This opinion will be unpublished and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,
Richard Douglas Flemino, Jr.,
Affirmed in part, vacated in part
Concurring Specially, Randall, Judge
Concurring Specially, Shumaker, Judge
Ramsey County District Court
File No. K8011763
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from convictions for first- and second-degree criminal sexual conduct, appellant Richard Flemino argues that the district court (1) erred by failing to inquire into appellant’s competency prior to granting his request to waive counsel; (2) denied appellant’s constitutional right to a fair trial by prohibiting him from cross-examining the victim’s mother about her possible bias; (3) erred by finding appellant in direct contempt; (4) committed plain error in admitting expert testimony on whether the victim was sexually abused; (5) abused its discretion by departing upward from the presumptive sentence; and (6) erred in adjudicating convictions on both counts when they arose out of the same incident. We affirm in part and vacate in part.
Sometime in the summer of 1999, in the middle of the night, appellant Richard Douglas Flemino entered the home of Cherie Hess. Her daughter, C.P., then nine years old, was sleeping in a sleeping bag on the floor in Hess’s bedroom. In the same room, Hess was sleeping on a bed with C.P.’s cousin. C.P. awoke to find Flemino lying on the floor next to her. She recognized him as the boyfriend of her mother’s friend. Flemino told C.P. that he was cold and put his hand down her pants, touching her bare skin. He put his finger inside her “private” and said, “This feels good.” C.P. felt scared. When Hess sneezed, Flemino jumped up and picked up the telephone in the bedroom. C.P. ran and got into her mother’s bed. Hess saw Flemino, told him that he did not have permission to be in her home, and ordered him to leave immediately. Flemino left. C.P. was too frightened to tell her mother what happened that night. C.P. told her mother about this incident in January 2001. She also recounted the same events to police and a nurse at Midwest Children’s Resource Center.
Flemino was charged with first- and second-degree criminal sexual conduct, in violation of Minn. Stat. §§ 609.342, .343 (2000), and tried by a jury from October 22 through October 29, 2001. During the trial, Flemino requested that the district court dismiss his appointed attorney and allow him to proceed pro se. After advising Flemino of his constitutional rights, the district court advised him to reconsider this request overnight. The next day, the district court granted Flemino’s request, and he represented himself during the trial.
The jury heard the testimony of C.P., Hess, Sergeant Janet Dunnom, who investigated the sexual abuse report of C.P., and Beth Carter, a nurse at Midwest Children’s Resource Center, who conducted an interview with C.P. regarding the allegations of sexual abuse. Throughout the trial, the district court admonished Flemino on several occasions because of his disruptive behavior and warned Flemino that he risked being held in contempt if his behavior continued.
Flemino was held in contempt twice during the trial. The first contempt occurred on October 22, when Flemino repeatedly interrupted his attorney’s argument and failed to heed the district court’s warnings. The second contempt occurred when Flemino was proceeding pro se. During the cross-examination of Sergeant Dunnom, Flemino attempted to introduce a document (his advice-of-rights form) into evidence and publish it to the jury. The district court sustained the prosecution’s objection and removed the jury from the courtroom. When the district court directed Flemino to sit down, Flemino approached the bench and slammed the document on the bench. The district court warned Flemino that he faced another contempt if this behavior continued. Before the state’s closing argument on October 29, after numerous warnings by the district court, Flemino continued to make inappropriate remarks to the jury, disturbing the course of the proceedings.
The jury found Flemino guilty on both counts. Flemino now appeals from his conviction for first- and second-degree criminal sexual conduct, and the district court’s finding of direct criminal contempt.
Flemino first argues that the district court erred by allowing him to waive his right to counsel without first inquiring whether he was competent to do so. The Sixth and Fourteenth Amendments of the United States Constitution and Article I, sections 6 and 7, of the Minnesota Constitution guarantee a criminal defendant the right to counsel. U.S. Const. amend. VI; amend. XIV, § 1; Minn. Const. art. I, §§ 6, 7. A criminal defendant also has a constitutional right to represent himself and, thus, may elect to do so by voluntarily and intelligently waiving his right to counsel. Faretta v. California, 422 U.S. 806, 834-35, 95 S. Ct. 2525, 2540-41 (1975); State v. Richards, 456 N.W.2d 260, 265-66 (Minn. 1990). We apply the clearly erroneous standard in reviewing the district court’s decision to grant Flemino’s self-representation motion. State v. Christian, 657 N.W.2d 186, 190 (Minn. 2003).
