This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
William George Wasson,
Filed December 4, 2001
Affirmed as modifed
Clay County District Court
File No. K2-99-429
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Lisa N. Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56560-0280 (for respondent)
Howard Bass, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)
Considered and decided by Hanson, Presiding Judge, Randall, Judge, and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
R. A. RANDALL, Judge
Appellant challenges his sentence for first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(iii) (1996), arguing that the sentencing court's triple upward departure relied on factors that were already part of the elements of the offense and thus could not be utilized as bases for a departure. We affirm as modified.
Appellant William Wasson was convicted of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(iii) (1996), based on acts committed against his stepdaughter. Appellant was sentenced to 30 years in prison as a patterned sex offender under Minn. Stat. § 609.1352 (1996). Appellant challenged his sentence, and this court reversed appellant's sentence and remanded the case for resentencing so that the sentencing court could determine, after the parties presented additional evidence in the form of expert assessments, whether appellant met the statutory definition of a patterned sex offender. State v. Wasson, C4-00-443 (Minn. App. Oct. 31, 2000). Upon remand, instead, the sentencing court found that severe aggravating circumstances existed and sentenced appellant to 258 months, which is a triple upward durational departure from the presumptive sentence. Appellant now challenges this sentence.
D E C I S I O N
Appellant argues that the district court abused its discretion by upwardly departing from the presumptive sentence, claiming that the aggravating factors identified by the state and the sentencing court are part of the elements of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(iii) (1996).
First, a sentencing court "has broad discretion to depart only if aggravating or mitigating circumstances are present." State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). In other words, the sentencing court "shall use the presumptive sentence unless the individual case involves substantial and compelling circumstances." State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (emphasis added) (quotation omitted), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774, 777 n.4 (Minn. 1996). When determining whether to depart, the sentencing court should focus on "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984).
Generally, when an upward durational sentencing departure is warranted, the limit is double the presumptive sentence length. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). There are rare cases, however, where severe aggravating circumstances exist, which would justify a greater-than-double departure up to the statutory maximum of the offense for which a defendant was convicted. State v. Williams, 608 N.W.2d 837, 840 (Minn. 2000). Review of such a decision must be based on appellate court's "collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts." State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982).
Appellant was convicted of and sentenced for engaging in sexual penetration of his stepdaughter, with whom appellant had a significant relationship and who was under 16 years of age at the time of the incident, which included multiple acts that occurred over an extended period of time. These acts were all elements of the crime. See Minn. Stat. § 609.342, subd. 1(h)(iii) (stating elements of first-degree criminal sexual conduct of which appellant was convicted). Appellant began abusing his stepdaughter when she was approximately 11 years old and it continued until she was approximately 15. The abuse occurred in the home and in appellant's semi-truck when appellant would take her on extended trips where she would sleep near him in the semi's cab. Appellant subjected his stepdaughter to multiple types of penetration and used various sexual devices.
The sentencing court's stated reasons for a triple durational departure were that appellant
started grooming [his] stepdaughter at the tender age of 11 to become not only [his] sexual partner but [his] girlfriend under the guise of education. In [his] work as a long haul over-the-road trucker, [he] took her on trips in [his] truck where she was alone with [him], miles and miles away from anybody else who could protect her, and hours and hours away from anybody else who could protect her. She had no one to turn to and she was dependent solely upon [him].
During those trips [he] sexually abused her time and time again. And, yes, she was vulnerable as most children are. And, yes, she was entrusted to [his] care. [He wasn't] just her father, but she was entrusted to [his] care by her mother. And [he was] the person who supplied her means of survival during those trips. [He] abused * * * grossly the parental duties that [he] had to protect her, and at a time when she was yet too young to know that [his] conduct or [his] so called educational process was totally inappropriate.
And not only did [he] violate [his] stepdaughter on the over-the-road trips, but [he] violated her in the family home. Those acts continued for over five years and they included use of sexual objects, including insertion into her vagina of a dildo approximately 12 inches in length and eight-and-a-half inches in circumference. The use of that instrument on this young girl wasn't just cruel, it was dangerous to her health, and it was sadistic. [He] used handcuffs. [He] used pornography. [He] used anal and vaginal penetration. And the entire prolonged, calculated, and malevolent process of indoctrinating and transforming this trusting young vulnerable girl into an object of [his] sexual gratification convinces [the sentencing court], along with all the other facts in this case, that there are compelling and substantial and severe reasons to sentence [him] to the triple upward departure * * * .
