State of Minnesota, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0112

State of Minnesota,
Appellant,

vs.

Kevin Alexander Johnson,
Respondent.

Filed June 11, 2018
Affirmed
Rodenberg, Judge

Dakota County District Court
File No. 19HA-CR-17-696

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Torrie J. Schneider, Assistant County
Attorney, Hastings, Minnesota (for appellant)

Paul W. Rogosheske, Ryan J. Grove, Rogo sheske, Rogosheske, & Atkins, PLLC, South
St. Paul, Minnesota (for respondent)

Considered and decided by Rodenberg, Pr esiding Judge; Jesson, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
The state appeals respondent Kevin Alexander Johnson’s gross-misdemeanor
sentence for nonconsensual dissemination of private sexual images under Minn. Stat.
§ 617.261, subd. 1 (2016), arguin g that the district court abused its discretion when it

2
granted respondent a downward durational depart ure from the sentenci ng guidelines. It
argues that the record does not support the district court’s finding that the offense was less
onerous than usual, and that the district court erroneously relied on offender-related reasons
to support the departure. Because the distri ct court did not abuse its discretion when it
found that respondent’s offense was less onerous than usual, we affirm.
FACTS
Respondent pleaded guilty to one count of felony nonconsensual dissemination of
private sexual images under Minn. Stat. § 617.261 (2016). Because it was committed “with
intent to harass the person depicted in the image,” satisfying the requirement of subdivision
2(b)(5), the offense was charged as a felony and not as a gross misdemeanor.
The complaint alleged that respondent and th e victim had a romantic relationship.
When the victim ended the relationship, resp ondent threatened to distribute nude images
of the victim, which respondent had obtai ned from her via text message during their
romantic relationship. Respondent followed through with this threat by placing two such
images in an envelope, which he then gave to the victim’s significant other.
Respondent pleaded gu ilty to the felony charge with out any plea agreement. He
admitted to disseminating two nud e images of the female vic tim. He admitt ed that the
victim did not consent to this and that she had sent him the images expecting that he would
keep the images private. Respondent also admitted that he shared the images with the
intent to harass the victim.
The presentence investigation report prep ared after respondent’s “straight plea”
recommended a 12-month-and-1-day stayed prison sentence. This recommendation

3
conformed to the Minnesota Sentencing Guide lines. At sentencing, respondent’s lawyer
argued for a gross-misdemeanor disposition, despite the plea ha ving been to a felony.
Counsel argued that respondent had shown “extreme remorse,” that his likelihood of future
criminal behavior is “absolutely null,” and th at respondent had taken rehabilitative steps
by, among other things, seeing a mental-health therapist. Respondent’s counsel further
argued that a downward durational departur e was appropriate because Minn. Stat.
§ 617.261 is “meant for . . . revenge porn and for publicizing it on the Internet. Here, this
was a voluntary . . . affair, and as . . . affairs happen, [it] died . . . [s]o, it is not the typical
type of complaint of non-cons ensual dissemination that the statute was . . . meant for.”
Counsel also mentioned that respondent’s counseling career would be limited by a felony
conviction on his record, and that a gross-misdemeanor disposition might help preserve his
career as a counselor. Fina lly, counsel emphasized that, although respondent and the
victim had been coworkers, respondent was not the victim’s supervisor and their romantic
relationship did not start until after they were no longer coworkers.
The state argued for a stay of imposition of a felony sentence. It argued that
respondent did not play a “passive” role in the crime, the victim was not the aggressor, and
respondent’s conduct could not be considered “less onerous” than the typical crime under
the statute; therefore, a durational departure was not appropriate. It emphasized that Minn.
Stat. § 617.261 clearly criminalizes responden t’s behavior, and argued that the district
court should not consider the legislative history behind the statute. Finally, it argued that
respondent’s remorse for his action did not rise to the level that could support a durational
departure.

4
The district court sentenced respondent to serve 360 days in jail, all stayed, and
placed appellant on probation for three years. This is a gross-misdemeanor sentence. See
Minn. Stat. § 609.13, subd. 1(1) (2016). Probation terms included 260 hours of community
service and no contact with the victim during the probation period. The district court stated
at sentencing that it was aware of “some of [the] legislative history” of Minn. Stat.
§ 617.261, and noted that there was test imony from victims who had suffered from
“revenge porn on the Internet, and certainly the questioning by the legislature did involve
how they could craft a statute that would involve more safety for victims who are exposed
to that.” The district court concluded that respondent’s crime was less onerous than usual
because he delivered the images in a clos ed envelope to one person—the victim’s
significant other—and did not post anything on the internet or otherwise provide the images
to a “larger audience.”
The district court also noted that, although the sentence was a durational departure,
respondent was particularly amenable to treatment, exhibited remorse, and accepted
responsibility for his actions.
In its sentencing-departure report, the district court identified as support the offense-
related factor that the “crime [was] less onerous than usual.” It also identified the offender-
related reasons of “particular ly amenable to probation” and “shows remorse/accepts
responsibility” as supporting the departure
This sentencing appeal by the state followed.

