This opinion will be unpublished and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,
Jennifer Ann Rieger,
Affirmed in part, Reversed in part, and Remanded
Washington County District Court
File No. K6984147
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Doug Johnson, Washington County Attorney, Linda C. Krafthefer, Assistant County Attorney, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)
Melissa Sheridan, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Jennifer Ann Rieger appeals from convictions and sentences for malicious punishment of a child, child endangerment, and child neglect, arguing that (1) the district court abused its discretion in admitting testimony by the victim’s foster parent; (2) there were no aggravating factors supporting dispositional and double durational sentencing departures; and (3) imposing three sentences violated Minn. Stat. § 609.035 (1998). Appellant also submitted a pro se supplemental brief. We affirm in part, reverse in part, and remand.
Rulings involving the relevancy of evidence are generally left to the district court’s sound discretion. State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995). The party claiming error has the burden of showing both the error and the resulting prejudice. Id. Evidence is relevant if it
logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.
Id. Even relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403.
Appellant argues that the district court abused its discretion in admitting testimony by J.H.’s foster mother, Dori Johnson, because the testimony was irrelevant and prejudicial. We disagree. Johnson testified regarding her 12-year history as a foster parent, her community involvement, J.H.’s integration into the Johnson’s regular family activities, the discipline procedure in her home, and the daily routine in her home. She also testified that J.H. was not familiar with daily routines and that they had to teach her about dressing herself, brushing her hair, brushing her teeth, and basic chores. Appellant has not met her burden of proving that this testimony was irrelevant or prejudicial.
Johnson’s testimony indicated that J.H. was able to participate in family activities, respond to appropriate discipline, and learn age-appropriate routines and chores. This evidence provided circumstantial support for the theory that J.H.’s condition was due to appellant’s mistreatment and thus is relevant as tending to make a material fact more or less probable. Johnson’s testimony also supported the conclusion that, contrary to the defense theory, the traumatic event of an assault by a previous caregiver did not account for J.H.’s condition.
Moreover, the district court was mindful of potential prejudice but determined, within its discretion, that Johnson’s testimony was not unduly prejudicial. We reject appellant’s argument that Johnson’s testimony invited the jury to compare appellant’s parenting with Johnson’s “model” parenting and encouraged the jury to make a decision based on emotion rather than fact. Johnson did not use inflammatory language and did not directly comment on appellant’s parenting or make direct comparisons between her parenting and that of appellant.
The district court sentenced appellant to concurrent terms of 24 months’ imprisonment for each offense, which represented both dispositional and durational departures from the presumptive sentences. Departures from presumptive sentences are reviewed under an abuse-of-discretion standard, but 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). If the stated reasons for the departure are improper or inadequate but there is sufficient evidence in the record to justify departure, the departure will be affirmed. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
A defendant’s unamenability to probation justifies executing a presumptively stayed sentence. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Numerous factors including the defendant’s age, prior record, remorse, cooperation, attitude in court, and support of friends and family are relevant in determining amenability to probation. Id.
Appellant argues that she was amenable to probation based on (1) her statements that she would enroll in treatment and attempt to improve herself; and (2) her compliance with evaluations and the presentence investigation. But the district court’s determination that appellant was not amenable to probation was supported by ample evidence. Appellant did not demonstrate remorse but continued to deny any mistreatment in the face of overwhelming medical evidence. In addition, appellant has a limited support system and sought to blame others for her conduct. The guardian ad litem for appellant’s two sons testified that (1) appellant was not cooperating with county case plans regarding educational and medical needs of the boys; (2) it was “a real struggle” to have appellant participate in assessments of the boys and to enroll the children in school; (3) meetings were delayed for several months as a result of appellant canceling appointments; and (4) appellant failed to make appointments for recommended therapy, failed to show up for appointments once they were made, and failed to forward paperwork to physicians in a timely manner. Further, appellant demonstrated an inability to comply with court requirements outside of supervision. After the jury rendered its verdict, the court told appellant that her no-contact order remained in effect. But when appellant left the courtroom, she approached her two sisters and began to talk to them in the courthouse hallway in violation of the order.
Moreover, the presentence investigation report supported the district court’s determination. The court noted that the report was “very complete and comprehensive” and that the report was the product of a staff consultation regarding appellant. The report recommended that “a significant period of incarceration” be imposed given appellant’s attitude of denial. The report noted that appellant had a need for a high level of supervision based on her family and marital relations, emotional and personal problems, refusal to admit any wrongdoing in the face of overwhelming evidence, and her attitude about supervision. We conclude the district court did not abuse its discretion in determining that appellant was not amenable to probation and imposing a dispositional departure.
In addition to the dispositional departures, the district court imposed durational departures based on the aggravating factors of appellant’s particular cruelty and the child’s particular vulnerability.
