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This opinion is nonprecedential except as provided by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
A21-0337

State of Minnesota,
Respondent,

vs.

Jesse Nikolas Rowland,
Appellant.

Filed December 27, 2021
Reversed and remanded
Frisch, Judge

Clay County District Court
File No. 14-CR-20-561

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

Brian J. Melton, Clay County Attorney, Pamela L. Foss, Chief Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middleb rook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Reyes, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant argues that the district court erred by imposing four separate sentences
for his child -pornography convictions because the state failed to demonstrate that the
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offenses were committed as separate behavioral incidents or that they involved multiple
victims. Appellant also makes several pro se arguments. We reverse and remand.
FACTS
After recovering two computers and two hard drives containing child pornography
from appellant Jesse Nickolas Rowland’s residence, r espondent State of Minnesota
charged Rowland with four counts of possession of child pornography in violation of Minn.
Stat. § 617.247, subd. 4(a) (Supp. 2019). Rowland pleaded guilty to all four counts.
The state elicited the following testimony from R owland to establish the factual
basis for the plea. Rowland agreed that each count of possession occurred on or about May
22, 2019, in Clay County. On that date, four devices were seized from his home. Rowland
agreed that he had downloaded child pornography onto each device. No other information
was elicited regarding Rowland’s possession of the devices or the details of the child
pornography contained on those devices. The district court accepted Rowland’s plea and
imposed stayed prison sentences of 15 months, 20 months, 25 months, and 30 months,
respectively, for the four counts.
This appeal follows.
DECISION
I. The state failed to prove that Rowland’s possession of child pornography on
multiple devices constituted multiple behavioral incidents.

Rowland argues that the district court erred when it entered sentences for all four
counts of possessing child pornography because the state failed to demonstrate that each
count was part of a single behavioral incident.
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“[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 (2018). A district court may not impose multiple sentences on a defendant fo r
multiple offenses committed as part of the same behavioral incident unless an exception to
the general rules applies. State v. Ferguson, 808 N.W.2d 586, 589 (Minn. 2012). The state
has “the burden of proving, by a preponderance of the evidence, that a defendant’s offenses
were not part of a single behavioral incident.” State v. Bakken , 883 N.W.2d 264, 270
(Minn. 2016).
We review the district court ’s findings of fact for clear error and its application of
the law to those facts de novo. Id. We determine whether the crimes were part of a single
behavioral incident by considering whether they “occurred at substantially the same time
and place” and “whether the conduct was motivated by an effort to obtain a single criminal
objective.” Id. (quotations omitted).
Here, Rowland admitted that on May 22, 2019 , he possessed the four devices
containing child pornography. He also admitted that all four devices were seized from the
same place, his home. Besides these two admissions, Rowland did not admit to any other
facts related to the charges, including when he downloaded specific files, how many files
were contained on the devices, or what those files specifically depicted. The factual basis
elicited in support of Rowland’s plea established only that Rowland possessed four devices
containing child pornography on the day the devices were seized from his residence.

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We find these facts to be analogous to those in State v. Carlson, 192 N.W.2d 421
(Minn. 1971). In Carlson, the defendants were charged with and convicted of 29 counts
of possessing and distributing obscene materials. 192 N.W.2d at 423. The charges
stemmed from a raid on their business which resulted in the seizure of 54 rolls of obscene
film. Id. The district court imposed a fine for each count. Id. The supreme court reversed
because the facts showed that the possession, combined w ith an intent to distribute,
constituted a sing le behavioral incident. See id. at 428 -29. The supreme court later
expressly opined that Carlson contained “no indication that the State could establish that
the defendants possessed the films or offered them for sale at any time or place other than
when and where they were discovered by police.” Bakken, 883 N.W.2d at 272.
Here, like in Carlson, Rowland’s charges stem from a singl e raid on his home by
law enforcement. The four devices containing the child pornography were all seized on
the same day and at the same location. No evidence was elicited setting forth when the
files on the devices were downloaded, whether the files on each device were different, any
information about the victim or victims depic ted in the files, or any other factual details.
Without additional evidence showing that Rowland possessed certain child pornography at
a time other than when law enforcement seized his devices, the state failed to meet its
burden to demonstrate that the counts were separated by time and place . See id.
(distinguishing Carlson with facts proving that defendant downloaded child pornography
on different days over several months).