The Minnesota Supreme Court has adopted the two-pronged inquiry established by the United States Supreme Court in Godinez v. Moran, 509 U.S. 389, 400, 113 S. Ct. 2680, 2687 (1993), as a predicate to a waiver of the right to counsel. State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997). First, if the district court has reason to doubt the defendant’s competency, the court must make “a finding that the defendant is competent to stand trial.” Id. (citation omitted). Second, the district court must “satisfy itself that the [defendant’s] waiver of his constitutional rights is knowing and voluntary.” Id. (citation omitted). In addition, if during the trial the district court has reason to doubt the defendant’s competency, it must suspend the criminal proceedings and order a competency evaluation. Id. at 174; Minn. R. Crim. P. 20.01, subd. 2.
A. Initial competency
The legal standard for mental competency to waive assistance of counsel is the same as that for competency to stand trial. Camacho,561 N.W.2d at 172. In Minnesota, a defendant is not competent to stand trial if the defendant
(1) lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel; or
(2) is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.
Minn. R. Crim. P. 20.01, subd. 1. A defendant who is competent to stand trial is competent to waive the right to counsel. Godinez, 509 U.S. at 397-400, 113 S. Ct. at 2686-87.
Flemino’s competency to stand trial was never questioned. Moreover, there is no evidence in the record that he was not competent to stand trial. There is no prior medical opinion regarding Flemino’s mental capacity. While there is evidence of Flemino’s disagreements with his counsel, there is no evidence that he did not understand his counsel. Our review of the record establishes that the district court had no reason to doubt Flemino’s competency initially.
B. Knowing and voluntary waiver
The district court also must be satisfied that the waiver of counsel is “knowing and voluntary.” Id. at 400, 113 S. Ct. at 2687; see also Minn. R. Crim. P. 20.01, subd. 1 (requiring a knowing, voluntary, and intelligent waiver); Richards, 456 N.W.2d at 263 (requiring clear, unequivocal, and timely request to waive counsel and knowing and intelligent waiver). In order to determine whether a waiver of counsel is knowing and intelligent, the district court should comprehensively examine the defendant regarding the defendant’s comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant’s understanding of the consequences of the waiver. State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990).
The record in this case indicates that Flemino was aware of the consequences of his decision to represent himself. Flemino asked the district court to grant his request for self-representation after several disagreements with his trial counsel. One such disagreement resulted in Flemino being held in contempt. The district court warned Flemino that, because he was represented by counsel, he had to relay all of his requests through his attorney. Following this incident, Flemino demanded his right of self-representation. The district court explained to Flemino the consequences of such a decision, indicated that it would be a mistake, and, in fact, advised Flemino to think about it overnight. The next day, Flemino reiterated his desire to waive his right to counsel and proceed pro se.
C. Subsequent reason to doubt competency
Flemino nevertheless argues that the district court should have inquired into his competency during the trial because of his disruptive behavior, as evidenced by numerous warnings made by the district court and eventual findings of contempt. He contends that he was denied his right to a fair trial as a result of his inability to present his arguments adequately, his failure to enter certain documents into evidence, and his entry of other documents into evidence to his detriment.
A defendant who intelligently and knowingly waives the right to the assistance of counsel must be allowed self-representation, despite the pro se defendant’s lack of legal ability to conduct a good defense, argumentative tendencies, and pursuit of annoying irrelevancies. Richards, 456 N.W.2d at 264-66. On the other hand, the right of self-representation is not a license to disrupt, obstruct, or otherwise impede the trial proceedings. “[T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46. Evidence of a defendant’s irrational behavior and demeanor at trial is relevant in determining whether there is reason to doubt the defendant’s competency. Camacho, 561 N.W.2d at 172. Thus, we must determine whether Flemino’s behavior during trial gave the district court reason to doubt his competency and require, on the court’s own initiative, an evaluation of Flemino’s competency.
