appellant admitted to the facts of the complaint, including the separate download dates and times. He now argues that, on these facts, he cannot constitutionally be sentenced on each count. Appellant did not forfeit his constitutional double-jeopardy argument.
The state also argues that appellant forfeited5 any issue under Minn.Stat. § 609.04 because he failed to specifically raise the issue to the district court. Generally, "litigants are bound [on appeal] by the theory or theories ... upon which the action was actually tried below [,]" Annis v. Annis, 250 Minn. 256, 262–63, 84 N.W.2d 256, 261 (1957), and an appellate court will not consider matters not argued to and considered by the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996). We have held, however, that arguments concerning section 609.04 are not forfeited when an appellant raises issues under section 609.035 to the district court because section 609.035 involves the same factual determination as does the application of section 609.04. State v. Hodges, 384 N.W.2d 175, 181–82 (Minn.App.1986), aff'd, 386 N.W.2d 709 (Minn.1986).
Here, despite appellant not specifically arguing to the district court that section 609.04 prohibits multiple convictions, he did raise section 609.035 in his sentencing brief. Therefore, under Hodges, we conclude that appellant did not forfeit his section 609.04 arguments.
Appellant argues that Minn.Stat. § 609.04 prohibits his conviction of more than one count of possession of a pornographic work involving minors. The issue presents a mixed question of fact and law that we review de novo. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.1998). Section 609.04, subd. 1, provides that:
Here, appellant was charged with seven counts of possession of a pornographic work involving a minor in violation of Minn.Stat. § 617.247, subd. 4(a). None of the seven counts fits the statutory definition of an "included offense" under any other count. Each involved image was separately downloaded at a known date and time. No charged offense is a lesser degree of any other charged offense, nor does proof of any charge necessarily prove any other charge. Therefore, the facts and legal basis of appellant's convictions do not support his argument. Section 609.04 is inapplicable to this case.
Appellant's remaining arguments are that his convictions and multiple sentences violate his constitutional double-jeopardy rights and/or Minn.Stat. § 609.035. The state urges us to avoid the constitutional...
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State v. Bakken, A14–2057.
...longest sentence being an executed term of 51 months in prison.1 Bakken appealed and the court of appeals affirmed. State v. Bakken, 871 N.W.2d 418, 420 (Minn.App.2015). Because we conclude that Minn.Stat. § 617.247 authorized the State to charge appellant with a separate count for each dis......
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State v. Miles
...incident. "Whether two acts are part of a single course of conduct depends on the facts of the particular case." State v. Bakken, 871 N.W.2d 418, 425 (Minn. App. 2015) (quoting State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994)). When analyzing whether multiple, intentional crimes are part of ......
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State v. Sims
...an issue for appeal. State v. Rodriguez, 505 N.W.2d 373, 376 (Minn.App. 1993), rev. denied (Minn. Oct. 19, 1993); see State v. Bakken, 871 N.W.2d 418, 422 (Minn.App. 2015) (stating that litigants are bound on appeal by the theory or theories raised below), aff'd, 883 N.W.2d 264 (Minn. 2016)......
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State v. Seelye
...incident. "Whether two acts are part of a single course of conduct depends on the facts of the particular case." State v. Bakken, 871 N.W.2d 418, 425 (Minn. App. 2015) (citing State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994)). The reviewing court considers "the factors of [a unity of] time a......