State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1102

State of Minnesota,
Respondent,

vs.

Joseph Thomas Saari,
Appellant.

Filed June 28, 2021
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CR-18-4166

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Johnson, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
On remand from the supreme court, appellant Joseph Thomas Saari argues that his
convictions for nonconsensual dissemination of private sexual images must be reversed
because Minn. Stat. § 617.261 (2016) is unconstitutionally vague on its face. Alternatively,
2
Saari argues that the district court abused its discretion by imposing two sentences for his
convictions for nonconsensual dissemination of private sexual images because the state
failed to prove that the offenses involved separate behavioral incidents. We affirm Saari’s
convictions but reverse and remand for resentencing.
FACTS
The supreme court remanded this matter to address issues that were not decided in
Saari’s direct appeal when this court re versed his convictions for nonconsensual
dissemination of private sexual images on the ground that the statute was unconstitutionally
overbroad. State v. Saari, No. A19-1102, 2020 WL 3172657, at *6 (Minn. App. June 15,
2020), rev’d (Minn. Feb. 16, 2021) (mem.). The facts are set forth in detail in our prior
opinion. The following summarizes facts relevant to the remanded issues.
The state charged Saari by amended complaint with the following offenses against
A.C., with whom he was in a relationship: felony domestic assault, two counts of threats
of violence, one count of harassment/stalk ing, and two counts of nonconsensual
dissemination of private sexual images. The stat e also charged Saari with two counts of
aggravated first-degree witness tampering. At trial, A.C. testified that, in September 2018,
after Saari had assaulted her, she discovered that Saari had posted two videos of their sexual
activities on a pornography website—PornHub. One video depicted A.C. fellating Saari,
and the other depicted them engaging in se xual intercourse. A.C.’s face and tattoos are
visible. In a recorded interview, A.C. told police that one video was made at A.C.’s house
and one was made in Saari’s parent’s garage. Although A.C. consented to Saari recording
the videos, she did not consent to his posting the videos, and she did not know when he
3
posted them. Saari stipulated that he posted the two videos to PornHub between July and
August 2018 but did not recall exactly when. Saari also stipulated that the images depicted
sexual acts, that A.C. is identifiable, and that A.C. resided in St. Louis County.
A jury found Saari guilty of all counts. The district court entered judgments of
conviction for domestic assault, one count of aggravated firs t-degree witness tampering,
and two counts of nonconsensual dissemination of private sexual images. Based on trial
testimony regarding the order in which the o ffenses were committed, the district court
imposed sentences of 19 and 21 months’ im prisonment for the two convictions for
nonconsensual dissemination of private sexual images, 27 months’ imprisonment for the
assault conviction, and 158 months’ imprison ment for the aggravated witness tampering
conviction, with the sentences to run concurrently.
Saari appealed. We concluded that Saari had forfeited his argument that the district
court erred by refusing to sever the nonconsensual-dissemination-of-private-sexual-images
charges from the other charges and that Saari was not entitled to have his conviction for
aggravated witness tampering reduced to first-degree witness tampering. Saari, 2020 WL
3172657, at *4, *6. But we re versed Saari’s convictions for nonconsensual dissemination
of private sexual images based on our decision in State v. Casillas , 938 N.W.2d 74, 77
(Minn. App. 2019), rev’d, 952 N.W.2d 629 (Minn. 2020), in which we held that the statute
was unconstitutionally overbroad. Id. at *6. Because we reve rsed Saari’s nonconsensual-
dissemination-of-private-sexual-images conv ictions, we did not reach his vagueness
challenge to the statute or his sentencing argument. Id. The supreme court granted the
state’s petition for review, denied Saari’s petition, and stayed further proceedings pending
4
its final disposition in Casillas. After issuing its decision in Casillas, the supreme court
reversed our decision reversing Saari’s conv ictions for nonconsensu al dissemination of
private sexual images and rema nded with the instruction to address the remaining issues.
We then reinstated this appeal.1
DECISION
I. Minn. Stat. § 617.261 is not unconstitutionally vague on its face.

Saari argues that section 617.261 is unconstitutionally vague on its face under U.S.
Const. amend. I and Minn. Cons t. art. 1, § 3. Saari did not challenge the constitutionality
of the statute in district court. “The law is clear in Minnesota that the constitutionality of a
statute cannot be challenged fo r the first time on appeal.” State v. Engholm, 290 N.W.2d
780, 784 (Minn. 1980). Nevertheless, reviewing courts may address constitutional or other
issues “when the interests of justice require their consideration and when doing so would
not work an unfair surprise on a party.” State v. Williams , 794 N.W.2d 867, 874 (Minn.
2011). The state fully briefed the vagueness issue and did not argue that Saari forfeited it
by failing to raise it in distri ct court. We will, therefore, consider Saari’s vagueness
challenge despite his failure to raise it in district court.
A vagueness challenge to a statute is grounded in the Due Process Clause. See
United States v. Williams , 553 U.S. 285, 304, 128 S. Ct . 1830, 1845 (2008) (citing U.S.
Const. amend. V). A statute that imposes criminal liability “must meet due process