Although the sentencing court did not enumerate specifically the aggravating factors on which it relied, the factors can be broken down into several categories: the child's vulnerability, including the child's age and the relationship between appellant and the child; the extended period of time over which the abuse occurred; multiple acts and multiple forms of penetration; and the pornographic nature of the acts. At the sentencing hearing, the state also argued that the child's psychological injury and appellant's invasion of the child's zone of privacy were aggravating factors that would justify a triple durational departure.
Generally, it is inappropriate for a sentencing court to base its departure on the same factors that were relied on in determining the presumptive sentence. State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982). Appellate courts have followed this rule in cases dealing with the predecessor crime of first-degree intrafamilial sexual abuse, which involved essentially the same elements as the charged crime in the instant case. See id. at 593-94 (concluding durational departure sentence based on child's age and defendant's multiple acts of misconduct, among other factors, was inappropriate because factors were already relied on in determining presumptive sentence for first-degree intrafamilial sexual abuse); State v. Robinson, 388 N.W.2d 43, 46 (Minn. App. 1986) (determining age, vulnerability based upon age, and length of time over which the abuse occurred cannot support sentencing departure for first-degree intrafamilial sexual abuse because they were factors legislature considered in defining crime and establishing appropriate punishment), review denied (Minn. July 31, 1986).
The supreme court has also stated that "[e]ach case must, nonetheless, be considered on its own" and "a qualitative assessment" of the record may justify a "limited departure." State v. Luna, 320 N.W.2d 87, 89-90 (Minn. 1982) (emphasis added). The court discussed that, even if aggravating factors relied on by the sentencing court were already considered by the legislature, they can be considered in conjunction with other aggravating factors to support an upward durational departure. Id. at 90.
Vulnerability, especially among the young and the old, is part and parcel of being the victim of a crime. It is not atypical; it is typical and can be assumed. At oral argument, the state agreed that all victims, no matter what their age, gender, or race, are vulnerable to a certain extent, meaning we are all vulnerable at various points in our lives. If the victim's age is a factor in determining the degree of a defendant's guilt,
then that fact plays a role in determining the offense severity level and ultimately in determining the presumptive sentence; in such a situation, it is generally unfair to consider the youth of the victim a second time in determining whether or not to depart.
State v. Brusven, 327 N.W.2d at 593 (citation omitted). Here, appellant was convicted of sexually assaulting his stepdaughter, with whom he had a significant relationship and who was under 16 years of age at the time of the assault. Based on the definition of the charged crime, the victim's age (an under 16-year-old child can expect to be vulnerable to any assaulting behavior of a parent) is an essential element. We conclude that the victim was no more vulnerable than any other child sexually assaulted by a parent or stepparent. They are all vulnerable. The sentencing court should not have relied on vulnerability as a basis for a triple upward departure.
B. Length of Time Abuse Occurred
The sentencing court emphasized the length of time of the abusive relationship. We can only note that this factor is an essential element of the charged crime. See Minn. Stat. § 609.342, subd. 1(h)(iii) (stating charged crime includes acts committed over extended period of time). Thus, extended conduct cannot be relied on as a basis for a departure.
C. Multiple Acts and Multiple Forms of Penetration
The charged crime is defined by multiple acts of sexual penetration. Minn. Stat. § 609.342, subd. 1(h)(iii). Sexual penetration includes sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion into the genital or anal openings of the victim's body by any part of the actor's body or any object used by the actor. Minn. Stat. § 609.341, subd. 12 (1996). Based on this definition, multiple acts and multiple forms of penetration are essential elements of the charged offense and, thus, cannot be used as a basis to depart.
Appellant subjected his stepdaughter to penetration by various sexual devices, including a sexual device that was approximately 12 inches long and eight inches in circumference. But, as stated previously, sexual penetration includes any intrusion into the genital or anal openings by any object used by the actor for the purpose of penetration. Minn. Stat. § 609.341, subd. 12(2)(i). Accordingly, appellant's use of a sexual device was part of the elements of the crime and should not be relied on as a basis to depart. See State v. Shaney, 361 N.W.2d 921, 925 (Minn. App. 1985) (concluding insertion of foreign objects into child by her father is not a basis for departure because it is an element of first-degree intrafamilial sexual abuse).
