This opinion is nonprecedential except as provided by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
                                     A23-0199

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                Gregory Steven Proell, Jr.,
                                       Appellant.

                                  Filed January 2, 2024
                                        Affirmed
                                      Gaïtas, Judge

                               Anoka County District Court
                                File No. 02-CR-21-5517

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

Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney,
Anoka, Minnesota (for respondent)

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

      Considered and decided by Gaïtas, Presiding Judge; Smith, Tracy M., Judge; and

Wheelock, Judge.

                           NONPRECEDENTIAL OPINION

GAÏTAS, Judge

      Appellant Gregory Steven Proell Jr. challenges the district court’s imposition of four

consecutive sentences following his guilty pleas to four counts of possession of child

pornography. He argues that the district court erred by imposing multiple sentences
because his possession of the pornographic images involved a single behavioral incident.

Alternatively, he contends that consecutive sentences unfairly exaggerate the criminality

of his conduct. Because consecutive sentences are lawful under the multiple-victim rule

even for offenses occurring during a single behavioral incident, and because the sentences

do not unfairly exaggerate Proell’s criminality, we affirm.

                                         FACTS

       Police discovered multiple images of suspected child pornography on Proell’s

phone. During a subsequent investigation, the National Center for Missing and Exploited

Children confirmed that six of the images came from “four known [child pornography]

image series” and “contained prepubescent girls, meaning under the age of 13.” The

organization also verified that the six images depicted four different girls, two of whom

appeared in two separate images.       Following the investigation, respondent State of

Minnesota charged Proell with ten counts of possession of pornographic work involving

minors, including four counts of possessing images of children under the age of 13. 1

       Proell and the state entered into a plea agreement. The agreement required Proell

to plead guilty to the four charges involving the images of children under the age of 13,

and, in exchange, the state would dismiss the remaining child pornography charges and a

felony charge in another matter. Under the terms of the agreement, Proell would be




1
  See 

, subd. 4(a) (prohibiting possession of pornographic work
involving minors), (b)(3) (prohibiting possession of pornographic work involving minors
under age 13) (2020).

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sentenced to 100 months in prison on one count and consecutive 18-month sentences on

the three remaining counts. 2

       During the guilty-plea hearing, Proell admitted to the following facts: the police

seized his cellphone, which contained images that qualified as child pornography; he was

aware the images were on his phone; he knew the images were from four different child

pornography image series; when he downloaded the images, he knew they were child

pornography; the images were of “real children under the age of 13”; and the children in

all six images “were depicted showing their bare genitals or engaged in sexually explicit

positions.” Proell also acknowledged that he came into possession of the images by taking

an individual “screenshot” of each image on a social media application.

       Before sentencing, the district court expressed concern that separate sentences, as

required under the plea agreement, could violate Minnesota law. Based on this concern,

the district court asked the parties to brief the issue of whether Proell’s possession of the

four images stemmed from four separate courses of conduct or from a single behavioral

incident. At the sentencing hearing, the district court stated that it was “comfortable going

forward with the plea agreement” because Proell’s possession of the images “required



2
  Under the terms of the plea agreement, Proell’s criminal-history score of six would be
used to calculate the presumptive sentence for the first conviction, and, in accordance with
the sentencing guidelines, a criminal-history score of zero would be used to calculate the
presumptive sentences for the remaining three consecutive sentences. See Minn. Sent’g
Guidelines 2.F.2.b (“For each felony offense sentenced consecutively to another felony
offense(s), the court must use a Criminal History Score of 0, or the mandatory minimum
for the offense, whichever is longer, to determine the presumptive duration.”) & cmt.
2.F.202 (“The purpose of this procedure is to count an offender’s criminal history score
only one time in the computation of consecutive sentence durations.”) (2020).

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[Proell] to take four separate screenshots and save four separate images of each victim to

his phone.” The district court found that Proell’s conduct constituted “four distinct and

separate actions [showing] intent to possess four different images of known child

pornography.” Given these findings, the district court concluded that multiple sentences

were lawful. Additionally, the district court noted that the existence of multiple victims

provided an alternative rationale for the multiple sentences required by the plea agreement.

The district court sentenced Proell to the agreed-upon sentences of 100 months in prison

followed by three consecutive 18-month prison terms.

       Proell appeals.

                                       DECISION

       Proell challenges the district court’s imposition of multiple sentences on two

grounds. First, he argues that his sentences violate Minnesota Statutes section 609.035,

subdivision 1 (2020), which bars the imposition of multiple sentences when more than one

conviction stems from a single course of conduct. Second, and alternatively, he contends

that his sentences unfairly exaggerate the criminality of his conduct.

       An appellate court affords the sentencing court wide discretion and will reverse a

sentence “only for an abuse of that discretion.” State v. Soto, 

(Minn. 2014) (quoting State v. Spain, 

 (Minn. 1999)). The district court

abuses its discretion when a sentence is “based on an erroneous view of the law or is

against logic and the facts in the record.” State v. Hallmark, 

(Minn. 2019) (quotation omitted). However, whether offenses were part of a single

behavioral incident for the purpose of sentencing presents a mixed question of law and

                                             4
fact; the appellate court reviews the district court’s factual findings for clear error and the

application of the law to the facts de novo. State v. Bakken, 

 (Minn.

2016); see also State v. O’Meara, 

 (Minn. App. 2008) (stating that a

district court’s decision as to whether multiple offenses were committed as part of a

single behavioral incident for the purpose of section 609.035 entails factual

determinations that will not be reversed unless clearly erroneous).

