This opinion will be unpublished and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,
Timothy Allan Osvold,
Mille Lacs County District Court
File No. K200280
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Janelle P. Kendall, Mille Lacs County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hanson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Timothy Allan Osvold entered a guilty plea to one count of first-degree criminal sexual conduct involving his daughter L.O. Appellant challenges the district court’s imposition of a quadruple sentencing departure contending the court erred by ordering more than a double departure and by basing the departure on improper factors. We affirm.
When aggravating circumstances are present, the district court has broad discretion to depart from the presumptive sentence and will not be reversed absent an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). The factors justifying departure should focus on the degree of the defendant’s culpability. State v. Wright, 310 N.W.2d 461, 462 (Minn. 1981). The general issue before a sentencing court when it makes a decision to deviate from the presumptive sentence is whether the conduct of the defendant is “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 first contends the district court erred by imposing more than a double departure. We disagree. Where extreme aggravating factors are present, Minnesota courts have upheld the imposition of greater-than-double upward departures. See State v. Mesich, 396 N.W.2d 46 (Minn. App. 1986), review denied (Minn. Jan. 2, 1987) (the maximum sentence for criminal sexual conduct in the first degree, nearly 5.5 times the presumptive sentence, was affirmed). See also State v. Van Gorden, 326 N.W.2d 633 (Minn. 1982) (more than triple the presumptive sentence affirmed where victim was particularly vulnerable due to her age (66) and where defendant acted with particular cruelty); State v. Norton, 328 N.W.2d 142 (Minn. 1982) (affirming triple departure where victim was particularly vulnerable due to age (5) and where defendant acted with particular cruelty); State v. Mortland, 399 N.W.2d 92 (Minn. 1987) (affirming triple departure where victim was particularly vulnerable due to age (6) and defendant acted with particular cruelty).
Appellant argues that the district court improperly based its departure on elements of the offense including the victim’s age and appellant’s relationship to the victim. We disagree.
Although age is an element of the offense it can be considered in conjunction with other factors. State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990). And exploitation of the vulnerability of a child has been held to justify an upward departure. State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987); State v. Cermak, 344 N.W.2d 833, 839 (Minn. 1984). Here, L.O. was five years old when the five-year pattern of abuse started. Her age and position in the family isolated her within an abusive environment with nowhere to go and no one to approach for help. Moreover, her age allowed appellant to groom her for future abuse by teaching her it was normal to be sexually abused by multiple members of the family with no repercussions. Further, there was evidence that when L.O. sought help from appellant due to sexual abuse by her brothers, appellant responded by further abusing her. On these facts, it was not error for the district court to base a departure in part on these factors.
Appellant contends the district court erred by basing its sentencing departure on a finding that appellant acted with particular cruelty. We disagree. The district court found appellant acted with particular cruelty to a degree typically not associated with the commission of the offense in question. See State v. Saharath, 355 N.W.2d 312, 314 (Minn. App. 1984) (stating “[p]articular cruelty is a valid factor for departure purposes”). Here, the record indicates appellant committed multiple forms of sexual abuse; vaginal intercourse, fellatio, and cunnilingus over a five-year period. See State v. Ahern, 349 N.W.2d 838, 841 (Minn. App. 1984) (multiple forms of sexual abuse on at least seven occasions over an extended period of time constitutes particular cruelty toward the victim).
In addition, like the victim in Rairdon, L.O. was trapped in a hostile family environment that was fostered by the defendant’s continued abuse. L.O.’s brothers were allowed to victimize her without fear of punishment from appellant. Not only did appellant fail to protect his daughter from the abuse from her brothers, but when she sought help and medical attention from her father, he used it as an opportunity to further victimize her. Thus here, as in Rairdon, there are “severe aggravating circumstances for which greater than double durational departures are reserved.” 557 N.W.2d at 327. And although multiple penetrations and appellant’s position of authority are elements of the offense, and thus not individually appropriate factors to consider in an upward departure, on these facts we conclude the district court did not err in finding appellant’s conduct constituted particular cruelty.
