State v. Loren A. Christensen

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 6, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP181-CR Cir. Ct. No. 2017CF1009

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LOREN A. CHRISTENSEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: TIMOTHY A. HINKFUSS, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Loren Christensen appeals from a judgment
convicting him of multiple counts of possession of child pornography and from an
No. 2020AP181-CR

order denying his postconviction motion. Christensen contends he is entitled to
resentencing—or, in the alternative, sentence modification—based upon an
alleged inaccuracy in the information the State provided to the circuit court at
sentencing about the number of pornographic images of children found on
Christensen’s electronic devices and storage drives. We conclude that the
information provided to the court was not inaccurate and that additional
information about the images found on Christensen’s electronic devices and
storage drives did not constitute a new sentencing factor. We therefore affirm.

BACKGROUND

¶2 Christensen pled no contest to five counts of possession of child
pornography in exchange for the dismissal of five additional counts that were read
in. At the sentencing hearing, the State provided the circuit court with information
about the offenses. It noted that law enforcement had seized a desktop computer
and several external hard drives during the execution of a search warrant at
Christensen’s home. A sheriff’s department forensic analyst inventoried the
quantity of child pornography digitally stored on those devices.

¶3 According to the State, the analyst “ultimately located 108,927
visual images and videos of child pornography,” as well as 766,119 “category
two” images in which the subject’s age could not be established with certainty or a
child was depicted in an erotic manner but without nudity. The images had been
organized into files rather than merely being downloaded and left on the computer.
The State argued that the number of organized images recovered indicated that
collecting child pornography was not just a pastime for Christensen; it “had to
have been an absolute obsession.”

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¶4 In response, Christensen’s attorney quoted a law enforcement report
stating “at this time there are over 1,000 images and videos categorized as
category one” and “over 5,000” category two images. He argued that Christensen
“clicked on different things” but that he was more interested in erotica than
pornography. He further argued that Christensen had other hobbies, and he did
not dedicate all of his time looking at child pornography.

¶5 Addressing the nature and severity of the offenses, the circuit court
observed that it had not previously been aware of the volume of recovered images.
The court stated:

108,000 child pictures. 766,000 of category two. That is a
lot. That is just not someone that is clicking on a button
accidently or without intent that sees images. I mean, this
is a whole lot. And [the State] also made the point of the
drives so you could—so you could categorize them and
found [sic] them more easily.

The court added, “viewing of child pornography [is] a grievous, grievous crime.
It’s terrible. It’s about as bad as you can get, in my opinion. I mean, it’s
especially the number that you had, holy smokes, almost 800,000 photographs. I
mean, that’s a lot.” After discussing other factors, the court imposed concurrent
sentences of four years’ initial confinement and seven years’ extended supervision
on each count. The court cited the gravity of the offenses and the need to deter
others from viewing child pornography as its primary considerations.

¶6 Christensen filed a postconviction motion seeking resentencing or
sentence modification. The motion focused on “the number of unique files the
[S]tate argued were downloaded, organized, and subsequently discovered” on
Christensen’s computer and storage devices. Christensen alleged “a significant
portion of the files found on [his] computer are duplicates of one another, which

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No. 2020AP181-CR

contradicts the [S]tate’s argument that the 108,927 child pornography files and
766,119 category two files were all unique, individually downloaded, and
organized.” Christensen argued that the State’s representations at sentencing
regarding the number of images found on Christensen’s devices and the amount of
time Christensen spent downloading and reviewing child pornography were
therefore inaccurate, and that the more detailed analysis he offered clarifying that
many of the images were duplicative constituted a new sentencing factor.

¶7 Christensen did not hire his own forensic examiner and did not
provide the circuit court with an exact number of unique images he claimed were
located on his computer and hard drives. At the postconviction hearing,
Christensen’s attorney estimated that “at least half” of the child pornography
images were duplicates, with a “ballpark” of 30,000 to 50,000 unique images.
Christensen’s attorney further noted that many of the images had been
downloaded en masse through a file-sharing program called BitTorrent, so it was
not a situation where Christensen had “clicked 108,000 individual times to
download these images.”

¶8 The State pointed out that it had not used the term “unique images”
at the sentencing hearing, but it acknowledged that notion “was implied” and that
it was “fair to consider that there may have been an error as to the total number of
images.” The State argued, however, that the substance of its sentencing argument
remained the same—that Christensen was “regularly engaged in the download of
child pornography at a massive amount.”

