This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-99-788

State of Minnesota,
Respondent,

vs.

Thomas Ray Haemig,
Appellant.

Filed January 25, 2000
Affirmed as modified
Halbrooks, Judge

Isanti County District Court
File No. KX98987

Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Jeffrey Edblad, Isanti County Attorney, 555 18th Avenue SE, Cambridge, MN 55802 (for respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant Thomas Ray Haemig appeals his conviction for second-degree criminal sexual conduct. He contends that (1) the evidence was insufficient to establish beyond a reasonable doubt that the contact he engaged in was for the purposes of satisfying his sexual or aggressive impulse; and (2) the trial court abused its discretion by ordering his two stayed terms of imprisonment to run consecutively while his periods of probation are to run concurrently. We affirm Haemig’s conviction, but because the consecutive stayed terms constitute a departure without accompanying findings, we conclude the trial court abused its discretion in departing upward from the presumptive guidelines sentence. We, therefore, modify the sentence so that the two stayed terms of imprisonment run concurrently.

FACTS

On August 8, 1998, a dispatcher at the Isanti County Sheriff’s Department reported to investigator Timothy Akers that her two granddaughters, B.P. and K.P., ages five and six, had possibly been sexually molested by appellant Thomas Ray Haemig. The dispatcher specifically reported that the girls had been touched in their vaginal areas.

Akers met the girls and their parents at the sheriff’s department that night. He separately interviewed both girls using the "Corner House" technique for interviewing child-victims of alleged sexual abuse and he videotaped the interviews. Their mother was present during both interviews.

In her interview, K.P. identified male and female body parts using prepared diagrams. She identified the vaginal area using the word "privates." She also displayed an understanding of the difference between "okay" and "not okay" touches. When Akers asked K.P. if anyone had ever touched her in a "not okay" way, she said that Haemig had. Using the diagram, she indicated to Akers that Haemig had touched her in the vaginal area over her clothes, and that it happened on more than one occasion. She stated that Haemig touched her when she and her sister played hide-and-seek with him. K.P. said that Haemig also touched her sister. Additionally, she told Akers that she informed her babysitter about what happened.

Akers then interviewed B.P. She also was able to identify male and female body parts and demonstrated that she understood the difference between an "okay" touch and a "not okay" touch. When asked if anyone had ever touched her in a "not okay" way, B.P. told Akers that Haemig had. She indicated that he touched her in her "privacy area" and on her buttocks, with his hand on top of her clothes. B.P. also told Akers that the touching occurred when she and her sister were playing hide-and-seek with Haemig.

On August 24, 1998, Akers met with Haemig at the Dairy Queen where he worked. According to Akers, when he identified himself and told Haemig he needed to talk to him, Haemig responded by asking if he was "in trouble for touching Brian’s [the girls’ father] kids?" Haemig was eventually charged with two counts of second-degree criminal sexual conduct.

Haemig elected to waive his right to a jury trial and the matter was tried to the court. The state called Akers, who testified about his investigation, including the statement Haemig made to him at the Dairy Queen.

The girls’ babysitter also testified at trial. She testified that B.P. and K.P. had told her that Haemig had touched them. She testified that she did not say anything about it at first because she did not know what to make of it at the time. She also testified about an incident that occurred at the girls’ home one evening. She said that from outside their bedroom window, she heard the girls talking. She then heard Haemig tell them to lay down on the bed and she saw the girls get up on the bed. She told the girls to come outside. When she asked them what they were doing, they told her that they were playing hide-and-seek with Haemig. They told her that Haemig touched whomever he finds "down there in their private spot." She testified that the girls were referring to their vaginal areas.

Neither K.P. nor B.P. testified. But, a videotape of their interviews with Akers was introduced without defense objection.

Haemig did not testify on his own behalf. However, a co-worker at the Dairy Queen store who had been present when Akers first confronted Haemig, testified that prior to the confrontation, Haemig had told her that he had been accused of touching a friend’s daughter. Thus, Haemig was aware of the nature of the accusation even before Akers introduced himself.

The trial court found Haemig guilty of two counts of second-degree criminal sexual conduct. At sentencing, the trial court stayed imposition of the presumptive guidelines sentences, but ordered that if the sentences were executed they would be consecutive. The trial court then placed Haemig on probation for a period of up to 25 years for each count, but ordered that the periods of probation would run concurrently.

This appeal followed.

D E C I S I O N

1. Sufficiency of the evidence

In analyzing a challenge to the sufficiency of the evidence, an appellate court examines the evidence in the record, along with legitimate inferences from that evidence, to determine whether the jury could have concluded that the state met its burden of proving beyond a reasonable doubt that the defendant was guilty of each of the charged offenses. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). The evidence is reviewed in the light most favorable to the jury’s verdict and the court must assume that the jury believed the state’s witnesses and disbelieved evidence contradicting those witnesses. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).

