This opinion will be unpublished and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,
Ramsey County District Court
File No. K6002321
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.
Appellant Markeith Branch challenges his conviction of first-degree criminal sexual conduct, arguing that the evidence presented at trial was insufficient to sustain his conviction. Appellant also argues that the district court erred by imposing a double upward departure at sentencing. Because the record indicates that the evidence was sufficient to sustain appellant’s conviction and because the crime involved multiple aggravating factors, we affirm both the conviction and the sentence.
Eighteen-year-old E.H. was driving to her New Brighton apartment at approximately 1:30 to 2:00 a.m. on July 1, 2000. The driver’s side door was unlocked and the driver’s side window was open an inch. As she neared the parking lot of her apartment complex, she noticed appellant, who appeared to be crossing the street. When E.H. stepped on her brakes to allow him to cross, he began to walk toward her car. E.H. attempted to lock her door and roll up her window, but before she could do so, appellant opened the door, jumped over her, and landed on the front passenger seat, knocking the rearview mirror off of the windshield in the process. Appellant told E.H. that he had a gun and instructed her to drive around her neighborhood.
Appellant had E.H. stop in an alley near her apartment and told her to turn off the car’s engine. Trying to remain calm, E.H. asked appellant about his past. Appellant told her he was from Florida, was an orphan, had a girlfriend, and had not eaten in days. E.H. offered him food she had in her car and suggested that they go to her apartment so that she could get him something to eat. She testified she wanted to return to her apartment because she knew there were people there. E.H. also offered appellant money.
Appellant attempted to kiss E.H., but she pushed him away. After additional conversation, appellant either took E.H.’s keys out of the ignition and laid them on the dashboard or instructed E.H. to do so. Appellant asked E.H. to remove her shoes. E.H. again encouraged appellant to go to her apartment with her and get some food or money. Appellant replied that he could hurt her. E.H. removed her shoes. Appellant told her to take off her socks, and she removed them as well. E.H. either removed her pants at appellant’s direction or appellant forcibly removed them. Appellant pulled E.H.’s leg toward the passenger seat and removed her underwear; he then penetrated her vagina with his tongue. Appellant then penetrated E.H.’s vagina with his penis. E.H. protested verbally but not physically; she testified that she was afraid appellant would hurt her. Appellant also penetrated E.H.’s vagina with one or two of his fingers.
Appellant told E.H. to get into the back seat, and while there penetrated her vagina with his penis for about half an hour. After this penetration, E.H. asked appellant if he was through and whether she could put on her clothes. Appellant would not allow her to get dressed, but instead pushed her back down and began another act of penile penetration that lasted for 15-20 minutes.
Appellant then allowed E.H. to put on her clothes and had her drive him back to where he jumped into her car. When they arrived, appellant apologized to E.H. and told her that he would go to hell for what he did. He told her to turn on her interior light so that she could get a good look at him for when she went to the police. E.H. told appellant that she would not tell the police. Appellant asked her for a cigarette; she gave him one and drove away. During the encounter, which E.H. estimated lasted approximately two hours, she observed that appellant had a scar on his right shoulder.
Soon after her encounter with appellant, E.H. contacted the New Brighton police. The officer who took E.H.’s statement noticed that she was crying and appeared embarrassed and shy. E.H. received a medical examination at Regions Hospital, and the physician’s assistant who conducted the examination stated that E.H. was crying and was not making eye contact with her.
New Brighton police released a composite sketch of appellant and received tips that led them to him. Appellant’s shoulder scar was photographed, and E.H. stated that it matched that of her assailant. Appellant eventually conceded that he and E.H. engaged in two acts of penile penetration, but claimed the acts were consensual. He denied any oral or digital penetration.
Appellant was charged with one count of first-degree criminal sexual conduct pursuant to Minn. Stat. § 609.342, subd. 1(c) (1998), and one count of kidnapping pursuant to Minn. Stat. § 609.25, subds. 1(2), 2 (1998). After trial to the court upon waiver of a jury, appellant was found guilty on both charges.
