This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Jeffrey Kochen,




Filed April 13, 2004

Reversed and remanded

Klaphake, Judge

Concurring specially, Harten, Judge


Steele County District Court

File No. K1-02-188



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Douglas L. Ruth, Steele County Attorney, Daniel A. McIntosh, Assistant County Attorney, 303 South Cedar, Owatonna, MN  55060 (for respondent)


John M. Stuart, State Public Defender, Richard Schmitz, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant Jeffrey Kochen pleaded guilty to criminal sexual conduct in the second degree.  Minn. Stat. § 609.343, subd 1(a)(2000).  The district court executed the sentence and imposed a double durational departure.  Appellant challenges the upward departure.  Because the sentencing court based the departure on inappropriate factors, we reverse and remand with directions to impose the presumptive sentence, reconsider the dispositional departure, and make further findings, if necessary.


            Under the sentencing guidelines, the presumptive sentence is presumed to be appropriate; however, when substantial and compelling circumstances exist, the guidelines authorize district courts to depart from the presumptive sentence.  Minn. Sent. Guidelines II.D.  The decision to depart from the sentencing guidelines is within the district court’s discretion and will not be disturbed absent a clear abuse of that discretion.  State v. Munger, 597 N.W.2d 570, 574 (Minn. App. 1999) (citation omitted), review denied (Minn. Aug. 25, 1999).  Generally, 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 commission of the crime in question.”  State v. Sanchez-Sanchez, 654 N.W.2d 690, 693-94 (Minn. App. 2002) (quotation omitted).

            Appellant engaged in inappropriate sexual contact on numerous occasions with his five-year-old niece while babysitting.  Appellant was charged with three counts of first-degree criminal sexual conduct and pleaded guilty to second-degree criminal sexual conduct.  Minn. Stat. § 609.343, subd. 1(a) (2000). 

            Appellant argues that the district court abused its discretion in sentencing him to a 42-month executed sentence.  The presumptive sentence for an offense of this severity level (VI) by one with defendant’s criminal history score (0) is a stayed prison term with a duration of 21 months.  Under the sentencing guidelines, the district court must cite “substantial and compelling circumstances” to justify a departure.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (citation omitted); Minn. Sent. Guidelines II.D.  As reasons for the departure, the court found the following aggravating factors warranted both a dispositional and upward durational departure: (1) the age and vulnerability of the victim; (2) appellant’s position of authority; and (3) appellant’s lack of remorse and attempt to blame others.

            1.         Durational Departure

            Appellant argues that the district court abused its discretion by imposing a double durational departure based on an element of the crime:  age and vulnerability of the victim.  We agree.  It is inappropriate to consider a factor such as age for departure when the offense contains an age element.  Taylor v. State, 670 N.W.2d 584, 589 (Minn. 2003). 

            A violation of second-degree criminal sexual conduct involves “[a] person who engages in sexual contact with another person [when] the complainant is under 13 years of age and the actor is more than 36 months older than the complainant.”  Minn. Stat. § 609.343, subd. 1(a).  The legislature has taken the victim’s vulnerability as to age into account by including it as an element of the offense.  See Taylor, 670 N.W.2d at 589 (stating that the legislature has taken vulnerability into account when distinguishing degrees of criminal sexual conduct); State v. Luna, 320 N.W.2d 87, 89 (Minn. 1982) (same).  Because the age of the victim is part of the definition of second-degree criminal sexual conduct, it is an inappropriate basis for departure.

            The court also relied upon the position of trust between appellant and the victim.  While this is not an element of the offense to which appellant pleaded guilty, second-degree criminal sexual conduct, a “significant relationship” is an element of the dismissed charge of first-degree criminal sexual conduct.  Minn. Stat. § 609.342, subd. 1(h)(iii)(2000).  An element of a greater offense dismissed as part of a plea agreement is an appropriate aggravating factor as long as the conduct is admitted and the defendant is not denied the benefit of the agreement.  See State v. Lubitz, 472 N.W.2d 131, 133 (Minn. 1991) (remanding for resentencing where defendant deprived of benefits of plea bargain because sentence relied on underlying facts that defendant had denied); State v. Cox, 343 N.W.2d 641, 644-45 (Minn. 1984) (stating that while court may not sentence as if conduct constituted charge greater than plea bargain admitted, court may base upward departure on aggravating underlying facts established in record).  We question whether a departure based on the position of trust between appellant and the victim here denies appellant the benefit of his plea agreement.  But we do not need to make this determination because we do not believe that appellant’s position of authority alone constitutes a sufficiently compelling factor to support a double durational departure under the facts of this case.  See State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985) (stating “[s]ubstantial and compelling circumstances are those circumstances that make the facts of a particular case different from a typical case”). 

            Because neither the district court’s stated reasons for departure nor our independent review of the record provide aggravating factors sufficient to allow a double upward durational departure, the district court abused its discretion by so departing.  We therefore reverse appellant’s sentence for second-degree criminal sexual conduct and remand with directions to impose the presumptive term of 21 months.  See Minn. Stat. § 244.11, subd. 2(b) (2000) (reviewing court may modify sentence if unreasonable or inappropriate).

2.         Dispositional Departure

            Appellant argues that the district court abused its discretion by departing dispositionally from the presumptive stayed sentence and executing it.  A district court may consider “any relevant factors” when determining whether there is a substantial basis to make a dispositional departure.  State v. Case, 350 N.W.2d 473, 475 (Minn. App. 1984).  Relevant factors may include the defendant’s age, prior record, remorse, cooperation, attitude while in court, particular amenability to a probationary setting, and whether the defendant has strong support from family and friends.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).

            The district court here relied on the age and vulnerability of the victim, appellant’s position of authority, and his lack of remorse in deciding the disposition.  Because we conclude that two of the factors used by the district court are inappropriate to sustain a dispositional departure and because the district court failed to address any of the other relevant factors, we remand for further findings regarding the dispositional departure.

            Reversed and remanded.

HARTEN, Judge (concurring specially)

            I concur with result.