This opinion will be unpublished and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

     State of Minnesota,


Charles Fuller,


Filed October 15, 1996
Harten, Judge

Mower County District Court

File No. K8-95-147

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

Patrick A. Oman, Mower County Attorney, 201 First Street N.E., Austin, MN
55912 (for Respondent)

Melissa V. Sheridan, Assistant State Public Defender, 875 Summit Avenue,
LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Harten, Judge, and
Foley, Judge.(*)
        [Footnote] (*)Retired judge of the Minnesota Court
        of Appeals, serving by appointment pursuant to Minn.
        Const. art. VI, § 10.
                        Unpublished Opinion

HARTEN, Judge (Hon. Michael Seibl, District Court Trial Judge)

Appellant challenges the sentence imposed for his first-degree criminal
sexual conduct conviction under Minn. Stat. § 609.342, subd. 1(a)
(1994), claiming that the trial court erred in applying the 1989 sentencing
guidelines and abused its discretion in sentencing him to a double
durational departure from the presumptive sentence. We affirm.

Appellant was tried on four counts of criminal sexual conduct stemming from
his sexual assault of K.D., his stepdaughter, and K.S., a family friend.(1)
        [Footnote] (1)Appellant was adjudicated guilty of
        second-degree criminal sexual conduct under Minn.
        Stat. § 609.343, subd. 1(a) (1994), for his
        sexual assault of K.S. That conviction is not the
        subject of this appeal.

At trial, K.D. testified that appellant began initiating sexual contact
with her when she was six years old. Appellant began by touching her
breasts and ``privates,'' and this occurred every day or every other day,
usually while her mother was at work. By the age of 10 or 11, appellant
penetrated her orally and anally and required her to perform oral sex on
him. K.D. also testified that after each sexual assault appellant would
warn her not to tell anyone. He told her that if he were forced to leave
the home, he would be unable to protect her from her mother, who physically
and verbally abused her. K.D.'s brother, B.D., who was 11 years old at the
time of trial, testified to observing several instances of sexual
misconduct involving appellant and K.D.

Following the jury's finding appellant guilty on all counts involving K.D.,
the trial court adjudicated appellant guilty of first-degree criminal
sexual conduct under Minn. Stat. § 609.342, subd. 1(a). Although the
complaint had alleged that the offenses occurred between 1988 and 1994, the
court utilized the 1989 sentencing guidelines and sentenced appellant to an
executed term of 196 months, a double durational departure under those


1. Application of Sentencing Guidelines

Appellant contends that he should be sentenced under the pre-1989
sentencing guidelines because some of the acts involving penetration
occurred prior to the August 1, 1989 effective date of the 1989 guidelines.
We disagree. While K.D.'s testimony was imprecise regarding the dates of
the sexual acts, she clearly stated at trial that appellant first
penetrated her when she was ``10 or 11.'' K.D. reached age 10 in 1992.
Thus, the record was not deficient regarding the date of the offense, and
the court properly applied the 1989 guidelines. See State v.
Goldenstein, 505 N.W.2d 332, 348 (Minn. App. 1993) (trial testimony may
establish date of offense), review denied (Minn. Oct. 19, 1993);
See, e.g., State v. Lunsford, 507 N.W.2d 239, 244 (Minn. App. 1993)
(requiring evidence of timing of sexual acts for imposition of patterned
sex offender statute; statute applies if no reasonable likelihood that all
acts occurred before effective date of statute), review denied
(Minn. Dec. 14, 1993).

Appellant also contends that he should have been sentenced for multiple
acts of sexual misconduct under Minn. Stat. § 609.342, subd. 1(h) (iii)
(1994), instead of for a single act of sexual misconduct under Minn. Stat.
§ 609.342, subd 1(a). He claims that the multiple acts offense is a
more serious offense than the one for which he was adjudicated guilty. We
disagree. All acts of first-degree sexual conduct are of equal seriousness
under the applicable criminal statutes and the sentencing guidelines.
See Minn. Stat. § 609.342, subd. 2 (1994) (establishing same
statutory penalty for any first- degree criminal sexual conduct offense);
Minnesota Sent. Guidelines II.A. (``Offenses listed within each level of
severity are deemed to be generally equivalent in severity''). Thus, the
trial court was not obligated to adjudicate appellant guilty under Minn.
Stat. § 609.342, subd. 1(h) (iii), which involved multiple acts of
sexual conduct, rather than under Minn. Stat. § 609.342, subd. 1(a),
which involved only one act but included elements that covered K.D.'s youth
and the disparity between appellant's and K.D.'s ages.
2. Guidelines Departure
Appellant also argues that the facts of this case do not warrant a
departure from the presumptive guidelines sentence. The trial court has
broad discretion in imposing a sentence. State v. Kindem, 313 N.W.2d
6, 7 (Minn. 1981). Within that discretion, a court may depart from a
presumptive sentence when the offense involves substantial and compelling
circumstances. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981);
Minnesota Sent. Guidelines II.D. In determining whether to depart,
        the court may not consider evidence that points to
        the defendant's guilt of some other offense but that
        does not support the conclusion that the defendant
        committed the offense in question in a particularly
        serious way. On the other hand, generally it is
        proper for the sentencing court to consider the
        course of conduct underlying the charge for which
        the defendant is being sentenced.

State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984) (citations omitted).
See also State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984) (court
may consider ``cause of conduct''). We conclude that the district court did
not abuse its discretion in sentencing appellant. The following aggravating
factors listed by the court support departure: the threats made to K.D.,
the particular cruelty of the offense, the abuse of the significant
relationship between K.D. and appellant, and the multiple occurrences of
the offense. State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990)
(abuse of trust and authority proper basis for durational departure);
Cermak, 344 N.W.2d at 839 (fact of multiple violations ``can be
considered in determining the particular seriousness of the underlying

conduct'' of criminal sexual conduct; threats may make sexual misconduct
particularly cruel). Additionally, the multiple types of penetration,
prolonged length of the misconduct, and the fact that the misconduct
occurred in the presence of another child also could have been used as
aggravating factors supporting the upward durational departure. See
State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (different types of
penetration and commission of misconduct in presence of child proper bases
for durational departure); State v. Casady, 392 N.W.2d 629, 635
(Minn. App. 1986) (duration of misconduct proper basis for durational
departure), review denied (Minn. Sept. 24, 1986).