This opinion will be unpublished and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,
Khariq Champaigne Malik-El,
Filed September 10, 2002
Hennepin County District Court
File No. 00087876
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Willis, Presiding Judge, Kalitowski, Judge,* and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of and sentence for third-degree assault, a violation of Minn. Stat. § 609.223, subd. 1 (2000). Appellant argues that the district court (1) abused its discretion by ruling that Spreigl evidence of his 1991 conviction of first-degree assault would be admissible at trial and (2) erred by imposing a consecutive sentence without using a zero criminal-history score to calculate the presumptive duration of the sentence. Because the district court did not abuse its discretion in ruling the Spreigl offense admissible and because severe aggravating factors support the sentence departure, we affirm.
On July 8, 2000, Appellant Khariq Champaigne Malik-El was caring for a five-month-old child while the child’s mother ran errands. When the mother returned, Malik-El “reported no problems.” A short time later, the child was discovered to be in pain and to have a large bump on her left elbow. She was taken to a hospital, where it was determined that her elbow was broken.
When questioned by the mother, Malik-El initially denied that the child was injured but later stated that he had pulled on the child’s arm to prevent her from falling off his lap. A child-abuse expert, however, concluded that the injury could not have been sustained in the manner described by Malik-El and that the broken elbow was the result of an abusive, forceful twist of the child’s arm while in a hyperextended position.
Before trial, the state moved to admit as Spreigl evidence Malik-El’s 1991 conviction of first-degree assault, in which he caused permanent injury to an 18-month-old child by slapping and hitting the child in the head. The district court, following a hearing on the issue held on the scheduled trial date, made a preliminary ruling granting the state’s motion. The court found that evidence of the prior assault would tend to show absence of an accident.
Following the Spreigl ruling, the prosecutor and defense counsel reached an agreement under which Malik-El would submit the case for a bench trial on stipulated facts and, if found guilty, would be sentenced to 30 months, the sentence to be consecutive to a previously stayed sentence for a 1997 conviction of third-degree criminal sexual conduct, which would be executed. The district court found Malik-El guilty of third-degree assault and imposed a consecutive sentence of 30 months, as agreed by the parties. This appeal follows.
Evidence of other offenses is not admissible as Spreigl evidence unless (1) there is clear and convincing evidence that the defendant participated in the prior crime; (2) it is relevant and material to the state’s case; and (3) its probative value is not outweighed by its potential for unfair prejudice. State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000). The admission of Spreigl evidence lies within the discretion of the district court, and its ruling will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). Malik-El does not deny that he committed the 1991 assault.
Malik-El argues that evidence of his prior assault is irrelevant to the state’s case. In determining the relevance and materiality of Spreigl evidence, the district court considers, among other factors, “whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus operandi.” State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998) (citations omitted).
Concerning the first factor, although Malik-El’s current offense occurred nearly ten years after the 1991 assault, he was incarcerated for five or six of those years. The passage of time between a prior crime and the charged offense is discounted when a defendant was incarcerated during a “large segment” of that time. State v. Drieman, 457 N.W.2d 703, 710 (Minn. 1990) (affirming admission of Spreigl evidence when defendant was incarcerated more than five years during the nine and one-half years between prior crime and charged offense). As to the second factor, each of the offenses occurred at the residence of the child-victim and the child’s mother.
Malik-El contends that the 1991 assault and his current offense do not share a similar modus operandi. But in both cases, Malik-El physically assaulted young children at their residences. A defendant’s past conduct with another child is relevant in determining whether the defendant caused a child’s injuries when the conduct “demonstrates a callous attitude toward children.” State v. Orfi, 511 N.W.2d 464, 471 (Minn. App. 1994) (quotation omitted), review denied (Minn. Mar. 15, 1994).
The district court did not abuse its discretion in concluding that the probative value of the 1991 Spreigl offense outweighed its potential for unfair prejudice. In making such a determination, a court must consider how necessary the evidence is to the state’s case. State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992). At the time the court made its ruling, the state could anticipate that Malik-El would testify, consistent with his statement to police, that the child’s injury was caused accidentally when the child began to fall. Spreigl evidence is admissible to show the absence of an accident. State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990). There was no eyewitness to the incident other than Malik-El, leaving the state to rely on expert-opinion testimony to rebut Malik-El’s account. We conclude that there was a sufficient showing of necessity for the Spreigl evidence and that the district court did not abuse its discretion in admitting that evidence.
Malik-El argues that the district court erred by imposing a consecutive sentence of 30 months without using a zero criminal-history score to calculate the presumptive duration of the sentence. The Minnesota Sentencing Guidelines provide that
[a] current felony conviction for a crime against a person may be sentenced consecutively to a prior felony sentence for a crime against a person which has not been expired or been discharged.
Minn. Sent. Guidelines II.F. “For each offense sentenced consecutive to another offense(s), * * * a zero criminal history score * * * shall be used in determining the presumptive duration.” Id. The state concedes that a zero criminal-history score must be used in calculating the presumptive duration of Malik-El’s sentence. It argues, however, that the 30-month sentence was properly imposed as an upward departure, supported by the agreement of the parties as well as by severe aggravating circumstances.
The presumptive sentence for third-degree assault, using the zero criminal-history score required for consecutive sentencing, is a year and a day. Minn. Sent. Guidelines IV, V. The 30-month sentence imposed by the district court, therefore, was a greater-than-double durational departure.
The supreme court has held that a plea agreement by itself cannot support a sentencing departure. State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002). An agreed-on sentence must be supported by aggravating or mitigating circumstances supporting the departure. Id. Because the court here imposed a greater-than-double departure, there must be severe aggravating circumstances. See State v. Jackson, 596 N.W.2d 262, 267 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).
The vulnerability due to age of the five-month-old victim is an aggravating factor. See State v. Beard, 574 N.W.2d 87, 92 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998). So, too, is Malik-El’s violation of his position of trust as the child’s temporary caretaker. See id.
In Beard, this court held that these two aggravating factors would support a double, but not a greater-than-double upward departure. Id. at 93. But in this case another aggravating factor is present--Malik-El’s conviction of a prior offense involving victim injury. See Minn. Sent. Guidelines II.D.2.b.(3). The supreme court has held that this factor alone may support up to a double departure. State v. Lomax, 437 N.W.2d 409, 410 (Minn. 1989). We conclude, therefore, that Malik-El’s 1991 conviction for assault of a child, along with the present victim’s vulnerability due to age and Malik-El’s violation of his position of trust, constitute severe aggravating circumstances supporting the upward departure to a sentence of 30 months.
* The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal. Due to Judge Foley’s untimely death before the filing of the opinion, Judge Kalitowski has been assigned as a substitute, and now joins the panel in issuing this decision.
 This agreement was framed as a Lothenbach stipulation, for the apparent purpose of allowing appellate review of the Spreigl issue. The parties included an agreement as to sentence, however, as if the agreement were a plea agreement. The supreme court has emphasized the necessity of distinguishing a Lothenbach stipulation from a plea agreement. State v. Verschelde, 595 N.W.2d 192, 194-95 (Minn. 1999). The propriety of the agreement, however, is not at issue in this appeal, and we address the Spreigl issue the agreement was intended to preserve.
 Therefore, we need not decide whether the Lothenbach stipulation that was entered into here could function as a plea agreement to support the departure.