¶9 The circuit court first rejected the premise that duplicate images
should not be included in the total count of images. It did not matter to the court if
Christensen had included the same picture in more than one file; he was still

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No. 2020AP181-CR

organizing them all. The court next noted that it considered even 1,000 images to
be “a lot.” That number of images still would not have ended up on Christensen’s
computer accidentally and supported the court’s view that Christensen had
contributed to creating a market for child pornography. The court concluded that
there was no inaccurate information or new factor warranting resentencing or
sentence modification, and it denied the postconviction motion. Christensen now
appeals.

DISCUSSION

1. Inaccurate Information

¶10 A defendant has a constitutionally protected due process right to be
sentenced upon accurate information. State v. Tiepelman, 2006 WI 66, ¶9, 291
Wis. 2d 179, 717 N.W.2d 1. If a defendant can establish by clear and convincing
evidence both that inaccurate information was presented at sentencing and that the
court relied upon the misinformation in reaching its determination, the burden
shifts to the State to show that the error was harmless. Id., ¶26. A defendant who
has been sentenced on inaccurate information that cannot be shown to be harmless
is entitled to be resentenced. State v. Payette, 2008 WI App 106, ¶¶45-46, 313
Wis. 2d 39, 756 N.W.2d 423. This court will independently review a due process
claim that a defendant has been sentenced based upon inaccurate information.
Tiepelman, 291 Wis. 2d 179, ¶9.

¶11 Christensen renews his argument that there were not 108,927 unique
images of child pornography contained in the files on his computer and hard
drives because an unspecified but “significant” portion of the images were
duplicates. However, the State never stated at the sentencing hearing that all of
the images of child pornography found on Christensen’s computer were unique.

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No. 2020AP181-CR

Christensen does not dispute that there were a total of 108,927 files containing
child pornography on his computer and hard drives, just as the State said. At
most, then, the information provided to the circuit court about the images was
incomplete as to their individuality, not false as to their number.

¶12 We do not deem information to be “inaccurate” merely because it
was incomplete. Rather, the defendant must demonstrate the information was
“extensively and materially false.” State v. Travis, 2013 WI 38, ¶18, 347 Wis. 2d
142, 832 N.W.2d 491. We conclude Christensen has failed to demonstrate by
clear and convincing evidence that the information presented at his sentencing
hearing about the number of child pornography images on his computer and hard
drives was inaccurate within the meaning of Tiepelman and Travis. Therefore,
the circuit court properly denied Christensen’s motion for resentencing.

2. New Factor

¶13 A circuit court has ongoing inherent authority to modify a previously
imposed sentence based upon a new factor. State v. Crochiere, 2004 WI 78, ¶12,
273 Wis. 2d 57, 681 N.W.2d 524, abrogated by State v. Harbor, 2011 WI 28, 333
Wis. 2d 53, 797 N.W.2d 828. A new sentencing factor is a fact or set of facts
highly relevant to the imposition of sentence but not known to the circuit court at
the time of sentencing, either because the fact was not then in existence or because
it was unknowingly overlooked by all the parties. Rosado v. State, 70 Wis. 2d
280, 288, 234 N.W.2d 69 (1975).

¶14 A defendant bears the burden of establishing a new factor by clear
and convincing evidence. Harbor, 333 Wis. 2d 53, ¶36. Whether a particular fact
or set of facts constitutes a new factor is a question of law subject to our de novo
review. Id., ¶¶33, 36. However, whether a new factor warrants a modification of

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No. 2020AP181-CR

sentence is a discretionary determination, on which we will defer to the circuit
court. Id., ¶¶33, 37. If this court determines that a fact or set of facts does not
constitute a new factor as a matter of law, we need not examine the circuit court’s
exercise of discretion. Id., ¶38. Conversely, if the circuit court has determined
that a particular set of facts would not warrant sentence modification, we need not
determine whether those facts constitute a new factor. Id.

¶15 Christensen contends the duplication of child pornography images
among the files on his computer and hard drives constitutes a new sentencing
factor because the circuit court emphasized the number of images found during its
discussion of the nature and severity of the offense. The problem with this theory
is that, even taking into account the duplication of images, Christensen
acknowledged at the postconviction hearing that there were probably 30,000 to
50,000 unique child pornography images among the files. The significance the
court placed on the large number of child pornography images in Christensen’s
possession applied equally whether Christensen had multiple copies of at least
30,000 images or over 100,000 distinct images. In fact, the court observed that it
would have felt the same way about even 1,000 images. Based upon the existence
of the number of images Christensen acknowledged, the court could still make the
inferences that Christensen had not innocently or inadvertently downloaded the
images, that he spent a significant amount of time viewing and organizing child
pornography, and that he had contributed to the market demand for sexually
exploiting children. We therefore conclude that the duplication of images was not
highly relevant to the sentences imposed and it did not constitute a new factor
warranting sentence modification.

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No. 2020AP181-CR

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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