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This opinion is nonprecedential except as provided by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
A22-0915

State of Minnesota,
Respondent,

vs.

Christopher Todd Smith,
Appellant.

Filed May 8, 2023
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Hennepin County District Court
File No. 27-CR-21-8534

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

Mary F. Moriarty, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Micha el McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Reilly , Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
In this direct appeal from judgments of conviction for one count of first-degree drug
possession and six counts of possession of child pornography, appellant argues the district
court (1) refused to exercise its sentencing discretion when it denied his motion for a
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mitigated downward dispositional departure , and (2) erred by entering convictions for five
of his six possession of child pornography offenses. We affirm in part because the district
court neither failed to exercise nor abuse d its discretion in sentencing. However, we
reverse in part and remand because appellant’s multiple convictions violate Minn. Stat.
§ 609.04 (2020).
FACTS
In December 2020, police executed search warrants on the home, person, and
vehicle of appellant Christopher Todd Smith after receiving a tip from the National Center
for Missing and Exploited Children (the Center). The Center alerted police to child
pornography saved to Smith’s Dropbox accounts.1 In Smith’s car, officers disco vered 55
grams of methamphetamine. Officers seized Smith’s computers and digital media. During
a forensic examination of Smith’s computers and online accounts, officers discovered over
10,000 files containing child pornography, including 3,000 files that contained victims
known to the Center. Officers also found over 20,000 files of child erotica or pornography
where the ages of the victims were not readily apparent but appeared underage.
In May 2021, respondent State of Minnesota charged Smith with one count of first-
degree possession of a controlled substance and six counts of possession of child
pornography. The complaint alleged Smith possessed the methamphetamine and
pornography on or about December 10, 2020. But the complaint did not allege that each

1 Dropbox is a company that provides online accounts for the storage and sharing of
electronic files, including photos, documents, and videos. See State v. Pauli, 979 N.W .2d
39, 43 (Minn. 2022).
3
child pornography count involved a different victim. Smith enrolled himself in sex -
offender treatment at Alpha Emergence Behavioral Services (Alpha). Alpha diagnosed
Smith with unspecified paraphilic disorder, depression history, and schizoaffect ive
disorder by history. Smith attended 12 sessions at Alpha but then missed sessions and
dropped out of the program.
Smith pleaded guilty to all charges. When establishing the factual basis to support
his plea, Smith admitted he had “six images of pornography involving minors” that he
“possess[ed] through [his] Dropbox account .” Smith did not admit that the six images
depicted different victims. The district court ordered a psychosexual evaluation and
presentencing investigation report (PSI). Smith’s psychosexual evaluation concluded
Smith was at an above average risk to reoffend and recommended he participate in sex -
offender treatment. Four months before his sentencing hearing, Smith reenrolled at Alpha
but failed to attend his first group session. Smith also completed an outpatient chemical -
dependency treatment program at Fairview Health.
Smith moved for a mitigated dispositional sentencing departure before his
sentencing hearing. He argued that he was particularly amenable to sex-offender treatment
and probation. The state opposed Smith’s motion. In anticipation of the sentencing
hearing, the district court also requested briefing from the parties on whether Smith could
be convicted and sentenced on all six child pornography charges .
At the sentencing hearing, t he district court heard arguments from both parties. The
district court also reviewed the PSI and addendum , a report from Alpha, a chemical -
dependency treatment letter, the psychosexual evaluation, letters from Smith and his
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family, and va rious documents from the Center. The district court stated that it was
impressed by Smith’s effort to get himself into treatment, but unimpressed with the
progress he made at Alpha . The district court found there were no substantial and
compelling grounds to grant Smith’s departure motion.
The district court also noted it believed the case was “incorrectly charged with
respect to the pornography counts .” The district court found that the pornography counts
were part of a single behaviora l incident because the offenses occurred on the same date
and Smith had a singul ar criminal objective of building a collection of pornographic
material. The district court also found that the state failed to meet its burden of establishing
that there were six different victims to support sentencing Smith on all six child
pornography counts. As a result, the district court entered convictions on all six possession
of child pornography counts but only imposed a 25-month stayed presumptive sentence on
one count. The district court also sentenced Smith to 78 months in prison for first -degree
possession of a controlled substance. After the hearing, the district court issued a
sentencing memorandum to summarize its sentencing decisions pronounced from the
bench.
This appeal follows.
DECISION
I. The district court did not abuse its discretion or fail to exercise its discretion
when it denied Smith’s motion for a mitigated downward dispositional
departure for the controlled-substance crime .