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D E C I S I O N
The state argues that the district court abused its discretion in granting respondent a
durational departure from the sentencing guid elines. It argues that the record does not
support the district court’s finding that res pondent’s offense was less onerous than usual
because the statute under which respondent was convicted is new and there are no
comparable offenses against which to make a less-onerous-than-usual determination, that
respondent’s not having used the internet to dissemina te the images does not make his
offense less onerous than usual, and that respondent’s dissemination of the images to only
one person does not make his crime less onerous than usual. It also argues that the district
court relied on improper, offender-based grounds as support for the downward durational
departure.
I. The district court did not abuse its dis cretion in concluding the offense was less
serious than the usual offense under Minn. Stat. § 617.261.

We first address whether the district court abused its discretion in concluding that
respondent’s conduct was less se rious than a typical offense. “We ‘afford the [district]
court great discretion in the imposition of sentences’ and reverse sentencing decisions only
for an abuse of that discretion.” State v. Soto , 855 N.W.2d 303, 307-08 (Minn. 2014)
(quoting State v. Spain , 590 N.W.2d 85, 88 (Minn. 1999)). “A district court abuses its
discretion when its reasons for departure are improper or inadequate.” State v. Rund, 896
N.W.2d 527, 532 (Minn. 2017). An upward or downward departure must be supported by
“substantial and compelling” reasons that th e departure is more appropriate than the
presumptive sentence. Minn. Sent. Guide lines 2.D.1.c (2016). Offense-related
circumstances must show that the defendant’s conduct “was significantly more or less

6
serious than that typically involved in the commission of the crime in question.” State v.
Stempfley, 900 N.W.2d 412, 423 (Mi nn. 2017) (emphasis omitted). “If a district court’s
reasons for departure are stated on the record , an appellate court must determine whether
the stated reasons justify the departure.” State v. Weaver , 796 N.W.2d 561, 567 (Minn.
App. 2011). “But first, this court must determine whether the reasons provided are legally
permissible and factually supported by the r ecord. We conduct a de novo assessment of
the district court’s decision as to whether a valid departure ground exists, relying on the
factual findings that support the decision.” Id. (citations omitted).
The statute under which respondent was convicted states:
It is a crime to intentiona lly disseminate an image of
another person who is depicted in a sexual act or whose
intimate parts are exposed, in whole or in part, when:
(1) the person is identifiable:
(i) from the image itself, by the person depicted
in the image or by another person; or
(ii) from personal info rmation displayed in
connection with the image;
(2) the actor knows or reasonably should know that the
person depicted in the imag e does not c onsent to the
dissemination; and
(3) the image was obtained or created under
circumstances in which the ac tor knew or reasonably should
have known the person depicted had a reasonable expectation
of privacy.

Minn. Stat. § 617.261, subd. 1.
Subdivision 2 provides that a violation of subdivision 1 is a gross misdemeanor,
unless one of the factors identified in subdivis ion 2(b) is proved. One of the subdivision
2(b) factors is that the “actor disseminates the image with intent to harass the person
depicted in the image.” Id., subd. 2(b)(5). Another is that “the actor posts the image on a

7
Web site.” Id., subd. 2(b)(4). The statute defines “d issemination” as “distribution to one
or more persons, other than the person depicted in the image, or publication by any publicly
available medium.” Id., subd. 7(b).
We first determine whether the reason given by the district court for the downward
durational departure is legally permissible and factually supported by the record. Weaver,
796 N.W.2d at 567. Here, the only offense-re lated mitigating factor on which the district
court relied for the durational departure was that respondent’s crime was less onerous than
usual. The district court primarily relied on respondent’s having delivered the images in a
closed envelope to one person—the victim’s significant other—and respondent did not post
the images on the internet or otherwise distri bute the images more wi dely. The district
court relied on its own purported knowledge of discussion of the statute by the legislature,
which the district court recalled having been focused on protecting individuals from the
circulation of their images on the internet. These purported recollections were identified
in support of its conclusion that respondent’s dissemination of the images to one person in
an envelope was not a “typical” crime under the statute. The district court also noted that
respondent notified the victim in advance of his intent to deliver the images.
The district court’s stated reason for th e downward durational departure, that the
crime was less serious than usua l, is legally permissible. See Stempfley, 900 N.W.2d at
415 n.5 (stating that a district court dete rmines whether a durational departure is
appropriate by “focus[ing] on the seriousness of the offense itself”). The record supports
the district court’s factual finding that respondent delivered the images in an envelope to a
single person and did not distribute them publicly, or to more individuals, using the internet

