This opinion will be unpublished and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

C1-00-1730

 

State of Minnesota,

Respondent,

 

vs.

 

Richard Alvin Yaeger,

Appellant.

 

Filed ­­­January 9, 2001

Affirmed

Harten, Judge

 

Nicollet County District Court

File No. K7-00-75

 

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

 

Michael K. Riley, Sr., Nicollet County Attorney, Michelle M. Fischer, Assistant County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082-0360 (for respondent)

 

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

 

            Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellant challenges the upward departure from the sentence imposed for second-degree criminal sexual conduct.  Because we find that the record supports an upward departure, we affirm.

FACTS

 

            Appellant Richard Yaeger, 47, frequently provided child care for then-eight-year-old R.L.K., the daughter of his girlfriend, C.R.  R.L.K. told a friend and later the friend’s group home supervisor that appellant, whom she referred to as her “stepdad,” had touched her vaginal area and inserted his finger, which hurt.  The friend’s group home supervisor told C.R., who reported the matter to the police, which resulted in criminal charges against appellant.

            At the district court omnibus hearing, the state submitted a videotape of a police detective’s interview of R.L.K, transcripts of interviews with C.R. and the friend whom R.L.K. told of the abuse, and a statement of the friend’s group home supervisor.

Appellant pled guilty to one count of criminal sexual conduct in the second degree in violation of Minn. Stat. §§ 609.343, subd. 1(h)(iii); 609.341, subd. 15(3) (1998) (sexual conduct with a victim under the age of 16 on multiple occasions over an extended period of time while having a significant relationship with the victim because the victim resides in the same dwelling).  The presumptive sentence was 58 months; the district court imposed an upward departure of 12 months, or 21%, finding “that there is a basis for departure for violation of zone of privacy * * * [a]lso, multiple acts over an extended period of time.”  Appellant challenges the departure.

D E C I S I O N

            The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). 

If the reasons given [for a departure from the sentencing guidelines] 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).  Here, one of the district court’s reasons is improper and the other is arguably inadequate, but the record is replete with evidence to justify the departure on an alternative basis.

            We agree with the parties that, because “multiple acts committed over an extended period of time” is an element of the offense of which appellant was convicted, it was an improper basis for departure.  However, the record here provides ample support for departure on an alternative basis, i.e., the particular vulnerability of the victim.  Not only was appellant not a stranger to R.L.K.’s household, he was C.R.’s boyfriend and C.R. had entrusted R.L.K. to his care.  R.L.K. was therefore particularly vulnerable to his abuse.  See State v. Kobow, 466 N.W.2d 747, 753 (Minn. App. 1991) (holding that particular vulnerability of victim raped by her mother’s boyfriend justified an 87.5% upward durational departure), review denied (Minn. Apr. 18, 1991); State v. Gettel, 404 N.W.2d 902, 906-07 (Minn. App. 1987) (holding that particular vulnerability of victim whose mother trusted defendant justified 50% upward durational departure), review denied  (Minn. June 26, 1987).  Therefore, there is sufficient evidence in the record to justify departure on the basis of the victim’s particular vulnerability, and we affirm on that basis.  See Williams, 361 N.W.2d at 844.

  Appellant argues that the district court also erred in using the violation of the victim’s zone of privacy as a basis for departure because he and R.L.K. resided in the same dwelling, so she had an expectation of privacy only in her bedroom, and he abused her in the living room.  For this argument, appellant relies on State v. Griffith, 480 N.W.2d 347, 351 (Minn. App. 1992) (holding that, if an assault occurs in a victim’s bedroom, it violates an expectation of privacy), review denied (Minn. Mar. 19, 1992); State v. Johnston, 390 N.W.2d 451, 457 (Minn. App. 1986) (when the zone of privacy factor is used to justify a departure, the defendant is generally a stranger to the victim’s household), review denied (Minn. Aug. 27, 1986); and State v. O’Brien, 364 N.W.2d 901, 905 (Minn. App. 1985) (holding that, if an assault occurs in the defendant’s home where the victim is a guest, the defendant does not invade the victim’s zone of privacy), aff’d as modified, 369 N.W.2d 525 (Minn. 1985).  But because we conclude that the record supports an upward departure on the basis of particular vulnerability, we do not address this argument or the applicability of these cases.  Even if we assume without deciding that the district court did err in departing on the basis of a violation of R.L.K.’s zone of privacy, we affirm because the departure is amply supported on an alternative basis.

            Affirmed.