While a conviction based only on circumstantial evidence warrants stricter scrutiny, such "evidence is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt."

State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999) (quotation omitted). Nevertheless, the fact-finder determines the credibility and weight of circumstantial evidence and the reviewing court must continue to assume that the fact-finder believed the state’s witnesses. State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).

Haemig challenges the sufficiency of the evidence supporting his convictions of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (1998). He argues the state did not prove beyond a reasonable doubt that he had the necessary sexual or aggressive intent when he touched K.P.’s and B.P.’s vaginas while playing hide-and-seek with them.[1] Moreover, Haemig argues any proof of intent is necessarily circumstantial because he did not admit his intent.

In the present case, we conclude there was sufficient circumstantial evidence of Haemig’s sexual intent that the trial court could reasonably have found Haemig guilty of second-degree criminal sexual conduct. The circumstances surrounding the touching, the girls’ description of the touching and reaction to it, and Haemig’s response when confronted by Akers all support the determination that Haemig acted with sexual intent.

Haemig touched the vaginal areas of the girls when he caught them during their games of hide-and-seek. The touching occurred on at least two different occasions and took place in secret. Additionally, when asked about the touching, the girls both told Akers that Haemig’s touches were not "okay touches," indicating they recognized the improper nature of Haemig’s touching.

Also, the factors indicating intent in the instant case are analogous to those noted by this court in In re C.S.K., 438 N.W.2d 375, 377 (Minn. App. 1988). In C.S.K., the 16-year-old defendant got into bed with the 14-year-old complainant a number of times and was able to touch the clothing covering her vaginal area, buttocks, and breasts. Id. at 376. The defendant claimed any contact was "rough-housing" and not sexual contact. Id. at 377. In upholding the trial court’s conclusion that the contact was sexually or aggressively motivated, this court cited the complainant’s belief that the touching was sexual, and the defendant’s repeated attempts to touch the complainant. Id; see also State v. Christopherson, 500 N.W.2d 794, 798 (Minn. App. 1993) (holding the four-year-old victim’s testimony that the defendant kissed her with his tongue in her mouth and fondled her buttocks was alone sufficient evidence to show the defendant acted with sexual intent).

2. Sentencing

In his pro se brief, Haemig asks this court to review his sentence. He contends the trial court abused its discretion when it ordered his sentences to be consecutive rather than concurrent and sentenced him to 50 years of probation.

Haemig’s belief that he was sentenced to 50 years of probation appears to be a misunderstanding stemming from the trial court’s statements at the sentencing hearing.[2] The trial court’s order, however, states Haemig was placed on probation for 25 years for each of his convictions and his periods of probation are to run concurrently. Thus, his probation period is 25 years, not 50.

But, we conclude the trial court abused its discretion when it determined Haemig’s stayed sentences should run consecutively. Because the presumptive disposition of Haemig’s sentences is to stay them, imposition of consecutive sentences is an upward departure from the guidelines. See Minn. Sent. Guidelines II.F. (stating consecutive sentences are permissive for multiple current felonies against persons where the presumptive disposition for the offense is commitment).

A trial court has discretion to depart from a defendant’s presumptive guidelines sentence only when the offense involves "substantial and compelling circumstances," which make the facts of a particular case different from the typical case.

Cooper v. State, 565 N.W.2d 27, 34 (Minn. App. 1997) (quoting State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985)), review denied (Minn. Aug. 5, 1997); see Minn. Sent. Guidelines II.F. (providing presumption of concurrence). When such circumstances are present and the trial court departs from the presumptive sentence, the court

must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.

Minn. Sent. Guidelines II.D.

In sentencing Haemig, the trial court verbally noted the prosecutor had listed several aggravating factors which would support a departure, but the court did not make these findings. Nor did it give any other reason for its dispositional departure.

We, therefore, conclude the trial court abused its discretion when it departed upward from the guidelines, and we modify the sentence so that the two stayed terms of imprisonment run concurrently.

Affirmed as modified.

[1] Appellant correctly notes that the trial court failed to make specific factual findings in its order as required by Minn. R. Crim. P. 26.01, subd. 2. But, where the record contains evidence to support the convictions:

If the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding.
Minn. R. Crim. P. 26.01, subd. 2; see also State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988) (holding although trial court did not specifically find defendant entered residence with intent to commit criminal sexual conduct, as required to support conviction of burglary in the first degree, intent could be assumed to be included in the general finding), review denied (Minn. Feb. 22, 1989). Thus, although the trial court did not specifically find Haemig touched the children with sexual or aggressive intent, such intent can be assumed to be included in the general findings.

[2] At the sentencing hearing, the trial court commented:

And hopefully you will be back out, life is never going to be the same as it was for you, as you indicated before, because you are not going to be allowed around young children. * * * For upwards of 50 years, but hopefully you can get as close to it as we can.