This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Reginald Eddie McKinley,
Filed May 15, 2001
Ramsey County District Court
File No. K4-99-3105
Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of second-degree criminal sexual conduct, arguing that the eight-year-old victim’s testimony was too doubtful to support the conviction. Appellant also argues that aggravating factors, including his prior offenses and the victim’s vulnerability, did not support the district court’s triple-upward-sentencing departure. Because the evidence was sufficient to support his conviction, and the aggravating factors justified the triple-upward sentencing departure, we affirm.
On September 7, 1999, B., an eight-year-old girl, alleged that appellant Reginald Eddie McKinley sexually assaulted her. At the time of the assault, B. was in her brothers’ bedroom with two brothers, an uncle, and appellant.
It was not unusual for either appellant or the uncle to spend the night at B.’s home. That evening, appellant, the uncle, the boys, and B. were watching television upstairs in the boys’ bedroom. B. came downstairs and told her mother, P.G., that appellant had “messed with” her and put his hand in her underwear. P.G. went upstairs to confront appellant, who pushed past her and left. P.G. noticed that her sons and the uncle were asleep.
When the police arrived, an officer interviewed B. She told the officer she had fallen asleep and awoke to find that appellant had his hand in her underwear and was rubbing her vagina with his fingers. B. said she told him to stop and then ran out of the room. An officer testified that he could see B. was scared and that B. clung to P.G. while she described the incident.
P.G. took B. to the hospital where a nurse interviewed her. During the interview, B. confirmed the story that she had told her mother and the officer, and added that appellant took her hand and had her move it up and down on his penis. B. showed the nurse how appellant touched her and corrected the nurse when she thought the nurse misunderstood her. A subsequent physical examination showed no signs of physical trauma, which the nurse testified was consistent with the type of contact B. described.
Respondent State of Minnesota charged appellant with criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subd. 1(a) (2000). During the subsequent jury trial, the district court admitted a videotape of the interview as substantive evidence. Also, the police officer, the nurse, the uncle, P.G., and B. testified. B. explained that both her uncle and her older brother had fallen asleep on beds while appellant, B., and B.’s four-year-old brother had fallen asleep on the floor. B. said appellant took her hand and moved it up and down on his penis. B. then moved with her little brother to a bed. B. woke up again when appellant began rubbing her vagina with his hand inside her underwear. At that point she ran downstairs to tell P.G. Although B.’s uncle testified, he did not corroborate her testimony. He testified that he was asleep at the time of the incident.
Following the state’s case, appellant moved for a directed verdict of acquittal, which the district court denied. The jury found appellant guilty. The district court sentenced appellant to 120 months in prison (a triple durational departure) under Minn. Stat. § 609.1095, subd. 2 (2000), the dangerous-and-repeat-offender statute. The district court based the upward departure on appellant’s criminal history and on other aggravating factors. This appeal followed.
1. Sufficiency of Evidence
Appellant argues that the evidence is insufficient to support his conviction. In reviewing the sufficiency of the evidence, this court must assume the jury believed the State’s evidence and discredited contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant asserts that, because of B.’s youth, her testimony is questionable and should be viewed with caution. He argues that the evidence is insufficient to support his conviction because respondent presented neither eyewitness testimony nor physical evidence to corroborate B.’s testimony.
Generally, in a prosecution for criminal sexual assault, the victim’s testimony need not be corroborated. Minn. Stat. § 609.347, subd. 1 (2000). If the prosecution involves sexual abuse of a child, corroboration of the victim's testimony may be required, but only if the evidence is otherwise insufficient to sustain the conviction. State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984); see also Coralin v. State, 377 N.W.2d 14, 20 (Minn. 1985)(finding testimony of seven-year-old sexual assault victim combined with evidence that accused had access to building sufficient to support conviction). In such a situation, prior consistent statements, behavior, prompt reporting, and the nature of injuries may corroborate the victim’s testimony. See State v. Halvorson, 506 N.W.2d 331, 335-36 (Minn. App. 1993) (victim’s detailed and consistent statements sufficient to support conviction); State v. Folley, 378 N.W.2d 21, 24-26 (Minn. App. 1985) (evidence sufficient to sustain conviction when the eight- and five-year-old children's testimony was consistently clear, direct, detailed, and, though not required, corroborated by adult testimony).
In this case, (1) B.’s description of the incident to her mother, the police officer, and the nurse was consistent with her testimony; (2) the police officer testified that immediately after the incident B. appeared scared and clung to her mother; and (3) B. told her mother about the incident immediately after it occurred. Although there was no evidence of physical injury, the nurse testified that its absence was consistent with the type of sexual abuse B. described.
Appellant’s argument that there must be physical evidence to support B.’s testimony is without merit. In Folley, we held that where the complainant’s testimony is detailed and consistent, physical evidence of sexual assault is not necessary to support a conviction. Folley, 378 N.W.2d 24-26. See also Myers, 359 N.W.2d at 608 (evidence of sexual assault sufficient even though no corroborative physical evidence in record).
A review of the record indicates that the evidence was sufficient to support the jury’s decision to believe B.’s account of the evening. The issues of credibility and weight of the evidence are for the jury to decide. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). B.’s prior consistent statements, behavior, and prompt reporting of the incident corroborated her testimony. Therefore, viewing the record in the light most favorable to the conviction, the jury could reasonably have believed appellant was guilty of sexually assaulting B.
