State v. Bakken, A14–2057.

• Decision Date: 03 August 2016
• Docket Number: No. A14–2057.,A14–2057.
• Citation: 883 N.W.2d 264
• Parties: STATE of Minnesota, Respondent, v. Timothy John BAKKEN, Appellant.
• Court: Minnesota Supreme Court

883 N.W.2d 264

STATE of Minnesota, Respondent,
v.
Timothy John BAKKEN, Appellant.

No. A14–2057.

Supreme Court of Minnesota.

Aug. 3, 2016.

Lori Swanson, Attorney General, Saint Paul, MN; and Gregory A. Widseth, Polk County Attorney, Andrew W. Johnson, Assistant Polk County Attorney, Crookston, MN, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant State Public Defender, Saint Paul, MN, for appellant.

Considered and decided by the court.

OPINION

LILLEHAUG, Justice.

Between November 2012 and June 2013, appellant Timothy Bakken downloaded, viewed, and saved to his computer's hard drive seven pornographic images of minors engaged in sexual conduct. He downloaded and saved these photographs on different days—one each on November 9, December 2, December 9, December 14, March 5, April 28, and June 4. Each photograph depicted a different minor. After police seized Bakken's computer and discovered the images, he was charged with seven counts of Possession of Pornographic Work Involving Minors, in violation of Minn.Stat. § 617.247, subd. 4(a) (2014).

Bakken pleaded guilty to all seven counts. In establishing the factual basis for the plea, he admitted that an individual he had met in an online chat room had sent him the images. He further admitted that, after the images were sent, he downloaded them, viewed them, and saved them on his computer's hard drive on the dates alleged in the complaint. Before sentencing, Bakken filed a motion in which he argued that (1) he could only be convicted and sentenced for one count of possession because the “unit of prosecution” in the statute is possession of the computer, rather than the individual images stored on it, and (2) his offenses were part of a single behavioral incident. The district court denied Bakken's motion, ruling that the statute

883 N.W.2d 267

authorized the State to separately charge Bakken with possession for each pornographic image and that Bakken's offenses were not part of the same behavioral incident. Accordingly, the court imposed seven concurrent sentences, with the 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 distinct pornographic work that appellant possessed, and appellant's conduct in possessing the pornographic works was not part of a single behavioral incident, we affirm.

I.

We first consider whether the State could properly charge multiple counts of possession of child pornography under Minn.Stat. § 617.247. Whether a defendant commits one or more distinct offenses under a criminal statute depends on the statute's “unit of prosecution.” Sanabria v. United States, 437 U.S. 54, 69–70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952) ). Violations of the same statutory provision may be charged multiple times in a single prosecution if the Legislature “intended the facts underlying each count to make up a separate unit of prosecution.” United States v. Chipps, 410 F.3d 438, 447 (8th Cir.2005) ; see also State v. Stith, 292 N.W.2d 269, 273–75 (Minn.1980) (holding that the statute authorized charging seven counts of securities fraud based on seven misrepresentations because the Legislature intended each misrepresentation to be a separate offense). Accordingly, we must consider the language of the statute criminalizing the possession of child pornography to determine whether the State was authorized to charge Bakken with seven separate counts of possession.

Minnesota Statutes § 617.247, subd. 4(a), provides: “A person who possesses 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, knowing or with reason to know its content and character, is guilty of a felony....” Bakken contends that, because all of the pornographic works he possessed were stored on a single computer, the statute is ambiguous as to the unit of prosecution. He contends that in a factual scenario such as this one, the Legislature intended to authorize only a single charge for possession of the computer containing the works. This ambiguity, he asserts, requires that we apply the rule of lenity and construe the statute to authorize only a single charge. The State responds that the statute unambiguously authorizes the charging of a separate count for each distinct pornographic work a person possesses, regardless of where the work is stored.

Statutory interpretation presents a question of law that we review de novo. State v. Smith, 876 N.W.2d 310, 336 (Minn.2016). The goal of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Minn.Stat. § 645.16 (2014) ; State v. Irby, 848 N.W.2d 515, 518 (Minn.2014). When the words of a statute in their application to an existing situation

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are clear and free from all ambiguity, we give effect to the plain meaning of the law. State v. Mauer, 741 N.W.2d 107, 111 (Minn.2007). But a statute is ambiguous if, as applied to the facts of the case, it is susceptible to more than one reasonable interpretation. See State v. Schmid, 859 N.W.2d 816, 820 (Minn.2015). In determining whether the statute is ambiguous, we consider the “canons of interpretation” listed in Minn.Stat. § 645.08 (2014), and interpret the statute as a whole to “harmonize and give effect to all its parts,” presuming that the Legislature “intended the entire statute to be effective and certain.” State v. Riggs, 865 N.W.2d 679, 682–83 (Minn.2015).

We conclude that Minn.Stat. § 617.247 unambiguously criminalizes both the possession of a pornographic work itself and the possession of a computer storing a pornographic work. Therefore, it was within the State's authority to charge Bakken with seven separate counts of possession for seven distinct pornographic works. The two items that the statute prohibits possessing—“a pornographic work” and “a computer ... containing a pornographic work”—are linked in the statute by the word “or.” Minn.Stat. § 617.247, subd. 4(a). The word “or” is typically read as disjunctive, requiring that only one of the possible factual situations linked by the “or” be present for the statute to be violated. State v. Loge, 608 N.W.2d 152, 155 (Minn.2000). The plain language of the statute does not restrict the State's authority to bring charges when pornographic works are possessed by an individual and stored on a computer; rather, the statute criminalizes the possession of two different things.

This straightforward reading of the statute comports with our decision in State v. Stith, in which we confronted a strikingly similar question and came to the same conclusion. 292 N.W.2d 269. In Stith, the statute provided that a person could commit securities fraud in three ways: by employing a scheme to defraud, by engaging in a fraudulent business, or by making an untrue statement of material fact in connection with the sale of securities. Id. at 273. The State charged Stith with multiple counts, one count for each untrue statement. Id. Stith contended that, because his conduct satisfied all three provisions and he employed only a single scheme or business to defraud, the State could charge only one count of securities fraud. Id. at 274. We rejected that argument, noting that the use of the word “or” in the statute made the alternative methods of violating the statute disjunctive, which gave the State the authority to choose among the provisions in prosecuting Stith. Id.

As in Stith, the statute in this case can be violated in multiple ways. That the definitions of criminal activity may overlap does not require the State to charge the case in a way that is the most advantageous to the defendant. See State v. Lee, 683 N.W.2d 309, 315 (Minn.2004) (noting that, when definitions of criminal offenses overlap, “the state has the discretion to charge a person with the offense which is best supported by the available evidence and which carries a penalty commensurate with the culpable acts involved”).

In urging us to reach the opposite conclusion, Bakken argues that, when read as a whole, the statute is ambiguous as to the unit of prosecution because the “statute's first clause ... allows a charge for...