This opinion will be unpublished and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
Hennepin County District Court
File No. 01093778
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, Minnesota Public Defender, Jodie L. Carlson, 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 Shawn Christopher Leiker asserts that the district court abused its discretion by sentencing him to a double-upward departure from the presumptive guideline sentence for criminal sexual conduct in the first degree. We affirm.
After losing his job in California, Leiker was invited to live in the Minnesota home of his former foster mother with her husband and stepchildren. Leiker, who was 21 years old, accepted the invitation. In (or before) the summer of 2001, Leiker began a sexual relationship with the nine-year-old stepdaughter of his former foster mother. Almost every night the child would come to his bed or he would go to her bed, in the room she shared with her sister. According to the child, Leiker put his penis in her vagina and her mouth and had orgasms. She also said he had put his penis in her “butt.” She said he kissed her with his tongue in her mouth. Leiker admitted that he put his fingers into the child’s vagina and that his mouth touched her vagina. Leiker told the child not to tell anyone what they were doing because he could go to jail. The child’s father and stepmother discovered the relationship in November 2001. Leiker pleaded guilty to two counts of criminal sexual conduct in the first degree involving sexual penetration and sexual contact with a person under the age of 13.
At sentencing, the state moved for an upward durational departure to the statutory maximum sentence of 360 months. Leiker moved for a dispositional departure. The district court denied Leiker’s motion for a dispositional departure. Citing numerous aggravating factors, the district court sentenced Leiker to a double-durational departure of 288 months (24 years), and five years conditional release. Leiker appeals the sentence.
Absent an abuse of discretion, departure from a presumptive sentence will not be overturned. State v. Spain, 590 NW.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 impose the presumptive sentence unless there are “substantial and compelling circumstances” that warrant departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The district court must state its reasons for the departure on the record. State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). This court reviews the record to determine whether the reasons supplied support the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the reasons supplied justify the departure, the departure will be affirmed. Id.
Leiker asserts that the district court failed to properly consider mitigating factors of amenability to treatment and lack of capacity for judgment that he raised in his departure motion. After hearing oral argument on the motion, the district court stated: “The court is not going to grant your motion for dispositional departure. I don’t feel that this is a case which merits a dispositional departure.” Leiker complains that the district court failed to discuss the merits of the mitigating factors. Although a district court is required to explain a decision to depart from a presumptive sentence, no explanation is required when the district court does not depart. See State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984). The district court did not abuse its discretion by denying Leiker’s motion for a dispositional departure without further discussion or explanation.
Leiker argues that the district court’s decision to impose a double-durational departure is an abuse of discretion because the sentence imposed is excessive given the circumstances. Leiker concedes that the district court outlined factors that are traditionally recognized aggravating factors. And the district court made appropriate findings supporting the upward departure, which was based on (a) particular cruelty due to the repeated sexual incidents over an extended time with multiple types of penetration; (b) the exploitation of trust because Leiker was perceived by this child as a brother; (c) invasion of the child’s zone of privacy by assaulting her in her bedroom; and (d) the proximity of another child to the sexual acts. Multiple incidents of penetration alone have been held to justify a double upward durational departure. State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992), review denied (Minn. Mar. 3, 1992).
But Leiker argues that because the Minnesota legislature increased the mandatory sentence for first-degree criminal sexual conduct offenses from 86 months to 144 months to reflect the seriousness of these offenses, traditional aggravating factors may no longer be appropriate to justify a departure from the presumptive sentence. We disagree.
Leiker relies on a case in which the supreme court noted that a legislative change transforming a traditionally recognized aggravating factor, quantity of drugs sold, into an element of some controlled substance crimes precludes use of that factor in departure decisions. State v. McIntosh, 641 N.W.2d 3, 11-12 (Minn. 2002). But, in this case, the legislative change did not make the aggravating factors relied on by the district court elements of first-degree criminal sexual conduct. That the legislature chose to raise the minimum sentence for first-degree sexual conduct offenses does not suggest that the traditionally recognized aggravating factors are no longer valid. Nothing in the record indicates that the double-durational departure imposed is so clearly excessive that it constitutes an abuse of discretion.
Leiker’s pro se supplemental brief does not raise any legal arguments.
 See Minn. Stat. § 609.342, subd. 2(b) effective August 1, 2000.