State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1961

State of Minnesota,
Respondent,

vs.

Angel Torrejon Ramirez,
Appellant.

Filed November 16, 2020
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-CR-17-5558

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

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

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Considered and decided by Slieter, Presiding Judge; Bratvold, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
After appellant pleaded guilty to two counts of disseminating child pornography and
six counts of possessing child pornography, the district court convicted appellant of all
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eight offenses and imposed stayed sentences for the two dissemination convictions and one
possession conviction. For the five remaining possession convictions, the dis trict court
imposed executed concurrent sentences of 36 months in prison. At appellant’s request, the
district court executed all sentences. Appellant now challenges the district court’s
imposition of six concurrent sentences for the possession convictions. Because the district
court properly applied the multiple-victim exception to the single-behavioral-incident rule
and the sentences do not unfairly exaggerate the criminality of appellant’s conduct, we
affirm.
FACTS
In July 2017, the state charged appellant Angel Torrejon Ramirez with 15 counts of
possessing pornographic work involving a minor under Minn. Stat. § 617.247, subd. 4(a)
(2016). Later in February 2019, the state amended its complaint and added 14 counts of
disseminating pornographic work involving a minor under Minn. Stat. § 617.247,
subd. 3(a) (2016).
Ramirez reached an agreement with the state to plead guilty to two counts of child-
pornography dissemination (counts one and two of the amended complaint) and six counts
of child-pornography possession (counts 15 through 20 of the amended complaint ). In
exchange, the state agree d to dismiss the remaining 12 counts of dissemination and nine
counts of possession at sentencing. The parties did not agree on a sentence, but agreed
Ramirez could seek a dispositional or durational departure and the state would ask the
district court to impose a sentence within the Minnesota Sentencing Guidelines.
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At the plea hearing, Ramirez pleaded guilty as agreed, waived his trial rights, and
provided a factual bas is for the counts covered by the agreement. For the dissemination
counts, Ramirez admitt ed that he sent child pornography to two other people. For the
possession counts, Ramirez admitted to possessing six images and videos of child
pornography. Ramirez agreed that “these aren’t all videos of the same child . . . there are
six different children in regards to these [possession] counts.” The district court accepted
the guilty pleas and referred Ramirez for a presentence investigation (PSI).
The PSI report recommended s entences within the guidelines. For the child-
pornography-dissemination offenses, the PSI report recommended 24 - and 36 -month
concurrent sentences, stayed for 10 years; for the child-pornography-possession offenses,
the PSI report recommended 30 -, 39-, 51-, 60-, 60-, and 60 -month concurrent, executed
sentences.
At the sentenci ng hearing, Ramirez acknowledged receiving the PSI report and
argued his motion for a downward disposit ional or durational departure , specifically
requesting stayed sentences, with probation and 90 days in jail. Ramirez’s attorney
explained that his criminal conduct “evolved,” starting when he “was looking at some sort
of graphic crash screens and things like that . . . . sort of this extreme video website or
Facebook page that he was looking at, and then [it] evolved into some. . . . pornographic
work, and then it evolved into some child pornography.” Ramirez also submitted ten letters
from family members, employees, friends, and soccer teammates, at testing to his good
character.
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The state argued against a ny departure. It submitted redacted screenshots from
Ramirez’s cell phone as sentencing exhibits, arguing the exhibits “just show[] what this
pornography was.” The state argued , “[t]he idea that this is less egregious completely
ignores the sheer volume, [Ramirez]’s distribution, the horrifying content, and [Ramirez]’s
attempts to get someone else to produce pornography like this.” The state asked the district
court to impose sentences following the guidelines for each conviction, totaling 60 months.
After hearing the parties ’ arguments, the district court stated, “[w]hat’s troubling
about this case, among many other things, is the nature of the specific pornography and the
involvement of kids. I can’t tell ages, but it looks like as young as 3 or 4, maybe eve n
toddlers on some.” The district court later continued,
I can’t say that these crimes are less onerous than the usual
possession of minor pornography or the usual dissemination of
minor pornography because they are exactly that. In fact, they
might be more—I don’t know the right wor d for it—gross and
serious pornography images than—sad to say that there might
be an average child pornography.

The district court added, “I do think that it’s very possible that you could be successful on
probation, but it’s not a case where I can find in good faith, and live with myself, substantial
and compelling reasons to grant a dispositional departure.”
The district court denied Ramirez’s motion for a dispositional departure, and
imposed guidelines sentences for the two dissemination convictions of 24- and 36-months
and stayed execution (counts one and two). The district court granted Ramirez’s motion
for a durational departure for some of the possession convictions by imposing a stayed
sentence of 30 months for c ount 15, and by imposing executed prison sentences of 36
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months for the remaining counts 16 through 20. He received six criminal-history points for
the possession charges. See Minn. Sent. Guidelines 2B.1.b (2016). Ramirez then requested
execution of his stayed sentences, which the district court granted.
This appeal follows.
D E C I S I O N
On appeal, Ramirez challenges only his sentences for the six child-
pornography-possession convictions, and argues that the district court’s decision to impose
six concurrent sentences for possession of chil d pornography during a single behavioral
incident unfairly exaggerates the criminality o f his conduct. He asks this court to vacate
five of his concurrent sentences for possession (counts 16 -20), leaving one 30-month
stayed prison sentence for count 15. Alternatively, Ramirez requests that this court affirm
the 36 -month executed sentence for count 16 and vacate four concurrent possession
sentences for counts 17 through 20 , arguing that the six-point increase in his
criminal-history score unfairly exaggerates the criminality of his conduct.
First, we consider whether the single -behavioral-incident rule and the
multiple-victim exception apply to Ramirez’s sentence s. Second, we determine whether
the six separate sentences imposed for Ramirez’s possession conv ictions unfairly
exaggerate the criminality of Ramirez’s conduct.
A. Ramirez’s possession of multiple images of child pornography
was a single behavioral incident involving multiple victims.

