This opinion will be unpublished and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
State of Minnesota,
David John Dumonceaux,
Filed August 22, 2000
Isanti County District Court
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jeffrey R. Edbald, Isanti County Attorney, 555 – 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)
John M. Stuart, State Public Defender, Michael C. Davis, Assistant State Public Defender, 46 East Fourth Street, 1042 Minnesota Building, St. Paul, MN 55101 (for appellant)
Considered and decided by Anderson, Presiding Judge, Amundson, Judge, and Huspeni, Judge.*
On appeal from sentence imposed for first-degree burglary, appellant argues that the district court abused its discretion in an upward departure. That departure was based on the invasion of the victim’s zone of privacy, the presence of children, the psychological impact of offense, the particular cruelty of the offense, and on appellant’s violation of an OFP. Appellant also argues that the court abused its discretion in refusing to grant a dispositional departure. We affirm.
Appellant David John Dumonceaux and the victim were married in 1985 and separated in 1998. The parties have three children, ranging in ages from eleven to three; and reside with the victim. On May 6, 1998, the victim obtained an order for protection forbidding Dumonceaux from coming within one mile of her home. Dumonceaux was aware of the terms of the order for protection.
On June 6, 1998, Dumonceaux went to his estranged wife’s home to discuss the divorce proceedings she initiated. Worried that she would call the police, he parked his car about one hundred feet away and cut the phone line to the house before approaching it. At approximately 1:00 a.m., with the children in bed and the victim reading a book, her dog began barking. The victim heard the sound of rattling glass, looked outside, and saw Dumonceaux at the bottom of the stairs leading to her front door. She screamed and ran to the bathroom as Dumonceaux forcibly broke through her front door. While in the bathroom, the victim attempted to call 911, but discovered that there was no dial tone. Enraged, Dumonceaux grabbed the victim, saying, “If I can’t have you, no one will.”
Terrified that she might be killed and that her children might be harmed, the victim persuaded Dumonceaux to sit and talk with her in the living room. During this discussion, Dumonceaux again became angry and grabbed her by the shirt and pulled her up and out of her chair—tearing her clothing. He then pushed her back into the chair. Although her clothing was damaged, the victim did not suffer any physical injuries.
The two then talked for about an hour, during which time the victim agreed to do whatever Dumonceaux wanted, including dropping the divorce proceedings, stopping the order for protection, attending church with Dumonceaux the next morning, and not calling the police. Having secured these promises, Dumonceaux left. The victim then realized that her door was broken and could not be locked. Fearing that he might return, she stayed awake the rest of the night. At daybreak, she woke her children and took them with her to a pay phone where she called 911.
Dumonceaux was convicted of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c); fifth-degree domestic assault in violation of Minn. Stat. § 609.2242, subd. 1(1) or 2; and violation of an OFP in violation of Minn. Stat. § 518B.01, subd. 14(a). At sentencing, the state argued for an upward durational departure and Dumonceaux argued for a downward dispositional departure. The court sentenced Dumonceaux to 60 months for the first-degree burglary charge, a durational departure from the presumptive sentence of 48 months. Dumonceaux was also given two concurrent 90-day jail sentences for the fifth-degree assault and the OFP violation. This appeal followed.
D E C I S I O N
Sentencing departures rest within the discretion of the sentencing court and will not be reversed absent an abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). But “a sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted).
Departures from presumptive sentences are reviewed under an abuse-of-discretion standard, and there must be substantial and compelling circumstances in the record to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). Substantial and compelling circumstances are those that make the crime either more or less serious than a typical case involving the same crime. State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1993).
Dumonceaux argues that the sentencing court erred in departing from the presumptive sentence. The district court imposed a 25% upward departure on the first-degree burglary sentence, listing five reasons: the invasion of the victim’s zone of privacy, the presence of children, the psychological impact and the particular cruelty of the crime, and the violation of a valid OFP. If the record contains the reasons supporting a departure, we examine it first to determine if these reasons justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If those reasons justify the departure, it will be sustained. Id. If the reasons given are inadequate, the departure will be allowed only if there is sufficient evidence which otherwise justifies it. Id.