At sentencing, the state argued for an upward durational departure based on the time of confinement of E.H., the multiple penetrations, the multiple methods of penetration, E.H.’s young age, and the random nature of the assault. The court sentenced appellant to the presumptive sentence of 27 months for kidnapping, but doubled the presumptive sentence of 98 months for criminal sexual conduct, resulting in concurrent sentences totalling 196 months. The court, in finding the multiple penetrations and multiple types of penetration sufficient to justify a double upward durational departure, observed that “there is no doubt * * * that [appellant] constitutes a clear and present danger to any woman that crosses his path at the present time.”
1. Sufficiency of the Evidence
The standard of review for a bench trial is the same as that for a jury trial. This court, in reviewing a conviction following a bench trial, “must determine whether the evidence, when viewed in a light most favorable to the conviction, reasonably supports the trial court’s conclusion.” State v. Oanes, 543 N.W.2d 658, 661 (Minn. App. 1996) (quoting State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989)). This court may not retry a case on appeal. Rather, it must examine the evidence in the light most favorable to respondent. State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000). If the trier of fact had reasonable grounds for convicting appellant and took due regard of the presumption of innocence and respondent’s burden of proving all elements of the offense beyond a reasonable doubt, this court will uphold the verdict. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995).
Minnesota law describes first-degree criminal sexual conduct as follows:
A person who engages in sexual penetration with another person * * * is guilty of criminal sexual conduct in the first degree if any of the following circumstances exists:
* * * *
(c) circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm * * * .
Minn. Stat. § 609.342, subd. 1(c) (1998). Criminal sexual conduct is a general-intent crime. State v. Hart, 477 N.W.2d 732, 736 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). As such, it is not necessary that the perpetrator have actual knowledge of the victim’s fear. “Sexual penetration” is
any of the following acts committed without the complainant’s consent * * * whether or not the emission of semen occurs:
* * * *
(2) any intrusion however slight into the genital or anal openings:
(i) of the complainant’s body by any part of the actor’s body or any object used by the actor for this purpose.
Minn. Stat. § 609.341, subd. 12 (1998). In sum, to prove the charge of first-degree criminal sexual conduct, the state must convince the trier of fact beyond a reasonable doubt that sexual penetration occurred under circumstances that would place the victim in reasonable fear of imminent harm.
Appellant does not dispute that sexual contact occurred here. He maintains, however, that he believed E.H. consented to the acts of intercourse; therefore, he argues that the evidence presented against him was insufficient to support his conviction of first-degree criminal sexual conduct. We disagree.
Because first-degree criminal sexual conduct is a general-intent crime, the state needed to prove that E.H. was in fear. Whether appellant knew of this fear is irrelevant; his knowledge is not an element of the offense and his conviction does not hinge on whether he had the specific intent to frighten E.H.
The evidence against appellant is sufficient to prove that E.H. was in fear and did not consent. The trier of fact, here the court, made numerous findings, including a clear indication that the testimony of E.H. was credible. “The credibility of the witnesses and the weight to be given their testimony are determinations to be made by the factfinder.” DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984). Appellant told E.H. that he had a gun and could hurt her. E.H. testified that she was frightened and that she only asked appellant questions about his past in an effort to stay calm. She resisted verbally; she feared physical resistance would result in her being hurt. Appellant jumped into her car with enough force to break off her rearview mirror, took control of her car keys, forcibly removed her underwear, and refused to allow her to dress after the second act of penile intercourse. Finally, E.H. testified that the events happened against her will. See Minn. Stat. § 609.347, subd. 1 (1998) (testimony of victim of first-degree criminal sexual conduct need not be corroborated); State v. C.J.M., 409 N.W.2d 857, 860 (Minn. App. 1987) (courts will not reverse a rape conviction merely because appellant disagrees with complainant’s account of the incident), review denied (Minn. Sept. 18, 1987).