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On appeal, the state urges us to “assume” that because of the allegedly vast amount
of pornography discovered on Rowland’s devices he must have downloaded and possessed
different depictions of child pornography at different times. Such an assumption would
require us to consider facts alleged only in the complaint and not admitted by the defendant,
which we will not do. Rosendahl v. State , 955 N.W.2d 294, 30 1 (Minn. App. 2021)
(“[C]onsideration of evidence not expressly acknowledged and admitted by the defendant
during the colloquy is not proper for a reviewing court to consider in a ‘typical’ plea.”).
Therefore, the state has failed to show that Rowland’s acts of possession lacked a unity of
time and place.
In addition, the state failed to show that Rowland’s conduct was not “motivated by
an effort to obtain a sing ular criminal objective.” Bakken, 883 N.W.2d at 27 0 (quotation
omitted). When analyzing this factor, “we examine the relationship of the offenses to one
another.” Id. at 270-71. “We consider whether all of the acts performed were necessary
to or incidental to the commission of a single crime and motivated by an intent to commit
that crime.” Id. at 271 (quotation omitted).
Here, the state argues that possession of child pornography for sexual gratification
cannot, on its own, constitut e a single criminal objective. However, we have previously
found the contrary . State v. McCauley , 820 N.W.2d 577, 591 (Minn. App. 2012)
(comparing criminal objectives related to possessing and disseminating child
pornography), rev. denied (Minn. Oct. 24, 2012). Although the state argues that such a
characterization is too broad, the supreme court has found similar situations to constitute a
single criminal objective. See State v. Herberg , 324 N.W.2d 346, 349 (Minn. 1982)
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(finding that two sexual assaults against the same victim, occurring at different times and
locations on the same day, were both related to defendant’s single objective to satisfy his
sexual desires); Langdon v. State , 375 N.W.2d 474, 476 (Minn. 1985) (finding that
defendant’s single criminal objective was to steal as much money as possible from multiple
units within an apartment complex). And in cases where multiple criminal objectives have
been found, the crimes have not been strongly connected by time or place. See Bakken,
883 N.W.2d at 27 0-71 (pornographic images downloaded on seven different days) ; State
v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989) (sexual assaults separated by multiple
hours and occurring in different counties), rev. denied (Minn. May 24, 1989).
Ultimately, the state bears the burden to show that multiple criminal objectives
existed. Bakken, 883 N.W.2d at 270. Here, the state has not presented any alternative
criminal objective distinct from Rowland’s possession of the child pornography for his
personal sexual gratification. Therefore, the state has failed to show that Rowland’s act of
possession was motivated by multiple criminal objectives.
The state argues that , even if Rowland’s acts of possession constituted a sing le
behavioral incident, the sentences are proper because a defendant may be sentenced for
multiple offenses stemming from a singl e behavioral incident where “(1) the offenses
involve multiple victims; and (2) the multiple sentencing does not unfairly exaggerate the
criminality of the defendant ’s conduct.” State v. Rhoades , 690 N.W.2d 135, 138 (Minn.
App. 2004). Whether the multiple-victim rule applies is subject to de novo review. State
v. Skipintheday, 717 N.W.2d 423, 426 (Minn. 2006).
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Here, the state did not elicit any testimony from Rowland regarding the child or
children depicted in the pornography contained on his four devices. Rowland did not admit
that the pornography depicted multiple child victims. The state again urges us to assume
the existence of at least four unique victims depicted in the images found on Rowland’s
devices. But we cannot make such an assum ption where the state did not elicit evidence
regarding the number of images and files contained on Rowland’s devices at the plea
hearing; these alleged details again originate from the complaint and statement of probable
cause, which we do not consider when establishing the factual record in support of a plea.
Rosendahl, 955 N.W.2d at 300. Thus, there is no evidence in the record to support the
state’s claims that Rowland’s offenses involved multiple victims.
Because the state failed to meet its burden o f showing that Rowland’s crimes were
not part of a singl e behavioral incident , and because the multiple -victim rule does not
apply, it was improper for the district court to enter a sentence for each count. We therefore
reverse and remand to the district court for resentencing consistent with this opinion.
II. Rowland’s plea was not coerced.

