This opinion will be unpublished and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,
Donald Lee Duncan,
Filed August 20, 2002
Dodge County District Court
File No. K69878
Mike Hatch, Attorney General, Tracy Perzel, Assistant Attorney General, Suite 500, 525 Park Avenue, St. Paul, MN 55103; and
Paul Kiltinen, Dodge County Attorney, 22 Sixth Street East, P.O. Box 96, Mantorville, MN 55955 (for respondent)
John M. Stuart, State Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414; and
Michael C. Davis, Assistant Public Defender, Suite 1042 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55105 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Donald Duncan appeals from conviction and sentencing on one count of first-degree and one count of second-degree criminal sexual conduct. He argues that the evidence is insufficient to support his convictions, the district court abused its discretion in admitting Spreigl evidence, and the sentencing departure is unsupported by aggravating factors. Because the district court did not abuse its discretion in its evidentiary rulings or in its sentencing departure and because the evidence supports both convictions, we affirm.
F A C T S
In late 1997, Donald Duncan moved into a mobile home in Mantorville, Minnesota, with his adult daughter and her boyfriend. While living in the mobile home, Duncan spent time with two juvenile females who lived nearby: ten-year-old D.N. and nine-year-old K.H. Over time, the children began spending the night at Duncan’s mobile home. On February 18, 1998, D.N. and K.H. reported that Duncan had sexually assaulted them.
D.N. and K.H. provided videotaped statements to the chief deputy of the Dodge County Sheriff’s department. D.N. told the deputy that while she was staying overnight in the mobile home, Duncan put his hand inside her underwear and rubbed her vagina. K.H. told the deputy that Duncan had touched her vagina twice—once in February while she, D.N., and Duncan were watching a movie and earlier that winter while she was sleeping in his bed.
Shortly after the interview, another Dodge County deputy responded to a call from D.N.’s father who reported that the girls had not told the chief deputy everything they knew. The second deputy interviewed D.N. and K.H. and recorded the conversation. K.H. twice answered in the affirmative when asked whether Duncan had put his finger inside her vagina. Without prompting, K.H. also volunteered an additional reference to penetration: “He like squeezed it in, and it hurt. His fingernails is really hurting.” D.N. told the deputy that Duncan’s fingers had not gone into her body when he assaulted her, but that he had rubbed around her vagina and in her “crack.” D.N. also said that Duncan had once taken her into his bedroom and rubbed her breasts.
Duncan was charged with and convicted of two counts of criminal sexual conduct in the first degree and two counts of criminal sexual conduct in the second degree. Duncan appealed his convictions and this court reversed and remanded for a new trial because of the cumulative effect of erroneously admitted evidence, several instances of prosecutorial misconduct, and improperly instructing the jury without Duncan’s consent on his right not to testify. State v. Duncan, 608 N.W.2d 551, 555-58 (Minn. App. 2000), review denied (Minn. May 16, 2000).
At trial following remand, both D.N. and K.H. testified. They each reaffirmed their statements in the taped interviews and testified to the separate incidents in Duncan’s bedroom. D.N. further testified that Duncan had touched her vagina while she was watching a movie in the mobile home with Duncan, Duncan’s son, and K.H. When K.H. testified that she had been touched during the movie, she acknowledged that it could either have been Duncan or Duncan’s son because it was dark and they were all under the same blanket. Both interviewing deputies testified, and the state presented all of the tapes from the recorded interviews, properly redacted to remove reference to an uncharged offense against D.N.’s sister. The state also introduced, as Spreigl evidence, Duncan’s five prior convictions of criminal sexual conduct, all involving juvenile females.
The jury found Duncan guilty of one count of criminal sexual conduct in the first degree for penetration of K.H. and one count of criminal sexual conduct in the second degree for sexual contact with D.N. The district court imposed a 270-month sentence, a double departure from the aggregate 135-month, presumptive sentence. In support of the departure, the court found that the victims were young and vulnerable; that the sexual abuse had a notable psychological effect on K.H. and D.N.; and that Duncan had abused a position of trust, showed little remorse, appeared unamenable to treatment, and had previous criminal-sexual-conduct convictions.
In this appeal, Duncan argues that (1) the evidence is insufficient to sustain his convictions on the elements of penetration and sexual contact, (2) the Spreigl evidence of his prior convictions denied him a fair trial, and (3) the upward durational departure is not supported by aggravating factors.
D E C I S I O N
Evidence sufficiently supports a conviction if, given the facts in the record and any legitimate inference taken from these facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998). We do not retry the facts but instead carefully review the record to determine whether the evidence, viewed in a light most favorable to the conviction, was sufficient to permit the jury to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
Duncan challenges the sufficiency of the evidence on the element of penetration in the first-degree criminal-sexual-conduct conviction and the element of sexual contact in the second-degree criminal-sexual-conduct conviction. See Minn. Stat. § 609.342, subd. 1 (1996) (listing sexual penetration as an element of first-degree criminal sexual conduct); Minn. Stat. § 609.343, subd. 1 (1996) (listing sexual contact as an element of second-degree criminal sexual conduct). In criminal prosecutions, the state must prove beyond a reasonable doubt every element of the crime charged against a defendant. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970).