Most of the evidence of incompetency presented by Flemino relates to his inability to conduct a proper defense. Flemino contends that his “obsession over what appeared to be trivial non-issues could be a sign that he was not competent.” A pursuit of “annoying irrelevancies” by itself, however, does not rise to the level of incompetency. See Richards, 456 N.W.2d at 266; see also State v. Bauer, 310 Minn. 103, 123 n.13, 245 N.W.2d 848, 859 n.13 (1976) (competence does not refer to legal ability but rather to mental ability). Flemino also asserts that his difficulties in communicating with his appointed counsel were a sign of his incompetence. But there is no evidence that Flemino did not understand his attorney. Rather, the record establishes that Flemino disagreed with his counsel’s legal tactics and was upset because he thought his counsel was not complying with Flemino’s requests. It appears that Flemino sought to represent himself to enable him to relay all of his concerns directly to the district court.
As additional evidence of his incompetence, Flemino points to his threats to sue his attorney and his request of counsel to ask prospective jurors outrageous questions, such as whether “giraffes wear sunglasses.” These actions are properly viewed in the context of Flemino’s continuing dissatisfaction with his lawyer. As such, they may be evidence of his belligerence, but they do not establish a basis for the district court to question sua sponte Flemino’s incompetency to stand trial. The record contains ample evidence of Flemino’s lack of courtroom decorum, unfamiliarity with technical language, and belligerent behavior. These considerations, however, do not rise to the level of incompetence. See Camacho,561 N.W.2d at 174. A defendant who elects to represent himself may not later complain that the quality of his own defense amounted to a denial of his right to a fair trial. See Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46. The district court did not err in granting Flemino’s motion to represent himself at trial.
Flemino next argues that the district court denied him the constitutional right to a fair trial by prohibiting him from cross-examining Hess, the alleged victim’s mother, about her bias. Flemino contends that his questions to Hess regarding their alleged sexual relationship were relevant to his theory of defense—namely, that Hess was angry about the end of their sexual relationship and fabricated allegations of Flemino’s sexual contact with C.P.
The constitutional right of the accused to confront witnesses contemplates the right to cross-examine them. U.S. Const. amends. VI, XIV; Minn. Const. art 1, § 6; see also Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974). The cross-examiner has traditionally been allowed to impeach the witness. State v. Greer, 635 N.W.2d 82, 89 (Minn. 2001) (citations omitted); see also Minn. R. Evid. 616 (allowing attack on witness credibility through evidence of bias). To establish a violation of the Confrontation Clause, a defendant must show “that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995) (citations omitted).
Bias * * * is a catchall term describing attitudes, feelings, or emotions of a witness that might affect * * * testimony, leading [the witness] to be more or less favorable to the position of a party for reasons other than the merits.
Greer, 635 N.W.2d at 89 (quotation omitted). The Minnesota Supreme Court has expressly recognized that evidence of a sexual relationship between a witness and a party is proper impeachment evidence to show bias. State v. Waddell, 308 N.W.2d 303, 304 (Minn. 1981).
Flemino’s goal was to demonstrate Hess’s bias based on a failed sexual relationship he claims they shared in the past, about which she was angry. The district court sustained an objection to Flemino’s initial question of whether Hess had ever had sex with him. Flemino then asked Hess whether she told C.P. to accuse Flemino, because Hess was mad at him for ending their sexual relationship. Hess responded in the negative and it appears from the record that, contrary to Flemino’s contention on appeal, the district court did not instruct the jury to disregard that statement. Flemino again attempted to ask Hess whether she was upset with him when they stopped having sex. The district court sustained the state’s objection and instructed the jury to disregard Hess’s answer. While the district court has broad discretion to control the scope of cross-examination, Lanz-Terry, 535 N.W.2d at 640-41, prohibiting Flemino from questioning Hess to expose her potential bias due to their alleged failed relationship was error. See State v. Pride, 528 N.W.2d 862, 866 (Minn. 1995) (prohibiting criminal defendant’s cross-examination “where cross-examination designed to expose prosecution witness’s bias or motivation in testifying” is error).
As a defendant in a criminal case, Flemino should have been allowed to demonstrate any possible bias of Hess, because her testimony addressed the ultimate issue in the case. See State v. Elijah, 206 Minn. 619, 624, 289 N.W. 575, 578 (Minn. 1940) (“[t]he bias, state of mind and feelings of a witness upon whose testimony in part the issue is to be determined is not a collateral or immaterial matter.”).
It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop.
