This opinion will be unpublished and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
Demetris Leonardo Duncan,
Filed March 12, 2002
Robert H. Schumacher, Judge
Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Demetris Leonardo Duncan challenges his sentence, claiming the court's double upward durational departure from the Minnesota Sentencing Guidelines was an abuse of discretion. We affirm.
On July 8, 2000, Duncan was staying with a friend in St. Cloud, Minnesota at a place located near the victim's apartment building. At approximately 4:00 a.m. that day, Duncan entered the victim's apartment through an unlocked front door and went to the victim's bedroom, where he saw her asleep on her bed. Duncan, with knife in hand, then woke the victim up and dragged her out of the bed. The victim's young child was sleeping with her on the bed and became alarmed. Duncan took the victim to another bedroom where, after a struggle, Duncan ultimately forced her to have sex with him. Duncan admits that he did not know the victim and used the knife as a threat to get her to submit.
Duncan was charged with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(c) (2000) (count I), and one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1 (d) (count II). On April 3, 2001, Duncan pleaded guilty to count II. The other count was dismissed. The presumptive sentence for count II was 98 months' incarceration. Duncan, however, was sentenced to 196 months' incarceration, a double upward durational departure.
The district court’s decision to depart from the sentencing guidelines rests within its sound discretion and will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). 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). Departure from the presumptive sentence should be reserved for offenses that are significantly worse than the typical offense. Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989). If the district court departs from the sentencing guidelines, it must provide reasons that specify the substantial and compelling nature of the circumstances and demonstrate why the departure is more appropriate or equitable than the presumptive sentence. Minn. Sent. Guideline II.D.
The sentencing guidelines contain a non-exclusive list of aggravating factors that may justify a departure. Minnesota Sentencing Guidelines II.D.2.b; State v. Van Gorden, 326 N.W.2d 633, 634 (Minn. 1982). 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). Generally, a sentencing court considers the course of conduct underlying the crime for which the defendant is being sentenced. State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). Elements of the offense, however, are not proper factors to consider for an upward departure. State v. Yanez, 469 N.W.2d 452, 457 (Minn. App. 1991) (citing State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983)), review denied (Minn. June 19, 1991).
Duncan does not challenge the district court's findings. Instead, Duncan admits that the factors cited by the district court have been used as aggravating factors in other cases but argues that his conduct
was no more culpable and the incident no more serious than the typical case of first-degree criminal sexual conduct where the offender is armed with a dangerous weapon.
The district court found that Duncan invaded the victim's zone of privacy by assaulting her in her home and that this was an aggravating factor justifying an upward departure. Entering a victim's home to commit an offense constitutes an invasion of the victim's zone of privacy and may be considered as an aggravating factor. See State v. Johnson, 450 N.W.2d 134, 135 (Minn. 1990) (double durational departure justified by, among other things, fact that appellant invaded what was temporarily victim's zone of privacy by sexually assaulting her while she was babysitting at another's home); State v. Jackson, 596 N.W.2d 262, 267 (Minn. App. 1999) (appellant invaded victim's zone of privacy by tricking victim into trusting him enough to let him into her home where he sexually assaulted her), review denied (Minn. Aug. 25, 1999); State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991) (appellant invaded victim's zone of privacy by sexually assaulting her in her home), review denied (Minn. Jan. 16, 1992).
Duncan admits that he sexually assaulted the victim inside her home. The district court did not err by considering the invasion of the victim's zone of privacy as an aggravating factor justifying an upward departure.
The invasion of the victim's zone of privacy is itself sufficient to justify the double upward durational departure. See State v. O'Brien, 369 N.W.2d 525, 527 (Minn. 1985) (stating that existence of one aggravating factor is itself sufficient to justify double durational departure). But the district court also found that the victim's particular vulnerability, due to the fact that she was sleeping when Duncan entered her apartment, was an aggravating factor justifying upward departure.
This court has on prior occasions recognized the particular vulnerability of a sleeping victim as an aggravating factor. See State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990) (victim's vulnerability "was increased because appellant began touching her while she was asleep"), review denied (Minn. Feb. 28, 1990); State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987) (appellant used trust relationship to place victim "in a vulnerable position by attacking her while she was asleep on the family couch"); State v. Gettle, 404 N.W.2d 902, 906 (Minn. App. 1987) (upward departure affirmed, with one reason being vulnerability of victim due to combination of her prior use of alcohol and her sleeping state at time of appellant's acts), review denied (Minn. June 26, 1987).
Duncan admits that the victim was asleep before he walked into her bedroom, woke her, dragged her into an adjacent bedroom, and sexually assaulted her. The district court did not err by considering the victim's particular vulnerability as an aggravating factor justifying an upward departure.
The district court additionally found that the presence of the victim's child, who became alarmed, was an aggravating factor. It is well settled that the presence of children during the assault may be considered an aggravating factor. See Johnson, 450 N.W.2d at 135 (double durational departure justified because, among other things, victim "was not free to flee because she had a responsibility to the infants who were present"); Hart, 477 N.W.2d at 740 (presence of children in victim's home during sexual assault properly considered aggravating factor); State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989) (taking into account presence of victim's child as contributing to victim's vulnerability, even though sexual assault was not committed in front of child), review denied (Minn. Oct. 13, 1989). The district court did not err by considering the presence of the victim's child as an aggravating factor justifying an upward departure.
The district court found that all of the above factors, taken together, lead to the conclusion that the victim was treated with particular cruelty, thereby justifying an upward departure. Treating a victim with particular cruelty is recognized as an aggravating factor. State v. Griller, 583 N.W.2d 736, 744 (Minn. 1998). The district court did not err by finding that Duncan's conduct amounted to particular cruelty, thereby justifying an upward departure.
Finally, we have reviewed the additional arguments raised in Duncan's pro se supplemental brief and find them to be without merit.
The district court did not err by imposing a double upward durational departure from the sentencing guidelines.