This opinion will be unpublished and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,
Beau Jacob Edward Zimmer,
Filed June 19, 2001
Dakota County District Court
File No. K8-99-3007
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 W. Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, Jodie Lee Carlson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Foley, Judge.
Appellant challenges the sentence imposed for first-degree burglary, arguing that the statutory maximum 20-year sentence imposed under the patterned sex offender statute unfairly exaggerates the criminality of his conduct in entering an unlocked apartment, stealing a purse, and exposing himself to the victim. Because we see no abuse of discretion, we affirm.
Appellant Beau Jacob Edward Zimmer, then 19, walked into the female victim’s unlocked apartment when she was in the shower. Appellant, dressed in women’s clothes and carrying the victim’s purse, pulled the shower curtain aside and exposed himself to the victim. The victim kicked appellant, and he hit her. Appellant left the apartment in his car, taking the victim’s purse with him. Appellant obtained the victim’s phone number from directory assistance and called her apartment twice from a pay phone to taunt her.
At the time of this offense, appellant had a history of sexual and sexually motivated offenses. A pre-sentencing psychosexual evaluation led to the conclusion that appellant meets the criteria for patterned sex offenders. Appellant does not dispute this, but maintains that his 240-month sentence, the statutory maximum, was disproportionate to the severity of the offense for which it was imposed.
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).
The presumptive sentence for appellant’s crime was 58 months, and he concedes that he is a patterned sex offender. Minn. Stat. § 609.108, subd. 1(a) (2000), provides a sentence shall be imposed that is “not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum” for patterned sex offenders who are found to be a danger to public safety and in need of long-term treatment or supervision. Therefore, appellant’s minimum sentence was a double durational departure, or 116 months; his maximum sentence was the 240 months that the court imposed.
The district court noted two grounds for departing from the minimum. First, the district court observed:
[Appellant’s] behavior in this particular incident was cruel, and unnecessarily so. After terrifying the victim in her own home, he then made taunting phone calls to her. Those calls were obviously intended to further terrorize and frighten her.
The sentencing guidelines provide that treating a victim with particular cruelty is an aggravating offense. Minn. Sent. Guide. II D b (2); see also State v. Glaraton, 425 N.W.2d 831, 833 (Minn. 1988) (upholding greater than double durational departure based in part on “infliction of psychological trauma” as aggravating factor).
Second, the district court noted that “[appellant] chose to confront the victim while she was naked in the shower putting her obviously in a very frightening and vulnerable position.” This was an appropriate reason for an upward departure. “[A] trial court may properly consider invasion of privacy [as an aggravating factor] in burglary cases * * *.” State v. Pierson, 368 N.W.2d 427, 436 (Minn. App. 1985).
Appellant relies on State v. Stirens, 506 N.W.2d 302 (Minn. 1993), and State v. Lonergan, 505 N.W.2d 349 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993), to argue that his sentence is disproportionate to the severity of the crime, but his reliance is misplaced. In Stirens, two psychologists testified that the defendant would be amenable to treatment in a residential or structured living situation. Id. at 304. Here, the psychologist’s testimony was that
[appellant] has failed to successfully benefit from the very extensive in-treatment, followed by very intensive subsequent outpatient treatment * * * I just have a very guarded view about his ability to benefit from treatments long-term. * * * I don’t believe that there is any alternative but to segregate him from society for as long as possible.
Also, Stirens involved a presumptive 21-month, stayed sentence and an imposed 180-month, executed sentence that was “a dispositional departure and also a durational departure of more than eight times the presumptive sentence.” Id. Appellant’s sentence was not a dispositional departure and was a durational departure of just over four times the presumptive sentence.
In Lonergan, the court imposed the double durational departure mandated by the patterned sex offender statute; the defendant’s challenge was to the court’s determination that he was a patterned sex offender. Id. at 357. Appellant concedes that he is a patterned sex offender, and the district court appropriately relied on factors beyond those used to establish his patterned sex offender status to depart from the minimum sentence resulting from that status.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.