Invasion of the victim’s zone of privacy
A sentencing court in a burglary case may use the invasion of a victim’s home as a reason for an upward sentencing departure if the invasion is not an essential element of the charge itself. State v. Pierson, 368 N.W.2d 427, 436 (Minn. App. 1985). Dumonceaux was convicted of violating Minn. Stat. § 609.582, subd. 1(c) (1998), which only requires that the burglar enter a building, not a dwelling. Entering a building does not necessarily involve a privacy-zone invasion. It is axiomatic that unauthorized entry into residential dwellings is more serious than entry into commercial or industrial buildings. The use of the invasion of the victim’s zone of privacy is a proper basis for an upward departure. Pierson, 368 N.W.2d at 436.
Dumonceaux argues that the use of the factor was inappropriate because there were no physical injuries to the victim and concomitantly no medical testimony of such injury. But such evidence is not required for a departure based on this circumstance. See id at 435-36 (approving use of “zone of privacy” factor for a double departure for burglary without evidence of any injuries or medical aftereffects). The invasion of the “zone of privacy,” specifically with regard to the safety of divorced persons in their homes, is a departure factor because
being [a] victim of a crime occurring in one’s home imposes an additional psychological shock. The victim’s home is no longer the “island of security” upon which the victim has previously relied, thereby making the offense particularly cruel.
State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991). Here, the effect of breaking into the victim’s home was much more than a passing invasion of her “island of security.” That she could not sleep because of the disabled door and phone evidences this illegal invasion long after Dumonceaux left her home. The court was well within its discretion when it relied on this factor to substantiate its departure from the presumptive sentence.
Presence of Children
The presence of a child in another room is a valid basis for departure and is analogous to a victim’s reduced physical capacity. State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). Dumonceaux argues that the record does not support the finding that the victim feared for her children’s safety or how this affected any of her decision-making. But in fact, the victim testified that all of her interaction that night with Dumonceaux was to pacify him and save her own life. Coupled with the victim’s earlier statement that she feared for her children’s safety, it can be readily inferred that her pacification of the defendant was also animated by her fear for her unprotected children, especially if she were to be injured or killed by Dumonceaux. Use of this factor was appropriate to substantiate an upward departure.
Emotional and psychological effects on a victim may justify a durational departure in sentencing. State v. Branson, 529 N.W.2d 1, 5 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). The victim testified at sentencing about the negative psychological effects of the burglary. Specifically, she said that since the burglary, she has: felt like a hunted animal; been in hiding, withdrawn from society; been forced to get an unlisted telephone number, and kept her address confidential. The court did not abuse its discretion in relying on the emotional damage factor as a basis for its departure.
We do not address the other two factors used by the sentencing court to support its departure as the record amply reveals the departure was supported. See State v. O'Brien, 369 N.W.2d 525, 527 (Minn. 1985) (one factor sufficient to justify a double durational departure); see also State v. Magee, 413 N.W.2d 230, 234 (Minn. App. 1987 (finding one factor sufficient to justify a one and one-half times departure), review denied (Minn. Nov. 24, 1987).
Dumonceaux finally argues that the sentencing court erred in failing to grant a discretionary downward dispositional departure. A sentencing court has great latitude in sentencing, and we do not substitute our judgment for that of the sentencing court. State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996). It is a rare case that warrants the reversal of a refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Dumonceaux suggests that the district court should have granted his request for a dispositional departure because there was much testimony that he was amenable to treatment in a probationary setting. But even if a defendant is exceptionally amenable to treatment, his amenability does not dictate that the sentencing court is obligated to make such departure. State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996), review denied (Oct. 29, 1996). The district court’s refusal to grant a dispositional departure does not constitute an abuse of discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.