“Sexual penetration” is defined as “any intrusion however slight into the genital or anal opening.” Minn. Stat. § 609.341, subd. 12(2) (1996). K.H. testified unequivocally that Duncan penetrated her vagina with his finger during their first encounter in the bedroom of his mobile home. She testified that she was in Duncan’s bed, Duncan was in bed with her, she felt him touching her, and he was touching her with his fingers “inside the vagina.” She further testified that he asked her whether it felt good and that she asked him to stop, but he did not stop. Her testimony was consistent with her statements in the sheriff’s department interview tapes. The testimony fully supports the jury’s finding on the element of sexual penetration.
Duncan’s second sufficiency-of-evidence challenge is to the element of sexual contact in the second-degree criminal sexual conduct against D.N.
“Sexual contact,” for the purposes of sections 609.343, subdivision 1, clauses (a) to (f) * * * includes * * * the following acts committed without the complainant’s consent, except in those cases where consent is not a defense, and committed with sexual or aggressive intent
(i) the intentional touching by the actor of the complainant’s intimate parts.
Minn. Stat. § 609.341, subd. 11(a) (1996). “Intimate parts” is defined as “the primary genital area, groin, inner thigh, buttocks, or breast of a human being.” Minn. Stat. § 609.341, subd. 5 (1996).
D.N. unequivocally testified that Duncan touched her with his hand on her vagina. In her two taped interviews and in her trial testimony, D.N. consistently stated that Duncan rubbed her “in the crotch” or in her “crack.” D.N. repeatedly described the sexual contact, stated that Duncan had touched her vagina more than once, identified the time period as close to her father’s January birthday, and described the circumstance of awakening in Duncan’s bedroom where he was on his knees and rubbing her vagina with his fingers.
The state presented evidence on both the element of penetration and the element of sexual contact that would allow a reasonable jury to find Duncan guilty beyond a reasonable doubt.
A sentencing court may depart from the presumptive guidelines sentence only if the case involves substantial and compelling circumstances. Minn. Sent. Guidelines II.D. If aggravating factors are present, a sentencing court has broad discretion to depart from the guidelines, and we review that decision under an abuse-of-discretion standard. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).
When reasons supporting the departure are stated, we examine the record to determine if the reasons justify the departure. State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002). The departure will also be upheld if there is sufficient evidence in the record to justify the departure even though the reasons given are improper or inadequate. Id. To support the sentencing departure, the district court listed five reasons: the ages of the victims, their vulnerability when assaulted, Duncan’s prior convictions, Duncan’s inability to be rehabilitated, and Duncan’s taking advantage of a position of trust with the two girls.
An upward durational departure must focus only on offense-related aggravating factors and may not consider offender-related factors. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995). Duncan’s inability to respond to treatment and his lack of remorse are both offender-specific factors and, therefore, should not have been considered in imposing a durational departure. See State v. Cermak, 350 N.W.2d 328, 335 (Minn. 1984) (holding that future likelihood of criminal behavior may not be relied on to support a durational departure); see also State v. McGee, 347 N.W.2d 802, 806 n. 1 (Minn. 1984) (stating that lack of remorse not a factor supporting durational departure, unless considered as evidence of cruelty or seriousness of the conduct).
The three remaining factors listed by the district court, however, adequately support the upward durational departure. See State v. Jeno, 352 N.W.2d 82, 85 (Minn. App. 1984) (affirming an upward departure based on only one aggravating factor). First, the Minnesota Sentencing Guidelines specifically provide that the court may use prior felony criminal-sexual-conduct convictions as aggravating factors for a current, similar criminal-sexual-conduct offense. Minn. Sent. Guidelines II.D.2.b.(1,3). The supreme court has held that this factor by itself may support a double departure. State v. Lomax, 437 N.W.2d 409, 410 (Minn. 1989).
Second, the court did not err in considering the age of the victims in the context of their vulnerability. Although departure is not justified based on the age of the victim when age is an element of the crime, age may be considered in conjunction with other factors to determine “if the conduct underlying the offense was sufficiently different from the typical conduct” that it justifies departure. See State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990) (holding age of 10-year-old victim, along with other aggravating factors, supported double departure for first-degree criminal sexual conduct), review denied (Minn. Feb. 28, 1998).
In its sentencing order the court stated, “The children were very young. The defendant had gained their trust, and, in fact, they referred to the defendant as ‘grandpa Don.’” The district court’s recognition of the victims’ young ages relates to their vulnerability and the circumstances that allowed Duncan to gain the trust of the children. One of the children had recently lost a grandfather named Don, and the children’s ages and circumstances made them vulnerable to transferring their trust to Duncan.
In addition to the aggravating factors specifically set forth in the sentencing guidelines, the district court also found that the children were frightened of Duncan and would likely need psychological assistance to overcome the trauma. See Skinner, 450 N.W.2d at 654 (stating that fact that victim needs psychological or psychiatric counseling because of defendant’s acts can be considered an aggravating factor). At the sentencing hearing, D.N. submitted a letter stating that she had attempted suicide since the abuse and that K.H. was hurt by the abuse as well. This factor, when combined with others, has been held sufficient to support a double departure. State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994), review denied (Minn. Mar. 31, 1994).
Although the two offender-related factors do not provide a basis for a durational departure, the remaining factors are supported in the record and adequately establish that Duncan’s actions were more severe than those typically involved in the commission of first- and second-degree criminal sexual conduct. The district court’s decision to impose an upward durational departure was not an abuse of discretion.