E. Child's Psychological Injury
The psychological injury to anyone, especially minors, as a result of any degree of rape or incest is typical of the damages sustained by victims. The supreme court has stated that intrafamilial sexual abuse arguably always involves severe psychological injury. Cermak, 344 N.W.2d at 840. When one family member sexually abuses another family member, emotional and psychological injuries are typical and expected. There is nothing unusual or atypical about a child under 16 years of age experiencing emotional and psychological injuries as a result of sexual abuse by a parent or stepparent. Thus, psychological injury is not a proper basis for a triple upward departure.
The aggravating factor of "zone of privacy," particularly with minor victims of sexual abuse by parents, when examined in the light of day of the real world, is so arbitrary and so overreaching as to render its use as a "particularly egregious and atypical factor" virtually worthless. At oral argument, the state conceded it could not identify any place in this state where a person does not have expectations that they will not be viciously assaulted. To commit this crime, by definition, a parent had to be with the minor child. Any minor child anyplace with any parent has a reasonable expectation that they are in a zone of privacy and should not have to fear harm from the parent. When a minor is with a parent, there are no "unzones of privacy." Thus, this factor, like the others, is an expected part of the crime charged, and, thus, arguably, well covered by the presumptive sentence.
We point out that it is no crime in and of itself to be with someone within a zone of privacy. It is only in conjunction with other acts that entering a person's zone of privacy may constitute an essential element of a crime. For example, being in someone's home, without more, is not a crime. If one enters that home with the intent to commit a crime therein, only then do you have a crime, namely burglary. The definition of burglary includes the element of being in a home, a zone of privacy. See Minn. Stat. § 609.582 (2000) (defining various degrees of burglary). You get punished for entering without the intent to commit a crime therein, not for just being there. Id. The same is true if one enters a person's zone of privacy without permission and against that person's instruction not to be there. This constitutes criminal trespass. See Minn. Stat. § 609.605 (2000) (defining various acts of trespass). You get punished for being there without permission, but not just for being there. Here, appellant had to enter the child's zone of privacy someplace to sexually assault her. In effect, the entire State of Minnesota is a "zone of privacy," meaning a place where a minor can rightfully expect to be free from sexual assault.
At oral argument, the state argued at length that the purpose of the sentencing guidelines is to ensure "proportionality in sentencing." We agree. The presumptive sentence for appellant's acts is 86 months, and those acts constitute a serious crime. But the state is asking us to affirm the sentencing court's decision to triple the sentence by adding 172 months to appellant's sentence for "non-crimes" such as "vulnerability" and invading a "zone of privacy," which we have explained that, for all practical purposes, are part of the essential elements of any sex crimes, particularly involving minors. We cannot affirm the sentencing court's triple durational departure because, based on the facts of this case, the sentence is totally disproportionate. We conclude that there is some basis for an upward departure. The use of handcuffs on the victim can be considered "gratuitous cruelty." That is a legitimate reason to consider an upward departure. See State v. Morales, 324 N.W.2d 374, 377 (Minn. 1982) (upholding sentencing departure for first-degree criminal sexual conduct where defendant inflicted personal injury on victim, which constituted gratuitous cruelty). Unlike the other reasons the district court gave for its upward departure, the use of handcuffs is in no way a part of any essential element of the crime charged.
Of all the cases cited by both parties, we find State v. Luna most instructive. The defendant in Luna was convicted of first-degree criminal sexual conduct. Luna, 320 N.W.2d at 88. The defendant knew the 13-year-old child and, armed with a scissors, forced her to commit fellatio. Id. at 89. The sentencing court departed upwardly from the presumptive sentence of 43 months by adding 17 months (a 40% upward departure) and sentenced the defendant to 60 months in prison. Id. at 88. The sentencing court relied on the child's vulnerability due to age, the defendant's use of a scissors, and the defendant's position of authority over the child due to his friendship with the child's mother as reasons for its upward departure. Id. at 89. In upholding the 17-month upward departure, the supreme court stated that the legislature has taken victim vulnerability into account by distinguishing sexual assaults by degree. Id. Then the court also reasoned that
[e]ach case must, nonetheless, be considered on its own. * * * [A] qualitative assessment of what defendant did justifies the conclusion that this case is sufficiently different in degree from other cases of first-degree criminal sexual conduct to justify [a] limited departure * * * .
