This opinion will be unpublished and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,
Rose Marie Dube,
Paul Nicholas Dube,
Filed July 17, 2002
Carver County District Court
File Nos. K0001700 & K5001689
Mike Hatch, Attorney General, Timothy C. Rank, Natalie E. Hudson, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Michael A. Fahey, Carver County Attorney, Government Center, Justice Center, 600 E. 4th Street, Chaska, MN 55318 (for respondent)
Mary M. McMahon, 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant Rose Dube)
Bradford W. Colbert, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant Paul Dube)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
In this consolidated appeal, appellants challenge their convictions of and sentences for multiple counts of using a minor in a sexual performance. Appellants argue that the evidence was insufficient to prove that photographs of the child are exhibitions and that, even if they are, the photographs depict no sexual conduct. They also argue that the district court erred by imposing multiple sentences for their convictions, by departing upwardly from the sentencing guidelines, and by requiring that they reimburse the public defender as a condition of probation. We affirm appellants’ convictions. But because the district court clearly erred in its stated reason for imposing multiple sentences and because the circumstances do not support greater-than-double upward departures, we vacate appellants’ sentences and remand for resentencing. We also vacate the district court’s order requiring appellants to reimburse the public defender as a condition of probation.
In October 2000, a car registered to appellant Paul Dube was repossessed. During a routine inventory search, the owner of the repossession company found a photograph album in the car, and he turned that album over to police. The album contained numerous photographs of appellant Rose Dube and her daughter, D.H., in which they are partially or wholly unclothed. The photographs relevant to this appeal depict D.H. touching Rose Dube’s nipples while both are nude (photograph 25), Rose Dube touching D.H.’s buttocks while D.H. is bent over and both are nude (photograph 26), and D.H. on a couch, nude, with her legs spread apart and Rose Dube in the background (photograph 90). When the photographs were taken, D.H. was less than 13 years of age.
Based on these and similar photographs, the state filed multiple-count complaints against the Dubes. After a bench trial, the district court found Rose Dube guilty of three felony counts of using a minor in a sexual performance, one gross-misdemeanor count of fifth-degree criminal sexual conduct, and one gross-misdemeanor count of child endangerment. Paul Dube entered Alford pleas to the same charges. Photographs 25, 26, and 90 were the factual bases for the charges of using a minor in a sexual performance.
At the joint sentencing hearing, the district court determined that using a minor in a sexual performance, which is not ranked in the sentencing guidelines, was a severity-level III offense. The district court treated two of the three counts of that offense as a single behavioral incident, sentencing Rose Dube, who had a criminal-history score of zero, to consecutive prison terms of 24 months and 26 months and sentencing Paul Dube, who had a criminal history score of one and one-half, to consecutive prison terms of 26 months and 34 months. The district court stayed execution of the sentences and ordered the Dubes, as a condition of probation, to reimburse the public defender. The district court also imposed sentences for their gross-misdemeanor offenses. This consolidated appeal follows.
Under Minnesota law, it is a felony for a person to “promote, employ, use or permit a minor to engage in * * * posing or modeling * * * in any sexual performance” if the person “knows or has reason to know that the conduct intended is a sexual performance.” Minn. Stat. § 617.246, subd. 2 (2000) (emphasis added). A “sexual performance” is
any play, dance or other exhibition presented before an audience or for purposes of visual or mechanical reproduction that uses a minor to depict actual or simulated sexual conduct.
Id., subd. 1(d) (2000) (emphasis added). Minn. Stat. § 617.246 does not define the term “exhibition.” But “sexual conduct” includes “lewd exhibitions of the genitals” or
physical contact with the * * * unclothed * * * buttocks of a human * * * female, or the breasts of a female * * * in an act of apparent sexual stimulation or gratification.
Id., subd. 1(e)(4), (5) (2000).
