This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Brenda J. Rousseau,



Filed January 16, 2001


Shumaker, Judge


Clay County District Court

File No. K8991049


Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, No. 500, St. Paul, MN 55103; and


Lisa Borgen, Clay County Attorney, Courthouse, P.O. Box 280, Moorhead, MN 56561 (for respondent)


John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Mulally, Judge.*  


U N P U B L I S H E D   O P I N I O N



Appellant Brenda Jo Rousseau challenges her conviction for malicious punishment of a child under Minn. Stat. § 609.377 (1998), arguing that (1) the district court abused its discretion in failing to depart from the presumptive sentence, (2) her guilty plea was factually insufficient, and (3) her counsel's representation was ineffective.  We affirm.



Appellant Brenda Jo Rousseau provided daycare in her home for several children.  M.M., a seven-month-old baby girl, had been in Rousseau’s care for three weeks, and, according to Rosseau, was a particularly fussy baby.

On June 8, 1999, M.M. was crying and screaming and demanding constant attention.  Rosseau tried unsuccessfully to calm her.  Finally, Rousseau picked the baby up and just “snapped.”  She shook the baby back and forth.  Rousseau then carried the baby as she went into the basement to do laundry.  She testified that she tripped over a broom and M.M. flew out of her hands and hit her head on the concrete floor.

Rousseau’s husband called an ambulance and M.M. was taken to the hospital.  Two treating physicians stated that her symptoms were consistent with those of a “Shaken Baby Syndrome.”  M.M. suffered neurological injuries and visual impairment that required surgery.  Her brain is developing on only one side and she might experience seizures and partial paralysis in the future.

The state charged Rousseau with various counts of assault, child endangerment, and malicious punishment of a child.  After plea negotiations, Rousseau pleaded guilty to the felony of malicious punishment of a child resulting in great bodily harm, and the state dismissed all other charges.

At the sentencing, the state moved for a durational departure from the sentencing guidelines and Rousseau moved for either a dispositional or a durational departure.  The district court denied both motions and imposed a presumptive executed sentence of 48 months.  Arguing that the court abused its discretion in not granting her a dispositional or durational departure, Rousseau appeals.  In her pro se brief, Rousseau also contends that there was an insufficient factual basis for her plea, and that her attorney was ineffective.


Departure Motion

Felony sentencing in Minnesota is controlled by the Minnesota Sentencing Guidelines.

The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case.  The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances.


Minn. Sent. Guidelines II.D.

When there exist substantial and compelling aggravating or mitigating factors, “the judge may depart from the presumptive disposition or duration provided in the guidelines * * * .”  Minn. Sent. Guidelines cmt. II.D.01.  Departures from the sentencing guidelines are discretionary with the trial court and will not be reversed absent a clear abuse of that discretion.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  Only in “rare” cases will a reviewing court reverse a trial court’s imposition of a presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Even when there are grounds justifying a departure, an appellate court will not ordinarily interfere with the imposition of a presumptive sentence.  State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).

Rousseau contends that there exist substantial and compelling circumstances in mitigation of her crime.  Prior to the offense, Rousseau had been under tremendous stress related to financial difficulties, her infant son’s health problems, and a family car accident.  The stress made her very irritable and she simply lost control.  She argues that she did not intend to hurt M.M., that she felt horrible and extremely remorseful afterward, and that she became very depressed because of the incident.  She also produced medical evidence that she suffers from a bipolar disorder, which, if untreated, can cause poor frustration tolerance, irritability, and vulnerability to aggressive behavior.  Despite this condition, for which Rousseau takes medication, her physician indicated that she presents no risk of harm to people.  Rousseau argues that she has no history of violent or aggressive behavior and no criminal record, and that her family, friends, and mothers of daycare children are supportive of her.  She urges that she is an excellent candidate for probation or, at the very least, one-half the presumptive sentence if she must go to prison.

The court may depart dispositionally from the sentencing guidelines if the defendant is “particularly amenable to probation * * * .”  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).  In considering a dispositional departure, the court focuses “more on the defendant as an individual and on whether the presumptive sentence would be best for [the defendant] and for society.”  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  The court may consider as factors relevant to a dispositional departure the defendant’s age, prior record, remorse, cooperation, attitude, and support of family and friends.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  But even if the defendant is particularly amenable to treatment in a probationary setting, the sentencing court is not required to depart from the guidelines.  State v. Evenson, 554 N.W.2d. 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1998). 