Id. at 90. The supreme court concluded that the
combination of these facts with other facts, including the fact that the victim was only 13 years old, makes this case sufficiently different in degree to justify the limited upward departure.
What is significant about Luna, and what we find compelling, is that the Minnesota Supreme Court laid out an analysis of aggravating factors that convinced them to affirm no more than a 17-month (40%) upward departure on a sentence calling for a presumptive of 43 months. We do not argue that the supreme court in Luna limited its holding to upward departure of no more than 17 months. What we do state is that a 40% upward departure in Luna seemed rational and proportionate taking into account the fact that nearly all, but not quite all, of the defendant's egregious acts were already written into the definition of the crime. That is what we find here.
What sentencing courts are uniformly missing these last several years when gauging an amount of an upward departure that is fair and proportionate is that when one takes into account that the two-thirds "hard time" behind bars is part of all sentences, Minnesota presumptive sentences in terms of actual time spent behind bars are already some of the longest in the nation. In some states, 10 or 20 years can mean as little as zero to five years actually behind bars. In some states, 20 to 30 years in some states could mean not much more than that behind bars. In some states, the long "important-sounding" sentences of 50, 70, or 99 years may well mean no more than one-third of that, or even less than one-third of the stated amount actually spent behind bars. Those sentences may look good to the public, but in those states the realities of overcrowding and the immense cost to the states' taxpayers of lengthy sentences is the behind-the-scenes driving wheel for release dates and the transfer to probation. In Minnesota, an executed sentence of ten years means, without qualification, six and two-thirds years behind bars and then three and one-third years on probation. A 15-year executed sentence means 10 years behind bars, 5 years on probation, and so on and so forth. If district courts, determined to depart upwardly, could condition themselves to think of a 25% upward departure to a 50% upward departure, they would still be adding real years behind bars to the already real years behind bars called for by the presumptive sentence. Instead, unlike the 40% upward departure in Luna, it seems that on appellate review, arguments for a double upward departure are the norm and merely the starting step for even greater departures!
The judiciary often blithely adds more years behind bars for non-crime aggravating factors than the defendant gets behind bars for actually committing the crime. This happened here. Upon reflection, such a sentence is disproportionate, untenable, and not in keeping with the baseline of fairness and due process, the sine qua non of a constitution and justice.
Taking into account the record and caselaw discussing sentencing appeals, we affirm the sentencing court's decision to depart upwardly, but modify the sentence to 172 months, a double upward departure from the presumptive sentence. Appellant essentially imprisoned his stepdaughter when he forced her to accompany him on over-the-road semi-trailer trips where she had no way to flee or get help, and when he handcuffed her. These circumstances, when combined with other facts of this case, justify a double departure. See State v. Evans, 311 N.W.2d at 483 (stating where durational departure is justified, generally, upper limit is double presumptive sentence).
Affirmed as modified.
 The jury found appellant guilty of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(g) (1996) and Minn. Stat. § 609.342, subd. 1(h)(iii), and because the district court determined that the former was a lesser-included offense, the court entered a conviction only for the latter offense.
 The sentencing court did not address the patterned sex offender statute because the court believed the statute was ruled unconstitutional by State v. Grossman, 622 N.W.2d 394 (Minn. App. 2001), review granted (Minn. Apr. 17, 2001). But Grossman concluded that, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the patterned sex offender statute violated due process because the application of the statute increased the defendant's sentence beyond the prescribed statutory maximum for the charged offense. Grossman, 622 N.W.2d at 399. Soon after, this court concluded that the patterned sex offender statute does not violate due process unless a defendant is sentenced to a term that exceeds the statutory maximum for the charged offense. State v. McCoy, 631 N.W.2d 446, 451 (Minn. App. 2001). The court's original sentence here did not exceed the prescribed statutory maximum for first-degree criminal sexual conduct.
 The specific elements under Minn. Stat. § 609.342, subd. 1(h)(iii), are: (1) appellant engaged in sexual penetration of his stepdaughter, (2) he had a significant relationship with his stepdaughter, (3) his stepdaughter was under 16 years of age at the time of the incident, and (4) the appellant engaged in multiple acts with his stepdaughter over an extended period of time.