This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Mark Edward Bradley, a/k/a Malik X,
Ramsey County District Court
File No. K0014463
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Minge, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant challenges the district court’s departure from the presumptive guidelines sentence on his conviction of terroristic threats. Because the court did not abuse its discretion in departing from the guidelines, we affirm.
Appellant Mark Bradley and D.W. were married in July 2001. At that time, Bradley was on supervised release for a prior conviction of criminal sexual conduct. As a condition of his supervised release, he was required to maintain a separate residence from D.W.
On October 30, 2001, Bradley went to D.W.’s apartment after midnight and became angry with her after finding some of his clothes missing and finding a condom in her purse. Bradley had argued with D.W. on the telephone earlier that evening, and he continued to argue with her when he came to her apartment after midnight. After he found the condom in her purse, he strangled her until she began to lose consciousness, and then released her. He took away her cell phone and took the cord off her home phone. Bradley also held a butcher knife and threatened to kill her. Shortly thereafter, D.W. drove Bradley to the store because he needed cigarettes. When Bradley went into the store, D.W. drove away and called the police from a friend’s house because she was afraid to return to her own apartment.
The state charged Bradley with one count of terroristic threats and two counts of kidnapping. In a plea agreement with the state, Bradley agreed to plead guilty to one count of terroristic threats, for which he hoped to receive a presumptive guidelines sentence of 30 months in prison. The state agreed to drop the kidnapping charges.
At the plea hearing, Bradley admitted that he orally cursed D.W. and attempted to grab her by the neck, and while holding a kitchen knife in his hands he told her that he could kill her. He acknowledged that D.W. accused him of choking her until she passed out and that photographs of D.W. showed some “very nasty-looking red marks on her neck.” Bradley also acknowledged that he understood that D.W. was afraid that he would commit a violent crime against her.
After the plea hearing, the state moved the court to upwardly depart from the 30-month presumptive sentence and to impose the 60-month prison sentence that the probation officer recommended in his presentence investigation report. At the sentencing hearing, the district court upwardly departed and imposed a sentence of 45 months. The court stated on the record that it imposed a longer sentence because: (1) the terroristic threats were made in the victim’s zone of privacy; and (2) the nature of the terroristic threats were atypical and justified an upward departure. But the court stated it did not believe that Bradley’s actions justified a 60-month sentence. Bradley challenges the upward departure.
The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Generally, in determining whether to depart in sentencing, a district court must determine “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).
If reasons supporting the departure are stated on the record, we will examine the record to determine if the reasons given justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the record supports findings that substantial and compelling circumstances exist, we will not modify the departure unless we strongly feel that the sentence is disproportional to the offense. State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984).
The district court stated on the record its two reasons for departing upward from the 30-month presumptive sentence:
Nevertheless, two things occur to me which I believe do support an upward departure in this case, but not to the level recommended in the pre-sentence report. The first is the zone of privacy. I believe that the charge here is making terroristic threats. The terroristic threats were made within a residence. Whether he was there permissibly or not, and whether or not he was asked to leave or not, nevertheless the terroristic threats occurred in an area in which the victim would ordinarily have an expectation of safety.
Secondly, it’s my view that the particular events that gave rise to this charge, that is the nature of the threats, the physical activity that accompanied those threats, the choking, the fact that the victim is reported to have almost passed out, the use of a knife in the making of the threats and brandishing the knife, not just holding it, all make it an atypical terroristic threat in my experience and justifies an upward departure on that basis.
Bradley argues that the district court abused its discretion when it departed from the presumptive guidelines sentence. He contends that his offense was no more serious than the typical terroristic threats case and that there are no substantial and compelling circumstances to support the durational departure. He argues that the zone-of-privacy basis for a departure does not apply here because he and D.W. were married and D.W. had invited him into her apartment. He also argues that the court improperly relied on conduct supporting his guilt on another offense that he denies occurred.
The Minnesota Sentencing Guidelines provide a nonexclusive list of aggravating factors that the district court may use as reasons for a durational departure. Aggravating factors include whether a defendant treated the victim with particular cruelty and whether the defendant used his position to facilitate the offense, such as his position of trust or confidence. An abuse of trust relationship between a victim and a defendant may be another aggravating factor. State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988), review denied (Minn. May 18, 1988). Invasion of a person’s zone of privacy, such as being victimized in one’s home, is also an aggravating factor warranting an upward departure in sentencing. State v. Coley, 468 N.W.2d 552, 555-56 (Minn. App. 1991).
