State v. Cannady, No. A05-811 (MN 4/18/2006)
| Decision Date | 18 April 2006 |
| Docket Number | No. A05-811.,A05-811. |
| Parties | State of Minnesota, Respondent, v. Scott Edward Cannady, Appellant. |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Ramsey County, File No. K7-04-1025.
Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, (for respondent).
Jeffrey C. Dean, Dean Law Office, (for appellant)
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
UNPUBLISHED OPINION
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.
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.
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) (). 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.
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...
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