This opinion will be unpublished and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

C3-95-2684

State of Minnesota,

Respondent,

vs.

Earl Howard Brenke,

Appellant.

Filed November 19, 1996

Affirmed

Toussaint, Chief Judge

Dissenting

Randall, Judge

Blue Earth County District Court

File No. K2-94-681

Hubert H. Humphrey III, Attorney General, Thomas Erik Bailey, Assistant Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Ross Arneson, Blue Earth County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56001 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, 2829 University Avenue, SE, #600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.

UNPUBLISHED OPINION

TOUSSAINT, Chief Judge

Appellant Earl Howard Brenke challenges his sentence following conviction on fourteen counts of criminal sexual conduct in the third degree. Brenke contends that the trial court improperly considered the conduct underlying all fourteen counts in imposing an upward departure from a presumptive sentence. Because the trial court did not abuse its discretion in sentencing Brenke to a double durational departure, we affirm.

D E C I S I O N

This court will affirm the trial court's sentencing departure where there is sufficient evidence in the record to justify departure, even if the written reasons stated by the trial court are improper or inadequate. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). The trial court retains broad discretion in sentencing and will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

When all charges are consolidated into a single charge for sentencing purposes, all the underlying conduct may properly be considered together. State v. Litzinger, 394 N.W.2d 803, 805 n.1 (Minn. 1986). But if the trial court elects to use the Hernandez method[1] to compute a criminal history score when deciding to depart upwardly from the presumptive sentence for the individual offense, the court may not properly consider the conduct underlying all of the offenses. Id. Departure is justified, however, provided there is a sufficient showing that the defendant committed the individual count in question in a particularly serious way. Id. at 805-806. This court will affirm the departure where there is otherwise sufficient evidence in the record to justify the departure. See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

Using the Hernandez method to calculate appellant's criminal history score, the trial court ordered a double durational departure resulting in a 108-month executed sentence on the last count. In its written findings, the trial court referred to "multiple incidents" in support of its decision to impose an upward double durational departure. Brenke contends that his sentence should be reduced because the trial court imposed an upward departure on one count after improperly considering the multiple incidents of sexual abuse. He argues that the resulting sentence greatly exaggerates his culpability. As Brenke asserts, the trial court should have looked only at the underlying conduct for the offense in question. State v. Pittel, 518 N.W.2d 606, 608 (Minn. 1994).

The upward departure was, nonetheless, appropriate because the trial court articulated other compelling aggravating circumstances sufficient to show that the defendant committed the individual count in question in a particularly serious way.

Despite the victim's earlier request, Brenke failed to take steps to prevent pregnancy when he committed the July 1, 1993, offense. This left the victim exposed to the dual possibilities of contracting a sexually transmitted disease and becoming pregnant. Moreover, she did become pregnant and later suffered a miscarriage. Even if the pregnancy did not result specifically from the July 1, 1993, offense, it would be a basis for upward departure for any of the June counts used to calculate Brenke's criminal history score. See Pittel, 518 N.W.2d at 608.

The trial court based the upward departure, in part, on the special family relationship that Brenke had encouraged. He noted the victim's vulnerability caused by "her condition at the time." At the time of the abuse,the victim's father lived apart from the victim's home and she came to view Brenke as a father figure. Vulnerability due to a victim's trust has been upheld as a sufficient reason for departure. State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990). In addition, an upward departure may be based on a defendant's abuse of his position of trust or authority. State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990).

"Position of authority" includes * * * any person who is * * * acting in the place of a parent and charged with any of a parent's rights, duties or responsibilities to a child, * * * no matter how brief, at the time of the act.

Minn. Stat. § 609.341, subd. 10. (1994).

By acting as a father figure, Brenke acted in a position of authority. His conduct abused a trust or authority relationship. Therefore, the evidence in the record indicates Brenke committed the individual count in question in a particularly serious way. We conclude that the trial court did not abuse its discretion by imposing a double upward durational departure.

Affirmed.

RANDALL, Judge (dissenting).

I respectfully dissent. Brenke's multiple counts were improperly used twice. They were used to increase his criminal history score, and then again to impose a double durational departure. This practice has been specifically disallowed by the supreme court. In State v. Pittel, the supreme court made clear that a prosecutor may charge a defendant separately with a number of offenses to obtain a large number of convictions, allowing the use of the Hernandez method of sentencing to increase the defendant's criminal history score. But the prosecutor and the trial court may not then consider the underlying conduct of all the offenses as bearing on the decision to depart durationally from the presumptive sentence for an individual offense, a method allowable if the prosecutor had simply consolidated all the charges into one charge for the purposes of sentencing. State v. Pittel, 518 N.W.2d 606, 608 (Minn. 1994).