         We first consider Proell’s argument that the district court’s imposition of multiple

sentences violated Minnesota law because he possessed the four images of child

pornography during a single behavioral incident. Section 609.035, subdivision 1, provides

that “if 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.” Under this statutory provision,

multiple sentences—even concurrent sentences—are unlawful if imposed “for two or more

offenses that were committed as part of a single behavioral incident.” Bakken, 

 (quotation omitted). This principle protects a defendant from “unfair exaggeration

of the criminality of his conduct.” State v. Johnson, 

 (Minn. App.

2002).

         However, section 609.035 does not apply when a defendant commits multiple acts

against multiple victims. Munt v. State, 

 (Minn. 2018). The

Minnesota Supreme Court has stated that “acts committed against separate victims are not

‘conduct’ for purposes of section 609.035 because the legislature did not intend in every

case to immunize offenders from the consequences of separate crimes intentionally

committed in a single episode against more than one individual.” 

. Thus, in cases

                                              5
involving multiple victims—even when the defendant’s conduct constituted a single

behavioral incident—“the [district] court may impose one sentence per victim . . . so long

as the multiple sentences do not unfairly exaggerate the criminality of the defendant’s

conduct.” State v. Montalvo, 

 (Minn. 1982); see also Munt, 

 (concluding that the “multiple-victim rule” was “within the judicial

branch’s authority and does not violate separation-of-powers principles”).

       We have previously applied the multiple-victim rule to affirm multiple sentences

imposed for multiple child pornography convictions involving a single behavioral incident.

In State v. Rhoades, we stated that a defendant “convicted of multiple counts of possession

of child pornography as part of a single behavioral incident that involves images of multiple

victims may be sentenced consecutively on each count under the multiple-victim [rule].”

 (Minn. App. 2004).

       Here, the record supports the district court’s finding that each of the four images

that Proell possessed depicted a different victim. And we note that Proell does not argue

on appeal that the multiple-victim rule does not apply under the circumstances of his case.

Because the multiple-victim rule applies, the district court’s imposition of multiple

sentences was lawful even if Proell’s conduct involved a single behavioral incident. See

Montalvo, 

. Thus, section 609.035 is not implicated here.

       Proell next contends that, even if the district court had authority to impose multiple

sentences, its decision to do so was an abuse of discretion because a 154-month prison

sentence for possessing four child-pornography images unfairly exaggerates the

criminality of his conduct.


                                             6
       “Consecutive sentencing of multiple felonies with multiple victims is permissive

and within the broad discretion of the [district] court.” State v. Richardson, 

 (Minn. 2003). But a district court abuses its discretion when its imposition of

consecutive sentences unfairly exaggerates the criminality of a defendant’s conduct. See

Rhoades, 

; State v. Cruz-Ramirez, 

 (Minn.

2009) (noting that, appellate courts review the imposition of multiple and consecutive

sentences when multiple victims are involved under the abuse-of-discretion standard, and

multiple sentences will be upheld so long as they do not unfairly exaggerate the criminality

of the conduct); State v. Vang, 

 (Minn. 2014) (“[Appellate courts]

will not interfere with a district court’s discretion in sentencing unless the sentence is

disproportionate to the offense or unfairly exaggerates the criminality of the defendant’s

conduct.”).

       In sentencing Proell, the district court specifically considered whether multiple

consecutive sentences would unfairly exaggerate the criminality of Proell’s conduct. The

district court concluded that the agreed-upon consecutive sentences were not unfair. It

noted that Proell was originally charged with ten counts of possessing child pornography

and he received a substantial benefit under the terms of the plea agreement, which required

the state to dismiss six counts. The district court also referenced Proell’s criminal history,

which was lengthy and included a prior criminal sexual conduct offense involving a minor.

       To address whether a sentence unfairly exaggerates the criminality of a defendant’s

conduct, an appellate court examines sentences in similar cases. State v. Lee, 

 (Minn. 1992). Proell does not cite any factually similar cases to support his


                                              7
argument that consecutive sentences unfairly exaggerate the criminality of his conduct.

But the state directs us to our decision in Rhoades, which we again find instructive. There,

the defendant was charged with ten counts of possession of child pornography and pleaded

guilty to six charges in exchange for receiving “a separate sentence on each count, to be

served consecutively.” Rhoades, 

. Relying on the defendant’s criminal-

history score of four, the district court adopted the plea agreement and sentenced the

defendant to 24 months for the first count and consecutive sentences of one-year-and-one-

day for the remaining five counts for a total of 84 months’ imprisonment. 

 We

determined in Rhoades that the consecutive sentences did not unfairly exaggerate the

criminality of the defendant’s conduct. 

.

       The total duration of Proell’s sentences is slightly longer than the total duration of

the sentences in Rhoades. However, this difference is not material given the specific

circumstances in Proell’s case. Because Proell’s victims were under 13 years old, his

convictions were for more serious offenses than those in Rhoades. 3 And Proell had a higher

criminal-history score than the defendant in Rhoades. Accounting for these distinctions,

Proell’s sentences are comparable to the sentences in Rhoades, which we determined did

not exaggerate the criminality of the defendant’s conduct. Thus, we reject Proell’s

argument that his consecutive sentences must be reversed because they unfairly exaggerate

the criminality of his conduct.

       Affirmed.


3
 The appellant in Rhoades was convicted of possessing images involving minors, but not
images of minors under 13 years of age. Rhoades, 

.

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