The Dubes contend that, as a matter of law, the evidence was not sufficient to support their convictions of using a minor in a sexual performance, arguing that photographs 25, 26, and 90 are not exhibitions and that, even if they are, no sexual conduct is depicted. This argument presents questions of statutory interpretation, which this court reviews de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). A court must construe penal statutes strictly, resolving any doubt in favor of the defendant. State v. Olson, 325 N.W.2d 13, 19 (Minn. 1982). But strict construction does not require a court to interpret a statute as narrowly as possible. State v. Zacher, 504 N.W.2d 468, 473 (Minn. 1993).
The Dubes contend that the photographs are not evidence of using a minor in a sexual performance because they are not exhibitions. Although “exhibition” is not defined in Minn. Stat. § 617.246, the Dubes claim that an exhibition is some sort of public display, and there was no evidence here that photographs 25, 26, and 90 were displayed to the public.
The American Heritage Dictionary defines “exhibition,” in relevant part, as “[s]omething exhibited; an exhibit,” and defines “exhibit,” in relevant part, as “[t]o show outwardly; display.” American Heritage Dictionary 622 (4th ed. 2000). Clearly, D.H.’s nude body was displayed “for the purposes of visual or mechanical reproduction.” Minn. Stat. § 617.246, subd. 1(d). Further, the Dubes displayed photographs 25, 26, and 90 in a photograph album.
Moreover, while Minn. Stat. § 617.246, subd. 1(d), requires an “exhibition presented before an audience or for purposes of visual or mechanical reproduction,” both of the alternatives are present here. (Emphasis added.) Other jurisdictions have recognized in construing similar statutes that the term “audience,” as it is used in section 617.246, subdivision 1(d), is not limited to non-family members. See Gilbert v. Commonwealth of Ky., 838 S.W.2d 376, 379-80, 381 (Ky. 1991) (rejecting argument that forcing minors to disrobe in presence of stepfather and mother was “private family matter” that did not support charge of using minor in sexual performance); State v. George, 717 S.W.2d 857, 858-60 (Mo. Ct. App. 1986) (construing “sexual performance” to include audience comprising one family member). We agree with those courts and conclude that sexual performance, as defined by Minn. Stat. § 617.246, subd. 1(d), includes displaying genitals for the purpose of photographic reproduction, regardless of whether the photographs were displayed to the public.
B. Sexual conduct
The Dubes contend that, even if the photographs are exhibitions, the photographs of D.H. do not depict actual or simulated sexual conduct. See Minn. Stat. § 617.246, subd. 1(d). They essentially assert that photograph 90, which depicts D.H.’s genitals, is not a “lewd” exhibition of genitals and that photographs 25 and 26, which depict, respectively, D.H. touching Rose Dube’s nipples and Rose Dube touching D.H.’s buttocks, are not acts of “apparent sexual stimulation or gratification.” See id., subd. 1(e)(4), (5).
“[I]n the context of child pornography, ‘depictions of nudity, without more, constitute protected expression.’” Mattingly v. Commonwealth of Ky., 878 S.W.2d 797, 799 (Ky. Ct. App. 1993) (quoting Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 1697 (1990)), review denied (Ky. June 15, 1994); see also Minn. Stat. § 617.246, subd. 1(d). Minnesota caselaw does not provide clear guidance for determining whether a particular photograph of a nude minor depicts prohibited sexual conduct. But in People v. Kongs, the California Court of Appeals concluded that probable cause existed to support a charge against a defendant of “[u]sing a minor to pose for sex acts” on the ground that his photographs of clothed children from the waist down focused “unnatural[ly] and abnormal[ly]” on their “private parts” and thereby reduced the children to sexual objects. People v. Kongs, 30 Cal. App. 4th 1741, 1748, 1752-53, 37 Cal. Rptr. 2d 327, 330, 333-34 (1994). The focus of the photographs constituted sufficient evidence that the photographs were made “for the purpose of [the] sexual stimulation of the viewer.” Id. at 1753, 37 Cal. Rptr. 2d at 333 (quotation omitted).
