This opinion will be unpublished and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,
Allen Suggs, Jr.,
Hennepin County District Court
File No. 00048748
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Minge, Presiding Judge, Lansing, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
In pleading guilty to first-degree criminal sexual conduct, appellant Allen Suggs, Jr. agreed with the state that the district court could impose an executed sentence with the presumptive sentence of 98 months as the minimum term and 144 months as the maximum term. The parties also agreed that the district court could base its sentence on the police reports, the victim’s statement, and the laboratory tests. After finding that Suggs had invaded the victim’s zone of privacy and had committed his crime in the presence of the victim’s children, the district court sentenced him to 130 months. Suggs argues on appeal that the district court abused its discretion in departing from the sentencing guidelines. Because the district court did not abuse its discretion, we affirm.
On May 18, 2000, A.B. was asleep in her apartment bedroom with her two-year-old son. Her eight-year-old daughter was asleep in another bedroom. Just before 6:00 a.m., appellant Allen Suggs, Jr. broke into A.B.’s apartment through a balcony door and entered A.B.’s bedroom. A.B. woke suddenly, saw Suggs standing in front of her with a knife, and screamed. Suggs told her several times to “shut up” or he would kill her. When A.B. asked if she could put her son in another room, Suggs told her to be quiet. He then pulled A.B.’s pajama bottoms down and fondled her as she lay on the bed. This woke A.B.’s son. A.B. struggled and Suggs dragged her onto the floor, held the knife to her stomach and to her back, performed oral sex on her, inserted his finger into her vagina, and threatened to kill her.
As A.B. struggled, she screamed to her daughter to call 911. A.B.’s screams woke her daughter, who came to the bedroom and saw Suggs on top of her mother. A.B.’s daughter ran to a neighbor’s apartment and called the police. Suggs remained on top of A.B., punched her repeatedly in the head, and caused lesions, swelling, and bruises on A.B.’s face. Eventually, A.B. was able to take away the knife, and Suggs fled.
Based on these facts, the district court departed from the sentencing guidelines.
The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). When a district court departs from the presumptive sentence, it must state substantial and compelling circumstances that justify the departure. Id. Generally, in determining whether to make a sentencing departure, the 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 the record supports findings that substantial and compelling circumstances exist, this court will not modify the departure unless it has a “strong feeling” that the sentence is disproportional to the offense.
State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (citation omitted). If the district court’s reasons justify the departure, the departure will be allowed. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
The district court sentenced Suggs to 130 months in prison. The presumptive sentence was 98 months. See Minn. Stat. § 609.342, subd. 2 (1998); Minn. Sent. Guidelines IV, V. Suggs agreed to plead guilty and to receive a sentence between 98 and 144 months. The district court departed durationally because Suggs assaulted A.B. in her bedroom while her two young children were present.
Suggs argues that the children’s presence does not warrant a departure because he did not threaten the children and it is unclear what the children saw. Suggs also argues that the departure cannot be based on the fact that the assault occurred in A.B.’s bedroom because most sexual assaults occur in the victim’s zone of privacy and, therefore, are typical for this type of crime. Minnesota caselaw does not support Suggs’s arguments.
Presence of Children
The Minnesota Sentencing Guidelines provide a nonexclusive list of aggravating factors that may be used as reasons for departure, including the victim’s vulnerability related to physical capacity. See Minn. Sent. Guidelines II.D.2. This court has held in a first-degree criminal-sexual-conduct case that the “presence of the [victim’s] child in an adjoining room is analogous to a reduced physical capacity.” State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989); see also State v. Eberhardt, 379 N.W.2d 242, 246 (Minn. App. 1986) (affirming a double durational departure from the sentencing guidelines in a first-degree criminal-sexual-conduct case, where the defendant committed rape in the presence of the victim’s five-year-old son and in the victim’s own home), review denied (Minn. Feb. 19, 1986).
The record clearly indicates that A.B.’s two-year-old son was sleeping in the same bedroom with her, that he woke during the assault on his mother, and that he remained in the room the entire time. The record also clearly indicates that A.B.’s eight-year-old daughter was awakened by her mother’s screams, stood in the doorway to her mother’s bedroom, and saw Suggs on top of her mother. Based on these undisputed facts, the district court did not abuse its discretion by using the presence of A.B.’s children as an aggravating factor in the sentencing departure.
Zone of Privacy
Minnesota caselaw has established that when an assault occurs in a victim’s zone of privacy, the court may use that as a factor in considering whether to depart from the presumptive sentence. See State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (noting that robbery occurring in the victim’s home/zone of privacy “is an aggravating factor that can be considered in deciding whether to depart”); State v. Morales, 324 N.W.2d 374, 377 (Minn. 1982) (holding that an upward sentencing departure was justified because, combined with an assault with a dangerous weapon and personal injury to victim, raping a victim in her back yard was an invasion of the victim’s zone of privacy, the rape was more serious than a typical rape; State v. Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982) (finding that the zone of privacy was invaded when the defendant raped the victim in her home because her home was no longer the victim’s “island of security”); State v. Davis, 546 N.W.2d 30, 36 (Minn. App. 1996) (holding that a “limited departure is justified because the sexual assault occurred on [victim’s] enclosed porch and, thus, violated her zone of privacy”); review denied (Minn. May 21, 1996); State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (affirming upward sentencing departure where defendant attempted to rape victim in her bedroom and used physical force to inflict bodily injury), review denied (Minn. Mar. 31, 1994). The district court did not abuse its discretion by citing the invasion of A.B.’s zone of privacy as an aggravating factor supporting the sentencing departure.
Because the sexual assault occurred in A.B.’s zone of privacy and in the presence of her children, the district court properly departed upwardly from the presumptive sentence. Because the factual record supports the district court’s reasons for the upward departure and the reasons for departure are legally adequate, the district court did not abuse its discretion.