E.H’s emotional state when she reported the assault also supports a finding of nonconsent. State v. Gamez, 494 N.W.2d 84, 87 (Minn. App. 1992) (victim’s “sobbing and shaking” supports a finding of nonconsent), review denied (Minn. Feb. 23, 1993); State v. Hood, 405 N.W.2d 459, 463 (Minn. App. 1987) (victim’s “distraught condition” corroborated her story of the assault), review denied (Minn. June 9, 1987).
Lastly, E.H. testified that sexual penetration occurred. This testimony is sufficient to prove the fact of penetration. Minn. Stat. § 609.347, subd. 1. Of course, even appellant himself does not dispute penetration; he argues only that penetration was consensual. The evidence supports the district’s court determination that appellant committed the offense of first-degree criminal sexual conduct.
2. Upward Departure
“[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). We review departures from presumptive sentences under an abuse-of-discretion standard, but there must be “substantial and compelling circumstances” in the record to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). When a sentencing court decides to depart from the presumptive sentence, it must consider whether the defendant’s actions are “significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).
Appellant argues that the district court abused its discretion in doubly departing upward on the criminal sexual conduct charge. The law does not support appellant’s claim. Multiple penetrations alone are sufficient to warrant an upward departure. State v. Mesich,396 N.W.2d 46, 52 (Minn. App. 1986), review denied (Minn. Jan. 2, 1987). Although we recognize that the conduct in Mesich was more egregious than the conduct at issue here, the court nevertheless noted in dictum that “[m]ultiple penetrations alone will generally justify a double * * * upward durational departure.” Id. See also State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992) (using Mesich as authority for justifying an upward departure and noting that multiple penetrations are a factor to consider in issuing upward departures), review denied (Minn. Apr. 13, 1992). The conduct in this case involved not only multiple penetrations, but also multiple methods of penetration. As such, it is more than sufficient to justify the upward departure.
Appellant also argues that any oral and digital penetrations were of extremely brief duration and were, therefore, negligible. This argument is also without merit; the statute requires only “any intrusion however slight into the genital or anal openings.” Minn. Stat. § 609.341, subd. 12. Sexual penetration includes any penetration, regardless of duration.
3. Facts Stated in the Charging Document
Appellant argues in his pro se brief that the district court improperly relied on the aggravating factors in issuing the upward departure in sentencing because they were not alleged in the charging document or proven beyond a reasonable doubt at trial. This argument is without merit. Notably, even though E.H. did not tell the first officer who interviewed her of the oral penetration, she mentioned it to a second officer, and also later reported the instance of digital penetration during the hospital examination. Aggravating factors need only be in the charging document and proven beyond a reasonable doubt if they prompt the sentencing court to issue a sentence greater than the statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S. Ct. 2348, 2362-63 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury * * * .”); Jones v. United States, 526 U.S. 227, 243 n.6, 119 S. Ct. 1215, 1224 n.6 (1999) (“[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”). The maximum sentence for first-degree criminal sexual conduct is 30 years. Minn. Stat. § 609.342, subd. 2. Appellant’s 196-month sentence is within this limit.
We have also reviewed and considered appellant’s argument in his pro se brief that the trial evidence was insufficient to sustain his criminal sexual conduct conviction. As previously discussed, this argument is without merit.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Prior to this concession, one Patrico Scott told New Brighton police that appellant was staying with him at the time of the assault and claimed that appellant left Scott’s apartment at 9:00 or 10:00 p.m. on June 30 and returned at approximately 4:00 a.m. on July 1. Subsequent to Scott’s statement, appellant admitted to the police that he had been at Scott’s, but had left the apartment to see some friends. He did not know the friends’ names, however.
 On appeal, appellant does not appear to challenge his conviction of kidnapping, nor does he address this conviction in his brief.