This opinion will be unpublished and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,
Ramsey County District Court
File No. K3-03-864
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On appeal from consecutive sentences imposed for two counts of first-degree criminal sexual conduct, appellant argues that the district court’s imposition of a 50 percent upward durational departure was improper because some of the aggravating factors the court cited to justify its departure were elements of the offense. Because numerous factors justifying departure were clearly proper and supported by the record, we affirm.
D E C I S I O N
The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). When a court does make such a departure, “it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). 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). “If the record supports findings that substantial and compelling circumstances exist, this court will not modify the departure unless it has a ‘strong feeling’ that the sentence is disproportional to the offense.” State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (citation omitted).
Appellant William Senske challenges the district court’s imposition of an upward durational departure after he pleaded guilty to two counts of sexual penetration of a child under the age of 16 with whom he had a “significant relationship,” in violation of Minn. Stat. § 609.342, subd. 1(g) (2002). He contends that the aggravating factors the court cited to justify the imposition of a longer sentence – specifically the victims’ young age, the abuse of a position of trust, and multiple acts of abuse – are elements of the offense and therefore cannot be used as grounds for departure.
Indeed, the Minnesota Supreme Court has recently noted that a district court may not base its upward durational departure on the same factors used to prove elements of the crime. In Taylor v. State, the supreme court reversed a district court’s upward durational departure for first-degree criminal sexual conduct when factors justifying said departure were the violation of a position of trust, and particular vulnerability due to age. 670 N.W.2d 584, 586 (Minn. 2003). It determined that the two factors were “inappropriate bases for [durational] departure where those facts were already taken into account by the legislature in determining the degree of seriousness of the offense.” Id. at 589; see also State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983).
Similarly here, the district court based its decision to depart, at least in part, on Senske’s position of trust, the age of the victims, and the ongoing nature of the abuse. The state concedes that the first two of these alleged justifications are clearly elements of Minn. Stat. § 609.342, subd. 1(g), and that the court’s reliance upon them for departure was an abuse of discretion under Taylor. The state further concedes that the ongoing nature of the abuse is typical of such an offense, and is therefore not a “substantial and compelling” reason to depart.
But these three factors were not the only grounds justifying the district court’s departure. The record reveals that Senske inflicted multiple forms of penetration on both victims, forced them to masturbate him, and coerced one of the victims to perform oral sex on him. The record further reveals that Senske blindfolded the two children on many occasions, and that he forced the two to have sexual intercourse with each other. One victim stated that after many of these encounters, Senske would threaten to kill either the victim or his mother if he disclosed the abuse.
Multiple types of penetration is a recognized aggravating factor for first-degree criminal sexual conduct. State v. Sebasky, 547 N.W.2d 93, 101 (Minn. App. 1996), review denied (Minn. June 19, 1996). Threats, blindfolding, and forcing a victim to have intercourse with a sibling, if not departure grounds individually, clearly demonstrate “particular cruelty,” a well-established aggravating factor. E.g.,Minn. Sentencing Guidelines II. D. 2.b.(2); State v. Griffith, 480 N.W.2d 347, 350 (Minn. App. 1992) (noting particularly demeaning and humiliating acts), review denied (Minn. Mar. 19 1992); State v. Edwards, 380 N.W.2d 503, 510 (Minn. App. 1986). Further, as noted by the district court, the threats to the victims here are evidence of Senske’s ongoing effort to continue his pattern of sexual abuse. Such planning and manipulation have long been held to be proper aggravating factors. See Sebasky, 547 N.W.2d at 101.
It is thus abundantly clear that this is not a typical first-degree criminal sexual conduct conviction, and Senske’s actions were significantly more serious than those typically involved in the commission of the statutory offense. See Broten, 343 N.W.2d at 41. As such, considering the nature and severity of Senske’s conduct, we shall not disturb the district court’s sentence.
 The district court in Taylor also cited “multiple incidents of abuse” to justify the departure. 670 N.W.2d at 586. The supreme court noted, however, that the cited incidents were not part of the charge and the defendant was never convicted for the acts. Id. at 588. As such, the court rejected multiple incidents as an aggravating factor. Id. at 588-89.