Court Upholds Multiple Sentences for Possession of Pornographic Images Acquired on Different Dates

State v. Bakken, Minn.S.Ct., 8/3/2016.  On seven different days between November and June, Mr. Bakken downloaded to his computer's hard drive seven pornographic images of seven different minors.  The state charged Mr. Bakken with seven counts of possession of pornographic work involving minors.  Mr. Bakken pled guilty to all seven counts.  At sentencing he argued that he could only be convicted and sentenced for one count of possession.  He said that this was so for two reasons:  the "unit of prosecution" is possession of the computer on which the images were stored rather than the individual images stored on it; and his offenses were part of a single behavioral incident.  The trial court rejected this view of the statute and the court of appeals affirmed.  Justice Lillehaug agrees with the trial court. 

On this "unit of prosecution" here's what the statute says:

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 . . . .

Justice Lillehaug interprets this language to criminalize both the possession of a pornographic work itself, and the possession of a computer storing a pornographic work.  The state could thus choose to charge Mr. Bakken with possession of seven distinct pornographic works.  

On the "single behavioral incident" claim, the general test is whether the offenses occurred at substantially the same time and place, and whether the conduct was motivated by an effort to obtain a single criminal objective.  State v. Bauer, 792 N.W.2d 825 (Minn. 2011).  Mr. Bakken could only establish one of those factors - place - to the court's satisfaction, perhaps because the parties agreed that the seven offenses occurred in the same place, his mom's bedroom. But, on the other two factors things don't go Mr. Bakken's way. The Justice concludes that the seven offenses were not committed at "substantially the same time;" two of the offenses were completed - downloaded onto the computer hard drive - five days apart, and other offense were separated by over a month.  

Here's what the Justice had to say about whether the seven offenses were motivated by an effort to obtain a single criminal objective:

Even assuming that Bakken possessed each of the pornographic works to satisfy his sexual urges, the mere fact that he committed multiple crimes over time for the same criminal objective does not mean he committed those crimes to attain a single criminal objective,

There's no real guidance here, except for a throwaway line that prosecutors need to be somewhat prudent about piling on hundreds of counts, one for each image.  So long as the prosecutor is exercising "some selectivity in enforcement" the sky's the limit.