Appellant also challenges the 120-month sentence the district court imposed. The decision to depart from the presumptive sentence rests within the district court’s discretion and will not be disturbed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
Under Minnesota’s sentencing guidelines, the presumptive sentence for second-degree criminal sexual assault for a person with a criminal history score of three is 39 months. The district court sentenced McKinley to 120 months in prison under Minnesota’s dangerous-and-repeat-offender statute, which provides:
Whenever a person is convicted of a violent crime that is a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence if the offender was at least 18 years old at the time the felony was committed, and:
(1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and
(2) the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:
(i) the offender’s past criminal behavior, such as the offender’s high frequency rate of criminal activity or juvenile adjudications, or long involvement in criminal activity * * *; or
(ii) the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.
Minn. Stat. § 609.1095, subd. 2 (2000).
Appellant challenges his sentence on two grounds: (1) the district court improperly considered his prior violent offenses because they occurred more than 15 years ago; and (2) the aggravating factors on which the district court relied in determining his sentence do not rise to the level of “severe aggravating circumstances” justifying a greater-than-double sentencing departure. He states that, at most, the district court should have sentenced him to 78 months, a double departure from the presumptive sentence.
Appellant argues that the district court should not have considered his prior violent offenses in sentencing because the offenses occurred more than 15 years ago. But neither the statute under which the district court sentenced appellant nor the relevant caselaw imposes such a limitation. See Minn. Stat.§ 609.1095, subd. 2; see also State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995) (upholding conviction where defendant found to be “danger to public safety” under dangerous-offender statute, having committed three violent felonies within an 18-year period, most of which time was spent in prison), review denied (Minn. Apr. 18, 1995).
Here, the record shows that the district court considered appellant’s previous criminal history. It cited his record, which included “not only three prior crimes of sexual violence, but two other felony convictions, one being for a crime of violence involving a female victim.” The district court emphasized the particularly brutal nature of two of the five earlier felony convictions. It also stated that it was not finding a pattern of sexual misconduct because the prior criminal sexual conduct occurred many years earlier (the earliest occurred December 4, 1980). But the district court pointed out that appellant continued to commit crimes when he was out of prison, most recently in June of 1999, several months before the incident with B., and therefore fell within the reach of the dangerous-and-repeat-offender statute.
Neither the statute nor the caselaw precludes the district court from considering appellant’s previous convictions at sentencing. Accordingly, the district court did not abuse its discretion by including them in finding that appellant falls within the sweep of the dangerous-offender statute.
Appellant also argues that the district court’s greater-than-double sentencing departure was improper because the circumstances of the incident did not rise to the level of severity required to impose such a sentence. Here, the district court based the upward departure on appellant’s criminal history and other aggravating factors, including appellant’s status as a long-time family friend and his commission of the sexual abuse while B. was asleep in her home, which violated both B.’s trust and her zone of privacy.
Appellant asserts that under Evans and the subsequent line of cases the district court must find severe aggravating circumstances to justify a greater-than-double departure. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). While this is true in some situations, the reasoning no longer applies when an offender comes under the purview of the dangerous-offender statute. See Halvorson, 506 N.W.2d at 339.
In Halvorson, we reviewed the defendant’s sentencing under Minnesota Statute § 609.1352, subd. 1 (1990), the patterned-sex-offender statute. We held that the language of the patterned-sex-offender statute does not require the presence of severe aggravating circumstances before a district court may impose a sentence greater than twice the presumptive sentence. Halvorson, 506 N.W.2d at 339. In reaching this determination, we referred to the supreme court’s decision in State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993). There the supreme court stated that falling within the career-offender statute’s reach constituted sufficient aggravating circumstances such that a sentencing court may rely on the statute alone to impose the statutory maximum sentence. Rachuy, 502 N.W.2d at 52. Halvorson found the Rachuy decision persuasive because of the similarity between the career-offender statute and the patterned-sex-offender statute; both statutes allow a sentencing court to depart durationally up to the maximum statutory term. Halvorson, 506 N.W.2d at 339 (citing Minn. Stat. § 609.1352, subd. 1 (1990) and § 609.152, subd. 3 (1992)). Accordingly, we held that the patterned-sex-offender statute does not require the presence of severe aggravating circumstances to justify imposition of a sentence longer than double the presumptive sentence. See id.
Like the career-offender statute and the patterned-sex-offender statute, the dangerous-offender statute under which the district court sentenced appellant allows a sentencing court to depart durationally to impose a sentence up to the maximum statutory term. Compare Minn. Stat. § 609.1095, subd. 2 with Minn. Stat. § 609.1352, subd. 1 and § 609.152, subd. 3. Accordingly, when a district court imposes a sentence under Minn. Stat. § 609.1095, subd. 2, the dangerous-offender statute, severe aggravating circumstances need not be present to justify imposition of a sentence longer than double the presumptive term.
Because the evidence was sufficient to support appellant’s conviction and the aggravating factors were sufficient to support the district court’s sentence, we affirm.
 To support his contention, appellant cites State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977) (alteration and omission in original) (quotation omitted). The language to which he refers states that, although neither the statute nor the constitution requires corroboration, "[t]he absence of corroboration in an individual case * * * may well call for a holding that there is insufficient evidence upon which a jury could find the defendant guilty beyond a reasonable doubt." Id. But in Folley we emphasized that the language in Ani on which appellant relies is mere dictum. State v. Folley, 378 N.W.2d 21, 25 (Minn. App. 1985). We pointed out that, in Ani, the supreme court upheld the defendant's conviction for rape, finding the victim's testimony positive, uncontradicted and strongly corroborated by other evidence. Folley, 378 N.W.2d at 25.