The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses and seek to “maintain uniformity, proportionality, rationality, and predictability
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in sentencing.” Minn. Stat. § 244.09, subd. 5 (2022). Sentences prescribed by the
sentencing guidelines —or presumptive sentences —are “presumed to be appropriate ” in
every case. Minn. Sent’g Guidelines 2.D.1 (2020); State v. Soto, 855 N.W.2d 303, 308
(Minn. 2014). A district court must impose the presumptive sentence or a sentence withi n
the presumptive range unless there are “identifiable, substantial, and compelling
circumstances” that support a departure from the guidelines. Soto, 855 N.W.2d at 308.
A mitigated dispositional departure occurs when the sentencing guidelines
recommend a prison sentence, but the district court stays the sentence. Minn. Sent’g
Guidelines 1.B.5.a.2 (2020). A downward dispositional departure may be based on a
defendant’s “particular amenability to individualized treatment in a probationary setting.”
State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). “ Numerous factors, including the
defendant ’s age, his prior record, his remorse, his cooperation, his attitude while in court,
and the support of friends and/or family, are relevant to a determination whether a
defendant is particularly suitable to individualized treatment in a probationary setting.” Id.
The existence of mitigating factors does not require the district court to depart from the
presumptive sentence. See State v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011).
We review the district court’s sentencing decision for an abuse of discretion. State
v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). We affirm the district court’s “imposition
of a presumptive guidelines sentence when the record shows [that] the sentencing court
carefully evaluated all the testimony and information presented before making a
determination.” State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013), rev. denied
6
(Minn. Sept. 17, 2013). A district court ’s refusal to d epart from the guidelines will be
reversed only in “rare” cases. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
On appeal, Smith’s argument mainly focuses on his first -degree possession of a
controlled-substance offense. Smith moved for a mitigated downw ard dispositional
departure on all charges before the district court determined Smith could only be sentenced
on one child pornography count. This decision rendered a mitigated dispositional departure
unnecessary on his child pornography offense because t he corresponding presumptive
sentence was a 25 -month stay. See Minn. Sent’g Guidelines 1.B.5.a.2 (“A mitigated
dispositional departure occurs when the Guidelines recommend a prison sentence but the
court stays the sentence.”) . But the presumptive sentence for his controlled -substance
offense was a commitment to prison and thus eligible for de parture. Smith asserts the
district court erroneously focused on factors related to his child pornography offense in
considering his departure motion and failed to exercise its sentencing discretion to depart
on Smith’s controlled-substance offense . Smith relies on State v. Curtiss to argue that the
district court made a reversible error when it decided he did not deserve a departure based
on behavior related to the offense s that were ineligible for departure and “the departure
topic was abandoned before the [district] court exercised its broad discretion ” as to his
controlled-substance offense. 353 N.W.2d 262, 263 (Minn. App. 1984).
The district court did articulate reasons for and against departure at the sentencing
hearing and in its explanatory memorandum that discussed Smith’s inconsistent
performance in sex -offender treatment and the seriousness of his child pornography
offenses. But we do not agree the district court failed to exercise its sentencing discretion
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when ruling on Smit h’s departure motion. We are not persuaded by Smith’s reliance on
Curtiss.
In Curtiss, an 18- year-old defendant stole beer from the breezeway of an occupied
house while on probation and was charged with first-degree burglary. Id. The district court
denied the defendant’s request for a downward durational departure to an 18- month
sentence, reasoning there were “no justifiable reason[s] to deviate” and sentenced him to
33 months in prison. Id. On appeal this court remanded for resentencing, noting the
departure analysis was “abandoned before . . . comparing reasons for and against
departure” and concluded “[t]his is not that rare case where we interfere with the exercise
of discretion, but a case where the exercise of discretion has not occurred.” Id . at 263-64.
Unlike Curtiss, the district court did not abandon the reasons for and against a
mitigated dispositional departure on Smith’s controlled-substance offense. We affirm “the
imposition of a presumptive guidelines sentence when the record shows [that ] the
sentencing court carefully evaluated all the testimony and information presented before
making a determination.” Johnson, 831 N.W.2d at 925. Here, t he district court stated that
it “reviewed the [PSI and addendum], memoranda submitted by both counsel along with
attached exhibits . . . the psychosexual evaluation . . . reports and letters from [Smith] and
[Smith’s] family, [and] the Alpha report” before making its sentencing decision. These
materials contained information relevant to Smith’s methamphetamine possession. The
district court’s sentencing memorandum revealed that it also reviewed letters from Smith’s
chemical-dependency treatment provider and Narcotics Anonymous sponsor.
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At the time of the sentencing hearing, Smith had around seven months of sobriety.
Smith stated his judgment was clouded by drug use at the time of his offenses and argued
his completion of outpatient chemical -dependency treatment and praise from his sponsor
supported his departure motion. The district court stated it was “impressed with the fact
[Smith] got [himself] into treatment.” Smith’s PSI indicated he struggled with drug
addiction and bought the 55 grams of methamphetamine seized from his car to have a
consistent supply to use during the pandemic. The PSI also noted Smith participated in
multiple inpatient and outpatient chemical-dependency treatment programs over the years
and his addiction played a large role in his housing and employment instability.
On this record, we conclude the district court carefully evaluated testimony and
information related to Smith’s addiction, past and current treatment , and recent sobriety.
Although the district court could have more thoroughly addressed these factors in its
sentencing memorandum, its failure to do so is not an abuse of discretion or failure to
exercise discretion. See State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985) (noting
an explanation is not required when a district court denies a departure and im poses a
presumptive sentence as long as it considers the reasons for or against departure ). Further,
the district court permissibly considered Smith’s lack of engagement and inconsistent
performance in sex -offender treatment as factors relevant to whether he is particularly
amenable to treatment and probation on his controlled-substance offense. The district court
noted his performance “[does not] demonstrate . . . [Smith is] appropriate for probation.”
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Because the district court did not fail to exercise its discretion or abuse its broad
sentencing discretion when it determined substantial and compelling circumstances did not
support Smith’s requested downward dispositional departure, we affirm .
II. The district court erred by entering convictions on all six p ossession of child
pornography counts.