The district court also properly based its departure on the fact that appellant invaded L.O.’s zone of privacy.
Invasion of the ‘zone of privacy’ is an aggravating factor, because being [the] victim of a crime occurring in one’s home imposes an additional psychological shock.
State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991). Here, the district court noted all of the acts occurred within the home and in L.O.’s bedroom, despite a lock on her bedroom door. The court appropriately found appellant’s conduct compromised L.O.’s psychological well-being and eroded her sense of protection from the outside world. She had nowhere to retreat from the abuse. We agree. The child had a reasonable expectation of privacy in her own bedroom and this expectation was violated. State v. Griffith, 480 N.W.2d 347, 351 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).
We reject appellant’s argument that the district court erred by basing its departure on L.O.’s psychological damage. Psychological damage is a departure factor where the record shows that the victim required counseling or medication. See State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992); Skinner, 450 N.W.2d at 654. Here, the district court noted L.O. is in therapy now and surmised, based on the facts and the transcript of L.O.’s interview, that there are issues that raise serious psychological concerns. Appellant argues there was no evidence in the record detailing the extent of L.O.’s psychological injury. But the fact L.O. is in therapy, coupled with evidence concerning the environment appellant created, where sexual victimization of L.O. by appellant and her brothers occurred freely and with appellant’s knowledge, adequately supports the district court’s finding of psychological damage.
Additionally, we conclude that the record supports a quadruple departure under Minn. Stat. § 609.108, the Minnesota patterned sex offender statute. The statute mandates increased sentences to at least double the presumptive sentence under the sentencing guidelines if
it reasonably appears to the court that the crime was motivated by the offender’s sexual impulses or was part of a predatory pattern of behavior that had criminal sexual conduct as its goal; the court finds that the offender is a danger to public safety; and the court finds that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment[.]
Minn. Stat. § 609.108, subd. 1(a) (2000).
Here, a doctor assigned to assess appellant’s psychological condition stated that appellant fit the criteria for a patterned sex offender and is a danger to public safety. This diagnosis was based on two factors: (1) appellant committed predatory juvenile offenses (bestiality); and (2) appellant failed to protect his daughter against assaults by her brothers and used her injuries from them as a means to harm her again. The doctor concluded that appellant showed a pattern of sexually exploitive behavior towards animals and humans in his care, with persistent acting out, even in the face of evident pain and suffering in his victims and is unaware of the seriousness of his actions and the harm he has done.
Moreover, in State v. Halvorson, 506 N.W.2d 331 (Minn. App. 1993), this court held that the language of the patterned sex offender statute does not require the presence of severe aggravating circumstances before a court may impose a sentence greater than twice the presumptive sentence. Id. at 339. Because the district court’s imposition of a quadruple departure was less than the statutory maximum sentence, we conclude that appellant was properly sentenced to 344 months.
Finally, we note that once a defendant has been found guilty, “the factors to be considered by the sentencing court * * * are significantly broader” than what a jury hears. State v. McCoy, 631 N.W.2d 446, 452 (Minn. App. 2001). A presentence investigation (PSI) can include facts and details that may be inadmissible at trial, such as hearsay, secondhand information, opinion, etc. Id. “[A] PSI should include details about ‘the defendant’s individual characteristics, circumstances, needs, potentialities, criminal record and social history.’” Id. (quoting Minn. Stat. § 609.115, subd. 1 (2000)). Here, appellant admitted that when his younger son, K.O., was six or seven he forced him to perform fellatio on appellant multiple times and to submit to anal intercourse. And there is evidence in the record indicating appellant also abused his older son.
Appellant’s sentence reflects the district court’s recognition of the heinous acts he committed against L.O., and appellant’s abuse of his two sons who became predators themselves. In addition, the record contains evidence that appellant could properly be classified as a patterned sex offender. Thus, we conclude that on these facts the district court did not abuse its discretion in its quadruple departure from the presumptive sentencing guidelines and that appellant’s sentence, which is less than the statutory maximum, does not exaggerate the criminality of appellant’s conduct.