This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed December 11, 2007
Mille Lacs County District Court
File No. CR-05-751
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John C. Kolb, Mille Lacs County Attorney, Courthouse, 635 Second Street SE, Milaca MN 56353 (for respondent)
John M. Stuart, State Public Defender, Gurdip Singh Atwal, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Worke, Judge.
Appellant Anthony Beaulieu contests his conviction and sentence for first-degree assault because of severe brain injuries he inflicted on his eight-week-old son on February 8, 2005, while the child was left alone in appellant’s care. Appellant claims that the evidence is insufficient to establish the element of intent because some medical witnesses conceded at trialthat an accidental fall could have caused some of the child’s injuries; that because of then-effective statutory mandates, the district court’s requiring a jury, rather than the court, to determine the existence of aggravating factors for sentencing purposes violated the Ex Post Facto Clause; and that imposition of a 129-month sentence that constituted an upward durational departure of 43 months from the presumptive sentence was disproportionate to the severity of his offense.
We affirm because (1) the medical witnesses who testified on behalf of the state concluded that the child’s injuries were more severe and extensive than those caused by mere accident, and the evidence was sufficient to establish that appellant intended to assault the child; (2) under then-existing statutes, the district court had the authority to require a jury to determine whether aggravating factors existed for sentencing purposes; and (3) the durational departure from the presumptive guidelines sentence was supported by aggravating factors, including the vulnerability of the child, and was not a disproportionate sentence.
In considering a sufficiency of the evidence claim, an appellate court limits its review to whether the evidence, viewed in the light most favorable to the conviction, was sufficient to support a finding of guilt. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court assumes that the fact-finder believed the state’s witnesses and rejected any contrary evidence. State v. Jackson, 726 N.W.2d 454, 460 (Minn. 2007). A jury’s credibility determinations are given particular deference. State v. Laine, 715 N.W.2d 425, 431 (Minn. 2006).
The offense of first-degree assault includes the element of intent. Minn. Stat. §§ 609.221, .02, subds. 9, 10 (2006). Intent may be proved by circumstantial evidence. State v. Davis, 656 N.W.2d 900, 905 (Minn. App. 2003), review denied (Minn. May 20, 2003). Circumstantial evidence may include “inferences from the defendant’s conduct, the character of the assault, and the events occurring before and after the crime.” In re Welfare of T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001).
In order to convict based solely on circumstantial evidence, the evidence must form a complete chain that, when considering the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. But [this] rule applies to evidence supporting conviction as a whole, not evidence of each individual element of that conviction.
Davis, 656 N.W.2d at 903.
Appellant argues that the evidence was insufficient to establish the element of intent because his medical expert testified that A.B.’s injuries were consistent with appellant’s description of accidentally dropping the child, and the medical personnel who treated A.B. could not establish that A.B.’s injuries were inconsistent with an accidental fall. During the cross-examinations of the medical witnesses who examined A.B. and testified on behalf of the state, appellant’s attorney asked each whether a child’s injuries, such as retinal hemorrhaging, could be caused by accidental trauma. While in some cases the medical witnesses answered that such injuries could be caused accidentally, they all testified that A.B.’s injuries were more severe and extensive than the types of injuries caused by accident, and they each concluded that A.B.’s injuries were intentional and not accidental. These witnesses included an ophthalmologist who specializes in retinal diseases, two pediatricians who specialize in child abuse evaluation, and a pediatric critical care physician. The child’s injuries included a fractured skull, brain swelling and bleeding on both sides of the brain, seizures, and a pattern of retinal hemorrhaging that one expert concluded demonstrated “classic” shaken-baby syndrome. Further, evidence of appellant’s inconsistent descriptions of the child’s fall, as well as appellant’s manner during the sheriff’s investigation, also supports a finding of intent. For these reasons, the evidence is sufficient to establish appellant’s intent to commit the assault.
Appellant claims that because he was charged in early 2005, but Minn. Stat. § 244.10, subd. 5 (2006), did not become effective until June 3, 2005, the district court improperly ordered a unitary trial with a bifurcated argument on whether facts supported an upward durational departure in his sentence. He claims that, as applied to him, Minn. Stat. § 244.10, subd. 5, “violates protections against ex post facto laws because it retroactively increases the quantum of punishment associated with his conviction offense.”
Minn. Stat. § 244.10, subd. 5, mandates that a jury, not the district court, find the existence of aggravating factors to support a departure from the presumptive guidelines sentence. This law was enacted in response to Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004), which held that an enhanced sentence based on judicial findings regarding aggravating factors violates the Sixth Amendment right to trial by jury.