8
or another means. Further, Minn. Stat. § 617.261 provides a range of conduct constituting
an offense under the statute from which the district court could have inferred respondent’s
conduct was less serious than the typical offense.
The statute defines “dissemination” as “dis tribution to one or more persons, other
than the person depicted in the image, or publication by any publicly available medium.”
Minn. Stat. § 617.261, subd. 7(b). The rang e of conduct included in the definition of
“dissemination” ranges from dissemination to a single person to world-wide publication
on the internet. Respondent’s conduct seems to have met the minimum conduct necessary
to be “dissemination.” See State v. Leja , 684 N.W.2d 442, 450 (M inn. 2004) (stating in
dicta, “[w]e are mindful of the fact that typical does not mean minimal. It is quite possible
that a typical offense, were we able to define it, would involve conduct much more extreme
than the minimum conduct required to violat e the applicable statute”). This statutory
language supports the district court’s conclusi on that respondent’s conduct, by providing
the images to a single individual in a clos ed envelope, was less serious than a typical
offense under the statute.
In both State v. Felix and State v. Bauerly, we concluded that an offense was more
or less serious than a typical offense based on the conduct described in a criminal statute.
In State v. Felix , we determined that an upward departure was justified based on the
language used in the first-degree assault statute. 410 N.W.2d 398, 401 (Minn. App. 1987),
review denied (Minn. Sept. 29, 1987). We concluded the departure was warranted because
the assault involved “all” of the factors defining “great bodily harm” and not just one. Id.
In State v. Bauerly, we looked to the range of monetary value for Severity Level III Theft

9
contained in the theft statute to affirm a downward durational departure. 520 N.W.2d 760,
763 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). We concluded that, where
the amount of money stolen was significantly below the midrange point of the monetary
range, that offense could properly be considered by the district court to be less serious than
the typical offense. Id.
Respondent agrees that his conduct fits squarely within Minn. Stat. § 617.261.1 See
Rund, 896 N.W.2d at 534 (reasoning that where a defendant’s mental state “fits squarely”
within the mens rea provided by the terroristic -threats statute, his mental state was not a
proper reason for a downward durational de parture). The issue here is whether
respondent’s conduct is significantly less serious than other felonies committed under
Minn. Stat. § 617.261. The district court found that it was, and the record reasonably
supports that finding.
The state also argues that respondent’s conduct cannot be considered less serious
than other offenses under the statute because this is the first such offense charged in Dakota
County. Therefore, the state reasons, it is impossible for the district court to have reached
this conclusion without other offenses for comparison. We are aware of no authority that
supports the state’s contention that the first offense charged in a particular county—or in
the state, for that matter—can never be a le ss-serious-than-usual offense because there is

1 Respondent seemed to raise a constitutional-la w issue at oral argument, suggesting that
the statute’s breadth and vaguen ess has something to do with the issues before this court
on appeal. This argument was not presented to the district court and was not raised in
respondent’s briefing on appeal. We will not consider it now. See State v. Williams, 794
N.W.2d 867, 874 (Minn. 2011) (“We ordinarily do not consider issues raised for the first
time on appeal, even when thos e issues are . . . challenges to the constitutionality of a
statute.”).

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no “usual.” Here, the district court considered respondent’s conduct and the overall range
of conduct prohibited by the statute.2
The state further argues that the distri ct court erroneously concluded that
respondent’s not having used the internet to share the images does not render respondent’s
conduct less serious, because some of the sc enarios under Minn. Stat. § 617.261, subd. 2,
giving rise to a felony-level sentence do not re quire the use of the internet. Conversely,
respondent seems to contend that cases where images are not published on the internet are
inherently less serious than the typical case. We disagree with both lines of reasoning. In
our view, it is very possible that images diss eminated without using the internet can have
very damaging consequences for a victim, as the Minn. Stat. § 617.261, subd. 2, factors
suggest. But it is also possi ble, as the district court de termined here, that limited
distribution of images might be less damaging than broader dissemination. The district
court seems to have based its reasoning that respondent’s conduct wa s less serious than
usual on respondent having given hard copies of the images to a single person in a “closed
envelope,” rather than to a “larger audience.” This is precisely the sort of decision best left
to the district court. See State v. Marchbanks , 632 N.W.2d 725, 731 (Minn. App. 2001)

2 Using the state’s reasoning, the first person to be convicted under a new statute would
never receive a downward durational departure, but another person who later commits the
exact same crime under the exact same circum stances might be elig ible for a downward
durational departure because it might by then be evident that that the conduct is less serious
than a typical offense. This makes no sense. It also violates the policies underlying
sentencing in Minnesota as ar ticulated in the Minnesota Se ntencing Guidelines: that
sentencing should be “rational and consis tent” and courts should seek to “reduce
sentencing disparity and ensure that the sanctions imposed for felony convictions are
proportional to the severity of the conviction offense and the offender’s criminal history.”
Minn. Sent. Guidelines. 1.A (2016).