Pride, 528 N.W.2d at 866 n.4. In this case, it was particularly important for the district court to give some latitude to Flemino as a pro se defendant. As a part of its analysis, the district court should have inquired into and then weighed the probative value of the evidence sought through Flemino’s questioning versus the danger of unfair prejudice. See Minn. R. Evid. 403 (relevant evidence may be excluded if probative value outweighed by danger of unfair prejudice). We conclude it was error to preclude Flemino from inquiring into Hess’s possible bias.
Exclusion of evidence in violation of the Confrontation Clause, however, is subject to harmless error analysis. Pride, 528 N.W.2d at 867.
The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, * * * includ[ing] the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986)). Assuming that Flemino and Hess were involved in a sexual relationship in the past, it does not necessarily follow that she would have a motive to fabricate an allegation against Flemino involving sexual contact with her nine-year-old daughter. Moreover, the jury was aware from Hess’s admission during direct examination that she was angry with Flemino. Thus, Hess simply disputed the cause for the anger. Hess attributed her anger to Flemino’s sexual abuse of her daughter.
While Hess’s credibility was important to the determination of the ultimate issue, her testimony was cumulative. C.P. was the one who reported the offense, and she testified at trial. C.P. positively identified Flemino as the person who sexually abused her. C.P. was interviewed outside the presence of her mother by a nurse, trained to perform interviews of children when sexual abuse is suspected. During that interview, C.P. identified Flemino as the person who sexually abused her. The state also presented the expert testimony of a nurse who determined that C.P. had, in fact, been sexually abused. We also note that the jury was free to consider Hess’s response to Flemino’s question about whether she told C.P. to accuse him because she was mad at him for ending their relationship. Because Hess’s response was not stricken from the record, the jury could consider it in determining Hess’s credibility. Based on this record, the district court’s erroneous prohibition of the line of questioning pertaining to Hess’s relationship with Flemino was harmless beyond a reasonable doubt.
Flemino next argues that the district court erred by finding him in direct criminal contempt and summarily sentencing him to serve consecutively 30 days and 60 days.
Direct contempts are those occurring in the immediate view and presence of the court, and arise from one or more of the following acts:
(1) Disorderly, contemptuous, or insolent behavior toward the judge while holding court, tending to interrupt the due course of a trial or other judicial proceedings;
(2) A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the business of the court.
Minn. Stat. § 588.01, subd. 2 (2000). Direct contempt may be punished summarily by the court, Minn. Stat. § 588.03 (2000), while punishment of constructive contempt requires additional procedural safeguards. See State v. Tatum, 556 N.W.2d 541, 545 n.3 (Minn. 1996); Peterson v. Peterson, 278 Minn. 275, 281-82, 153 N.W.2d 825, 829-30 (1967). A finding of direct contempt, based on the trial court’s firsthand observation of the contemnor’s conduct, will be reversed only if the trial court acted “capriciously, oppressively, or arbitrarily.” In re Jenison, 265 Minn. 96, 103, 120 N.W.2d 515, 520, vacated on other grounds, 375 U.S. 14, 84 S. Ct. 63 (1963).
Flemino contends that his behavior during the trial did not constitute direct criminal contempt, because his conduct was different from that contemplated by Minn. Stat. § 588.01. He maintains that, even though he interrupted the district court, he was polite and apologized several times. The distinction drawn by Flemino lacks merit. Flemino repeatedly interrupted the course of the proceedings and disregarded the district court’s warnings. A contemnor need not act in a boisterous, violent manner or yell obscenities at the judge. See State v. Martin, 555 N.W.2d 899, 901 (Minn. 1996) (defendant’s refusals to answer questions disrupted orderly progress of his criminal trial and were contemptuous of the authority of court).
Flemino next contends that the district court should have used other alternatives to holding him in contempt. In Illinois v. Allen, the Supreme Court observed that there are at least three constitutional ways for a trial judge to handle an obstreperous defendant:
(1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.
Illinois v. Allen, 397 U.S. 337, 343-44, 90 S. Ct. 1057, 1061 (1970). As the state points out, the alternatives to contempt were not available here, where the contemnor was also acting as his own attorney. The district court could not have gagged Flemino or sent him out of the room. The proceedings could not have continued without Flemino, who was proceeding pro se. Finally, as previously discussed, absent any reason to doubt Flemino’s competency, the district court had no grounds to deny Flemino his constitutional right to represent himself. Thus, the district court utilized the only constitutionally permissible means available to maintain order in the courtroom by holding Flemino in contempt.