Both parties agree that the district court erred when it entered convictions on all six
possession of child pornography counts and five of the convictions must be reversed
because they are barred by Minn. Stat. § 609.04. We also agree.
A criminal defendant “may be convicted of either the crime charged or an included
offense, but not both.” Minn. Stat. § 609.04, subd. 1. An included offense is a lesser degree
of the same crime or “a crime necessarily proved if the c rime charged were proved.” Id.,
subd. 1(4). But the protections of section 609.04 will not apply if the offenses constitute
separate criminal acts. State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). The inquiry
into whether two offenses are separate criminal acts is analogous to an inquiry into whether
multiple offenses constitute a single behavioral incident under Minn. Stat. § 609.035
(2020). Id. (“Factors considered when analyzing whether conduct is a single behavioral
incident include time and place and whether the . . . conduct . . . was motivated by an effort
to obtain a single criminal objective.” (quotation omitted)). The state has the burden of
proof. State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000). We review de novo whether
a defendant’s multiple convictions violate Minn. Stat. § 609.04. State v. Cox, 820 N.W.2d
540, 552 (Minn. 2012).
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First, it is clear Smith was charged with and convicted of six violations of the same
possession of child pornography statute, Minn. Stat. § 617.247, subd. 4(a) (2020). These
multiple convictions fall under section 609.04 as each offense requires proof of the same
elements. See Minn. Stat. § 609.04, subd. 1(4).
Second, the district court analyzed whether it could impose a sentence on each of
Smith’s six child pornography counts under Minn. Stat. § 609.035. The district court
concluded the state did not m eet its burden of proof and determined all of Smith’s
pornography possession counts were part of a single behavioral incident because the
offenses occurred on the same date and Smith had a singular criminal objective of building
a collection of pornographic material. We agree. In its complaint, the state alleged Smith
possessed the six images on or about December 10 using his personal computers and online
accounts. During his plea hearing, Smith admitted he knowingly possessed the images and
affirmed the allegations in the complaint were accurate. But he did not admit, nor did the
state prove, he downloaded or possessed the images at different times. Smith also
described his purpose in obtaining the pornography was to “build a collection.” Thus,
Smith’s child pornography offenses were part of a single behavioral incident and did not
constitute separate criminal acts. See Bertsch , 707 N.W.2d at 664.
Even if the offenses are not separate criminal acts, the multiple -victim rule allows
defendants to be sentenced for multiple convictions of possessing child pornography when
the crimes affected more than one victim. State v. Rhoades , 690 N.W.2d 135, 139 (Minn.
App. 2004); see also Munt v. State, 920 N.W.2d 410, 418- 19 (Minn. 2018) (describing the
multiple-victim rule) . Here too, the state failed to meet its burden. While Smith
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acknowledged during his plea hearing that over 3,000 files i n his possession contained
images of victims known to the Center, the state failed to introduce evidence that there
were six unique victims to support Smith’s six charges. Smith made no such admission.
The district court noted the state had “ an opportunity in drafting the complaint, in asking
follow-up questions at the plea hearing, in both sentencing memoranda, and on the record
at all three sentencing hearings” to establish there were different victims involved and
failed to do so. As a result, the mul tiple-victim rule does not apply. Smith’s multiple
convictions for possession of child pornography violate section 609.04 and five of the six
convictions must be vacated.
Affirmed in part, reversed in part, and remanded.