1 In the order reinstating this appeal, we gave the parties an opportunity to submit
supplemental briefs updating their research on the remaining issues. The parties have not
submitted supplemental briefs.
5
standards of definiteness” under the federal and state constitutions. State v. Newstrom, 371
N.W.2d 525, 528 (Minn. 1985). “The void-for-vagueness doctrine requires that ‘a penal
statute define the criminal offense with su fficient definiteness that ordinary people can
understand what conduct is pr ohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.’” State v. Bussmann , 741 N.W.2d 79, 83 (Minn. 2007)
(quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983)).
Ordinarily, a defendant whose conduct is proscribed by a statute cannot challenge
the vagueness of the statute as applied to th e conduct of others, but, when a defendant
challenges the statute on First Amendment grou nds, as Saari does, a facial challenge is
permitted. Williams, 553 U.S. at 304, 128 S. Ct. at 1845; see also State v. Campbell , 756
N.W.2d 263, 269 (Minn. App. 2008) (stating defendant may challenge statute that purports
to regulate First Amendment rights, “even if the statute is neither vague nor overbroad as
applied to the defendant”), review denied (Minn. Dec. 23, 2008). The constitutionally of a
statute is a question of law that we review de novo. See State v. Cox, 798 N.W.2d 517, 519
(Minn. 2011).
In Casillas, on remand from the supreme court, we concluded that section 617.261
is not unconstitutionally vague. State v. Casillas, No. A19-0576, slip op. at 9 (Minn. App.
June 14, 2021). In our analysis, we observed that the supreme court determined in that case
that the state has a compelling interest in preventing the nonconsensual dissemination of
so-called “revenge porn” and that section 6 17.261 is “narrowly tailored” and “the least
restrictive means” for serving that compelling interest. Id. at 6 (citing Casillas, 952 N.W.2d
at 642-44). We further observed that, in so holding, the supreme court relied on the fact
6
that the statute explicitly defines the conduc t that is prohibited, contains a mens rea
requirement, and sets out seven e numerated exemptions from liability. Id. at 6-7. We
reasoned that this analysis by the supreme co urt “significantly undermines” the argument
that section 617.261 is unconstitutionally vague. Id. at 7. We concluded that a “reasonable
and sensible construction of that statute’s language conveys a sufficiently definite warning
of the prohibited conduct” to “a person of common intelligence.” Id. at 9.
Saari makes virtually identical arguments to those made by Casillas. We reject
Saari’s arguments for the same reasons that we rejected Casillas’s and conclude, as we did
in Casillas, that section 617.261 is not unconstitu tionally vague. We, therefore, affirm
Saari’s convictions for nonconsensual dissemination of private sexual images.
II. The state failed to prove that the two counts of nonconsensual dissemination of
private sexual images arose from separate behavioral incidents.