We find the rationale of the court in Kongs to be persuasive. Here, in photograph 90, D.H. is sprawled unnaturally on the couch; her exposed genitals are the focal point of the photograph. Likewise, the nudity and physical contact depicted in photographs 25 and 26 are the focal points of those photographs. Photograph 25 depicts D.H. touching Rose Dube’s nipples while both are nude in what Rose Dube described during trial as a game of “tit twister.” Photograph 25 depicts D.H. nude and bent over, with her buttocks facing the camera. Rose Dube, also nude, is shown facing the camera, pursing her lips and grasping D.H.’s buttocks. As the Kongs court stated, “A child should not have to face a lifetime of knowing that a permanent record has been made of his or her abasement.” Id. at 1754, 37 Cal. Rptr. 2d at 334. We conclude that, as a matter of law, the evidence was sufficient to support the Dubes’ convictions of using a minor in a sexual performance.
A. Multiple behavioral incidents
The Dubes argue that the district court erred by imposing multiple sentences for their convictions of using a minor in a sexual performance. Minnesota law generally prohibits the imposition of multiple sentences for multiple offenses against the same victim arising from a single behavioral incident. State v. Bookwalter, 541 N.W.2d 290, 293-94 (Minn. 1995). “Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case.” Id. at 294 (citations omitted). To make that determination, this court examines whether the offenses were motivated by a single criminal objective and whether they were unified in time and place. See id.
During the sentencing hearing, the district court determined that two of the three counts of using a minor in a sexual performance, which were based on photographs 25 and 26, “can and should be treated as one behavioral incident” and imposed single sentences for those counts. But the court determined that the remaining count, which was based on photograph 90, “involve[d] a different child” and was therefore a separate behavioral incident; the district court apparently believed that photograph 90 involved another child who lived with the Dubes. The district court imposed separate sentences on that count.
But the state concedes that photograph 90, like photographs 25 and 26, depicts D.H. and not another minor. Thus, as the state concedes, the district court erred by imposing separate sentences on the ground that different minors were depicted in the photographs and that, therefore, separate behavioral incidents had occurred.
The state contends that, regardless of the error, this court should affirm the imposition of multiple sentences. The state asserts that photographs 25 and 26 were taken at the same time and at the same location, “as evidenced in part by the fact[s] that in both pictures * * * Rose Dube has the same white towel with a design on it wrapped around her head” and that she and D.H. were nude. The state asserts, however, that photograph 90 was taken at a separate location and at a separate time; in that photograph, D.H. is “sprawled on a couch” and Rose Dube is “clothed in a T-shirt.” Therefore, the state argues, the counts based on photographs 25 and 26 and the count based on photograph 90 were separate behavioral incidents, and the district court properly imposed multiple sentences for the offenses.
But when reviewing a district court’s factual conclusion of whether a single behavioral incident exists, this court applies a clearly erroneous standard. Effinger v. State, 380 N.W.2d 483, 488-89 (Minn. 1986); State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983) (providing that whether multiple offenses arose from single behavioral incident is analysis of facts). Here, the district court’s only stated reason for determining that two behavioral incidents existed, that is, that the counts involved different minors, was clearly erroneous. The state cites no authority for the proposition that this court may uphold the imposition of multiple sentences when the district court’s only stated reason for its determination is clearly erroneous. On remand, the district court should reconsider whether the charges against the Dubes based on photograph 90 involved the same behavioral incident as the charges based on photographs 25 and 26.