Flemino additionally argues that the district court erred by failing to file an order, pursuant to Minn. Stat. § 588.03, and by failing to protect Flemino’s procedural rights. Minn. Stat. § 588.03 provides that
[a] direct contempt may be punished summarily, for which an order shall be made reciting the facts as occurring in the immediate view and presence of the court or officer, and adjudging the person proceeded against to be guilty of a contempt, and that the person be punished as therein specified.
Both Flemino’s contempts occurred at trial, during which a record was made. Thus, there was a recitation of the facts “as occurring in the immediate view and presence of the court” and an adjudication of Flemino as guilty of contempt. Punishment for direct criminal contempt, unlike punishment for constructive contempt, may be summarily imposed. Tatum, 556 N.W.2d at 546 n.4; see also State v. Whitcomb, 399 N.W.2d 124, 125-26 (Minn. App. 1987) (power of trial court to summarily punish offenses committed in its presence exists independent of statute and intended to preserve dignity of courtroom proceedings).
Here, the record supplies an abundance of support for our conclusion that the district court did not act oppressively in imposing sentences after holding Flemino in direct criminal contempt on two occasions upon his failure to heed numerous warnings and orders to conduct himself appropriately.
Flemino next argues that the district court committed error by allowing the state’s expert witness to vouch for C.P.’s credibility. Nurse Carter, who interviewed C.P. at the Midwest Children’s Resource Center, testified as to her conclusion that C.P. had been sexually abused. Flemino challenges this testimony for the first time on appeal. Failure to object to evidence at trial constitutes waiver of the issue on appeal, unless the defendant shows that admission of the evidence was plain error. Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996). The test for determining plain error is whether there is “a reasonable likelihood that any error substantially affected the verdict.” State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990).
Credibility determinations are within the province of the jury. State v. Saldana, 324 N.W.2d. 227, 231 (Minn. 1982). It is error to admit expert testimony on the truth or falsity of a witness’s allegations about a crime, because “the expert’s status may lend an unwarranted ‘stamp of scientific legitimacy’ to the allegations.” State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984) (citation omitted) (child sexual abuse case); accord Adesiji v. State, 384 N.W.2d 908, 912 (Minn. App. 1986) (expert testimony on truthfulness of children in general is improper), review denied (Minn. June 13, 1986). Expert testimony on the ultimate issue of the case is not admissible if it involves a legal conclusion or a mixed question of law and fact. Saldana, 324 N.W.2d at 230. The Saldana court held that it was error to admit expert testimony that the victim was raped, because it was a legal conclusion. Id. at 231.
The Minnesota Supreme Court, however, has exempted cases alleging sexual abuse of a child from the general prohibition against expert testimony regarding witness credibility. In Myers, the supreme court held that, when the alleged victim is a child, this is “one of those ‘unusual cases’ in which expert testimony concerning credibility of a witness should be received.” Myers, 359 N.W.2d at 610. Expert testimony on whether a child has been sexually abused is properly admissible. State v. Hollander, 590 N.W.2d 341, 349 (Minn. App. 1999); but see United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994) (holding that qualified expert may inform jury of characteristics of sexually abused children and describe characteristics exhibited by alleged victim but may not state opinion that sexual abuse has in fact occurred).
Here, Carter did not render an opinion as to whether C.P. was telling the truth. Rather, she rendered her expert opinion as to whether C.P. had been sexually abused. While Carter’s testimony may have helped the jury to determine whether C.P.’s testimony about being sexually abused was truthful, Carter did not evaluate C.P.’s statements for truthfulness or falsity. Likewise, Carter did not testify that Flemino himself was guilty of committing the abuse that C.P. has suffered. In light of our decision in Hollander, 590 N.W.2d at 349, the district court did not err in admitting Carter’s testimony that C.P. was sexually abused.