Further, I find there is nothing "substantial and compelling" about the underlying facts. See State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (the trial court has broad discretion to depart from the presumptive sentencing guidelines only if substantial and compelling aggravating or mitigating circumstances are present; absent such circumstances the trial court has no discretion to depart).

From March to July of 1993, Brenke, a forty-six year old male, was having sexual intercourse with KG, the fourteen-year-old victim. Brenke and his son had become close friends with KG's family, doing many things together such as watching movies, playing basketball, fishing, eating together, and going to American Legion functions. During this time, KG came to view Brenke as somewhat of a father figure providing her the support not given by her own father who did not live at home.

According to KG, the sexual contacts first began in March of 1993 when Brenke visited KG at home one evening while she was alone. The two had sexual intercourse on a bed in the downstairs family room. From March to May of 1993, Brenke had sexual intercourse with KG at least three more times in her home. He never forced her to remove her clothes or to have intercourse with him, nor did he ever ejaculate inside her. Brenke also never took any precautions to protect KG from becoming pregnant. Between April and June of 1993, Brenke met KG on seven different occasions at the Redwood Motel. Brenke would call KG at home and tell her which room to visit. KG would then bicycle over to meet Brenke, hiding her bicycle in the motel room. Brenke would then have sexual intercourse with her. On occasion, he would ejaculate inside KG. Once, following sexual penetration, KG requested Brenke use a condom. Brenke complied, but then decided against the idea and threw the condom on the floor. No further effort was made to protect KG from becoming pregnant. That June, Brenke and KG also used her grandfather's cabin at Duck Lake for three additional incidents of sexual intercourse.

On July 7, 1993, KG visited her doctor because she was suffering from nausea every morning. Her doctor determined that she was pregnant and that she was suffering from a kidney infection. Conception was estimated to have taken place sometime in mid-June 1993. Approximately five weeks into the pregnancy, KG suffered a miscarriage. No fetal tissue was found so that later DNA testing could be done to determine the identity of the father. KG, however, testified that she never had sexual intercourse with anyone but Brenke.

The majority mentions that "Brenke failed to take steps to prevent pregnancy when he committed the July 1, 1993, offense." I cannot interject into the law one sentence for people who do not suggest the use of condoms or other birth control devices to victims and a second sentence for those who do. All one has to do is sit down and consider the implications of that to be able to visualize accurately the impenetrable jungle of judgmental speculative calls courts will be forced to make.

Further, the "vulnerability of victims" is rapidly becoming the most abused, yet at all times, one of the weakest, links in a chain to sustain the upward departure of Minnesota's already long sentences. The realities of life are that absent the classic stranger in a ski mask jumping from behind a bush and committing a sexual assault, virtually all uncalled-for sexual advances take place between people who to some extent know and trust each other. The law already sets forth a precise difference in a defendant's sentence based on the age of the victim. See, e.g., Minn. Stat. § 609.342, subd. 1(a), (b), and (g) (distinguishing between complainants who are 13 years old or younger and those between the ages of 13 and 16); Minn. Stat. § 609.344, subd. 1(a), (b), (e) (noting the difference between complainants who are under the age of 13, those between the ages of 13 and 16, and those over the age of 16, but younger than 18). Once the age is accounted for, there is nothing substantial and compelling about the victim living apart from the home of her parents or knowing the defendant "as a father figure." A certain amount of heinousness and egregious facts are already built into Minnesota's lengthy sentences for sexual conduct in the first, second, third, fourth, and fifth degrees. See Minn. Stat. SSSS 609.342-3451 (1994).

What has happened over the last several years is that in addition to the lengthy presumptive sentence, ordinary facts are picked out of the conduct, set aside, and called "substantial and compelling" to justify an even longer sentence. Upward departures have become so commonplace, and the reasons for justifying them so watered down, that the original concept of guidelines to promote fair and proportionate sentencing has virtually disappeared.

[ ]1 When sentencing a defendant on the same day for multiple offenses, the court may use prior convictions to compute the criminal history score for each successive conviction. State v. Hernandez, 311 N.W.2d 478, (Minn. 1981).