This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Robert Patrick Hill,
Filed March 27, 2007
Ramsey County District Court
File No. K6-05-1852
Lori Swanson, Attorney General, 1800
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John Stuart, State Public Defender, Susan Andrews,
Assistant Public Defender,
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction of first-degree criminal sexual conduct for sexually penetrating his girlfriend’s eight-year-old daughter, RBL, Robert Hill challenges the admissibility of evidence that he was previously convicted of similar conduct and also challenges the district court’s upward sentencing departure. Because the evidence of the previous conviction was properly admitted on the issue of identity and the upward departure was supported by substantial and compelling circumstances, we affirm.
F A C T S
Hill began dating RBL’s mother in August 2002.
Hill lived in
In January 2005, RBL reported to her mother that Hill had been touching her inappropriately. RBL was interviewed by medical professionals and the police. Based on RBL’s reports, Hill was charged with first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2004).
At trial, RBL’s testimony indicated that Hill would enter her bed and penetrate her vaginally and anally. Hill engaged in this conduct, RBL said, “A lot. Um, more than 20 days.”
RBL’s mother testified that RBL identified Hill as the person who had touched her. RBL’s mother also testified that sometime in 2000 her cousin stayed in her house for about two weeks. Later, the cousin was convicted for sexually abusing children.
A nurse testified about her interview with RBL. In the interview, RBL described times when somebody touched her inappropriately. One was “in her bed and one on a couch where someone came into the room when she was sleeping.” The nurse asked who did this and RBL responded, “I think, what I think it is, I think it’s, it’s my mom’s boyfriend. I don’t but um, um, we still don’t know.”
A police officer also testified about her interview with RBL. One reason the officer interviewed RBL was to clarify who abused her. RBL told her that she knew the person was not her brother because she knew where her brother had been when the touching happened. The officer testified, “At one point she did say she had—she sneaked a peak, and she had seen Robert [Hill] sitting across from her in a chair and that he came walking towards her. She shut her eyes and she knew what was going to happen.”
the state had presented its case, the district court granted the state’s motion
to present evidence about Hill’s 1996 conviction for first-degree criminal
sexual conduct. A portion of Hill’s
guilty plea was read to the jury. Hill
had been living with a woman in
The jury found Hill guilty of first-degree criminal sexual conduct. Hill waived a sentencing jury and was sentenced by the judge. Although the presumptive sentence was 144 months, the presentence investigator recommended 360 months. The district court found beyond a reasonable doubt that Hill committed multiple incidents of penetration and that these crimes violated RBL’s zone of privacy. Based on these findings, the district court imposed a double durational departure and sentenced Hill to 288 months.
Hill now appeals his conviction and his sentence.
D E C I S I O N
district court’s decision to admit evidence of the commission of other crimes
is reviewed for an abuse of discretion. State v.
does not dispute that the first three requirements were satisfied. His challenge is limited to whether the
evidence of his crimes in
the Spreigl evidence was relevant to
the issue of identity. Because Hill
committed a similar crime in a similar way against similarly situated victims,
it is more likely that Hill is the person who abused RBL. See
Spreigl evidence could, of course,
have been used for other purposes. In
deciding whether the evidence is relevant to a legitimate purpose, the district
court “should not simply take the prosecution’s stated purposes for the
admission of other-acts evidence at face value.” State
v. Ness, 707 N.W.2d 676, 686 (
The rule is a specific application of the “rule of multiple admissibility”—evidence that is inadmissible for one purpose (inference from intermediate inference of bad character to inference that defendant acted in conformity therewith) should not be excluded if it is properly admissible for some other purpose (unless the trial court, in the exercise of discretion under Rule 403, decides to exclude the evidence).
State v. Wermerskirchen, 497 N.W.2d 235, 239-40 (
Second, the probative value of the evidence was not outweighed by the potential for unfair prejudice. The evidence of Hill’s previous crime was highly probative of the identity of RBL’s abuser. Hill had previously moved in with a woman and then abused the woman’s daughters. In this case, Hill was dating RBL’s mother, and RBL was then abused in a similar way. The daughters of the woman with whom Hill previously resided and RBL were about the same age. These similarities are highly probative of whether Hill was the abuser in this case.
the state’s evidence on identity was weak.
In determining whether Spreigl
evidence is unduly prejudicial, courts consider the state’s need for the
The evidence of Hill’s prior conviction of first-degree criminal sexual conduct was therefore relevant and not unduly prejudicial. Because the other requirements for Spreigl evidence were satisfied, the district court did not abuse its discretion by admitting the evidence.
review departures from the presumptive sentences provided by the Minnesota
Sentencing Guidelines for an abuse of discretion. State
v. Thompson, 720 N.W.2d 820, 828 (
In sentencing Hill the district court departed from the presumptive sentence because (1) the crime invaded the victim’s zone of privacy and (2) involved multiple incidents of penetration. The first reason alone is sufficient to support the upward departure.
upward departure is appropriate when the defendant, in committing criminal
sexual conduct, “invades the zone of privacy that surrounds the victim’s
home.” State v. Kindem, 338 N.W.2d 9, 18 (
argues that a departure based on a violation of the victim’s “zone of privacy”
is inappropriate because it is typical for the crime charged. But Hill’s reliance on
criminal sexual conduct, however, does not always occur in the victim’s
bedroom. When it does, the crime is more
serious. In contrast to the situation in
district court also based the upward departure on a finding of multiple
incidents of penetration. Hill argues
that this finding is inconsistent with his charges. As Hill correctly notes, he was only charged
with one count of criminal sexual conduct under Minn. Stat. § 609.342,
subd. 1(a) (2004), and the statute only requires a single act. Hill relies on the supreme court’s footnote
statement that “[c]onduct that is never charged cannot be the basis for
need not, however, decide this issue. In
addition to violating the victim’s zone of privacy, Hill had previously been
convicted of first-degree criminal sexual conduct. That conviction provides an additional ground
for upward departure.