Appellant first argues that it was impermissible to rely on J.H.’s age in departing durationally because it is part of the offenses. But even when age is an element of the offense, age can be considered in connection with other factors in a sentencing departure. State v. Cermak, 350 N.W.2d 328, 336 (Minn. 1984); see also State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987) (stating that while age was “implicit” in the offense of criminal sexual conduct, other factors established the victim’s vulnerability including that defendant used his position of trust to assault the victim while she was sleeping on the family couch).
The district court’s finding of particular vulnerability was based not only on age but also on infirmity and reduced mental and physical capacity. This determination was not an abuse of discretion. The record reflects that J.H., who was between the ages of three and six during the offenses, was: (1) weakened to the point of near starvation; (2) developmentally delayed; (3) isolated from her grandmother and aunts; and (4) not enrolled in school. Thus J.H. was not vulnerable solely because of her age; she was vulnerable because of the length of the mistreatment, her resulting condition, and because appellant isolated J.H. from others who could have discovered the situation and come to her aid.
Appellant also argues that the district court abused its discretion when it determined that appellant acted with particular cruelty. We disagree. A finding of cruelty can be based on the nature and extent of physical damage and the treatment necessary to repair the injury. State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982). Here, the evidence indicates that J.H. (1) was severely stunted in growth; (2) remained behind in motor skills and academics even after a year of foster care, therapy, and school; and (3) has ongoing issues with posttraumatic stress and behavioral problems. This long-term impact and the severity of J.H.’s symptoms at the time she was removed from appellant’s care evidence particular cruelty.
Additionally, J.H.’s severe emotional trauma could support a departure. See State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (holding that departure was supported by psychological damage to the victim). J.H. had posttraumatic stress disorder evidenced by the wetting and soiling of her pants, nightmares, restricted emotional display, startled responses, “hysteric” reactions to showers and bathing, and obsessive behaviors regarding food. Testimony indicated that J.H. could suffer from long-term psychological difficulties and may require long-term therapy.
Because of the multiple aggravating factors in this case, we conclude the district court did not abuse its discretion in imposing a double durational departure.
Generally, if a person’s conduct constitutes more than one offense but arises out of the same behavioral incident, the person may be punished only for one offense. Minn. Stat. § 609.035, subd. 1 (1998). Whether incidents constitute more than one offense for sentencing purposes depends on the facts and circumstances of the particular case. State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).
[T]he factors to be considered in determining whether multiple offenses constitute a single behavioral act are time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.
State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997) (citation omitted). If the factors of time and place are coincidental and a defendant is not motivated by a single criminal objective, the defendant may be sentenced for multiple crimes. State v. Bookwalter, 541 N.W.2d 290, 295 (Minn. 1995). The state has the burden to establish that the conduct underlying the offenses was not part of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000).
Appellant was charged based on her treatment of her child over the course of three years. Appellant argues that it was improper to impose three sentences because the offenses were part of a single behavioral incident. We conclude that the record supports separate sentences for malicious punishment in violation of Minn. Stat. § 609.377 (1998) and child neglect in violation of Minn. Stat. § 609.378, subd. 1(a) (1998).
The evidence indicates that appellant committed malicious punishment by restricting J.H. to the bathtub and locking her in a closet for prolonged periods of time. The child neglect conviction can be supported by the separate evidence that appellant (1) willfully deprived J.H. of food to the point that she was stunted in growth, chronically malnourished, and developed a food obsession; (2) failed to seek appropriate medical care for J.H.’s small size and developmental delays; (3) failed to seek psychological care after the assault by another caregiver; and (4) failed to get J.H. immunized or enrolled in school. Thus, the conduct underlying the convictions for malicious punishment and child neglect is separate in time, place, and criminal objective.
While the record supports imposing separate sentences for malicious punishment and neglect, we cannot identify a separate course of conduct constituting endangerment and the district court made no findings on this issue. A defendant commits child endangerment if the defendant has a parental relationship to the child and intentionally or recklessly causes or permits the child to be placed in a situation likely to substantially harm the child’s physical, mental, or emotional health. See Minn. Stat. § 609.378, subd. 1(b)(1) (1998). Here, the endangerment could be the result of the physical, mental, and emotional consequences of confining J.H. in the bathtub and closet or the physical, mental, and emotional consequences of depriving J.H. of necessary food, health care, or appropriate shelter. In either case, we cannot separate it from the other conduct in this case by time, place, or criminal objective. We conclude that the district court erred in imposing three separate sentences and remand for resentencing consistent with this opinion.
Finally, appellant submitted a pro se brief in which she criticized the evidence against her and disagreed with defense counsel’s decision to not call her friend as a trial witness. We have reviewed her claims and find them to be without merit. Appellant’s criticism that her friend should have testified on her behalf fails to establish ineffective assistance of counsel because it is merely an attack on defense counsel’s trial strategy. See State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (stating that defense counsel’s failure to call certain witnesses did not constitute ineffective performance and represented a matter of trial strategy that the court will not review for competence).
Affirmed in part, reversed in part, and remanded.