This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed December 6, 2005
Affirmed in part, reversed in part, and remanded
Olmsted County District Court
File No. K604166/K604169
Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender,
Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from sentences imposed for first-degree aggravated robbery, second-degree assault, and second-degree criminal sexual conduct, appellant Preston Higgs argues that (1) the upward departure on the criminal sexual conduct offense based on a judicial finding of victim vulnerability violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and that he made no admissions while pleading guilty that would support the departure; and (2) the imposition of consecutive sentences violated Blakely. We affirm in part, reverse in part, and remand.
Higgs and two others were driving around looking for someone to rob. Higgs went into a gas station and saw a customer, later identified as J.T., with “a whole bunch of big bills in his wallet.” Higgs left the gas station and waited for J.T. to come outside. When J.T. came outside, Higgs pointed a gun at him and demanded his money. Initially, J.T. took six dollars out of his pocket and gave it to Higgs. Higgs threatened to kill J.T. if he did not give Higgs all of his money. J.T. then gave Higgs his wallet, which had about $1,100 in cash in it.
After the robbery, Higgs and the two others went to a liquor store at a shopping center. Another car was parked near the car that Higgs was in. A man who was later identified as J.R.R. had gotten out of the car and gone into the liquor store while a woman who was later identified as J.A.R. waited in the car. Higgs got into the back seat of the car in which J.A.R. was waiting, pointed a gun at her, threatened her with the gun, and ordered her to drive the car around the back of the shopping center. J.A.R. did so, and Higgs then ordered her to get into the back seat. J.A.R. told Higgs that she was pregnant and that it would be difficult for her to crawl from the front seat into the back seat, but Higgs threatened her with a gun. When J.A.R. got into the back seat, Higgs pulled down her pants and touched her buttocks and vaginal area.
J.R.R. came running up to the car and began pounding on a window. Higgs pointed the gun at J.R.R. and threatened to kill him, but J.R.R. continued pounding on the window until it broke. J.R.R. pulled J.A.R. out of the car, and Higgs left.
Higgs was charged with committing one count of first-degree aggravated robbery against J.T.; one count each of kidnapping, second-degree criminal sexual conduct, and first-degree aggravated robbery against J.A.R.; and one count of second-degree assault against J.R.R. Higgs pleaded guilty to the charges of first-degree aggravated robbery against J.T.; second-degree criminal sexual conduct against J.A.R.; and second-degree assault against J.R.R. The remaining charges were dismissed.
The parties did not have an agreement on sentencing. After Higgs entered his plea but before he was sentenced, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Higgs moved to be sentenced to the presumptive guidelines term, arguing that facts supporting a departure had not been proved to a jury beyond a reasonable doubt and that he had not waived his right to have such facts proved to a jury. The district court rejected Higgs’ argument and sentenced him to an executed term of 180 months in prison for the criminal sexual conduct offense, a double upward durational departure from the presumptive sentence. The district court imposed the departure based on its determination that “[t]he victim was particularly vulnerable, being eight months pregnant, at the time of the offense and the victim’s vulnerability was known by Mr. Higgs at the time of the offense.” The district court also sentenced Higgs for the aggravated robbery and assault offenses and ordered all three sentences to run consecutively.
Higgs argues that the imposition of the upward durational sentencing departure for the criminal sexual conduct conviction violated his constitutional right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), the Supreme Court announced the rule that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely, the Supreme Court refined the Apprendi rule, explaining that
the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
Here, the district court imposed the sentencing departure based on its determination that “[t]he victim was particularly vulnerable, being eight months pregnant, at the time of the offense and the victim’s vulnerability was known by Mr. Higgs at the time of the offense.” While a defendant may waive the right to a jury trial, this court has held that under Blakely, an upward durational departure may not be based on a defendant’s admission unless that admission is accompanied by the defendant’s waiver of his right to a jury trial on the aggravating factor. State v. Hagen, 690 N.W.2d 155, 158-59 (Minn. App. 2004). Even if we infer from Higgs’s plea-hearing testimony that he knew J.A.R. was pregnant, he did not make an on-the-record waiver of his right to a jury trial on the aggravating factor. Therefore, the district court could not rely on the admission as a basis for the departure.