B. Upward departure
The Dubes argue that the district court erred by upwardly departing from the sentencing guidelines. The district court must impose the presumptive sentence for an offense unless a departure is warranted by “substantial and compelling circumstances.” Minn. Sent. Guidelines II.D. But if such circumstances exist, the decision to depart from the sentencing guidelines rests within the district court’s discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
When sentencing the Dubes, the district court explained that it would upwardly depart from the sentencing guidelines for reasons that the state cited, which the district court identified as the ages of the “children,” the fact that the Dubes are the victims’ parents, and the fact that the offenses happened in the home. The Dubes dispute the validity of those reasons, and to the extent that the reasons are based on the presence of a minor other than D.H., they do not support an upward departure. But this court will affirm a departure when the district court cites some improper or inadequate reasons to justify its decision if the record contains sufficient evidence to support that departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
Generally, when the age of a victim is an element of an offense, a departure cannot be justified on the ground of the victim’s age. See State v. Chase, 343 N.W.2d 695, 697 (Minn. App. 1984). For a person to be guilty of using a minor in a sexual performance, the person must “promote, employ, use or permit a minor to engage in * * * posing or modeling * * * in any sexual performance.” Minn. Stat. § 617.246, subd. 2. A minor is a person under 18 years of age. Id., subd. 1(b). But even though, here, age is an element of the crime, it can be relied on for an upward departure if it is considered in conjunction with other appropriate factors. State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990).
An abuse of a position of trust or authority is an aggravating factor. State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990). The Dubes assert that “most crimes are committed by persons who know the victims and who are in a position of trust.” Thus, the Dubes claim, their position of trust relative to D.H. makes their offenses no more serious than a typical offense of using a minor in a sexual performance. But they cite no authority for this proposition. See Minn. R. Civ. App. P. 128.02, subd. 1(d) (providing that briefs must include citations to legal authorities). The Dubes’ abuse of their position of trust as D.H.’s parents supports some degree of upward departure.
Generally, an offender’s invasion of a victim’s zone of privacy may also be considered an aggravating factor. See State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988), review denied (Minn. May 18, 1988). But the supreme court has held that a victim’s zone of privacy is not invaded by offenders who are guests in the victim’s home, when the offense occurs in the home. Id.; see also State v. Johnson, 390 N.W.2d 451, 457 (Minn. App. 1986) (providing that zone-of-privacy factor generally applies when offender is stranger to victim’s home), review denied (Minn. Aug. 27, 1986). D.H. lived with the Dubes. The state contends that the Dubes’ offenses in the privacy of their home had the effect of imposing on D.H. a “sense of normalcy with respect to what were in fact perverse actions.” That may be true. But this argument supports a departure based on the Dubes’ abuse of their position of trust relative to D.H., rather than a violation of D.H.’s zone of privacy.
Moreover, although the Dubes argue that their sentences were double upward departures, the district court evidently imposed greater-than-double upward departures by improperly adjusting the Dubes’ criminal-history scores when imposing their consecutive sentences. See Minn. Sent. Guidelines II.F. (providing that, other than sentences that are presumptively consecutive, criminal-history score of zero or mandatory minimum for the offense must be used to calculate presumptive duration of offense sentenced consecutive to other offense). A greater-than-double departure is rarely justified. Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997).
We conclude that although D.H.’s age and the Dubes’ abuse of their position of trust relative to D.H. support some degree of upward departures, they do not support greater-than-double upward departures. We therefore vacate the Dubes’ sentences and remand to the district court for resentencing in light of this decision. We do not therefore reach the Dubes’ argument that, when sentencing them for their convictions of using a minor in a sexual performance, the district court improperly considered their gross-misdemeanor convictions of fifth-degree criminal sexual conduct and child endangerment.
As a condition of probation, the district court ordered the Dubes to reimburse the public defender. Minnesota law requires generally that any person who is represented by a public defender must, if financially able, reimburse the public defender for the actual costs of providing services. Minn. Stat. § 611.35, subd. 1 (2000). But such reimbursement “is a civil obligation and must not be made a condition of a criminal sentence.” Id. The district court therefore erred by ordering the Dubes to reimburse the public defender as a condition of probation, and we vacate that order.
Affirmed in part, reversed in part, and remanded.
 The complaints charged the Dubes with committing multiple counts of this offense “between October 11, 1997, and October 9, 2000.” Although the legislature restructured and added provisions to Minn. Stat. § 617.246 in 1999, the 2000 version of the section appears to be substantively identical, for purposes of this appeal, with the 1996 and 1998 versions. See 1999 Minn. Laws ch. 217, §§ 1-5.