Flemino argues next that the district court abused its discretion by imposing a sentence of 219 months imprisonment, which constitutes an upward durational departure of one-and-one-half times the 146-month presumptive sentence. Absent a clear abuse of discretion, the district court’s decision to depart from the sentencing guidelines will not be reversed. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Before the district court may depart from the sentencing guidelines, it must articulate substantial and compelling reasons to justify the departure. State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). The presence of even one aggravating factor is sufficient to justify a departure from the presumptive sentence. See State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985) (single factor sufficient to uphold upward departure). In this case, the district court based the upward durational departure on four aggravating factors: (1) the vulnerability of the victim, a nine-year-old child, who was asleep when Flemino initiated the offense; (2) the invasion of the victim’s zone of privacy; (3) planning and manipulation in the commission of the crime; and (4) prior crimes of violence where other victims were harmed.
Flemino first argues that C.P.’s age was an inappropriate factor, because it was an element of the offense. We agree that C.P.’s age, alone, would have been an improper basis for departure. It is error for the sentencing court to use as a basis for departure the same facts that constitute an element of the offense and, as such, are considered in determining the presumptive sentence. State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982) (holding inappropriate consideration of victim’s youth in sentencing departure when it is factor in determining defendant’s guilt). Because Flemino was convicted of criminal sexual conduct in the first degree, in violation of Minn. Stat. § 609.342 (2000), which prohibits sexual contact with a person under 13 years of age, relying solely on C.P.’s age as a basis for departure would be inappropriate. But the district court noted C.P.’s age in conjunction with her sleeping state in concluding that she was vulnerable. Regardless of the victim’s age, her state of slumber at the time of the offense is a valid justification for an upward departure. State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987); State v. Gettel, 404 N.W.2d 902, 906-07 (Minn. App. 1987), review denied (Minn. June 26, 1987). Thus, we find no error.
Flemino next argues that the district court abused its discretion by considering the invasion of C.P.’s zone of privacy. Invading a victim’s zone of privacy can be an aggravating factor in a sentencing departure. State v. Morales, 324 N.W.2d 374, 377 (Minn. 1982); see also State v. Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982) (holding that victim’s zone of privacy invaded when defendant raped victim in her home because it was no longer victim’s “island of security”); State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991) (appellant invaded victim’s zone of privacy by sexually assaulting her in her home), review denied (Minn. Jan. 16, 1992). The victim’s bedroom is a zone of privacy. See State v. Behl, 547 N.W.2d 382, 386 (Minn. App. 1996), rev’d on other grounds, 564 N.W.2d 560 (Minn. 1997); State v. Griffith, 480 N.W.2d 347, 351 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). Flemino argues that the invasion of C.P.’s zone of privacy is an inappropriate basis for departure, because most cases of criminal sexual abuse of a child under 13 years of age take place in the child’s home. We disagree.
When imposing a durational departure, the district court must consider each case on its own, making a qualitative assessment of all facts to determine if the defendant’s conduct was sufficiently different in degree or effect to justify a durational departure from the presumptive sentence. Minn. Sent. Guidelines, II.D; State v. Cermak, 344 N.W.2d 833, 839 (Minn. 1984). Flemino’s conduct was sufficiently atypical and egregious to warrant the district court’s decision to depart upward. Flemino broke into the victim’s home in the middle of the night, laid down next to nine-year-old C.P., who was sleeping next to her mother’s bed, and sexually abused her. In the middle of the night, children often seek the added security of sleeping next to a parent. While C.P. knew Flemino, his presence in C.P.’s home in the middle of the night was an unexpected intrusion. Flemino neither lived in the home, nor was he a guest there. Rather, he effected an unauthorized entry into the home and proceeded to the bedroom, where he sexually assaulted C.P. The invasion of the victim’s zone of privacy by itself is sufficient to justify an upward durational departure. Here, under the circumstances in which Flemino committed the offense, the district court’s decision to depart was well within its sound discretion. In light of our decision regarding the first two bases for the district court’s departure, we need not address the latter two bases. See O’Brien, 369 N.W.2d at 527 (stating that existence of one aggravating factor itself sufficient to justify durational departure).
Finally, Flemino argues that his conviction and sentence for second-degree criminal sexual conduct must be vacated, because it was a lesser-included offense. The state concedes this point, and we agree.
The jury’s verdicts finding Flemino guilty of criminal sexual conduct in the first degree, Minn. Stat. § 609.342, and criminal sexual conduct in the second degree, Minn. Stat. § 609.343 (2000), are based on a single criminal act.
Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following:
(1) A lesser degree of the same crime; or
(2) An attempt to commit the crime charged; or
(3) An attempt to commit a lesser degree of the same crime; or
(4) A crime necessarily proved if the crime charged were proved; or
(5) A petty misdemeanor necessarily proved if the misdemeanor charge were proved.
Minn. Stat. § 609.04, subd. 1(1) (2000). When the defendant is convicted on more than one charge for the same act, the district court adjudicates formally and imposes sentence on one count only, leaving the remaining count unadjudicated and without an imposed sentence. State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). Because Flemino’s second-degree conviction is a lesser-included offense, we vacate his conviction and sentence for second-degree criminal sexual conduct. See id. (vacating convictions based on lesser-included offense).
Affirmed in part, vacated in part.
RANDALL, Judge (concurring specially)
Because it is the present law in Minnesota, I concur that it was not error for the district court to allow nurse Carter to testify as to her opinion that C.P. was, in fact, sexually abused. Under current Minnesota law, in a child-abuse case, it is permissible for an expert to express an opinion on whether a child has been abused. I write separately to express my belief that there is a far, far better practice in this type of case, the federal practice, and that present Minnesota caselaw comes dangerously close to impinging on a criminal defendant’s unequivocal constitutional right to a trial by jury.
By way of background, the issue of “experts” was jump-started (correctly) in State v. Saldana, 324 N.W.2d 227, 231 (Minn. 1982). In Saldana, the Minnesota Supreme Court held that it was error to admit the testimony of an expert witness that, in her opinion, a rape had occurred. This testimony was “a legal conclusion which was of no use to the jury.” And, the testimony gave a “stamp of scientific legitimacy to the truth of the complaining witness’s factual testimony.” Id. (quoting People v. Izzo, 90 Mich. App. 727, 730, 282 N.W.2d 10, 11 (1979)). The court went on to hold that it was error to allow the witness to testify to her opinion that the victim had not imagined the rape, because “expert opinions concerning the witness’s reliability * * * are generally inadmissible because such opinions invade the jury’s province to make credibility determination.” Id. At this point, Saldana got it right and should have quit. Unfortunately, the court then added that in some “unusual” cases, such as cases where the alleged victim is a child, expert testimony on credibility could be admissible. Saldana, 324 N.W.2d at 231. Latching on to this “exception,” the supreme court in State v. Myers, 359 N.W.2d 604 (Minn. 1984), ruled that it was not error to admit the expert testimony of a doctor that stated it was very rare for children to “fabricate tales of sexual abuse and * * * in her opinion the complainant knew the difference between the truth and falsehood and was truthful in her allegations.” Id. at 609. Although this opinion testimony obviously bolstered the state’s case, the court explained that:
The nature, however, of the sexual abuse of children places lay jurors at a disadvantage. Incest is prohibited in all or almost all cultures, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse. * * * by explaining the emotional antecedents of the victim’s conduct and the peculiar impact of the crime on other members of the family, an expert can assist the jury in evaluating the credibility of the complainant.
Id. at 610 (citation omitted). Noting that children who complain of abuse often keep the abuse a secret, are disbelieved by parents, and may appear ambivalent or inconsistent, the court held that expert testimony of this type could help the jury to understand the child’s behavior and assist its evaluation of credibility. Id.
The above “analysis” in Myers is the dangerous problem. The court had none, and provided no basis at all for its statement that jurors in a child-abuse case are less able to evaluate witness credibility than in any other serious criminal case, adult rape, adult murder, aggravated robbery, murder of minors, murders where the minors are the defendant, and so on. Serious crimes like these mentioned are sent to Minnesota juries and juries across this country every week. The Myers court cited no sociological studies or identifiable and reliable empirical data to prove that juries in child abuse cases are so hamstrung by the “enormity of the charge,” that they are helpless unless experts for the state patiently explain to them that, yes, this minor was sexually abused and yes, when she described the abuse, she was truthful.