Because the parties were married, they were in a relationship requiring trust and confidence. See Hafner v. Hafner, 237 Minn. 424, 432, 54 N.W.2d 854, 859 (1952) (noting general rule that confidence and good faith is required between married individuals). When Bradley strangled his wife in her apartment to the point of unconsciousness and, while holding a knife, threatened to kill her, he acted with particular cruelty for this offense. See, e.g., State v. Schultz, 362 N.W.2d 16, 17-18 (Minn. App. 1985) (finding offense more serious than typical terroristic threat offense where coworker slashed victim’s car tire, wires, and hoses; left a threatening letter, his jacket and a rope in her car; and police discovered guns in his apartment). Generally, when a person is victimized in his or her own home, the “home is no longer the island of security upon which the victim has previously relied, thereby making the offense particularly cruel.” Coley, 468 N.W.2d at 555. Because the incident occurred in D.W.’s residence, Bradley invaded D.W.’s zone of privacy, thus making the terroristic-threats offense particularly cruel.
Bradley argues, however, that he did not invade D.W.’s zone of privacy because such a situation typically involves a trespass, which he claims is not the case here. In support of his argument, Bradley cites State v. Volk, where we stated that a victim’s zone of privacy cannot be invaded if the defendant was invited into the victim’s home. 421 N.W.2d at 366. In Volk, the victim invited defendant and another individual, both strangers, into his home, and this court found no invasion of the victim’s zone of privacy. Id. Bradley fails to note, however, that in Volk we nonetheless determined that an aggravating factor existed because the defendant abused a trust relationship. Id. See also Coley, 468 N.W.2d at 555-56 (finding that defendant violated his ex-wife’s zone of privacy in the marital home and holding that wife was entitled to the same security as are persons not divorced).
In this case, the facts do not persuasively support Bradley’s claim that D.W. invited him into her apartment. The facts reveal that Bradley was not supposed to reside at D.W.’s residence because of his prior sexual conduct offense; that earlier that evening, the parties had argued on the telephone; that Bradley came to D.W.’s apartment after midnight – ordinarily not a time that an invitation might be extended – and the parties continued to argue once Bradley was inside the residence. Bradley also searched through D.W.’s belongings. These circumstances support the inference that Bradley likely was not invited into the apartment. D.W. thus had an expectation of privacy in her apartment, which Bradley violated.
Finally, Bradley argues that the district court improperly concluded that he had committed the more serious offenses of second- or third-degree assault and improperly relied on this conclusion to upwardly depart in the sentence imposed. Bradley claims that D.W.’s allegation that she had been choked cannot be relied on as a factor to depart because he never admitted to this conduct; he admitted only that he attempted to grab D.W. by the neck.
In general, a sentencing court may consider the course of conduct underlying the charge for which the defendant is being sentenced. State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984). But the
sentencing court “may not consider evidence that points to the defendant’s guilt of some other offense but does not support the conclusion that the defendant committed the instant offense * * * in a particularly serious or cruel way.”
Bradley mistakenly relies on State v. Womack, 319 N.W.2d 17, 19-20 (Minn. 1982), in which the supreme court reversed a sentencing departure and held that the district court should not have looked at the conduct underlying the offense to which the defendant pleaded guilty if the defendant denied that such conduct occurred. Later caselaw has limited the holding in Womack to cases where the aggravating factors used to depart in sentencing apply to a dismissed charge. Specifically, in State v. Pearson, 479 N.W.2d 401, 406 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992), we stated that “[o]nly when the sentencing court contemplates facts related solely to a dismissed charge does the sentencing court create the risk of reversible error.”
Here, the state did not charge Bradley with assault, nor was the issue of charging him with assault even mentioned in the transcripts of the guilty plea or the sentencing hearings. The charges dismissed were two counts of kidnapping. Bradley choked D.W., wielded a knife, and threatened to kill her before the alleged kidnapping occurred.
The record supports the conclusion that Bradley committed the terroristic threats in a particularly serious or cruel way. Although Bradley minimized his conduct, the court is not required to accept his version of the crime to which he offers to plead guilty. State v. Winchell, 363 N.W.2d 747, 749 (Minn. 1985).
There were proper bases for an upward durational departure from the presumptive sentence. Thus, the district court did not err in sentencing Bradley.