Multiple Sentences for Possession of Pornographic Images Acquired on Different Dates Does Not Violate Single Behavioral Incident Rule

State v. Bakken, Minn.Ct.App., 11/9/2015.  The state charged Mr. Bakken with seven counts of possession of pornographic works involving minors.  Mr. Bakken pled guilty to those seven counts. During the plea hearing, Mr Bakken admitted that he downloaded each of the seven images on separate dates and that each image was of a different minor. Over objection on double jeopardy and single behavioral incident arguments, the trial court sentenced Mr. Bakken on all seven counts.

The state first argued that because Mr. Bakken pled guilty without first objecting on double jeopardy and statutory grounds he waived those issues on appeal.  The appellate court said no, that a guilty plea does not bar raising a double jeopardy claim on appeal so long as that claim could be decided on the existing record.  

Rather than address the constitutional double jeopardy claim, the appellate court declared that the single behavioral incident statute, Minn.Stat. 609.035, provides more protection than the constitution and so confined its analysis to that statute.  A single behavioral incident requires a unity of time and place, and a single criminal objective.  Mr. Bakken satisfied the place - his computer - but not the time, since he admitted that he acquired each of the seven images on different dates.  The appellate court was also unwilling to say that his "personal sexual gratification" satisfied the single criminal objective requirement.  Permitting only one sentence when there are multiple incidents spread over time was too much for the court to sanction.