There is simply no reliable way to defend this proposition in Myers. In fact, if there is a type of sex crime about which a lay jury is likely to be somewhat or well informed before trial, it is probably child abuse. Arguably, one could defend the proposition that lay jurors, in general, are better able to evaluate child abuse than rape, murder, aggravated robbery, etc. Those egregious crimes may have never affected their lives and they likely have had no occasion to study them. On the other hand, our society, at least the last two decades, has identified, publicized, “yellow-journalized,” and spent boxcars full of paper discussing the issue of child abuse. The news media is filled with stories of child molestation and tips about how to identify signs that a child is being abused. Talking about “good touches and bad touches” is commonplace in our schools and homes. Almost all jurors have or had minor children of their own and as parents, have been attuned to the detection and prevention of child abuse. I would agree that this is perhaps not so for every juror, but I argue strongly that it is far more likely that this is so for most jurors as opposed to the average juror being on top of, and informed about, rape, murder, robbery, etc.
Somehow, prosecutors have convinced the judiciary that lay people, once they sit in the jury box, need "experts" to understand children, as opposed to all other crimes. An understatement would be, “I cannot find this convincing.”
The better practice that I mentioned is that followed in the federal courts. In United States v. Johns, 15 F.3d 740 (8th Cir. 1994), the Court of Appeals for the Eighth Circuit held that:
A qualified expert may inform the jury of characteristics of sexually abused children and describe the characteristics exhibited by the alleged victim but may not state an opinion that sexual abuse has in fact occurred.
Id. at 743 (citing United States v. Whitted, 11 F.3d 782 (8th Cir. 1993), emphasis added). Limiting the expert witness’s testimony in this way still allows the jury to hear how the complainant’s behavior compares to that of other children who have claimed abuse, but allows the jury to evaluate for themselves (the traditional sine qua non of juries – evaluating witnesses' credibility) whether the particular child is telling the truth. Most importantly, “the jury must decide what happened in this case, and whether the elements of the alleged crime have been proved beyond a reasonable doubt.” Saldana, 324 N.W.2d at 230 (emphasis in original). Permitting doctors and other experts to express the opinion that the child is truthful or that abuse has occurred is unfairly prejudicial to the defendant, because it places a “stamp of scientific legitimacy to the truth of the complaining witness’s factual testimony.” Id. at 231 (quotation omitted). What we need to do is apply the logic and jurisprudence of Saldana to sexual abuse cases involving minors. Based on Saldana and Whitted, I suggest it is time to re-examine and replace Myers with something that makes sense.
The Myers approach undercuts a defendant’s inalienable constitutional right to a trial by a jury. When the trial judge has the power to let witnesses take the stand and say, “yes, this minor child was sexually abused,” and, “yes, this minor child is telling the truth,” you take the role of fact-finder away from the jury, and verbally turn the trial into a bench trial where the trial judge can simply allow enough experts to give both factual and legal opinions on the issue of guilt, so that the state’s case to the jury is bulletproof. Why even bother pulling a jury?
I want to emphatically point out that this same largess by the Myers court has not been extended to criminal defendants. I am not advocating that it should be, as the last thing I want to see in criminal cases is “the battle of the experts” that can dominate medical malpractice, products liability, and other technical cases in the civil arena. But if the Myers court believed that expert testimony is so needed for the “helpless jury,” it would seem that constitutional due process would mandate that the defense also be allowed to hire experts who would have the right to interview the alleged child abuse victim, no matter how young, just like in your standard adverse medical examination, and then take the stand for the defendant and testify, “in my expert opinion, this minor child is a liar unworthy of belief, the child’s testimony has no scientific validity, and the defendant has the following indicia of people who tell the truth, and in my expert opinion is telling the truth.”
Under present Minnesota caselaw, I concur. But I have serious misgivings about the validity of the practice of expert testimony in child abuse cases, as presently allowed in Minnesota.
SHUMAKER, Judge (concurring specially)
I join in the special concurrence of Judge Randall.
 These alternatives were discussed in the context of preserving defendant’s right to confront witnesses under the Sixth Amendment. The defendant in Allen was represented by counsel.
[The following notes are from the concurring opinion]
 The use of credible sociological data in this fashion is exemplified by Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 495 n. 11, 74 S. Ct. 686, 692 n.11 (1954). There, the United States Supreme Court relied on numerous sociological and psychological studies to support the proposition and holding that segregation is inherently detrimental to minority children in schools.
 The right to trial by jury in a criminal case is guaranteed by both the United States and Minnesota Constitutions. U.S. Const. amend. VI; Minn. Const. art. I, § 6.