This opinion will be unpublished and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
Dakota County District Court
File No. KX013172
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, Minnesota Public Defender, Theodora Gaïtas, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
Appellant Denise Patch pleaded guilty to one count of second-degree manslaughter by neglect or endangerment of a child, in violation of Minn. Stat. § 609.205, subd. 5 (2000), for the death of her three-year-old son from beatings by Patch’s boyfriend. Patch appeals a double-durational upward departure from sentencing guidelines, arguing that the district court abused its discretion because the aggravating factors identified were also elements of manslaughter, or were factors attributable only to her boyfriend. Patch also argues that the district court abused its discretion by not departing downward because she is amenable to probation. We affirm.
Three-year-old Dillon, son of appellant Denise Patch, died from internal injuries inflicted by Patch’s boyfriend. Patch’s boyfriend had been abusing Dillon for a long period of time in the home he shared with Patch and her two children. Dillon’s body was covered with multiple bruises, human bite marks and lacerations, and he had numerous rib fractures in various stages of healing. Dillon’s five-year-old sister was often at home when Dillon was beaten, and could tell the difference between the sounds of the boyfriend striking Dillon with his hand and with his belt.
When people at Dillon’s daycare began to ask Patch about Dillon’s injuries, she removed both of her children from daycare and placed them in her boyfriend’s care while she worked nights. Patch also repeatedly cancelled Dillon’s appointments for speech therapy provided by the school, because Dillon had visible bruising. Patch was trained as a daycare provider and was aware that school officials and day care providers are required to report suspected child abuse.
The day Dillon died, Patch’s boyfriend called her at work in the middle of the night and said that Dillon had fallen and was crying. Patch left work and went home. She saw that Dillon was visibly injured, was speaking abnormally, and was having difficulty breathing. Patch did not call a doctor or take Dillon to a hospital because her boyfriend had told her not to seek medical assistance that night. Patch put Dillon to bed with her boyfriend and went to the living room, where she eventually fell asleep. When she woke up, Dillon was dead.
Patch was charged with murder in the second degree, felony neglect of a child, and felony endangerment of a child. She accepted a plea agreement and pleaded guilty to an amended charge of second-degree manslaughter in violation of Minn. Stat. § 609.205, subd. 5. All other charges were dismissed. The district court sentenced Patch to 96 months, double the presumptive sentence. The district court articulated as aggravating factors that Dillon was particularly vulnerable, that Patch was particularly cruel in failing to seek medical attention, that the abuse took place in Dillon’s zone of privacy, and that Dillon’s sister witnessed what happened to Dillon. Patch appeals her sentence.
Absent an abuse of discretion, departure from a presumptive sentence will not be overturned. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). A sentencing court has discretion to depart from the sentencing guidelines only when aggravating or mitigating factors are present. Id. at 88-89. The district court must order the presumptive sentence unless there are “substantial and compelling circumstances” that warrant departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). When considering an upward departure, the district court must “decide 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. Sanchez-Sanchez, 654 N.W.2d 690, 693-94 (Minn. App. 2002) (citation and quotation omitted).
Patch relies on the general rule that elements essential to the conviction of a defendant may not also be considered aggravating factors, to argue that the district court abused its discretion when it departed from the presumptive sentence. See State v. Gardner, 328 N.W.2d 159 (Minn. 1983). Patch asserts that the aggravating factors relating to the victim’s age and her failure to seek medical attention are elements of second-degree manslaughter. But an enhanced sentence can be appropriate even when the reason for enhancement is an element of the crime, if the element is committed in a particularly serious manner. See State v. Cox, 343 N.W.2d 641, 644 (Minn. 1984) (holding that even though great bodily harm is an element of first-degree assault, it can still form the basis for a sentencing departure if the defendant committed the offense in a particularly serious way); State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (holding that even though infliction of great bodily harm is an element of first-degree assault, injury could be considered aggravating factor for departure from sentencing guidelines where victim was subject to high probability of death, serious permanent disfigurement, permanent impairment of bodily function, and other serious bodily harm), review denied (Minn. Aug. 18, 1987); c.f. State v. Herrmann, 479 N.W.2d 724, 730-31 (Minn. App. 1992) (holding that where great bodily harm is an element of the offense, if the great bodily harm is caused in a particularly gruesome and heinous manner, the cruelty with which the harm is inflicted may be considered as an aggravating factor), review denied (Minn. Mar. 19, 1992). And this court has repeatedly recognized that even when age is an element of the offense, the vulnerability of the victim because of specific age can constitute an aggravating factor. See e.g., State v. Mortland, 395 N.W.2d 469, 475 (Minn. App. 1986) (holding even though victim’s age was element of offense, court may rely on vulnerability due to age for sentence departure when victim was too young to have any defenses but too old to escape knowing and remembering the trauma and paininflicted on her); see also State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982) (holding extremely young age justified departure even when age was an element of the crime).
In this case, the district court found the failure to seek medical assistance on the day of Dillon’s death particularly cruel because Patch, having observed multiple injuries and Dillon’s struggle to breathe, left him in bed with his abuser and left the room. The district court noted that Dillon was vulnerable not just because of his age, but because he suffered from developmental problems and had suffered from numerous prior beatings. We conclude that the district court did not abuse its discretion by relying on the particular cruelty of Patch’s failure to seek medical attention and Dillon’s special vulnerability as aggravating factors to justify an upward durational sentencing departure.
Patch also argues that the district court inappropriately considered that the abuse took place within Dillon’s zone of privacy and that his five-year-old sister witnessed the abuse because those factors relate only to her boyfriend’s acts. The fact that a crime is committed at the victim’s own home is a factor justifying an upward departure. State v. Coley, 468 N.W.2d 553, 555 (Minn. App. 1991). The district court noted that Patch had removed Dillon from the safe environment of daycare and stated that it is Patch’s act of leaving Dillon in the care of his known abuser within Dillon’s zone of privacy that constitutes an aggravating circumstance. The district court’s consideration of Patch’s having placed Dillon in danger in his own home as an aggravating factor was not an abuse of discretion.
Presence of young children at a crime has been recognized as an aggravating factor justifying an upward departure for the perpetrator of an assault. State v. Profit, 323 N.W.2d 34 (Minn. 1982) (stating that committing offense in presence of children supports an upward departure because while witnessing child was not technical victim of crime, is victim in another sense); State v. Butzin, 404 N.W.2d 819, 830 (Minn. App. 1987) (a young child being witness to assault on mother supports upward departure), review denied (Minn. Apr. 21, 1987). Here, Dillon’s sister was not only a witness to the assaults, but also witnessed Patch’s acts of neglect and endangerment. The district court did not abuse its discretion by considering this child’s witnessing criminal acts as an aggravating factor. The district court based its findings of these aggravating factors on Patch’s actions, not the actions of her boyfriend.
Patch further argues that the district court abused its discretion by not departing downward because she is amenable to probation. We disagree. Patch correctly asserts that a district court should consider all of the relevant mitigating factors when sentencing. See State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984). But the court is not required to depart from a presumptive sentence when a mitigating factor is articulated. Id. at 263. Even assuming Patch is exceptionally amenable to probation, that fact does not dictate downward durational or dispositional departure. See State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996) (holding amenability to treatment does not require downward departure). The district court acted within its discretion when it determined that Patch’s amenability to probation did not justify a downward departure.
 Patch also argues that the district court inappropriately considered Dillon’s vulnerability based on past abuse because the abuse is the proximate cause of death and she did not actually participate in the abuse. This argument is without merit. Dillon had suffered months of abuse, visible to Patch, that weakened him and made him more vulnerable.