This opinion will be unpublished and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,
Filed January 15, 2002
Ramsey County District Court
File No. K2001232
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Anderson, Judge.
Appellant challenges his sentence of first-degree criminal sexual conduct, arguing that the district court’s imposition of an upward double durational departure is not supported by substantial and compelling circumstances. Because we conclude that the district court did not abuse its discretion in sentencing appellant, we affirm.
In April 2000, appellant Larry Bridgeforth met a woman carrying a Bible at a bus stop in Minneapolis. Bridgeforth told her that he was a Christian who was “down on his luck,” had nothing to eat, and was looking for a good church. The woman ultimately invited Bridgeforth to her home so that she could make him dinner and show him the location of her church. After they arrived at the woman’s home, Bridgeforth forced her into her bedroom, where Bridgeforth punched her 10 to 12 times in the face and choked her until she started to lose consciousness. Bridgeforth then had forced sexual intercourse with her.
Bridgeforth was subsequently arrested and charged with a violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2000), which defines as first-degree criminal sexual conduct a circumstance where an actor causes personal injury to a complainant and uses force or coercion to accomplish sexual penetration. A jury trial that began in August 2000 ended in a mistrial. At the beginning of a second jury trial in September 2000, Bridgeforth pleaded guilty to the charge against him, admitting that he punched and choked the victim, caused her personal injury, and unlawfully engaged in forced sexual intercourse. The district court sentenced Bridgeforth to 322 months, an upward double durational departure from the presumptive sentence. This appeal follows.
An upward departure is within the sentencing court’s discretion if substantial and compelling circumstances exist and the conduct is more serious than that typically associated with the crime in question. State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984; Minn. Sent. Guidelines II.D. Substantial and compelling circumstances “are those that make the facts of a particular case either more or less serious than a typical case involving the same crime.” State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992) (citation omitted).
Bridgeforth argues that the district court abused its discretion by imposing a sentence of 322 months, which is an upward double durational departure from the presumptive guidelines sentence of 161 months for first-degree criminal sexual conduct for a defendant with Bridgeforth’s criminal-history score of seven. The district court based its departure primarily on its conclusions that Bridgeforth treated the victim with particular cruelty and that the sexual assault occurred in the victim’s home, where she had a reasonable expectation of safety.
Bridgeforth argues that the underlying facts do not constitute substantial and compelling circumstances justifying an upward departure. We disagree.
First, Bridgeforth repeatedly punched the victim in the face and choked her to the point that she “could feel herself starting to black out”; the victim believed that Bridgeforth would kill her. The fact that an offender treats a victim with particular cruelty is an aggravating factor that may support an upward departure from the presumptive sentence. Minn. Sent. Guidelines II.D.2.b.(2). Particular cruelty is conduct of a degree that typically is not associated with the commission of the offense in question. State v. Schantzen,308 N.W.2d 484, 487 (Minn. 1981). By punching the victim in the face 10 to 12 times and choking her until she almost passed out, Bridgeforth not only caused the victim to suffer personal injury, which is an element of the offense with which he was charged, but also he gratuitously and repeatedly inflicted pain on the victim. The record supports the district court’s finding that Bridgeforth treated the victim with particular cruelty. See State v. Strommen, 411 N.W.2d 540, 544 (Minn. App. 1987) (noting that repeatedly punching victim in face and choking her were factors supporting departure from presumptive sentence for first-degree criminal sexual conduct), review denied (Minn. Oct. 28, 1987).
Second, the record also supports the district court’s finding that the fact that the sexual assault occurred in the victim’s home was an aggravating factor. Departure from the presumptive sentence is warranted when the offense occurs in the victim’s home, thereby invading the victim’s zone of privacy. See, e.g., State v. Coe, 411 N.W.2d 180, 182 (Minn. 1987) (concluding that burglary with assault was more serious than typical in such offense because crime occurred in victim’s home and left victim so terrorized that she was not able to continue to live in her apartment); State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983) (concluding that aggravated robbery of victim in his home invaded victim’s zone of privacy and constituted aggravating factor to justify upward sentencing departure); State v. Van Gorden, 326 N.W.2d 633, 634-35 (Minn. 1982) (concluding that fact that defendant “did not just invade the victim sexually but also invaded the zone of privacy surrounding and including her home” was aggravating factor supporting upward sentencing departure); State v. Morales, 324 N.W.2d 374, 377 (Minn. 1982) (upholding upward sentencing departure because defendant raped victim in her backyard and invaded zone of privacy that surrounded her home).
Because Bridgeforth was convicted under section 609.342, subdivision 1, clause (e) (2000), and the district court determined on the record at the time of sentencing that the crime involved at least one aggravating factor that would provide a ground for an upward sentencing departure, section 609.109, subdivision 6 (2000), required the district court to impose at least an upward double durational departure from the presumptive sentence. The district court did not abuse its discretion in sentencing Bridgeforth.
We have considered carefully the arguments made by Bridgeforth in his pro se brief and find them to be without merit.