Polk County District Court File No. 60-CR-11-2086
Lori Swanson, Attorney General, St. Paul, Minnesota; and Greg Widseth, Polk County Attorney, Andrew W. Johnson, Assistant County Attorney, Crookston, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Cathryn Middlebrook, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Kirk, Judge.
Appellant challenges his sentences for five convictions of possession of pornographic work involving a minor, arguing that the district court incorrectly calculated his criminal-history score because his offenses arose out of a single course of conduct against multiple victims. In a pro se supplemental brief, appellant also contends that the district court (1) abused its discretion by ordering him to complete a sex-offender assessment as a condition of his executed sentence and (2) erred by denying his motion to suppress. We affirm the denial of the motion to suppress, reverse the imposition of the sex-offender-assessment condition, and remand to determine whether appellant's offenses were part of a single course of conduct against multiple victims.
On August 3, 2011, appellant David Lovejoy gave police written and oral consent to search his laptop computer. On August 18, Lovejoy called the police, asking when his computer would be returned. Officer Darin Selzer responded that he hoped to return the computer by August 22.
Officers imaged the computer's hard drive and performed a visual search of its files. In the computer's RRV Advisors account, officers found 11 pictures depicting children engaged in sexual conduct. The pictures were downloaded on April 18, 2011, at 11:14 a.m., 11:37 a.m., 11:40 a.m., 11:41 a.m., 11:42 a.m., 11:48 a.m., and 11:51 a.m. Lovejoy created the RRV Advisors account and was the only person who used the account.
Respondent State of Minnesota charged Lovejoy with 11 counts of possession of pornographic work involving a minor. Lovejoy moved to suppress the pictures, contending that he revoked his consent to search the computer on August 18. The district court denied the motion, concluding that Lovejoy did not make an unequivocal statement withdrawing his consent.
Lovejoy entered an Alford plea to five offenses in exchange for dismissal of the other charges. At the guilty-plea hearing, Lovejoy acknowledged that the record contains evidence that the pictures were downloaded at different times on April 18. Pursuant to the plea agreement, the district court increased Lovejoy's criminal-history score by each charge on which he was sentenced that day and imposed executed concurrent sentences of 15 months, 20 months, 25 months, 30 months, and 39 months in prison. The district court also ordered Lovejoy to complete a sex-offender assessment. This appeal follows.
I. The district court must determine whether Lovejoy's offenses were part of a single course of ...