When a district court convicts a defendant for conduct that involves more than one
crime, the district court usually may impose punishment for only one of those crimes. See
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Minn. Stat. § 609.035, subd. 1 (2016). This is often called the “single-behavioral-incident”
rule. See State v. Williams , 771 N.W.2d 514, 520 (Minn. 2009). “[T]he overall design of
[section 609.035] . . . is to prohibit double punishment and at the same time to insure that
punishment for a single incident of criminal behavior involving a multiplicity of violations
will be commensurate with the c riminality of defendant’s misconduct.” State v. Johnson,
141 N.W.2d 517, 521-22 (Minn. 1966).
The parties agree that Ramirez’s possession of child pornography was a single
behavioral incident . We also agree. Whethe r criminal behavior is a single behavioral
incident depends on “factors of time and place . . . [and] whether the segment of conduct
involved was motivated by an effort to obtain a single criminal objective.” Johnson,
141 N.W.2d at 525. Ramirez pleaded guilty to possessing six child-pornography images
on one day in one place, and it is unlikely that Ramirez had a different crimi nal objective
for possessing each image of child pornography . Moreover, the state bears the burden of
establishing that the underlying conduct di d not occur as part of a single behavioral
incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).
The single -behavioral-incident rule has several exceptions, one of which is the
multiple-victim exception. “[C]ourts are not prevented from giving a defendant multip le
sentences for multiple crimes arising out of a sin gle behavioral incident if: (1) the crimes
affect multiple victims; and (2) multiple sentences do not unfairly exaggerate the
criminality of the defendant ’s conduct.” State v. Skipintheday , 717 N.W.2d 423, 426
(Minn. 2006) (citing State v. Marquardt, 294 N.W.2d 849, 851 (Minn. 1980)). This court
reviews de novo whether the m ultiple-victim exception applies. See Skipintheday,
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717 N.W.2d at 426 (“Whether a defendant commits multiple -victim crimes is a question
of law, which this court reviews de novo.”).
The multiple -victim exception applies to sentencing for multiple convictions of
possessing child pornography when the crimes affected more than one victim. State v.
Rhoades, 690 N.W.2d 135, 139 (Min n. App. 2004). We agree with the parties that this
record establishes that Ramirez’s child-pornography-possession crimes involved multiple
victims. Having determined that Ramirez’s criminal conduct satisfied the first step of the
multiple-victim exception, we turn to the second step.
B. Ramirez’s six concurrent sentences for possessing child
pornography do not unfairly exaggerate the criminality of his
conduct.