The fact that a mitigating factor was clearly present did not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.  We have indicated in numerous cases that we generally will not interfere with a trial court’s refusal to depart downward (or upward).


State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (citations omitted).

None of the factors Rousseau points to mitigate the crime itself.  See Minn. Sent. Guidelines cmt II.D. 103.2a. (providing a nonexclusive list of mitigating factors).  Rather, all factors relate to her personal circumstances.  Although it is proper for the sentencing court to consider the factors Rousseau notes, it is equally appropriate for the court to consider the entire context of the crime, including any aggravating circumstances.  See Minn. Sent. Guidelines cmt. II.D. 103.2.b. (providing a nonexclusive list of aggravating factors).  Because M.M. was only seven months old she was particularly vulnerable, and shaking M.M. to get her to stop crying could be viewed as particularly cruel behavior.  Id.  Furthermore, Rousseau violated the special trust that M.M.’s parents demonstrated they had in her when they put M.M. in her care.  See State v. VanZEE, 547 N.W.2d 387, 392 (Minn. App. 1996) (holding that, when deciding whether to depart from the sentencing guidelines, it is proper for the court to consider that the defendant held a position of trust respecting the victim), review denied (Minn. July 10, 1996).

In the context of appropriately supported countermotions for upward and downward departures from the sentencing guidelines, we hold that the district court properly exercised its broad discretion by imposing the presumptive sentence.

Pro Se Issues

Rousseau argues that the facts adduced during her plea do not establish the essential elements of intent and great bodily harm.

The crime of malicious punishment of a child in this case requires proof that a caretaker committed an intentional act toward a child that evidenced unreasonable force or cruel discipline that was excessive and that caused great bodily harm to the child.   Minn. Stat. § 609.377 (1998).

Rousseau contends that she did not intend to hurt M.M.  But the requisite “intent” to establish that element of the crime is the intent to do the act, not necessarily to cause specific harm.  See State v. Kremer, 262 Minn. 190, 191, 114 N.W.2d 88, 89 (1962) (holding that wrongdoer does not need “to intend to commit the crime to which [her] act amounts,” but must “intend to do the act which constitutes the crime.”).  The plea record adequately shows that Rousseau intended to shake M.M.

Minn. Stat. § 609.02, subd. 8 (1998), defines “great bodily harm” as including “a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.”  Rousseau argues that some of M.M.’s symptoms are the result of her premature birth and a prior skull fracture.  She contends that there was no evidence that M.M.’s injuries from being shaken were life-threatening or permanent.  Despite her contentions, Rousseau admitted at the plea hearing that shaking M.M. caused significant neurological trauma.

The undisputed medical evidence summarized in the presentence investigation report reveals that, after Rousseau shook her and tripped and dropped her, M.M. suffered continuous seizures for eight hours, was paralyzed on the left side, and had severe blood hemorrhages behind her eyes.  M.M.’s ophthalmologist had to perform surgery to remove a blood clot behind M.M.’s left eye and he gave the opinion that M.M. had been shaken or was in a severe car accident.

Great bodily harm is not limited to permanent or protracted impairment but also includes serious bodily harm.  Id.  “Bodily harm” includes “physical pain or injury * * *  or any impairment of physical condition.”  Minn. Stat. § 609.02, subd. 7 (1998).  The eye hemorrhages and blood clot, which are medically documented as directly relating to the shaking, clearly constitute a physical injury of a serious nature.  The plea record establishes the essential element of great bodily harm.

Finally, Rousseau claims ineffective assistance of counsel.  She contends that her attorney did not adequately inform her of the proceedings and that she had no idea what was going on in the case. 

There exists a “strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance.”  Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997).  To succeed on an ineffective assistance of counsel claim, Rousseau must show that her attorney’s representation fell below an objective standard of reasonableness and that, but for his errors, there is a reasonable probability the result of the proceeding would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington, 466 U.S. 688, 694, 104 S. Ct. 2052, 2068 (1984)).  Rousseau has failed to show either that her attorney’s conduct fell below the requisite standard or that the result would have been different had the attorney made the inquiries and given her the information that she describes in her pro se supplemental brief.  Furthermore, she informed the court at the plea hearing that she was satisfied with her attorney’s representation and that she was entering her plea voluntarily.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.