This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Eric Michael Sorenson,
Sherburne County District Court
File No. K101459
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Kathleen A. Heaney, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, Sherburne County Government Center, 13880 Highway 10, Elk River, MN 55330-4601 (for respondent)
Melissa Sheridan, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Hudson, Presiding Judge, Kalitowski, Judge, and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Eric Michael Sorenson, who was convicted of second-degree criminal sexual conduct, argues that the district court abused its discretion by denying appellant’s request for a downward dispositional departure. We affirm.
The decision whether to depart from sentencing guidelines rests within the discretion of the district court and will not be disturbed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The district court must order the presumptive sentence provided in the sentencing guidelines unless “substantial and compelling” circumstances warrant such a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive sentence. Id. Generally, in determining whether to depart in sentencing, a 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. Broten, 343 N.W.2d 38, 41 (Minn. 1984). And the district court should also focus on the defendant as an individual and ask whether the presumptive sentence is best for both the defendant and society. State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).
Here, the district court refused to depart downward and imposed the 52-month presumptive sentence on appellant for second-degree criminal sexual conduct. The district court acknowledged that the psychologist who conducted appellant’s sex offender assessment concluded that appellant should be sentenced to probation and treated in an outpatient setting. But the district court also noted that appellant’s case contained possible grounds for an upward departure, including the fact that appellant committed multiple acts of abuse over an extended period of time.
Because committing multiple acts of abuse over an extended period of time was an element of the offense, appellant contends that the district court abused its discretion by using that element as an aggravating factor to cancel the mitigating factor of amenability to outpatient treatment mentioned in the sex offender assessment.
It is improper for a court to consider an element of the crime as an aggravating factor supporting departure at sentencing. State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996), review denied (Minn. July 10, 1996). But that did not happen here. The court merely noted that the multiple acts of abuse that appellant committed over an extended period of time provided one of several possible grounds that the court could have used as support for an upward durational departure. But the court did not depart from the sentencing guidelines and instead imposed the presumptive 52-month sentence on appellant.
Moreover, although amenability to outpatient treatment was a mitigating factor, the presence of mitigating factors does not take away the court’s discretion to impose the presumptive sentence. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). Thus it was within the court’s discretion to impose the presumptive sentence as long as there were no “substantial and compelling” circumstances to warrant a downward departure. And while the sex offender assessment may have concluded that such circumstances existed, the PSI report noted several aggravating factors concerning appellant’s conduct. See State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984) (noting that it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced). The PSI noted (1) that the crime was more onerous than the usual offense involving multiple incidents over a long period of time; (2) the victim alleged that appellant made threats if the victim disclosed the abuse; (3) appellant was in a position of authority as an older family member of the victim; and (4) the crime was committed in locations where the victim had no avenue of escape. The court reviewed both the PSI and sex offender report and determined that there were no substantial and compelling reasons to justify a downward dispositional departure. Rather, the court concluded that appellant posed an ongoing risk to the community and that a “nonprison disposition would unduly minimize the seriousness of the offense and the significant impact on the victim.” Based on the record, we conclude that this is not the rare case where the district court abused its discretion by imposing the presumptive sentence.