Ramirez contends that the district court erred in imposing six concurrent sentences
for his child-pornography crimes because the sentences unfairly exaggerate the criminality
of his conduct. The state disagrees. On appeal, defendants bear the burden of showing a
sentence unfairly exaggerates the criminality of their conduct. State v. Hough, 585 N.W.2d
393, 398 (Minn. 1998). This court reviews a district court’s decision to impose multiple
sentences involving multiple victims for abuse of discretion, and will uphold the sentences
so long as they do not unfairly exaggerate the criminality of the defendant’s conduct. State
v. Cruz-Ramirez, 771 N.W.2d 497, 512 (Minn. 2009) . “[W]hether multiple sentencing
unfairly exaggerates the criminality of the [appellant’s] conduct is a judicial determination
that serves as a check against unfettered prosecutorial discretion.” Rhoades , 690 N.W.2d
at 138.
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Ramirez recognizes that his six child -pornography-possession sentences run
concurrently and do not enlarge the duration of his exec uted prison sentence. Instead, he
argues that, by imposing six sentences, the district court increased his criminal -history
score by six points for offenses that were a single behavioral incident and this unfairly
exaggerates the criminality of his conduct. Ramirez relies on two prior opinions, which we
discuss in turn.
In State v. Rieck, following the firebombing of a home, the jury found Rieck guilty
of five counts of aggravated assault involving five victims, one count of a rson, one count
of possessing a firebomb, and one count of witness tampering involving a sixth victim.
286 N.W.2d 724, 725 (Minn. 1979). The district court imposed five consecutive sentences
for the assault convictions , and three concurrent terms for the arson, possession, and
witness-tampering convictions. Id. at 726. On appeal, Rieck argued, among other issues,
that his sentences unfairly exaggerated the criminality of his conduct. Id. at 726-27. The
supreme court upheld the five consecutive sentences for the assault convictions and the
concurrent sentence for witness tampering, but overturned the arson and possession
sentences as unfairly exaggerating Rieck’s criminality . Id. at 727. The supreme court
reasoned that the arson and possession offenses did not involve victims different from those
involved in the assault and witness-tampering offenses. Id.
Ramirez contends that the supreme court’s reversal of Rieck’s arson and possession
sentences was not based on an increased duration of his overall prison commitment. While
this is accurate, it is incorrect to infer, as Ramirez implies in his brief to this court, that the
supreme court vacated Rieck’s arson and possession sentences because the sentence
9
increased his criminal-history score. Rather, t he supreme court vacated the arson and
possession sentences because they did not involve different victims.
In Rieck, the supreme court determined that five assault sentences “were proper
because defendant knew, or should have known, that there would be multiple victims.” Id.
at 727. The supreme court also affirmed the witness -tampering sentence because it
involved another victim. Id. Similarly, Ramirez’s child-pornography-possession offenses
involved six victims and his testimony at the plea hearing underscored this fact.
Ramirez also cites State v. Brennan, to argue that only one sentence is warranted for
his six child -pornography-possession convictions. 674 N.W.2d 200 (Minn. App. 2004),
review denied (Minn. Apr. 20, 2004). In Brennan, the defendant received two sentences
for two convictions of possessing child pornography in two separate behavioral incidents.
Id. at 203. On appeal, this court reversed and remanded the defendant’s sentences because
the defendant had no notice of the upward durational departure. Id. at 208.
Ramirez is correct that the defendant in Brennan received one sentence for each
separate behavioral incident— possession of child pornography on his work computer and
possession of child pornography on his home computer. Id. at 203. But we do not know if
Brennan involved multiple victims because the opinion does not discuss the
multiple-victim exception. Thus Brennan does not guide this court’s analysis.
The state contends that this court should affirm, first arguing that Ramirez’s
sentences do not unfairly exaggerate the criminality of his conduct because Ramirez
benefited when the state dismissed 21 counts against him. We agree with Ramirez that our
review focuses on the conduct underlying his convictions, and not on the benefit of the plea
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bargain. See generally State v. Barthman, 938 N.W.2d 257, 270 (Minn. 2020) (noting that
sentencing appeals consider conduct underlying defendant’s conviction, rather than
conduct relating to another offense when reviewing a durational departure).
The state also argues Ramirez’s sentences align with sentences imposed for similar
convictions, highlighting caselaw where this court has affirmed sentences for possessing
child pornography involving multiple victims. A reviewing court “looks to the imposition
of sentences in other cases to determine whether sentencing exaggerates the criminality of
conduct.” State v. Cole, 542 N.W.2d 43, 53 (Minn. 1996) (citing State v. Lee, 491 N.W.2d
895, 902 (Minn. 1992)). By comparing Ramirez’s sentences with sentences in caselaw
cited by the parties, this court applies “our collective, collegial experience in reviewing a
large number of criminal appeals.” Rhoades, 690 N.W.2d at 140 (citing State v. Miller ,
488 N.W.2d 235, 241 (Minn. 1992)).
In Rhoades, we considered whether the multiple -victim exception supported six
consecutive sentences for six child-pornography-possession convictions, leading to 84 total
months in prison. 690 N.W.2d at 137-40. We affirmed in part, upholding five consecutive
sentences, reasoning that they did “ not unfairly exaggerate the criminality of Rhoades’s
conduct.” Id. at 140. We also reversed and remanded with instructions to vacate one of the
consecutive sentences because it involved the same victim as another count. Id.1

1 The state relies on unpublished opinions affirming sentences for child -pornography
possession under the multiple -victim exception. While the state makes a good argument
for viewing these opinions as persuasive, we note they are not precedential. See Minn. Stat.
§ 480A.08, subd. 3(c); Gen. Cas. Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572, 575
n.2 (Minn. 2009) (stating that “the unpublished Minnesota court of appeals decision does
not constitute precedent”). For that reason, we do not discuss the unpublished opinions in
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Rhoades gives us perspective on the sentence imposed in Ramirez’s case. Ramirez’s
six separate 36-month prison sentences and the related six criminal -history points for six
counts of child -pornography possession is a shorter overall prison commitment than the
child-pornography sentences reviewed and upheld in Rhoades. And Ramirez’s sentences
are concurrent, unlike the consecutive sentences that Rhoades upheld. Thus, we conclude
that Ramirez’s sentences are in keeping with, or more lenient than , other sentences for
child-pornography possession.
Ramirez cites no cases that persuade us that his sentences do not align with other
sentences for similar criminal behavior. We conclude that while Ramirez’s child-
pornography-possession crimes were a single behavioral incident, the multiple -victim
exception applies to the sentences imposed . Because Ramirez has not shown that his
sentences unfairly exaggerate the criminality of his conduct, his sentences are affirmed.
Affirmed.

detail but note that they aid us in considering “past sentences received by other offenders.”
Miller, 488 N.W.2d at 241.