11
(“A district court has great discretion in sentencing, and we may not substitute our
judgment for that of the district court.” ). The language of the st atute and the record
evidence reasonably support the district court’s finding that respondent’s conduct was less
serious than usual. Although the record evidence might support a different finding than
that reached by the district court, th is does not render the finding erroneous. See State v.
Heath, 685 N.W.2d 48, 57 (Minn. App. 2004) (re asoning that a factual finding by the
district court is only clearly erroneous when unsupported by the record evidence).
Having determined that the district c ourt’s reasons for departure are legally
permissible and factually supported by the record , we turn to whether the district court’s
stated reason justifies the departure. Weaver, 796 N.W.2d at 567. We review the district
court’s sentencing decision for abuse of discretion. Soto, 855 N.W.2d at 307-08. Here,
the district court based its conclusion that respondent’s offense was less serious than the
typical offense on the fact that the images were only transmitted by respondent in a sealed
envelope to one individual. Although there are no other cases under the statute to which
we can compare the current offense, the stat ute’s definition of “dissemination” includes
transmission of an image to on e person, which appears to be among the least-serious sort
of offense. As discussed, th e record supports the district court’s factual findings. We
conclude that the district court acted with in its broad discretion in concluding that
respondent’s conduct was less serious than the typical crime committed under Minn. Stat.
§ 617.261.3

3 Although the record is sufficient to support the district court’s less-serious-than-usual
determination based on the limited distribution of these images, some of the statements
made by the district court at sentencing are tr oubling. The district court mentioned that,

12
II. The district court erroneously cons idered offender-based factors in its
sentencing decision, but because the downward durational departure was
properly supported by an offense-based factor, this error does not require
reversal.

We next address the district court’s use of offender-related factors to support its
downward durational departur e. A downward durational departure, like an upward-
durational departure, may be supported by a single mitigati ng or aggravating factor. See
State v. Solberg, 882 N.W.2d 618, 627 (Minn. 2016) (concluding that a single mitigating
factor may support downward sentencing departure); State v. Hicks, 864 N.W.2d 153, 159
(Minn. 2015) (holding that a single aggrava ting factor may support upward sentencing
departure). “Durational departures may be justified by offense-re lated reasons only.”
Rund, 896 N.W.2d at 533. “Offender-related re asons—such as particular amenability to
probation or treatment, remorse that does no t reduce the seriousness of the offense, or
age—are not legally permissible reasons for a downward durational departure.” Id.
Here, the district court relied on two offender-related factors on the departure report
to support its downward durational departure: that respondent was “particularly amenable
to probation” and “shows remorse/accepts responsibility.” Although not noted in the
departure report, the district court also stated at the sentencing hearing that it considered
the possible effect of a felony sentence on respondent’s occupa tion as supporting the
departure.

although the crime of distributing these images “put a huge strain on [the victim’s]
relationship with her boyfrien d, but having this affair, I’m sure, put a strain on the
relationship with her boyfriend, and it clearly led to the loss of [respondent’s] marriage
relationship.” These and other victim-sha ming comments are improper. The victim’s
decisions did not cause, and she is not responsible for, respondent’s criminal conduct.

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Respondent’s amenability to probation has no bearing on this case—the guidelines
sentence was probation. And remorse may su pport a durational departure only when it
“could relate back and be considered as evidence bearing on a determination of the cruelty
or seriousness of the [offender’s] conduct.” State v. McGee , 347 N.W.2d 802, 806 n.1
(Minn. 1984). We see no record evidence indi cating that respondent’s remorse mitigates
the seriousness of his conduct. The district court erroneously considered these offender-
related factors.
The state contended at oral argument that the district court’s consideration of
improper reasons for departure influences our standard of review. However, caselaw
indicates that we disregard the district c ourt’s reliance on incorr ect factors when its
decision may be upheld based on its reliance on at least one other, correct factor. Solberg,
882 N.W.2d at 624. Despite the district court’s error in considering offender-related
factors, a downward-durational departure ma y be supported by only a single mitigating
factor. Id. at 627. The district court’s conclu sion that respondent’s conduct was less
serious than a typical offense sufficiently supports a downward durational departure here.
The question on appeal is not whether we would have sentenced respondent as the
district court did. Instead, the question before us is whether the district court abused its
discretion. Soto, 855 N.W.2d at 307-08. On this record, we cannot say that it did.
Affirmed.