The Ex Post Facto Clause prohibits a state from enacting a law that disadvantages a defendant affected by it and that is applied retrospectively to the defendant. U.S. Const. art. I, § 10; Lynce v. Mathis, 519 U.S. 433, 441, 117 S. Ct. 891, 896 (1997). Even where a retrospective law disadvantages a defendant, it does not violate the Ex Post Facto Clause if it is procedural. Dobbert v. Florida, 432 U.S. 282, 292-93, 97 S. Ct. 2290, 2298 (1977). In Dobbert, the Supreme Court held that allowing a judge, rather than a jury, to impose a death sentence was procedural and therefore did not constitute an ex post facto law. Id. at 293-94, 97 S. Ct. at 2298-99. In Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2718 (1990), the Supreme Court noted that one of the ways a law can work to a defendant’s disadvantage is by creating a “more burdensome punishment for a crime, after its commission[,]” id. (quotation omitted), but the Court also held that the Sixth Amendment right to trial by jury “is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause.” Id. at 51, 110 S. Ct. at 2724.
The Minnesota Supreme Court has addressed whether the 2005 amendments to Minn. Stat. § 244.10 are ex post facto. In Hankerson v. State, 723 N.W.2d 232, 242 (Minn. 2006), the supreme court stated, “[t]he effect of the 2005 amendments to section 244.10 was to change the roles of the judge and jury. This is a procedural change that did not add aggravating factors, eliminate elements of aggravating factors, or increase the duration of the sentence authorized by a finding of aggravating factors.” The Hankerson court further stated that the 2005 amendments to Minn. Stat. § 244.10 could not be ex post facto because they did not work to a defendant’s disadvantage, as the quantum of proof required to convince a jury is now higher—beyond a reasonable doubt. Id.
Appellant’s claim lacks merit for several reasons. First, the statute is not ex post facto because it does not work to appellant’s disadvantage. See id. Second, the statute was enacted in response to the Sixth Amendment right to trial by jury, which has been held to be procedural rather than punitive for purposes of ex post facto analysis, and does not alter his underlying substantive offense. See Dobbert, 432 U.S. at 292-93, 97 S. Ct. at 2298. Third, although appellant was given a sentencing jury even though section 244.10 was not in effect at the time the verdict was reached in his case, the district court always had the inherent right to empanel a sentencing jury, as recognized in State v. Chauvin, 723 N.W.2d 20, 25 (Minn. 2006).
Appellant makes various arguments based on the timing of his offense in relation to the law as it developed following Blakely. We conclude that these factual distinctions do not call for a different result in this case—under the law that existed both before and after appellant’s offense, the court had the authority to allow a jury to determine the existence of aggravating factors, and the basis for allowing a sentencing departure, the presence of aggravating factors, was the same. We therefore conclude that appellant’s sentencing did not violate the Ex Post Facto Clause.
Appellant claims that his 129-month sentence, a 43-month upward durational departure from the presumptive 86-month sentence, is disproportionate to the severity of his offense. Generally, the presumptive guidelines sentence is appropriate unless substantial and compelling circumstances exist to justify departure from the presumptive sentence. Minn. Sent. Guidelines II.D. The decision to depart is discretionary, and this court will not disturb a sentencing decision absent a district court’s clear abuse of discretion. State v. Munger, 597 N.W.2d 570, 574 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). In considering whether to depart durationally, 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 claims that his conduct was less serious than other infant assault cases because he did not assault the child on more than one occasion and only one aggravating factor was found to exist. A district court is justified in using the youth and vulnerability of the victim as a basis for an upward sentencing departure. See Minn. Sent. Guidelines II.D.2.b(1); see also State v. Udstuen, 345 N.W.2d 766, 768 (Minn. 1984) (using absolute vulnerability of infant victim due to age among aggravating factors justifying upward durational departure); State v. Steinhaus, 405 N.W.2d 270, 271 (Minn. App. 1987) (using vulnerability of infant son assaulted by defendant father as one basis for upward departure). Infliction of injury or death on infants or young children is commonly cited as an aggravating factor. E.g.,State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982); <State v. Stumm, 312 N.W.2d 248, 249 (Minn. 1981); State v. Bicek, 429 N.W.2d 289, 292-93 (Minn. App. 1988), rev. denied (Minn. Nov. 23, 1988); Steinhaus, 405 N.W.2d at 271. Thus, the aggravating factor of vulnerability cited as the reason for the upward departure here supports the sentence imposed by the court, and the sentence imposed in this case was not disproportionate to the offense.
 Other grounds also support a durational departure: (1) appellant’s abuse of a position of trust and authority, see State v. Pearson, 479 N.W.2d 401, 404 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992) (using abuse by defendant in a position of authority or trust over the seven-week-old victim as ground for upward durational departure); (2) appellant’s failure to seek immediate medical attention for the infant, see State v. Morrison, 437 N.W.2d 422, 429 (Minn. App. 1989) (using live-in defendant’s failure to seek medical attention for three-year-old child as a ground for upward durational departure), rev. denied (Minn. Apr. 26, 1989); and (3) the severity of the infant’s injuries, see State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987), review denied (Minn. Sept. 29, 1987) (using extreme injuries that caused permanent impairment and near-death, even when great bodily harm is an element of the offense, as ground for upward durational departure).