Rowland argues in his pro se supplemental brief that the state coerced him into
entering a plea of guilty by threatening him with hundreds of other charges if he did not so
plead. A plea must be made voluntarily without undue coercion by the state. State v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 201 0). Whether a plea is voluntary is determined by
considering all relevant circumstances. State v. Danh, 516 N.W.2d. 539, 544 (Minn. 1994).
There is no evidence in the record to support Rowland’s claims that his plea was
involuntary. Rowland acknowle dged in his plea petition and at the plea hearing that
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nobody threatened him to enter a guilty plea. No other evidence in the record supports his
assertion that he was threatened by the state. Therefore, Rowland’s plea was voluntary and
not the product of undue coercion.
III. Rowland was not denied his right to present a n affirmative defense of
voluntary intoxication.

Rowland also argues in his pro se brief that he should have been given the right to
present a defense of voluntary intoxication. However, by entering a plea of guilty,
Rowland waived all nonjurisdictional arguments, including affirmative defenses. State v.
Johnson, 422 N.W.2d 14, 16 (Minn. App. 1988), rev. denied (Minn. May 16, 1988).
Rowland argues that he would have raised the defense and not plead ed guilty had
the state not coerced him into entering a plea. But the record contains no evidence that the
state exerted any improper pressure on Rowland to plead guilty and Rowland admitted as
much at the plea hearing. Therefore, Rowland was not denied hi s right to present an
affirmative defense of voluntary intoxication.
IV. Rowland was not deprived of his right to a speedy trial.

Rowland also argues in his pro se brief that he was denied his right to a speedy trial.
The Sixth Amendment to the United Stat es Constitution provides an accused “the right to
a speedy and public trial.” U.S. Const. amend. VI; see also Minn. Const. art. 1, § 6. “A
defendant must be tried as soon as possible after entry of a plea other than guilty.” Minn.
R. Crim. P. 11.09(b). “On demand of any party after entry of such plea, the trial must start
within 60 days unless the court finds good cause for a later trial date.” Id.
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Here, the record does not reflect that Rowland ever asserted his right for a speedy
trial. Rowland ent ered a plea of not guilty on July 31, 2020. On December 11, 2020,
Rowland signed a plea petition waiving his right to a trial. Rowland also affirmed the
waiver of his right to a trial when he pleaded guilty. And even if Rowland was deprived
of his right to a speedy trial prior to entering his guilty plea, he waived his right to challenge
pre-plea constitutional deficiencies by pleading guilty. State v. Smith, 749 N.W.2d 88, 97
(Minn. App. 2008) (“[W]hen Smith pleaded guilty, his speedy-trial right evaporated.”).
Rowland argues that he did not assert his speedy -trial right and instead entered a
plea of guilty because he was provided with ineffective assistance of counsel. He alleges
that his counsel advised him that he was not allowed to raise the speedy -trial issue to get
his charges dismissed. Ineffective assistance of counsel renders a guilty plea involuntary.
State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).
A claim for ineffective assis tance of counsel requires the claimant to show that
(1) counsel’s performance fell below an objective standard of reasonableness and
(2) absent counsel’s unreasonable performance, the result of the proceeding likely would
have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694-95 (1984). “If
a claim fails to satisfy one of the Strickland requirements, we need not consider the other
requirement.” State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017).
Here, even assuming that counsel provided objectively erroneous legal advice
regarding Rowland’s ability to raise a speedy-trial defense, Rowland cannot show that the
result of the proceeding likely would have been different. Rowland fail s to show that a
trial would not have occurred within 60 days if he had asserted his speedy-trial right when
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he pleaded not guilty and that the charges would have been dismissed . Without evidence
in the record that his right to a speedy trial would have been violated had it been asserted,
we do not find that ine ffective assistance of counsel rendered Rowland’s plea invalid.
Therefore, Rowland’s right to raise a speedy -trial defense was waived when he entered a
plea of guilty.
Reversed and remanded.