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State v. Bertsch

November 30, 2004

STATE OF MINNESOTA, RESPONDENT,
v.
JOSHUA STAFFORD BERTSCH, APPELLANT.



Ramsey County District Court File No. K7-03-1662.

Considered and decided by Minge , Presiding Judge, Willis , Judge, and Huspeni , Judge.

SYLLABUS BY THE COURT

1. The offense of possession of child pornography is a lesser-included offense of the offense of dissemination of child pornography.

2. Computerized possession of multiple images of child pornography falls within the multiple-victim exception of Minn. Stat. § 609.035 (2002).

The opinion of the court was delivered by: Huspeni, Judge

Affirmed in part, reversed in part, and remanded

Huspeni, Judge*fn1

OPINION

Appellant challenges sentences imposed by the district court for one count of dissemination of child pornography and 19 counts of possession of child pornography, arguing that multiple sentencing is barred because possession of child pornography is a lesser-included offense of dissemination of pornographic images and his acts were a single behavioral incident to which the multiple-victim exception does not apply. Appellant also argues that the district court erred in assigning a sentencing-guidelines level to the unranked offense of dissemination of child pornography, and in denying appellant's request for a dispositional departure from the guidelines sentence. Because we find that (1) possession of child pornography is a lesser-included offense of dissemination, but that appellant committed those two offenses at different times, (2) the 19 counts of possession were a single course of conduct to which the multiple-victim exception applies, (3) the sentencing-guidelines level assigned by the district court to the dissemination offense does not reflect proper consideration of comparable criminal activity designated at that level, and (4) the district court did not abuse its discretion in denying appellant's request for a dispositional departure, we affirm in part, reverse in part, and remand.

FACTS

In April 2003, Illinois authorities informed the Minnesota Internet Crimes Against Children Task Force (MICAC) that an Internet file server distributing child pornography was operating out of Macalester College in St. Paul. On May 2, 2003, MICAC executed a search warrant at a dorm room occupied by appellant Joshua Bertsch, a 22-year-old college senior, and seized three computers. During the execution of the search warrant, appellant agreed to speak with the police and acknowledged that he used a laptop computer as a file server*fn2 for child pornography.

Appellant posted a computer web banner soliciting preteen child pornography, and required users to upload pornographic images of the same computer size as the images these users downloaded from appellant's collection. As a result of this ease of Internet exchange, appellant's hard drive contained thousands of pornographic still images and movie files of minors.

Appellant told police that he preferred images of teenaged girls, but admitted that his file server contained pornographic images of very young children, along with images of teenage girls. According to Dr. Pribyl, the psychologist who examined appellant, "[f]or an adult male in his early twenties, it is normal to have an interest in teenage females." Appellant is extremely obese and the record indicates that this condition contributes to his low self-esteem.

Appellant was charged with one count of dissemination of child pornography and 19 counts of possession of child pornography and subsequently pleaded guilty to all counts. There was no negotiation regarding sentence; the parties agreed that sentencing would be within the court's discretion. At the plea hearing, appellant admitted to operating the file server from his dorm room. The file server was a "set-up-and-leave type thing. I would start my computer and leave. Like I would go to class or whatever." Appellant did not know the identity of those who downloaded or uploaded images during this time, nor was he certain of the actual number of images that his computer contained. He stated that he had been looking at Internet pornography since he was about 14 or 15 years old. Once in college, he began downloading more pornography as a result of a high-speed Internet connection. Appellant described his collection of pornography as an addiction and stated that he found a great deal of satisfaction at having the collection. While appellant maintained that his primary interest was collecting images of teenagers, his computer contained images of younger children. He had both still images and movie clips on his computer. Appellant ultimately recognized that his actions were illegal and pleaded guilty to all the charges brought against him.

One week before appellant's sentencing hearing, the state filed an amended complaint that indicated an offense date for the dissemination charge different from that indicated for the possession charge. The amended complaint also listed with specificity the computer file names for each possession count.

At the sentencing hearing, the state argued that the district court should treat each image possessed as an individual offense against separate victims and asked the court to sentence appellant to 270 months in prison. Appellant argued that the possession offenses should be treated as a single incident and requested a 15-month stayed sentence. In support of his request, appellant presented numerous letters written on his behalf from family and friends, including many of his college professors. In addition, appellant noted that (1) he had recently been selected as a recipient of a full scholarship for graduate studies in history; (2) he was a high academic achiever, with a 4.0 GPA at the time of his graduation from high school; (3) he had no prior criminal history; and (4) a recent psychological evaluation concluded that he was amenable to probation.

During sentencing, the district court was required to determine the appropriate offense severity levels because both dissemination and possession of child pornography are unranked offenses under the Minnesota Sentencing Guidelines. After receiving motions and memoranda regarding the ranking of these offenses from both parties, the court ranked the dissemination charge as a level VIII offense, possession of still images as a level IV offense, and possession of movie images as a level V offense. The court imposed sentences on the dissemination charge and on each of the 19 possession charges, relying on the multiple-victim exception to the provisions of Minn. Stat. § 609.035 (2002) in sentencing on the possession charges. Appellant was sentenced to 78 months in prison - 48 months on the dissemination conviction, a consecutive 12 months and a day for one of the possession convictions relating to still images, and a consecutive 18 months for one of the possession convictions relating to movie images. This appeal followed.

ISSUES

I. Is possession of child pornography a lesser-included offense of dissemination of child pornography?

II. Did the district court err in imposing separate sentences for the 19 counts of possession of child pornography and one count of dissemination of pornography?

III. Did the district court err in its assignment of severity levels?

IV. Did the district court abuse its discretion in denying appellant's request for a probationary sentence?

ANALYSIS

I. Lesser-Included Offense

Appellant argues that the crime of possession of child pornography is a lesser-included offense of the crime of dissemination of child pornography. In determining whether an offense is a necessarily lesser-included offense, a reviewing court looks at the elements of the offense rather than at the facts of the particular case. State v. Roden, 384 N.W.2d 456, 457 (Minn. 1986). If it is impossible to commit the greater offense without also committing the lesser offense, the lesser offense is necessarily included in the greater offense. Id.

In Minnesota, a person may not be convicted twice for the same crime or a crime included within that crime. Minn. Stat. § 609.04, subd. 1 (2002), provides:

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following:

(1) A lesser degree of the same crime; or

(2) An attempt to commit the crime charged; or

(3) An attempt to commit a lesser degree of the same crime; or

(4) A crime necessarily proved if the crime charged ...


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