This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-95-2678

State of Minnesota,

Respondent,

vs.

John Alexander Hamilton,

Appellant.

Filed June 18, 1996

Affirmed

Willis, Judge

Hennepin County District Court

File No. 92050170

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Harten, Presiding Judge, Willis, Judge, and Stone, Judge.[*]

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant John Alexander Hamilton challenges his 162-month sentence for criminal sexual conduct in the first degree, arguing that the facts do not support the upward departure from the presumptive sentence of 86 months. We affirm.

FACTS

Hamilton pleaded guilty to criminal sexual conduct in the first degree. The district court accepted the plea and imposed a 162-month sentence, an upward departure of 76 months from the presumptive guidelines sentence. Hamilton filed a motion for sentence modification, which the court denied on the grounds that the following circumstances justified the upward departure: (1) the victim was extremely vulnerable because she was only two years old at the time of the offense, (2) appellant was in a position of authority because he was the sole caretaker of the victim at the time of the offense, and (3) the victim suffered vaginal and facial injuries as a result of the offense.

D E C I S I O N

The decision to impose a durational departure from the sentencing guidelines lies in the discretion of the district court. State v. Givens, 544 N.W.2d 774,776 (Minn. 1996). Appellate courts will reverse the district court's decision only if the district court clearly abused its discretion. Id.

The sentencing guidelines provide a nonexhaustive list of aggravating factors that a court may use to depart from the presumptive guidelines sentence. Minn. Sent. Guidelines II.D.2. These factors include the victim's vulnerability due to age. Id. at II.D.2.b(1); see also State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992) (holding that district court did not abuse its discretion by finding that a 17-year-old victim of first-degree criminal sexual conduct was particularly vulnerable due to her age, warranting an upward durational departure). Here, the district court held that the age of the 2-year-old victim made her extremely vulnerable and justified the upward durational departure. The district court did not abuse its discretion by departing upwardly on this ground.

Vulnerability due to trust can also be a sufficient reason for an upward departure. State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990). In Skinner, this court found that the district court did not abuse its discretion by imposing a double durational departure where the defendant was baby-sitting the first-degree criminal sexual conduct victim at the time of the incident and, therefore, was in a position of authority over her. Id. In this case, the district court held that the victim was particularly vulnerable because Hamilton was her sole caretaker at the time of the offense and, therefore, in a position of authority. The record supports the district court's conclusion; the district court, therefore, did not abuse its discretion by departing upwardly on this ground.

Upward departure is permissible where the defendant treats the victim with particular cruelty. State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982). Cruelty toward a victim "is demonstrated by the nature and extent of the physical damage and the treatment necessary to repair the injury." Id. In this case, the district court departed upwardly because the victim suffered vaginal and facial injuries as the result of the offense. The record supports the district court's conclusion and shows that the injuries were so severe that Hamilton called for help. The district court, therefore, did not abuse its discretion by departing upwardly due to the particular cruelty with which Hamilton treated the victim.

Because the district court's grounds for upward departure are sufficient, this court need not reach the state's argument that Hamilton waived his right to be sentenced under the guidelines.

Affirmed.

 

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.