Saari alternatively argues that the district court erred by imposing multiple sentences
for his convictions for nonconsensual disse mination of private sexual images. “[I]f a
person’s conduct constitutes more than one offense under the laws of this state, the person
may be punished for only one of the offenses.” Minn. Stat. § 609.035, subd. 1 (2020). With
a few exceptions, section 609.035 bars multiple sentences for crimes arising from a single
behavioral incident. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). The question
of whether multiple offenses are part of a single behavioral incident is a mixed question of
law and fact: The appellate court reviews the di strict court’s findings of historical fact
under the clearly erroneous standard but review s the application of the law to those facts
de novo. State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014).
7
The supreme court uses different tests to determine whether two crimes arose from
a single behavioral incident, and “[w]hich te st applies depends on whether the crime at
issue contains an intent element.” State v. Bauer, 792 N.W.2d 825, 827-28 (Minn. 2011).
Nonconsensual dissemination of private sexual images has an intent element—it requires
a defendant to “intentionally” disseminate the image. Casillas, 952 N.W.2d at 643. To
determine whether two intentional offenses are part of a single behavioral incident, courts
consider “factors of time and place . . . [and w]hether the segment of conduct involved was
motivated by an effort to obtain a single criminal objective.” Bauer, 792 N.W.2d at 828
(quoting State v. Johnson, 141 N.W.2d 517, 525 (Minn. 19 66)). “The application of this
test depends heavily on the facts and circumstances of the particular case.” Id. “The state
bears the burden of establishing by a preponder ance of the evidence that the conduct was
not a single behavioral incident.” State v. Degroot, 946 N.W.2d 354, 365 (Minn. 2020).
Without citing any authority, the state argues that Saari cannot challenge the
multiple sentences because he did not object at sentencing. But “an appellant does not
waive claims of multiple convict ions or sentences by failing to raise the issue at the time
of sentencing.” Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007).
The state also argues that multiple sentences are permitted because Saari posted two
videos, each depicting a differe nt sex act, “suggesting separa te motivations” for showing
A.C. involved in private sex acts and exposing A.C. “to continued victimization each time
a user accesses one of the two videos.” Sa ari does not dispute that he committed two
separate acts or that the district court properly entered two convictions for both acts. Saari
argues only that he cannot be sentenced for both offenses because the state failed to prove
8
that they arose out of separate behavioral inci dents. He contends that “the state presented
no evidence” regarding when the videos were posted to PornHub and that it is impossible
to tell whether the videos were disseminated at different times or places.
The state agrees that the record does not include any information regarding “[t]he
exact time and location” that appellant disse minated the videos to PornHub. From our
review of the record, the only evidence regarding when the videos were disseminated is
A.C.’s discovery of the videos in September 2018 and Saari’ s stipulation that the videos
were posted between July and August 2018, before he assaulted, threatened, and harassed
A.C. On this record, it is not possible to determine that Saari did not post the videos at the
same time, from the same place. And, because Saari posted the videos before he began
assaulting, harassing, and threatening A.C., it is unclear what his objective was for posting
the videos or whether his objective for posting each video was different. Cf. Jones, 848
N.W.2d at 533(stating that 33 text message s sent during a two-and-one-half-hour period
with the intent to harass demonstrated a single criminal objective). Because the state failed
to prove a lack of unity of time and place between the acts and that the conduct was motived
by different criminal objectives, the state di d not meet its burden of showing that the
offenses arose from separate behavioral incident s. The district court, therefore, erred by
imposing sentences for both offenses.
The parties disagree about the appropriat e remedy. Saari argue s that one of the
sentences must be vacated and, because the district court Hernandized2 the sentences, “a

2 State v. Hernandez, 311 N.W.2d 478, 480 (Minn. 1981); Minn. Sent. Guidelines 2.B.1.e
(Supp. 2017) (stating that multip le offenses sentenced at th e same time before the same
9
remand to the district court for resentencing is necessary to reduce his criminal history
score.” The state argues that, because Saar i did not object to mu ltiple sentences for
nonconsensual dissemination of private sexual images, the state should have an opportunity
to develop the record on remand to prove that the offenses arose from separate behavioral
incidents.
In State v. Outlaw, we remanded to the district court for further development of the
record and resentencing after we concluded th at the state had failed to prove that the
defendant’s prior out-of-state convictions were felonies that should have been included in
his criminal history. 748 N.W.2d 349, 356, 360 (Minn. App. 2008), review denied (Minn.
July 15, 2008). 3 We disagree with the state’s ar gument that it should have a similar
opportunity to develop the record here. In Outlaw, the facts relevant to the defendant’s
criminal history would only have been proved at sentencing and, because the defendant did
not challenge his criminal-history score, the state did not develop a record on the issue.

court must be sentenced in the order in whic h they occurred, and, as each offense is
sentenced, it is included in the criminal history on sentencing the next offense).

3 The state relies on an unpublished opinion to support its argument. State v. Brown, No.
A13-1683, 2014 WL 2807683, at *3 (Minn. Ap p. June 23, 2014). We are not persuaded
that this decision permits the state an opportunity to develop the record to support multiple
sentences. Unpublished decisions are not precedential. See Minn. R. Civ. App. P. 136.01,
subd. 1(c). Brown is also distinguishable because it i nvolved a guilty plea and not a trial,
as here. Brown, 2014 WL 2807683, at *2-3. And our remand instructions did not say that
the state should have the opport unity to develop the record on remand; instead, we held
that “[t]he lack of a developed record prev ents us from determining whether appellant’s
actions constitute a single behavi oral incident,” and we remande d for the district court to
make that determination. Id. at *3. In another unpublis hed decision, our remand
instructions expressly directed the district court to vacate one of the sentences. State v.
Owens, No. A19-1871, 2020 WL 5361657, at *5 (Minn. App. Sept. 8, 2020), review denied
(Minn. Dec. 15, 2020).
10
Here, the state was already put to its proof regarding the facts underlying the crimes, and
the question of whether Saari’s two criminal acts were committed in the same behavioral
incident could have been answered by the state’s evidence to prove guilt at trial. Permitting
the state to introduce additional evidence on remand to show the time, place, and criminal
objective of the offenses would give the stat e a second opportunity to introduce evidence
relevant to guilt. We are not persuaded that the state should be permitted to introduce
additional evidence on remand to show the time, place, a nd motive of the conviction
offenses.
We, therefore, reverse and remand for th e district court to vacate one of the
sentences for nonconsensual dissemination of private sexual images. The district court will
then need to resentence Saari on the remaining counts to reflect the change in his criminal
history.
Affirmed in part, reversed in part, and remanded.