This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Kenneth Geard Lilja,




Filed February 10, 2004


Halbrooks, Judge



Dakota County District Court

File No. KX-02-3053



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; 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, State Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)




            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Kenneth Geard Lilja challenges the sentence imposed by the district court following his conviction of first-degree criminal sexual conduct, arguing that the district court abused its discretion in sentencing him to 288 months, a double upward departure from the statutory presumptive sentence.  We affirm. 


            In September 2002, appellant’s ten-year-old stepson, M.H., reported to the South St. Paul police department that appellant “had placed his penis into the boy’s rectum on many occasions” over the previous two years.  “The boy described lubricant sometimes being used . . . [and] described in detail how he experienced pain for several days after each incident.”  The police arrested appellant, who admitted that he had had anal intercourse with M.H. on one occasion 18 months earlier.  A complaint filed the next day charged appellant with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2002) (sexual penetration of a person under 13 years old and more than three years younger than the actor). 

Appellant pleaded guilty.  At the plea hearing, appellant specifically expressed his understanding that the presumptive sentence for the crime charged was 144 months in prison and that the state would be allowed to argue for a 288-month sentence.  The district court ordered a presentence investigation (PSI) and received into evidence the videotape and transcript of M.H.’s statement taken at the Midwest Children’s Resources Center (MCRC), the MCRC medical report, and a copy of M.H.’s medical records. 

The PSI stated that appellant and M.H.’s mother were married in approximately 1996, when M.H. was four, and had two children of their own in approximately 1996 and 1998.  In the statement taken at the MCRC, M.H. said that when he was approximately one year old, appellant had physically abused him, causing skull, rib, finger, and toe fractures.  This statement is corroborated by M.H.’s medical record; appellant was consequently convicted of malicious punishment of a child.  M.H. also alleged in his statement that appellant had on other occasions hit him with a belt, a rubber mallet, and a rake; forced him to stand in the corner for up to five hours at a time; forced him to clean the entire house (including cleaning urine off the bathroom floor with his hands); forced him to weed the yard for hours at a time; and picked him up by the neck and thrown him to the ground.  Appellant weighs approximately 360 pounds. 

M.H. said that when he was seven years old, appellant began having anal intercourse with him and forcing him to lick appellant’s penis.  M.H. stated that the intercourse gave him diarrhea and painful bowel movements.  According to M.H., appellant did this in M.H.’s mother’s locked bedroom while she was at work and M.H.’s half-brothers played video games in the living room.  Appellant told M.H. that if he told anyone about the sexual activity, he would “end up in a foster home and . . . never see [his] brothers and [his] mom ever again.”  The abuse, which consisted of multiple incidents, ended when M.H. was nine years old.  M.H. stated his fear that the abuse may have made him “gay.” 

When the probation officer conducting the PSI asked appellant why he abused his stepson instead of his biological children, he said, “[B]ecause I felt close to [M.H.] and he was the one who helped me with the chores the most.”  The PSI concluded that there were no factors favoring mitigating appellant’s sentence and several factors favoring an aggravated sentence, including appellant’s abuse of his position of trust and authority, the duration and frequency of the abuse, the psychological harm caused to M.H. by the abuse, the invasion of M.H.’s zone of privacy (because the crime occurred in his home), and the fact that appellant did not appear amenable to treatment.  The PSI recommended that the district court depart durationally and sentence appellant to 288 months in prison. 

            The state moved for an upward durational sentencing departure on the bases that M.H. was particularly vulnerable, see Minn. Sent. Guidelines II.D.2.b.(1); that appellant acted with particular cruelty, see Minn. Sent. Guidelines II.D.2.b.(2); and that appellant has the current conviction of criminal sexual conduct and a prior felony conviction for an offense involving injury to the same victim.  See Minn. Sent. Guidelines II.D.2.b.(3).  The state also argued that a departure was warranted because appellant (1) abused a position of trust, (2) committed multiple acts of abuse over an extended period of time, (3) penetrated M.H. in multiple ways, and (4) harmed M.H. emotionally. 

            The district court sentenced appellant to 288 months in prison, citing as reasons for the departure M.H.’s particular vulnerability due to his age, the size disparity between himself and appellant, and the prior abuse inflicted upon M.H. by appellant; appellant’s particular cruelty of threatening M.H. with abandonment and failing to obtain medical care after the abuse; appellant’s abuse of a position of trust; appellant’s commission of multiple acts of abuse over an extended period of time; the variety and frequency of penetration by appellant; and the emotional and physical harm to M.H.  This appeal follows.


            Substantial and compelling circumstances must be present in the record to justify a district court’s decision to depart from the applicable presumptive sentence in the Minnesota Sentencing Guidelines.  State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002).  The sentencing guidelines provide a non-exhaustive list of aggravating factors that may be used as reasons for an upward sentencing departure, including the particular vulnerability of the victim due to age or physical capacity, the particular cruelty of appellant’s conduct, and a prior felony conviction for an offense in which the current victim was injured.  See Minn. Sent. Guidelines II.D.2.b.(1), (2), (3).  When substantial and compelling circumstances are present, a district court has discretion to depart from the presumptive guidelines and will not be reversed on appeal absent an abuse of discretion.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  The general rule is that when aggravating factors justify an upward departure, “the upper limit will be double the presumptive sentence length.”  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).  