The state argues that, even if the district court’s reliance on Higgs’s admission violated Blakely,the error is harmless because the only fact that needed to be found by a jury was that J.A.R. was pregnant, and given the evidence, the jury could not possibly find anything other than that she was pregnant. The state’s argument is based on the premise that pregnancy is, by itself, an aggravating factor. But the district court did not simply base the departure on the fact that J.A.R. was pregnant. Rather, the district court determined that J.A.R. was particularly vulnerable because she was pregnant.
In State v. Davis, 540 N.W.2d 88, 91 (Minn. App. 1995), review denied (Minn. Jan. 31, 1996), and State v. Wickstrom, 405 N.W.2d 1, 6-7 (Minn. App. 1987), review denied (Minn. June 30, 1987), this court affirmed departures based on particular vulnerability due to the victim’s pregnancy. But those cases involved assaults on pregnant victims who were kicked or punched in the abdomen and experienced cramping and premature labor, consequences that would not have occurred if the victims had not been pregnant.
Furthermore, unlike the assailants in Davis and Wickstrom, Higgs used a gun to accomplish his criminal objective. He initiated the assault against J.A.R. by pointing a gun at her and threatening her with it. The supreme court has recognized that while in certain situations, a petite stature might make a victim particularly vulnerable, a petite person should not “be deemed any more vulnerable in the face of a gun than a larger person because a gun can kill either quite easily.” State, County of Hennepin v. McClay, 310 N.W.2d 683, 685 (Minn. 1981). Although McClay did not involve a pregnant victim, its particular-vulnerability analysis applies to a pregnant victim just as it does to a petite victim. When threatened with a gun, a pregnant victim is not significantly more vulnerable than a victim who is not pregnant because a gun can kill either quite easily.
Because the fact that J.A.R. was pregnant is insufficient by itself to support a finding of particular vulnerability, we cannot conclude that the Blakely violation was harmless error. We, therefore, reverse the sentence for the criminal sexual conduct conviction and remand for resentencing consistent with Blakely.
argues that the district court erred in imposing consecutive sentences. Under the sentencing guidelines, consecutive
sentencing is permissive when the court is sentencing on “[m]ultiple current
felony convictions for crimes against persons.”
Minn. Sent. Guidelines II.F. 2. This
court has held that Blakely does not
apply to permissive consecutive sentencing based on a judicial finding that the
offenses were “crimes against persons.” State v. Senske, 692 N.W.2d 743, 748-49
(Minn. App. 2005), review denied (
Higgs argues that the imposition of consecutive sentences unfairly exaggerated the criminality of his conduct. Whether consecutive sentences should be imposed is generally within the discretion of the district court. State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). “A trial court’s decision regarding permissive, consecutive sentences will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant’s conduct.” State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998). “A trial judge sits with a unique perspective on all stages of a case, including sentencing, and the trial judge is in the best position to evaluate the offender’s conduct and weigh sentencing options.” Id. Considering the manner in which Higgs committed the offenses in this case, we conclude that the district court acted within its discretion in imposing consecutive sentences.
We need not address the argument that the district court erred in sentencing Higgs for both the criminal sexual conduct and assault offenses because they arose out of a single behavioral incident. That argument, which was based on the incorrect understanding that the offenses were committed against the same victim, was withdrawn by Higgs.
Affirmed in part, reversed in part, and remanded.
 Higgs did not expressly admit that he knew J.A.R. was pregnant. But she was eight months pregnant at the time of the offense, and Higgs did testify that J.A.R. told him that she was pregnant and it would be difficult for her to crawl into the backseat and that during the sexual assault, he reached around and put his arms around her stomach.
 For purposes of analyzing the state’s argument, we assume, without deciding, that the harmless-error doctrine applies to a Blakely violation.