            Appellant first argues that the district court used the wrong base-line presumptive sentence to calculate the length of a double durational departure.  Appellant was convicted under Minn. Stat. § 609.342, subd. 1(a) (2002), which carries a minimum presumptive sentence of 144 months.  See Minn. Stat. § 609.342, subd. 2(b) (2002) (providing that barring circumstances not present here, “an executed sentence of 144 months must be imposed on an offender convicted of violating this section”).  As calculated under the sentencing-guidelines grid, appellant’s presumptive sentence would be 98 months.  See Minn. Sent. Guidelines IV.  Appellant maintains that the district court erred by using the statutory sentence instead of the guidelines sentence as a basis for calculating a departure.  We disagree.

            First, the statute itself states that a district court’s decision to deviate from the 144-month minimum presumptive sentence “is a departure from the sentencing guidelines,” Minn. Stat. § 609.342, subd. 2(b), thereby indicating that the statutory minimum sentence, and not the guidelines-grid sentence, should be considered the base line for the purpose of calculating durational departures.  The supreme court recently used this approach in Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003), when it accepted without comment the determination of the district court, and of this court, that the 144-month statutory presumptive minimum sentence set forth in Minn. Stat. § 609.342, subd. 2(b), is the proper base line from which to calculate a sentencing departure.

            Appellant next argues that the district court abused its discretion by departing from the presumptive sentence.  “If the reasons given [for departure] are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.”  McIntosh, 641 N.W.2d at 8. 

            The district court concluded that there were six aggravating factors warranting an upward departure:  (1) the multiple acts and types of uncharged sexual and non-sexual physical abuse described by M.H. in the statement taken by the MCRC; (2) M.H.’s particular vulnerability due to his age and the size disparity between himself and appellant; (3) appellant’s abuse of a position of trust and authority; (4) prior physical abuse of M.H. by appellant that resulted in a conviction for malicious endangerment of a child; (5) the particular physical cruelty of the charged conduct, which caused M.H. to have painful bowel movements for a month after the penetration, and appellant’s failure to get M.H. medical help for his discomfort; and (6) appellant’s particular psychological cruelty in telling M.H. that he would never see his brothers or mother again if he informed anyone of the abuse.  

            We agree that the district court abused its discretion by relying on the uncharged sexual and non-sexual physical abuse described by M.H. in the statement taken at the MCRC.  Appellant pleaded guilty to one count of criminal sexual conduct based on one incident of penetration.  “It is generally proper for the court to consider the conduct underlying the charge of which the defendant is convicted; but reliance on other offenses that are not part of the charge and of which the defendant was not convicted is not a permissible basis for durational departure.”  Taylor, 670 N.W.2d at 588.  “To use prior uncharged sex offenses would amount to improper sentencing for crimes of which the defendant was not convicted.”  Id.  Here, the uncharged abuse was not part of the conduct underlying the charge but, rather, a series of distinct events on which the district court improperly relied on sentencing appellant.

            Taylor also holds that “the victim’s vulnerability both as to age and the defendant’s position of authority or trust [are] inappropriate bases for departure where those facts were already taken into account by the legislature in determining the degree of seriousness of the offense [described by Minn. Stat. § 609.342, subd. 1(a)].”  Id. at 589; see also State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983) (stating that youth and position of authority are impermissible grounds for departure from presumptive sentence for first-degree criminal sexual conduct). 

            We conclude, however, that the district court acted within its discretion by departing from the presumptive sentence on the basis of the size disparity between appellant and M.H., appellant’s 1994 conviction for endangering M.H., and the particular physical and psychological cruelty of the charged offense.

            We do not believe that a size disparity as great as that between appellant and M.H. at the time of the charged offense was taken into account by the legislature in determining the degree of seriousness of the offense to which appellant pleaded guilty.  Appellant admitted that he had anal intercourse with M.H. in early 2001, when M.H. was approximately ten years old.  The MCRC medical report indicates that appellant weighed approximately 360 pounds at the time of the offense.  The district court did not abuse its discretion by determining that the size disparity between appellant and M.H. rendered M.H. particularly physically vulnerable, thereby warranting a departure by making “the facts of [this] particular case different from a typical case” of Minn. Stat. § 609.342, subd. 1(a).  Taylor, 670 N.W.2d at 587.

            Second, in departing, the district court properly relied on appellant’s 1994 gross-misdemeanor conviction for malicious punishment of a child for inflicting skull, rib, finger, and toe fractures on M.H.  The guidelines provide that a prior felony conviction for an offense in which the victim was injured is an aggravating sentencing factor.  See Minn. Sent. Guidelines II.D.2.b.(3).  It is true that here, appellant’s prior conviction was not a felony.  But the gross-misdemeanor conviction and M.H.’s concomitant knowledge of the threat to his safety posed by appellant support the conclusion that M.H. was particularly vulnerable, both mentally and physically, and that the subsequent charged abuse was particularly cruel.

            Third, the record supports the district court’s conclusion that the charged offense was particularly cruel, both psychologically and physically.  Appellant’s threats that M.H. would never see his brothers or mother again if he reported the abuse are a valid aggravating factor.  See State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (holding that threatening a juvenile criminal-sexual-conduct victim with harm supports an upward sentencing departure).  The pain of the penetration and the subsequent month-long diarrhea and painful bowel movements are also proper grounds for departure.  See State v. Ahern, 349 N.W.2d 838, 842 (Minn. App.1984) (departing upward where actor caused child sexual-assault victim “pain and injury”).  Appellant’s failure to obtain medical care to address M.H.’s painful bowel movements also justifies an upward departure.  See State v. Stumm, 312 N.W.2d 248, 248 (Minn. 1981) (holding upward departure warranted where appellant displayed indifference to the child victim’s medical needs after he inflicted the injurious blows). 

The record contains sufficient aggravating factors to support the district court’s discretionary decision to impose a sentence twice the duration of the statutory presumptive sentence.